§37.6 Analysis

• Jurisdiction: Washington

§37.6 ANALYSIS

This section discusses the procedures available when a deponent or party fails to make requested discovery and the various sanctions available. This section also describes the circumstances in which an award of reasonable expenses, including attorney fees, is available to the successful party.

(1) Motion for order compelling discovery

CR 37(a) sets forth the procedure for bringing a motion for an order compelling discovery. The rule is applicable if (1) a deponent fails to answer a deposition question propounded or submitted under CR 30 or 31; (2) a corporation or other entity fails to make a designation under CR 30(b)(6) or CR 31(a); (3) a party fails to answer an interrogatory under CR 33; or (4) a party fails to respond that inspection will be permitted as requested, or fails to permit inspection as requested, under CR 34. For purposes of seeking an order compelling discovery, an evasive or incomplete answer is to be treated as a failure to answer. CR 37(a)(3). Although correctly citing the appropriate provision of CR 37 in any motion to compel is preferred, an error in this regard need not be fatal to a discovery motion. It is sufficient to state the relief sought and the grounds for relief, and when the facts fit the criteria justifying particular relief under CR 37, the party is entitled to that relief. Pamelin Indus., Inc. v. Sheen-U. S. A., Inc., 95 Wn.2d 398, 402, 622 P.2d 1270 (1981).

(a)Proper court

An application for an order to a party compelling discovery should be brought in the court in which the action is pending. CR 37(a)(1). However, matters relating to the deposition of a party may also be brought in the county where the deposition is being taken. Id.; see also Easterday v. S. Columbia Basin Irrig. Dist., 49 Wn.App. 746, 750, 745 P.2d 1322 (1987). When the deponent is not a party, the motion must be made in the county where the deposition is being taken. CR 37(a)(1).

(b)Compliance with CR 26(i)

A party seeking an order to compel discovery under CR 37(a) must first comply with CR 26(i). By a strict reading of CR 26(i), counsel for a party seeking to compel discovery is required to certify that counsel for the parties have conferred, either in person or by telephone, with respect to the motion. Washington courts have held that the CR 26(i) conference requirement is "mandatory" and that literal compliance is required before a trial court has authority to hear a motion brought under CR 37. Case v. Dundom, 115 Wn.App. 199, 58 P.3d 919 (2002) (Div. II); Rudolph v. Empirical Research Sys., Inc., 107 Wn.App. 861, 28 P.3d 813 (2001) (Div. II). But see Amy v. Kmart of Wash. LLC, 153 Wn.App. 846, 223P.3d1247 (2009) (Div. I) (holding that despite the appearance of "mandatory" language in CR 26(i), a trial court has authority to determine whether it will hear a CR 37 motion for sanctions notwithstanding deficient compliance with CR 26(i) certification). Furthermore, some federal courts adopt a more liberal interpretation of similar "mandatory" language in FED. R. CIV P. 37, amended by 2006 U.S. Order 20 (amending FED. R. CIV P. 37(f)), and allow judges the discretion to waive conference and certification requirements when the circumstances warrant. See, e.g., Reidy v. Runyon, 169 F.R.D. 486 (E.D.N.Y. 1997); Imperial Chems. Indus., PLC v. BarrLabs., Inc., 126 F.R.D. 467 (S.D.N.Y. 1989).

In spite of the split in authority by Washington courts, "[t]he primary purposes of CR 26(i) are to minimize the use of judicial resources during discovery and to encourage professional courtesy between counsel." Amy, 153 Wn.App. at 853. Thus, prudent counsel should strictly comply with the certification requirements in CR 26(i) before seeking an order compelling discovery under CR 37.

(c) Award of expenses and fees to prevailing party

The rule provides for an award of reasonable expenses, including attorney fees, to the successful party in obtaining the order or opposing the motion, unless the court finds that the losing party was substantially justified in its position or that other circumstances make an award of expenses unjust. CR 37(a)(4).

Caveat: An award of the expenses incurred in bringing a motion for an order to compel discovery is distinct from the imposition of expenses as a sanction for the violation of a discovery order. Compare CR 37(a)(4) with CR 37(b)(2).

