Interrogatories to Plaintiff for Motor Vehicle Occurrence
Note: This summary is not intended to be an all-inclusive
summary of discovery law in Idaho, but does include basic and other information.
Definitions
Discovery: A procedure designed to allow disclosure
of information between Plaintiffs and Defendants. Written questions,
oral questioning, document production and admissions requests are generally
allowed. Discovery was designed to to prevent trial by ambush.
Interrogatories: Written questions from Plaintiff to
Defendant, or from Defendant to Plaintiff. The questions are mailed
to the Plaintiff, Defendant or the attorney for response in writing.
The answers or responses are usually due between 20-30 days.
Deposition: A procedure where verbal questions are
asked a Plaintiff or Defendant for immediate response. Depositions
are usually recorded by a court reporter, who swears the person to tell
the truth before questioning begins.
Production of Documents: The method of obtaining documents
from the other party relevant to the case such as all documents a party
intends to introduce at trial.
Requests for Admissions: Written questions where you
request the other party to admit or deny some relevant fact.
Objections: Objections may be made to all discovery
questions if the questions are not relevant, or likely to lead to the discovery
of relevant evidence.
Civil Procedure Rules: Virtually all states have adopted
a version of civil procedure rules which include rules dealing with discovery.
Idaho Rules of Civil Procedure
Idaho has adopted the Idaho Rules of Civil Procedure which contain
rules governing discovery. The discovery rules also apply in divorce
actions.
Discovery Methods:Parties may obtain discovery by one or
more of the following methods: depositions upon oral examination or written
questions; written interrogatories; production of documents or things or
permission to enter upon land or other property, for inspection and other
purposes; physical and mental examinations; and requests for admission.
Unless the court orders otherwise under subdivision (c) of this rule, the
frequency of use of these methods is not limited. Rule 26(a)
Scope: Unless otherwise limited by order of the court in
accordance with these rules, the scope of discovery is as follows: (1)
Parties may obtain discovery regarding any matter, not privileged, which
is relevant to the subject matter involved in the pending action, whether
it relates to the claim or defense of the party seeking discovery or to
the claim or defense of any other party, including the existence, description,
nature, custody, condition and location of any books, documents, or other
tangible things and the identity and location of persons having knowledge
of any discoverable matter. It is not ground for objection that the information
sought will be inadmissible at the trial if the information sought appears
reasonably calculated to lead to the discovery of admissible evidence. Rule
26(b)(1)
Experts: Discovery of facts known and opinions held
by experts, otherwise discoverable under the provisions of subdivision
(b)(1) of this rule and acquired or developed in anticipation of litigation
or for trial, may be obtained only as follows:
(A) (i) A party may through
interrogatories require any other party to identify each person whom the
other party expects to call as an expert witness at trial, to state the
subject matter on which the expert is expected to testify, and to state
the substance of the opinions to which the expert is expected to testify
and to state the underlying facts and data upon which the expert opinions
are based, in conformity with Rule 705 I.R.E.
(ii) Upon motion, the court
may order further discovery by other means, subject to such restrictions
as to scope and such provisions, pursuant to subdivision (b)(4)(C) of this
rule, concerning fees and expenses as the court may deem appropriate.
(iii)
No party shall contact an expert witness of an opposing party without first
obtaining the permission of the opposing party or the court. Rule 26(b)(4)
Supplementation of Responses. A party who has responded to
a request for discovery with a response that was complete when made is
under no duty to supplement the response to include information thereafter
acquired, except as follows:
(1) A party is under a duty seasonably to
supplement the response with respect to any question directly addressed
to (A) the identity and location of persons having knowledge of discoverable
matters, and (B) the identity of each person expected to be called as an
expert witness at trial, the subject matter on which the person is expected
to testify, and the substance of the person's testimony.
(2) A party is
under a duty seasonably to amend a prior response if the party obtains
information upon the basis of which (A) the party knows that the response
was incorrect when made, or (B) the party knows that the response though
correct when made is no longer true and the circumstances are such that
a failure to amend the response is in substance a knowing concealment.
(3) A duty to supplement responses may be imposed by order of the court,
agreement of the parties, or at any time prior to trial through new requests
for supplementation of prior responses.
