State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_1A > GS_1A-1__Rule_37

Rule 37. Failure to makediscovery; sanctions.

(a)        Motion for ordercompelling discovery. – A party, upon reasonable notice to other parties andall persons affected thereby, may apply for an order compelling discovery asfollows:

(1)        Appropriate Court. –An application for an order to a party or a deponent who is not a party may bemade to a judge of the court in which the action is pending, or, on mattersrelating to a deposition where the deposition is being taken in this State, toa judge of the court in the county where the deposition is being taken, asdefined by Rule 30(h).

(2)        Motion. – If adeponent fails to answer a question propounded or submitted under Rules 30 or31, or a corporation or other entity fails to make a designation under Rule30(b)(6) or 31(a), or a party fails to answer an interrogatory submitted underRule 33, or if a party, in response to a request for inspection submitted underRule 34, fails to respond that inspection will be permitted as requested orfails to permit inspection as requested, the discovering party may move for anorder compelling an answer, or a designation, or an order compelling inspectionin accordance with the request. The motion must include a certification thatthe movant has in good faith conferred or attempted to confer with the personor party failing to make the discovery in an effort to secure the informationor material without court action. When taking a deposition on oral examination,the proponent of the question shall complete the examination on all othermatters before he adjourns the examination in order to apply for an order.

Ifthe court denies the motion in whole or in part, it may make such protectiveorder as it would have been empowered to make on a motion made pursuant to Rule26(c).

(3)        Evasive orIncomplete Answer. – For purposes of this subdivision an evasive or incompleteanswer is to be treated as a failure to answer.

(4)        Award of Expenses ofMotion. – If the motion is granted, the court shall, after opportunity forhearing, require the party or deponent whose conduct necessitated the motion orthe party advising such conduct or both of them to pay to the moving party thereasonable expenses incurred in obtaining the order, including attorney's fees,unless the court finds that the opposition to the motion was substantiallyjustified or that other circumstances make an award of expenses unjust.

Ifthe motion is denied, the court shall, after opportunity for hearing, requirethe moving party to pay to the party or deponent who opposed the motion thereasonable expenses incurred in opposing the motion, including attorney's fees,unless the court finds that the making of the motion was substantiallyjustified or that other circumstances make an award of expenses unjust.

Ifthe motion is granted in part and denied in part, the court may apportion thereasonable expenses incurred in relation to the motion among the parties andpersons in a just manner.

(b)        Failure to complywith order. –

(1)        Sanctions by Courtin County Where Deposition Is Taken. – If a deponent fails to be sworn or toanswer a question after being directed to do so by a judge of the court in thecounty in which the deposition is being taken, the failure may be considered acontempt of that court.

(2)        Sanctions by Courtin Which Action Is Pending. – If a party or an officer, director, or managingagent of a party or a person designated under Rule 30(b)(6) or 31(a) to testifyon behalf of a party fails to obey an order to provide or permit discovery,including an order made under section (a) of this rule or Rule 35, or if aparty fails to obey an order entered under Rule 26(f) a judge of the court inwhich the action is pending may make such orders in regard to the failure asare just, and among others the following:

a.         An order that thematters regarding which the order was made or any other designated facts shallbe taken to be established for the purposes of the action in accordance withthe claim of the party obtaining the order;

b.         An order refusing toallow the disobedient party to support or oppose designated claims or defenses,or prohibiting him from introducing designated matters in evidence;

c.         An order strikingout pleadings or parts thereof, or staying further proceedings until the orderis obeyed, or dismissing the action or proceeding or any part thereof, orrendering a judgment by default against the disobedient party;

d.         In lieu of any ofthe foregoing orders or in addition thereto, an order treating as a contempt ofcourt the failure to obey any orders except an order to submit to a physical ormental examination;

e.         Where a party hasfailed to comply with an order under Rule 35(a) requiring him to produceanother for examination, such orders as are listed in subdivisions a, b, and cof this subsection, unless the party failing to comply shows that he is unableto produce such person for examination.

Inlieu of any of the foregoing orders or in addition thereto, the court shallrequire the party failing to obey the order to pay the reasonable expenses,including attorney's fees, caused by the failure, unless the court finds thatthe failure was substantially justified or that other circumstances make anaward of expenses unjust.

(c)        Expenses on failureto admit. – If a party fails to admit the genuineness of any document or thetruth of any matter as requested under Rule 36, and if the party requesting theadmissions thereafter proves the genuineness of the document or the truth ofthe matter, he may apply to the court for an order requiring the other party topay him the reasonable expenses incurred in making that proof, includingreasonable attorney's fees. The court shall make the order unless it finds that(i) the request was held objectionable pursuant to Rule 36(a), or (ii) theadmission sought was of no substantial importance, or (iii) the party failingto admit had reasonable ground to believe that he might prevail on the matter,or (iv) there was other good reason for the failure to admit.

(d)        Failure of party toattend at own deposition or serve answers to interrogatories or respond torequest for inspection. – If a party or an officer, director, or managing agentof a party or a person designated under Rule 30(b)(6) or 31(a) to testify onbehalf of a party fails (i) to appear before the person who is to take his deposition,after being served with a proper notice, or (ii) to serve answers or objectionsto interrogatories submitted under Rule 33, after proper service of theinterrogatories, or (iii) to serve a written response to a request forinspection submitted under Rule 34, after proper service of the request, thecourt in which the action is pending on motion may make such orders in regardto the failure as are just, and among others it may take any action authorizedunder subdivisions a, b, and c of subsection (b)(2) of this rule. In lieu ofany order or in addition thereto, the court shall require the party failing toact to pay the reasonable expenses, including attorney's fees, caused by thefailure, unless the court finds that the failure was substantially justified orthat other circumstances make an award of expenses unjust.

The failure to act describedin this section may not be excused on the ground that the discovery sought isobjectionable unless the party failing to act has applied for a protective orderas provided by Rule 26(c).

(e),       (f) Reserved forfuture codification purposes.

(g)        Failure toparticipate in the framing of a discovery plan. – If a party or his attorneyfails to participate in good faith in the framing of a discovery plan byagreement as is required by Rule 26(f), the court may, after opportunity forhearing, require such party or his attorney to pay to any other party thereasonable expenses, including attorney's fees, caused by the failure. (1967, c. 954, s. 1; 1973, c.827, s. 1; 1975, c. 762, s. 2; 1985, c. 603, ss. 5‑7; 2001‑379, s.5.)