§22.08 Sanctions for Failure to Make Discovery

• Jurisdiction: Washington

§ 22.08 SANCTIONS FOR FAILURE TO MAKE DISCOVERY

[1] Methods of Discovery Subject to Sanctions

CR 37(a)(2) provides for sanctions in cases in which there is a refusal or failure to answer a question propounded in depositions under CR 30 and CR 31, failure to answer an interrogatory under CR 33, or failure to respond to inspection under CR 34. Of significance is CR 37(a)(3), which provides: "Evasive or Incomplete Answer. For purposes of this section an evasive or incomplete answer is to be treated as a failure to answer."

CR 37(a) requires the party who seeks an order compelling discovery to show that counsel have met and conferred about the motion or objection, as set forth in CR 26(i). See § 22.3[12] for further discussion of CR 26(i).

Examples of incomplete answers in family law cases are set out below:

• Response to question as to whether the husband has had any savings or checking accounts in his name: "This information is only available to my wife."
• Response to question as to whether the spouse is paid by salary or commission and whether paid weekly, monthly, or on some other basis: "Pay based on amount of money available."
• Response to question asking for specific facts that support spouse's belief that he or she should be the primary parent of the minor children: "I am able to give loving, nurturing care for the children."
• Response to question seeking specific facts that support the respondent's belief that the questioning spouse should not be the primary parent of the children: "She is so self-involved that she is unable to give loving care to the children."

See Gammon v. Clark Equip. Co., 38 Wn. App. 274, 686 P.2d 1102 (1984), aff'd, 104 Wn.2d 613, 707 P.2d 685 (1985) (court upheld the grant of motion for new trial when defendant failed to fully answer interrogatories and the imposition of terms was not adequate because it permitted wrongdoer to profit from his noncompliance); Anderson v. Mohundro, 24 Wn. App. 569, 604 P.2d 181 (1979), review denied, 93 Wn.2d 1013 (1980); Assoc. Mortg. Inv. v. G.P. Kent Constr. Co., 15 Wn. App. 223, 548 P.2d 558, review denied, 87 Wn.2d 1006 (1976).

[2] Sanctions Available

CR 37 provides for a number of sanctions, including the following:

1. The award of attorney fees necessarily incurred to bring the motion to compel. Be aware that the court can impose attorney fees upon the moving party in the event that the motion is denied. CR 37(a)(4).
2. Contempt for failure to answer questions in a deposition after being directed to do so by the court. CR 37(b)(1).
3. Designation of facts as being established for the purposes of the action in accordance with the claim of the party obtaining the order. CR 37(b)(2)(A).
4. Dismissal of claims or defenses or prohibition from introducing them into evidence. CR 37(b)(2)(B).
5. An order striking out pleadings or a part thereof, staying the action, dismissing the action, or rendering judgment by default against the disobedient party. CR 37(b)(2)(C); see Pamelin Indus, Inc. v. Sheen-U.S.A., Inc., 95 Wn.2d 398, 622 P.2d 1270 (1981) (court upheld plaintiff's motion for order striking pleadings and entry of default judgment when defendant failed to comply with discovery request for production of documents and failed to

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