(4) If a party fails to seasonably
supplement the responses as required in this Rule 26(e), the trial court
may exclude the testimony of witnesses or the admission of evidence not
disclosed by a required supplementation of the responses of the party.
Rule 26(e)
Before who Depositions Taken: Within the United States. Within
the state of Idaho, depositions shall be taken before a person authorized
by the laws of this state to administer oaths; without the state, but within
the United States, or within a territory or insular possession subject
to the dominion of the United States, depositions shall be taken before
a person authorized to administer oaths by the laws of this state, by the
United States, or of the place where the examination is held; within or
without the state of Idaho, depositions may also be taken before a person
appointed by the court in which the action is pending, which persons so
appointed shall have the power to administer oaths and take testimony.
Rule 28(a)
Taking in foreign countries. In a foreign state or country depositions
shall be taken (1) before a secretary of embassy or legation, consul, vice
consul, or consular agent of the United States, or any officer authorized
to administer oaths under the laws of this state, or of the United States
or (2) before a person appointed by the court. The officer or person is
empowered to administer oaths and take testimony. A commission shall be
issued only when necessary or convenient, on application and notice, and
on such terms and with such directions as are just and appropriate. Officers
may be designated in notices or commissions either by name or descriptive
title. Rule 28(b)
Stipulations: Stipulations regarding discovery procedure.
Unless the court orders otherwise, the parties may by written stipulation
(1) provide that depositions may be taken before any person, at any time
or place, upon any notice, and in any manner and when so taken may be used
like other depositions, and (2) modify the procedures provided by these
rules for other methods of discovery. Rule 29
Depositions:
Depositions upon oral examination - When depositions may be taken.
After commencement of the action, any party may take the testimony of any
person, including a party, by deposition upon oral examination. Leave of
court, granted with or without notice, must be obtained only if the plaintiff
seeks to take a deposition prior to the expiration of 30 days after service
of summons and complaint upon any defendant or service made under Rule
4(e), except that leave is not required (1) if a defendant has served a
notice of taking deposition or otherwise sought discovery, or (2) if special
notice is given as provided in subdivision (b)(2) of this rule. The attendance
of witnesses may be compelled by subpoena as provided in Rule 45. The deposition
of a person confined in prison may be taken only by leave of a court on
such terms as the court prescribes. Rule 30(a)
Notice of examination. A party desiring to take the deposition of
any person upon oral examination shall give reasonable notice in writing
to every other party to the action. The notice shall state the time and
place for taking the deposition and the name and address of each person
to be examined, if known, and, if the name is not known, a general description
sufficient to identify the person or the particular class or group to which
the person belongs. If a subpoena duces tecum is to be served on the person
to be examined, the designation of the materials to be produced as set
forth in the subpoena shall be attached to or included in the notice.
Rule 30(b)(1)
General requirements. Leave of court is not required for the taking
of a deposition by plaintiff if the notice (A) states that the person to
be examined is about to go out of the district where the action is pending
and more than 100 miles from the place of trial, or is about to go out
from the United States, or is bound on a voyage to sea, and will be unavailable
for examination unless the person's deposition is taken before expiration
of the 30-day period, and (B) sets forth facts to support the statement.
The plaintiff's attorney shall sign the notice, and the attorney's signature
constitutes a certification that to the best of the attorney's knowledge,
information, and belief the statement and supporting facts are true. The
sanctions provided by Rule 11 are applicable to the certification. 30(b)(2)
Special notice. The court may for cause shown enlarge or shorten
the time for taking the deposition. 30(b)(3)
Audio-visual deposition.
(A) Recording. Any deposition may be recorded
by audio-visual means but simultaneously shall be recorded as a stenographic
record. Any party may make at the party's own expense a simultaneous stenographic
or audio record of the deposition. Upon a party's request and at the party's
own expense, any party is entitled to an audio or audio-visual copy of
the audio-visual recording.
(B) Official Record. The audio-visual recording
is an official record of the deposition. A transcript prepared by a reporter
is also an official record of the deposition.
