Rule 37.Refusal to Make Discovery — Consequences

Rule 15-6-37 gives discovery rules teeth. When another party will not cooperate, the discovering party may move to compel an answer, a designation of a corporate witness, or an inspection, after certifying it has already tried in good faith to work out the problem without the court’s help. The motion goes to the court where the case is pending if it targets a party, or to the court in the circuit where discovery is happening if it targets a nonparty. An evasive or incomplete answer counts as no answer at all for these purposes. If the motion is granted, or the requested discovery shows up only after the motion is filed, the court must, after a hearing, order the resisting party or its attorney to pay the reasonable expenses the motion caused, including attorney’s fees, unless the movant skipped the good-faith conferral, the resistance was substantially justified, or an award would otherwise be unjust. The same fee-shifting runs the other way if the motion is denied, and the court can split expenses among everyone involved when a motion is granted in part and denied in part.

Ignoring a court order compelling discovery carries heavier consequences. A deponent who will not be sworn or will not answer, after a court in the circuit where the deposition is happening directs otherwise, can be held in contempt of that court. And when a party, or a party’s officer, director, managing agent, or designated representative, disobeys an order to provide or permit discovery, the court where the case is pending has a range of tools: it can deem the disputed facts established as the moving party claims, bar the disobedient party from supporting or opposing designated claims or defenses or from offering certain evidence, strike pleadings, stay the case, dismiss it, or enter a default judgment, or treat the disobedience as contempt, though not for refusing to submit to a physical or mental exam. A party who will not produce someone else for an exam faces the same range of orders unless it shows it could not produce that person. On top of any of these, the court must require payment of the reasonable expenses the failure caused, including attorney’s fees, unless the failure was substantially justified or an award would be unjust.

Two more failures draw their own consequences. A party that, without substantial justification, fails to disclose information Rule 15-6-26(e) requires or to update an earlier discovery response cannot use the undisclosed witness or information at a trial, hearing, or on a motion, unless the failure turns out to be harmless; the court can add other sanctions on top of that, including telling the jury about the nondisclosure. And if a party refuses to admit something under Rule 15-6-36 that the requesting party later proves true or genuine, the requesting party can recover the reasonable cost of that proof, including attorney’s fees, unless the request was objectionable, the admission sought did not matter much, the refusing party had reasonable grounds to think it would win the point, or some other good reason explains the refusal.

Rule 15-6-37 also covers a party, or its officer, director, managing agent, or designated representative, who fails to show up for a deposition after proper notice, fails to answer or object to interrogatories after proper service, or fails to respond to a request for inspection after proper service. For any of those, the court can impose the same range of orders available for disobeying a discovery order, plus mandatory expenses and fees unless the failure was substantially justified or an award would be unjust. A party cannot excuse that kind of failure by arguing the discovery was objectionable unless it sought a protective order under Rule 15-6-26(c).