Expenses may be awarded only after opportunity for a hearing. Because the rule provides that the court "shall ... require" payment of expenses, the burden is on the losing party to show substantial justification for its position or extenuating circumstances making an award of expenses unjust.

Expenses may be imposed against parties, deponents, or attorneys. Id. If the motion is granted, the party or deponent whose conduct necessitated the motion, or the party or attorney advising such conduct, or both of them, may be required to pay. Id. If the motion is denied, the moving party, or the attorney advising the motion, or both of them, may be required to pay. Id. If the motion is granted in part and denied in part, the court may apportion expenses among the parties and persons "in a just manner." Id.

(2) Sanctions

CR 37 permits sanctions for different categories of discovery violations. Sanctions for failures to comply with discovery orders are addressed in CR 37(b). Sanctions for failing to make admissions to requests made under CR 36 are addressed in CR 37(c). Sanctions for failure to attend a deposition, answer interrogatories, or respond to requests for production are addressed in CR 37(d). And sanctions for failing to participate in good faith in framing a discovery plan under CR 26(f) are addressed in CR 37(e). Each of these subsections also provides for the award of expenses, including reasonable attorney fees. Trial courts have wide discretion in imposing discovery sanctions. Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036 (1997).

Caveat: The sanctions provided for in CR 26(g), rather than the provisions of CR 37, will apply when the discovery violation involves a responding party's improper response or objection to a written discovery request. Wash. State Physicians Ins. Exch. &Ass'n v. Fisons Corp., 122 Wn.2d 299, 858 P.2d 1054 (1993). In Fisons, the Washington Supreme Court held that, because CR 26(g) was adopted to address conduct relating to written discovery requests and responses or objections thereto, it, rather than CR 11, CR 37, or the inherent power of the court, is the applicable rule under which to proceed when seeking sanctions for abuse of discovery. Id. at 339-40; see also Doe v. Gonzaga Univ., 143 Wn.2d 687, 714-15, 24 P.3d 390 (2001), rev'd on other grounds, 526 U.S. 273, 122 S. Ct. 2268, 153 L. Ed. 2d 309 (2002).

PracticeTip: In light of Fisons and its progeny, it appears that a request for discovery sanctions based on the failure to comply with CR 26(g) can be addressed to the court without the necessity of showing that the party violated an order compelling discovery under CR 37. Instead, the court must consider all surrounding circumstances and determine whether the attorney complied with CR 26. Carlson v. Lake Chelan Cmty. Hosp., 116 Wn.App. 718, 75 P.3d 533, review granted, 150 Wn.2d 1017 (2004); Fisons, 122 Wn.2d at 343; CR 26(g).

(a) Sanctions—purposes; least severe sanction to accomplish purposes

"The purposes of sanctions orders are to deter, to punish, to compensate and to educate." Fisons, 122 Wn.2d at 356. In addition, the sanction should insure that the wrongdoer does not profit from the wrong. Id.; see also Mitchell v. Watson, 58 Wn.2d 206,211, 361 P.2d 744 (1961) (sanctions "balance the scales of justice against any weight or advantage to the disobedient party").

"In punishing a discovery violation, 'the court should impose the least severe sanction that will be adequate to serve the purpose of the particular sanction, but not be so minimal that it undermines the purpose of discovery.'" Blair v. Ta-Seattle E. No. 176, 111 Wn.2d 342, 348,254 P.3d 797 (2011) (quoting Bewere*, 131 Wn.2d at 495-96); see also Roberson v. Perez, 123 Wn.App. 320, 337, 96 P.3d 420 (2004), review denied, 155 Wn.2d 1002 (2005) (court should impose the least severe sanction that will adequately deter, punish, compensate, educate, and ensure that the wrongdoer does not profit from the wrong).

(b) Sanctions—factors must be weighed on the record when "harsher remedies" are imposed

In general, a trial court's reasons for imposing a particular sanction should "be clearly stated on the record so that meaningful review can be had on appeal." Burnet, 131 Wn.2d at 494. However, when the trial court imposes one of the "harsher remedies" under CR 37(b), the court must weigh the factors announced in Burnet...