(C) Transcript. On motion
the court, for good cause, may order the party taking, or who took, a deposition
by audio-visual recording to furnish, at the party's expense, a transcript
of the deposition.
(D) Use. An audio-visual deposition may be used for
any purpose and under any circumstances in which a stenographic deposition
may be used.
(E) Notice. The notice for taking an audio-visual deposition
and the subpoena for attendance at that deposition must state that the
deposition will be recorded by audio-visual means.
(F) Procedure. The following
procedure must be observed in recording an audio-visual deposition:
(1)
Opening of Deposition. The deposition must begin with an oral or written
statement on camera which includes: (i) the operator's name and business
address; (ii) the name and business address of the operator's employer;
(iii) the date, time, and place of the deposition; (iv) the caption of
the case; (v) the name of the witness; (vi) the party on whose behalf the
deposition is being taken; and (vii) any stipulations by the parties.
(2)
Counsel. Counsel shall identify themselves on camera.
(3) Oath. The oath
must be administered to the witness on camera.
(4) Multiple Units. If the
length of a deposition requires the use of more than one recording unit,
the end of each unit and the beginning of each succeeding unit must be
announced on camera.
(5) Closing of Deposition. At the conclusion of a
deposition, a statement must be made on camera that the deposition is concluded.
A statement may be made on camera setting forth any stipulations made by
counsel concerning the custody of the audio-visual recording and exhibits
or other pertinent matters.
(6) Index. Depositions must be indexed by a
time generator or other method specified by rule.
(7) Objections. An objection
must be made as in the case of stenographic depositions.
(8) Editing. If
the court issues an editing order, the original audio-visual recording
must not be altered.
(9) Filing. Unless otherwise ordered by court, the
original audio- visual recording of a deposition, any copy edited pursuant
to an order of the court, and exhibits shall be held and preserved by the
attorney who noticed the deposition, in the same manner as a transcript
of a deposition as provided by Rule 30(f)(1). Rule 30(b)(4)
Interrogatories
Interrogatories to parties - Availability - Procedures for use.
(1) Use of Interrogatories. Any party may serve upon any other party written
interrogatories to be answered by the party served or, if the party served
is a public or private corporation or a partnership or association or governmental
agency, by any officer or agent, who shall furnish such information as
is available to the party. Interrogatories may, without leave of court,
be served upon the plaintiff after commencement of the action and upon
any other party with or after service of the summons and complaint upon
that party.
(2) Answers to Interrogatories. Each interrogatory shall be
answered separately and fully in writing under oath, unless it is objected
to, in which event the reasons for objection shall be stated in lieu of
an answer. The answers are to be signed by the person making them, and
the objections may be signed by the attorney making them. The party upon
whom the interrogatories have been served shall serve the original of the
answers, and objections if any, within 15 days after the service of the
interrogatories, except that a defendant may serve answers or objections
within 30 days after service of the summons and complaint upon that defendant.
The court may allow a shorter or longer time. The answers shall first set
forth each interrogatory asked, followed by the answer or response of the
party. The party submitting the interrogatories may move for an order under
Rule 37(a) with respect to any objection to or other failure to answer
any interrogatory.
(3) Number of Interrogatories. No party shall serve
upon any other single party to an action more than forty (40) interrogatories,
in which sub-parts of interrogatories shall count as separate interrogatories,
without first obtaining a stipulation of such party to additional interrogatories
or obtaining an order of the court upon a showing of good cause granting
leave to serve a specific number of additional interrogatories.
(4) Not
Filed with Court. The interrogatories and the response thereto shall not
be filed with the court. The propounding party shall retain both the original
of the interrogatories and the original of the answers with the original
proof of service affixed thereto, and the original of the sworn response
until one (1) year after final disposition of the action. At that time,
both originals may be destroyed, unless the court on motion of any party
and for good cause shown orders that the originals be preserved for a longer
period.
(5) Notice of Serving. The party serving either an interrogatory
or a response thereto, shall file with the court a notice of when the interrogatory
or response was served and upon whom.
Rule 33(a)
Scope - Use of interrogatories at trial or on motions.
