Rule 37: Discovery Sanctions Put Teeth in the Tiger
| Publication year | 1987 |
| Pages | 1998 |
| Citation | Vol. 15 No. 9 Pg. 1998 |
1987, November, Pg. 1998. Rule 37: Discovery Sanctions Put Teeth in the Tiger
"In the past, Rule 37 may have been considered a paper tiger, but the time has now come to put teeth in the tiger."(fn1) This announcement by the U.S. Court of Appeals for the Tenth Circuit reflects a growing judicial inclination to impose sanctions for failing to comply with discovery rules. The Colorado cases construing Colorado Rules of Civil Procedure ("C.R.C.P.") Rule 37 amply demonstrate that the tiger now has teeth in state courts as well. In order to wield Rule 37 with efficacy, counsel should be cognizant of the grounds and procedures for discovery sanctions.
This article discusses the basic provisions and requirements of Rule 37, and reviews Colorado case law on the "willfulness" or "bad faith" requirement for discovery sanctions.
Proponents of discovery may follow two paths in enforcing discovery rights under Rule 37. The more common approach requires a motion requesting an order compelling discovery pursuant to Rule 37(a). Such motion must be made "upon reasonable notice to other parties and all persons affected thereby. . . ."(fn2) Although Rule 37 gives no indication of the timing and manner of such notice, presumably notice is reasonable if the requirements described in C.R.C.P. Rule 121, § 1-12(5), have been met. That Rule requires the moving party to confer or make reasonable efforts to confer with opposing counsel regarding the discovery prior to filing a motion under Rule 37(a), and to file a certificate of compliance verifying fulfillment of that obligation with the motion. Therefore, it is essential that counsel keep careful records of all contact with opposing counsel and lay a "paper trail" in anticipation of future litigation over discovery orders and sanctions.
Under Rule 37, an application for sanctions is appropriate when (1) a deponent fails to answer a question submitted under Rules 30 or 31; (2) a corporation or other entity fails to make a designation under Rules 30(b)(6) or 31 (a); (3) a party fails to answer an interrogatory submitted under Rule 33; or (4) a party fails to respond or comply with a request for inspection submitted under Rule 34.(fn3) An evasive or incomplete answer is treated as a failure to answer.(fn4) If a motion for an order to compel discovery is filed, the prevailing party is entitled to reasonable expenses and attorneys' fees, unless the motion or the opposition to the motion was substantially justified, or unless circumstances make such an award unjust.(fn5)
The teeth of Rule 37 are in subsection (b). The procedural steps for obtaining an order compelling discovery under this subsection are relatively simple. Ordinarily, such orders are obtained upon motion after a litigant has failed to obey a previous order under Rule 37(a). Rule 37(b)(2) provides that when a party fails to obey an order to provide or permit discovery, including an order compelling discovery under Rule 37(a), the court in which the action is pending may make "such orders in regard to the failure as are just. . . ."(fn6) In fashioning an appropriate penalty, the court may enter any of the orders described in Rule 37(b)(2)(A) through (D), ranging from an order designating certain facts or matters as established in favor of the discovery proponent(fn7) to dismissal or default judgment.(fn8)
The one exception to this...
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