Rule 26.3. Failure to Cooperate in Discovery; Sanctions

In General. On notice to every other party and to every affected person, a party may move for an order compelling disclosure or discovery. The motion shall include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make the disclosure or discovery, in an effort to obtain it without court action, stating the time in Coordinated Universal Time at which the conferral was made or attempted, the means by which it was made, and the response, if any.

Appropriate Court. A motion for an order directed to a party shall be made in the court where the action is pending. A motion for an order directed to a person who is not a party shall be made in the court where the discovery is or will be taken.

Specific Motions. A party seeking discovery may move for an order compelling an answer, a designation, a production, or an inspection where:

Related to a Deposition. When taking an oral deposition, the party asking a question may complete or adjourn the examination before moving for an order.

Evasive or Incomplete Response. For the purposes of this subdivision, an evasive or incomplete disclosure, answer, or response shall be treated as a failure to disclose, answer, or respond.

If the Motion Is Granted. If the motion is granted, or if the disclosure or requested discovery is provided after the motion was filed, the court shall, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both, to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees. The court shall not order this payment if:

If the Motion Is Denied. If the motion is denied, the court may issue any protective order authorized under Rule 19(7) and shall, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both, to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney’s fees. The court shall not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.

If the Motion Is Granted in Part and Denied in Part. The court may issue any protective order authorized under Rule 19(7) and may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.

Relation to Statutory Sanctions. An award under this subdivision is in addition to any award authorized by 7 R. Stat. §§ 132.301 or 132.302. A motion seeking sanctions under those sections shall be served but shall not be filed with or presented to the court unless, within forty-eight (48) hours after service of the motion, the challenged assertion or response is not withdrawn or appropriately corrected, as 7 R. Stat. § 132.303 requires, and is subject to the defences stated in 7 R. Stat. § 132.304.

Deponent Ordered to Be Sworn or to Answer. If the court orders a deponent to be sworn or to answer a question and the deponent fails to obey, the failure may be treated as contempt of court and proceeded upon under Rule 53.

For Not Obeying a Discovery Order. If a party, or a party’s officer, director, or managing agent, or a person designated under Rule 23(6) or Rule 24(2), fails to obey an order to provide or permit discovery, including an order under Rule 19(9), Rule 26.2, or Rule 26.3(1), the court where the action is pending may issue further just orders, which may include:

For Not Producing a Person for Examination. If a party fails to comply with an order under Rule 26.2(1) requiring it to produce another person for examination, the court may issue any of the orders listed in Rule 26.3(3)(b)(i) through (vi), unless the disobedient party shows that it cannot produce the other person.

Payment of Expenses. Instead of or in addition to the orders above, the court shall order the disobedient party, the attorney advising that party, or both, to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.

may order payment of the reasonable expenses, including attorney’s fees, caused by the failure;

may inform the jury of the party’s failure, in an action tried to a jury impanelled under Rule 27.1; and

may impose other appropriate sanctions, including any of the orders listed in Rule 26.3(3)(b)(i) through (vi).

the request was held objectionable under Rule 26.1(5);

the admission sought was of no substantial importance;

the party failing to admit had a reasonable ground to believe that it might prevail on the matter; or

there was other good reason for the failure to admit.

Grounds. The court where the action is pending may, on motion, order sanctions if:

Certification. A motion under this subdivision shall include a certification in the form required by Rule 26.3(1)(a).

Unacceptable Excuse. A failure described in Rule 26.3(6)(a) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 19(7).

Types of Sanctions. Sanctions may include any of the orders listed in Rule 26.3(3)(b)(i) through (vi). Instead of or in addition to these sanctions, the court shall require the party failing to act, the attorney advising that party, or both, to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.

In General. If electronically stored information that should have been preserved under Rule 26(7) is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

Conduct Bearing on Intent. In determining whether a party acted with the intent to deprive, the court may consider whether, after the duty to preserve attached, the party deleted messages; edited a message so as to alter its content; purged, archived, or deleted a channel or server; left, abandoned, or deleted an account in which relevant material resided; permitted an automatic deletion within its control to operate; or cropped, edited, or annotated a capture so as to omit material context and failed to preserve the original.

Relation to the Rules of Evidence. This subdivision governs sanctions for the loss of electronically stored information that should have been preserved for discovery. It does not limit the court’s discretion under Rid. R. Evid. 1101 to impose sanctions for the spoliation or destruction of other evidence, whether negligent or intentional, in the action in which the evidence would have been offered. Where both this subdivision and Rid. R. Evid. 1101 apply to the same conduct, the court shall not impose duplicative sanctions.

Notice and Opportunity to Be Heard. No sanction shall be imposed under this rule without notice to the person to be sanctioned and an opportunity to be heard, which may be afforded in the proceeding communications.

Contents of the Order. An order imposing a sanction under this rule shall state the conduct sanctioned, the provision of this rule or of statute relied upon, and, where expenses are awarded, the amount and the person by whom and to whom it is payable. An award of expenses under this rule is a money judgment enforceable under Rule 50.

Against an Attorney. A sanction may be imposed upon an attorney of record, upon a party, or upon both, as the court finds the responsibility for the conduct to lie. A sanction shall not be imposed upon an attorney who has acted in good faith upon the representations of the client as to the existence of material facts, as 7 R. Stat. § 132.304(b) provides.