(1) Interrogatories
may relate to any matters which can be inquired into under Rule 26(b),
and the answers may be used to the extent permitted by the Idaho Rules
of Evidence. An interrogatory otherwise proper is not necessarily objectionable
merely because an answer to the interrogatory involves an opinion or contention
that relates to fact or the application of law to fact, but the court may
order that such an interrogatory need not be answered until after designated
discovery has been completed or until a pre-trial conference or other later
time.
(2) If interrogatories and responses thereto are to be used at trial
or are to be used either in support of, or in opposition to, a pretrial
or post-trial motion, only those portions to be used shall be submitted
to the court at the outset of the trial or at the filing of the motion
or response thereto insofar as their use can be reasonably anticipated
by the party seeking to introduce such evidence. For purposes of this rule,
and unless a genuine issue of authenticity is raised a moving party need
not produce portions of the original interrogatories and responses thereto,
but may rely on the submission of copies of the relevant original interrogatories
and responses.
(3) Interrogatories and responses thereto which have been
submitted to the court pursuant to this Rule shall be returned to appropriate
counsel after final disposition of the case. Rule 33(b)
Option to produce records. Where the answer to an interrogatory
may be derived or ascertained from the business or other records of the
party upon whom the interrogatory has been served or from an examination,
audit or inspection of such business or other records, or from a compilation,
abstract or summary based thereon, and the burden of deriving or ascertaining
the answer is substantially the same for the party serving the interrogatory
as for the party served, it is a sufficient answer to such interrogatory
to specify the records from which the answer may be derived or ascertained
and to afford to the party serving the interrogatory reasonable opportunity
to examine, audit or inspect such records and to make copies, compilations,
abstracts or summaries. Rule 33(c)
Production
Production of documents and things and entry upon land for inspection
and other purposes - Scope. Any party may serve on any other party a request
(1) to produce and permit the party making the request, or someone acting
on the party's behalf, to inspect and copy, any designated documents (including
writings, drawings, graphs, charts, photographs, phono- records, and other
data compilations from which information can be obtained, translated, if
necessary, by the respondent through detection devices into reasonably
usable form), or to inspect and copy, test, or sample any tangible things
which constitute or contain matters within the scope of Rule 26(b) and
which are in the possession, custody or control of the party upon whom
the request is served; or (2) to permit entry upon designated land or other
property in the possession or control of the party upon whom the request
is served for the purpose of inspection and measuring, surveying, photographing,
testing, or sampling the property or any designated object or operation
thereon, within the scope of Rule 26(b). Rule 34(a)
Procedure.
(1) The request may, without leave of court, be served
upon the plaintiff after commencement of the action and upon any other
party with or after service of the summons and complaint upon that party.
The request shall set forth the items to be inspected either by individual
item or by category, and describe each item and category with reasonable
particularity. The request shall specify a reasonable time, place, and
manner of making the inspection and performing the related acts.
(2) The
party upon whom the request is served shall serve a written response within
15 days after the service of the request, except that a defendant may serve
a response within 30 days after service of the summons and complaint upon
that defendant. The court may allow a shorter or longer time. The response
shall state, with respect to each item or category, that inspection and
related activities will be permitted as requested, unless the request is
objected to, in which event any reasons for objection shall be stated.
If objection is made to part of an item or category, the part shall be
specified. The party submitting the request may move for an order under
Rule 37(a) with respect to any objection to or other failure to respond
to the request or any part thereof, or any failure to permit inspection
as requested.
(3) The request for production, the response thereto, and
all or any documents produced pursuant to this Rule shall not be filed
with the court. The party demanding an inspection or production shall retain
both the original of the inspection or production demand, with the original
proof of service affixed to it, and the original response, until one (1)
year after final disposition of the action. At that time, both originals
may be destroyed, unless the court, on motion of any party and for good
cause shown, orders that the originals be preserved for a longer period.
Rule 34(b)
Physical and Mental Examination of Persons.
Physical and mental examination of persons - Order for examination.
