CURRENT AS OF: September 2, 2010
215.1. Motion for Sanctions or Order Compelling Discovery.
--A party, upon reasonable notice to other parties and all other persons
affected thereby, may apply for sanctions or an order compelling discovery as
follows:
(a) Appropriate court. --On
matters relating to a deposition, an application for an order to a party may be
made to the court in which the action is pending, or to any district court in
the 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. As to all other discovery matters, an
application for an order will be made to the court in which the action is
pending.
(b) Motion.
(1) If a party or other deponent which
is a corporation or other entity fails to make a designation under Rules
199.2(b)(1) or 200.1(b); or
(2) if a party, or other deponent, or
a person designated to testify on behalf of a party or other deponent fails:
(A) to appear before
the officer who is to take his deposition, after being served with a proper
notice; or
(B) to answer a
question propounded or submitted upon oral examination or upon written
questions; or
(3) if a party fails:
(A) to serve answers
or objections to interrogatories submitted under Rule 197, after proper service
of the interrogatories; or
(B) to answer an
interrogatory submitted under Rule 197; or
(C) to serve a
written response to a request for inspection submitted under Rule 196, after
proper service of the request; or
(D) to respond that
discovery will be permitted as requested or fails to permit discovery as requested
in response to a request for inspection submitted under Rule 196; the
discovering party may move for an order compelling a designation, an
appearance, an answer or answers, or inspection or production in accordance
with the request, or apply to the court in which the action is pending for the
imposition of any sanction authorized by Rule 215.2(b) without the necessity of
first having obtained a court order compelling such discovery.
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 pursuant to Rule 192.6.
(c) Evasive or incomplete answer. --For purposes of
this subdivision an evasive or incomplete answer is to be treated as a failure
to answer.
(d) Disposition of motion to compel: award of expenses.
--If the motion is granted, the court shall, after opportunity for hearing,
require a party or deponent whose conduct necessitated the motion or the party
or attorney advising such conduct or both of them to pay, at such time as
ordered by the court, the moving party the reasonable expenses incurred in
obtaining the order, including attorney fees, unless the court finds that the
opposition to the motion was substantially justified or that other
circumstances make an award of expenses unjust. Such an order shall be subject
to review on appeal from the final judgment.
If the motion is denied, the court may, after opportunity for
hearing, require the moving party or attorney advising such motion to pay to
the party or deponent who opposed the motion the reasonable expenses incurred
in opposing the motion, including attorney 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.
In determining the amount of reasonable expenses, including
attorney fees, to be awarded in connection with a motion, the trial court shall
award expenses which are reasonable in relation to the amount of work
reasonably expended in obtaining an order compelling compliance or in opposing
a motion which is denied.
(e) Providing person's own statement. --If a party
fails to comply with any person's written request for the person's own
statement as provided in Rule 192.3(h), the person who made the request may
move for an order compelling compliance. If the motion is granted, the movant may recover the expenses incurred in obtaining the
order, including attorney fees, which are reasonable in relation to the amount
of work reasonably expended in obtaining the order.
215.2. Failure
to Comply with Order or With Discovery Request. --(a) Sanctions
by court in district where deposition is taken. If a deponent fails to appear
or to be sworn or to answer a question after being directed to do so by a
district court in the district in which the deposition is being taken, the
failure may be considered a contempt of that court.
(b) 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 Rules 199.2(b)(1) or 200.1(b) to testify on behalf of a party
fails to comply with proper discovery requests or to obey an order to provide
or permit discovery, including an order made under Rules 204 or 215.1, the
court in which the action is pending may, after notice and hearing, make such
orders in regard to the failure as are just, and among others the following:
(1) an order disallowing any further
discovery of any kind or of a particular kind by the disobedient party;
(2) an order charging all or any
portion of the expenses of discovery or taxable court costs or both against the
disobedient party or the attorney advising him;
(3) 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;
(4) an order refusing to allow the
disobedient party to support or oppose designated claims or defenses, or
prohibiting him from introducing designated matters in evidence;
(5) an order striking out pleadings or
parts thereof, or staying further proceedings until the order is obeyed, or
dismissing with or without prejudice the action or proceedings or any part
thereof, or rendering a judgment by default against the disobedient party;
(6) 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;
(7) when a party has failed to comply
with an order under Rule 204 requiring him to appear or produce another for
examination, such orders as are listed in paragraphs (1), (2), (3), (4) or (5)
of this subdivision, unless the person failing to comply shows that he is
unable to appear or to produce such person for examination.
(8) 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 him, or both, to pay, at such time as
ordered by the court, the reasonable expenses, including attorney 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. Such an
order shall be subject to review on appeal from the final judgment.
(c) Sanction against nonparty for violation of Rules
196.7 or 205.3. --If a nonparty fails to comply with an order under Rules 196.7
or 205.3, the court which made the order may treat the failure to obey as
contempt of court.
215.3. Abuse
of Discovery Process in Seeking, Making, or Resisting Discovery. --If the
court finds a party is abusing the discovery process in seeking, making or
resisting discovery or if the court finds that any interrogatory or request for
inspection or production is unreasonably frivolous, oppressive, or harassing,
or that a response or answer is unreasonably frivolous or made for purposes of
delay, then the court in which the action is pending may, after notice and
hearing, impose any appropriate sanction authorized by paragraphs (1), (2),
(3), (4), (5), and (8) of Rule 215.2(b). Such order of sanction shall be
subject to review on appeal from the final judgment.
215.4. Failure
to Comply With Rule 198. --(a) Motion. A
party who has requested an admission under Rule 198 may move to determine the
sufficiency of the answer or objection. For purposes of this subdivision an
evasive or incomplete answer may be treated as a failure to answer. 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 Rule 198, it may order either that the matter is admitted or
that an amended answer be served. The provisions of Rule 215.1(d) apply to the
award of expenses incurred in relation to the motion.
(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 198 and if the party requesting the admissions thereafter proves the
genuineness of the document or the truth of the matter, he may apply to the
court for an order requiring the other party to pay him the reasonable expenses
incurred in making that proof, including reasonable attorney fees. The court
shall make the order unless it finds that (1) the request was held
objectionable pursuant to Rule 193, or (2) the admission sought was of no
substantial importance, or (3) the party failing to admit had a reasonable
ground to believe that he might prevail on the matter, or (4) there was other
good reason for the failure to admit.
215.5. Failure of Party or Witness
to Attend or to Serve Subpoena; Expenses.
(a) Failure of party giving notice to attend. If the
party giving the notice of the taking of an oral deposition fails to attend and
proceed therewith and another party attends in person or by attorney pursuant
to the notice, the court may order the party giving the notice to pay such
other party the reasonable expenses incurred by him and his attorney in
attending, including reasonable attorney fees.
(b) Failure of witness to attend. --If a party gives
notice of the taking of an oral deposition of a witness and the witness does
not attend because of the fault of the party giving the notice, if another
party attends in person or by attorney because he expects the deposition of
that witness to be taken, the court may order the party giving the notice to
pay such other party the reasonable expenses incurred by him and his attorney
in attending, including reasonable attorney fees.
215.6. Exhibits
to Motions and Responses. --Motions or responses made under this rule may
have exhibits attached including affidavits, discovery pleadings, or any other
documents.