When the mental or physical condition (including the blood group) of a
party, or of a person in the custody or under the legal control of a party,
is in controversy, the court in which the action is pending may order the
party to submit to a physical or mental examination by a physician, or
a qualified mental health professional as defined in section 6-1901, Idaho
Code, excluding nurses, if the mental, emotional, or psychological condition
of a party is at issue, or to produce for examination the person in the
party's custody or legal control. The order may be made only on motion
for good cause shown and upon notice to the person to be examined and to
all parties and shall specify the time, place, manner, conditions, and
scope of the examination and the person or persons by whom it is to be
made.
Rule 35(a)
Report of examining physician.
(1) If requested by the party against
whom an order is made under Rule 35(a) or the person examined, the party
causing the examination to be made shall deliver to the requesting party
a copy of a detailed written report of the examining physician setting
out the examiner's findings, including results of all tests made, diagnoses
and conclusions, together with like reports of all earlier examinations
of the same condition. After delivery the party causing the examination
shall be entitled upon request to receive from the party against whom the
order is made a like report of any examination, previously or thereafter
made, of the same condition, unless, in the case of a report of examination
of a person not a party, the party shows that the party is unable to obtain
it. The court on motion may make an order against a party requiring delivery
of a report on such terms as are just, and if a physician fails or refuses
to make a report the court may exclude the examiner's testimony if offered
at the trial.
(2) By requesting and obtaining a report of the examination
so ordered or by taking the deposition of the examiner, the party examined
waives any privilege the party may have in that action or any other involving
the same controversy, regarding the testimony of every other person who
has examined or may thereafter examine the party in respect of the same
mental or physical condition.
(3) This subdivision applies to examinations
made by agreement of the parties, unless the agreement expressly provides
otherwise. This subdivision does not preclude discovery of a report of
an examining physician or the taking of a deposition of the physician in
accordance with the provisions of any other rule. Rule 35(b)
Requests for Admissions
Requests for admission. A party may serve upon any other party a
written request for the admission, for purposes of the pending action only,
of the truth of any matters within the scope of Rule 26(b) set forth in
the request that relate to statements or opinions of fact or of the application
of law to fact, including the genuineness of any documents described in
the request. Copies of documents shall be served with the request unless
they have been or are otherwise furnished or made available for inspection
and copying. The request may, without leave of court, be served upon the
plaintiff after commencement of the action and upon any other party with
or after service of the summons and complaint upon that party. Each matter
of which an admission is requested shall be separately set forth. The matter
is admitted unless, within 15 days after service of the request, or within
such shorter or longer time as the court may allow, the party to whom the
request is directed serves upon the party requesting the admission a written
answer or objection addressed to the matter, signed under oath by the party
or by the party's attorney, but, unless the court shortens the time, a
defendant shall not be required to serve answers or objections before the
expiration of 30 days after service of the summons and complaint upon him.
If objection is made, the reasons therefor shall be stated. The answer
shall specifically deny the matter or set forth in detail the reasons why
the answering party cannot truthfully admit or deny the matter. A denial
shall fairly meet the substance of the requested admission, and when good
faith requires that a party qualify the answer or deny only a part of the
matter of which an admission is requested, the party shall specify so much
of it as is true and qualify or deny the remainder. An answering party
may not give lack of information or knowledge as a reason for failure to
admit or deny unless the party states that the party has made reasonable
inquiry and that the information known or readily obtainable by the party
is insufficient to enable the party to admit or deny. A party who considers
that a matter of which an admission has been requested represents a genuine
issue for trial may not, on that ground alone, object to the request; the
party may, subject to the provisions of Rule 37(c), deny the matter or
set forth reasons why the party cannot admit or deny it. The answers shall
first set forth each request for admission made, followed by the answer
or response of the party. The party who has requested the admissions may
move to determine the sufficiency of the answers or objections. Unless
the court determines that an objection is justified, it shall order that
an answer be served. If the court determines that an answer does not comply
with the requirements of this rule, it may order either that the matter
is admitted or that an amended answer be served. The court may, in lieu
of these orders, determine that final disposition of the request be made
at a pre-trial conference or at a designated time prior to trial. The provisions
of Rule 37(a) (4) apply to the award of expenses incurred in relation to
the motion. The genuineness, accuracy or truth of any document attached
to a pleading shall not be deemed as admitted by the other party by reason
of failure to make a verified denial thereof by a responsive pleading or
affidavit. Rule 36(a)
Effect of admission. Any matter admitted under this rule is conclusively
established unless the court on motion permits withdrawal or amendment
of the admission. Subject to the provisions of Rule 16 governing amendment
of a pre-trial order, the court may permit withdrawal or amendment when
the presentation of the merits of the action will be subserved thereby
and the party who obtained the admission fails to satisfy the court that
withdrawal or amendment will prejudice that party in maintaining an action
or defense on the merits. Any admission made by a party under this rule
is for the purpose of the pending action only and is not an admission by
the party for any other purpose nor may it be used against him in any other
proceeding. Rule 36(b)
Non-filing of requests for admission and responses thereto.
(1)
The requests for admission and the response shall not be filed with the
court. The party requesting admission shall retain both the original of
the requests for admission, with the original proof of service affixed,
and the original of the sworn response until one (1) year after final disposition
of the action. At that time, both originals may be destroyed, unless the
court, on motion of any party and for good cause shown, orders that the
originals be preserved for a longer period.
(2) The party serving either
a request for admission or a response thereto, shall file with the court
a notice of when the request or response was served and upon whom. 36(c)
Use of admissions. In addition to the provisions of Rule 36(b),
if admissions are to be used at trial or are to be used either in support
of, or in opposition to, a pretrial or post-trial motion, only those portions
to be used shall be submitted to the court at the outset of the trial or
at the filing of the motion or response thereto insofar as their use can
be reasonably anticipated by the party seeking to introduce such admissions.
For purposes of this Rule, unless a genuine issue of authenticity is raised,
a moving party need not produce portions of the original admission, but
may rely on the submission of relevant excerpts from copies of the original
request for admission and response thereto. Requests for admission and
responses thereto, which have been submitted to the court pursuant to this
rule shall be returned to appropriate counsel after final disposition of
the case.
Rule 36(d)
Motion for 0rder Compelling Discovery
Sanctions for violation of orders - Motion for order compelling
discovery. A party, upon reasonable notice to other parties and all persons
affected thereby, may apply for an order compelling discovery as follows:
(1) Appropriate court. An application for an order to a party may be made
to the court in which the action is pending, or, on matters relating to
a deposition, taken in connection with litigation pending outside the state,
to the district court in the judicial district where the deposition is
being taken. An application for an order to a deponent who is not a party
shall be made to the court in the district where the deposition is being
taken.
(2) Motion. If a deponent fails to answer a question propounded
or submitted under Rules 30 or 31, or a corporation or other entity fails
to make a designation under Rule 30(b)(6) or 31(a), or a party fails to
answer an interrogatory submitted under Rule 33, or if a party, in response
to a request for inspection submitted under Rule 34, fails to respond that
inspection will be permitted as requested or fails to permit inspection
as requested, the discovering party may move for an order compelling an
answer, or a designation, or an order compelling inspection in accordance
with the request. When taking a deposition on oral examination, the proponent
of the question may complete or adjourn the examination before he applies
for an order. If the court denies the motion in whole or in part, it may
make such protective order as it would have been empowered to make on a
motion made pursuant to Rule 26(c).
(3) Evasive or incomplete answer. For
purposes of this subdivision an evasive or incomplete answer is to be treated
as a failure to answer.
(4) Award of expenses of motion. If the motion
is granted, the court shall, after opportunity for hearing, require the
party or deponent whose conduct necessitated the motion or the party or
attorney advising such conduct or both of them to pay to the moving party
the reasonable expenses incurred in obtaining the order, including attorney's
fees, unless the court finds that the opposition to the motion was substantially
justified or that other circumstances make an award of expenses unjust.
If the motion is denied, the court shall, after opportunity for hearing,
require the moving party or the attorney advising the motion or both of
them to pay to the party or deponent who opposed the motion the reasonable
expenses incurred in opposing the motion, including attorney's fees, unless
the court finds that the making of the motion was substantially justified
or that other circumstances make an award of expenses unjust. If the motion
is granted in part and denied in part, the court may apportion the reasonable
expenses incurred in relation to the motion among the parties and persons
in a just manner. Rule 37(a)
Failure to comply with discovery order - Sanctions.
(1) Sanctions
by court in district where deposition is taken. If a deponent fails to
be sworn or affirmed or to answer a question after being directed to do
so by the court in the district in which the deposition is being taken,
the failure may be considered a contempt of that court.
(2) Sanctions by
court in which action is pending. If a party or an officer, director, or
managing agent of a party or a person designated under Rule 30(b)(6) or
31(a) to testify on behalf of a party fails to obey an order to provide
or permit discovery, including an order made under subdivision (a) of this
rule or Rule 35, the court in which the action is pending may make such
orders in regard to the failure as are just, and among others the following:
(A) An order that the matters regarding which the order was made or any
other designated facts shall be taken to be established for the purposes
of the action in accordance with the claim of the party obtaining the order;
(B) An order refusing to allow the disobedient party to support or oppose
designated claims or defenses, or prohibiting that party from introducing
designated matters in evidence; (C) An order striking out pleadings or
parts thereof, or staying further proceedings until the order is obeyed,
or dismissing the action or proceeding or any part thereof, or rendering
a judgment by default against the disobedient party; (D) In lieu of any
of the foregoing orders or in addition thereto, an order treating as a
contempt of court the failure to obey any orders except an order to submit
to a physical or mental examination; (E) Where a party has failed to comply
with an order under Rule 35(a) requiring the party to produce another for
examination, such orders as are listed in paragraphs (A), (B), and (C)
of this subdivision, unless the party failing to comply shows that the
party is unable to produce such person for examination. In lieu of any
of the foregoing orders or in addition thereto, the court shall require
the party failing to obey the order or the attorney advising the party
or both to pay the reasonable expenses, including attorney's fees, caused
by the failure, unless the court finds that the failure was substantially
justified or that other circumstances make an award of expenses unjust.
Rule 37(b)
Expenses on failure to admit. If a party fails to admit the genuineness
of any document or the truth of any matter as requested under Rule 36,
and if the party requesting the admissions thereafter proves the genuineness
of the document or the truth of the matter, the requesting party may apply
to the court for an order requiring the other party to pay the reasonable
expenses incurred in making that proof, including reasonable attorney's
fees. The court shall make the order unless it finds that (1) the request
was held objectionable pursuant to Rule 36(a), or (2) the admission sought
was of no substantial importance, or (3) the party failing to admit had
reasonable ground to believe that the party might prevail on the matter,
or (4) there was other good reason for the failure to admit. Rule 37(c)
Failure of party to attend at own deposition or serve answers to
interrogatories or respond to request for inspection. If a party or an
officer, director, or managing agent of a party or a person designated
under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails (1)
to appear before the officer who is to take deposition, after being served
with a proper notice, or (2) to serve answers or objections to interrogatories
submitted under Rule 33, after proper service of the interrogatories, or
(3) to serve a written response to a request for inspection submitted under
Rule 34, after proper service of the request, the court in which the action
is pending on motion may make such orders in regard to the failure as are
just, and among others it may take any action authorized under paragraphs
(A), (B), and (C) of subdivision (b) (2) of this rule. In lieu of any order
or in addition thereto, the court shall require the party failing to act
or the attorney advising that party or both to pay the reasonable expenses,
including attorney's fees, caused by the failure, unless the court finds
that the failure was substantially justified or that other circumstances
make an award of expenses unjust. The failure to act described in this
subdivision may not be excused on the ground that the discovery sought
is objectionable unless the party failing to act has applied for a protective
order as provided by Rule 26(c). Rule 37(d)
General sanctions - Failure to comply with any order. In addition
to the sanctions above under this rule for violation of discovery procedures,
any court may in its discretion impose sanctions or conditions, or assess
attorney's fees, costs or expenses against a party or the party's attorney
for failure to obey an order of the court made pursuant to these rules.
Rule 37(e)
Domestic Actions Discovery Notes
If you require extra time to respond to discovery, you should ask
the other side for an extension in writing. It may also be necessary
to enter an order granting the extension to protect your rights.
Discovery questions are limited in number so select the most important
questions to ask the other side. Don't waste your requests writing
questions that you already know the answer to.
