SCRCP 37

(a) Motion for Order Compelling Discovery. A party, upon reasonable notice to other parties and all

persons affected thereby, may apply for an order compelling discovery as follows:

(1) Appropriate Court. An application for an order to a party may be made to the

court in which the action is pending, or, on matters relating to a deposition in

progress, to the court 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 place where the

deposition is being taken.

(2) Motion. If a deponent fails to answer a question propounded or submitted under

Rule 30 or 31, or a corporation or other entity fails to make a designation under Rule

30(b)(6) or 31(a), or a party fails to answer an interrogatory submitted under Rule 33,

or if a party, in response to a request for inspection submitted under Rule 34, fails to

respond that inspection will be permitted as requested or fails to permit inspection as

requested, the discovering party may move for an order compelling an answer, or a

designation, or an order compelling inspection in accordance with the request. 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 made pursuant to Rule 26(c).

(3) Evasive or Incomplete Answer. For purposes of this subdivision an evasive or

incomplete answer is to be treated as a failure to answer.

(4) Award of Expenses of Motion. If the motion is granted, the court shall, after

opportunity for hearing, require the party or deponent whose conduct necessitated

the motion or the party or attorney advising such conduct or both of them to pay to

the moving party the reasonable expenses incurred in obtaining the order, including

attorney's fees, unless the court finds that the opposition to the motion was

substantially justified or that other circumstances make an award of expenses unjust. If

the motion is denied, the court shall, after opportunity for hearing, require the moving

party or the attorney advising the motion or both of them to pay to the party or

deponent who opposed the motion the reasonable expenses incurred in opposing the

motion, including attorney's 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.

(b) Failure to Comply With Order.

(1) Sanctions by Court in Circuit Where Deposition Is Taken. If a deponent fails to

be sworn or to answer a question after being directed to do so by the court the failure

may be considered a contempt of that court.

(2) 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 Rule 30(b)(6) or 31(a) to

testify on behalf of a party fails to obey an order to provide or permit discovery,

including an order made under subdivision (a) of this rule or Rule 35, or if a party fails

to obey an order entered under Rule 26(f), the court in which the action is pending

may make such orders in regard to the failure as are just, and among others the

following:

(A) 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;

(B) 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;

(C) An order striking out pleadings or parts thereof, or staying further

proceedings until the order is obeyed, or dismissing the action or

proceeding or any part thereof, or rendering a judgment by default

against the disobedient party;

(D) 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;

(E) Where a party has failed to comply with an order under Rule 35(a)

requiring him to produce another for examination, such orders as are

listed in paragraphs (A), (B), and (C) of this subdivision, unless the

party failing to comply show that he is unable to produce such

person for examination.

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 the reasonable expenses, including

attorney's 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.

(c) 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 36, 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's fees. The court shall make the order unless it finds that (1) the request

was held objectionable pursuant to Rule 36(a), or (2) the admission sought was of no substantial

importance, or (3) the party failing to admit had reasonable ground to believe that he might prevail on

the matter, or (4) there was other good reason for the failure to admit.

(d) Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond

to Request for Inspection. If a party or an officer, director or managing agent of a party or a person

designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails (1) to appear before the

officer who is to take his deposition, after being served with a proper notice, or (2) to serve answers or

objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or (3)

to serve a written response to a request for inspection submitted under Rule 34, after proper service of

the request, the court in which the action is pending on motion may make such orders in regard to the

failure as are just, and among others it may take any action authorized under paragraphs (A), (B), and

(C) of subdivision (b)(2) of this rule. In lieu of any order or in addition thereto, the court shall require

the party failing to act or the attorney advising him or both to pay the reasonable expenses, including

attorney's 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.

The failure to act described in this subdivision may not be excused on the ground that the discovery

sought is objectionable unless the party failing to act has applied for a protective order as provided by

Rule 26(c).

(e) Failure to Participate in the Framing of a Discovery Plan. If a party or his attorney fails to

participate in good faith in the framing of a discovery plan by agreement as is required by Rule 26(f),

the court may, after opportunity for hearing, require such party or his attorney to pay to any other

party the reasonable expenses, including attorney's fees caused by the failure.

(f) Electronically Stored Information. Absent exceptional circumstances, a court may not impose

sanctions under these rules on a party for failing to provide electronically stored information lost as a

result of the routine, good-faith operation of an electronic information system.

Note:

This Rule 37 is the language of the Federal Rule with minor changes. The Federal Rule

provides that a motion to compel discovery or for sanctions may be brought either in

the court where the action is pending or in the place where the discovery or

deposition is taken. Thus, if a deposition were being taken in another state or Federal

district, the parties do not have to adjourn the deposition and return to the court

where the action is pending for assistance. However, this Rule 37 deletes that

provision with reference to the deposition of a party. Such motion may be brought

only in the court where the action is pending. A motion to compel a witness deponent

(not a party) to proceed, however, may be brought in the circuit court in the place

where the deposition is being taken, usually the county of residence of the deponent.

Note to 2011 Amendment:

The amendments to Rules 16, 26, 33, 34, 37 and 45 of the South Carolina Rules of Civil

Procedure concerning electronic discovery are substantially similar to the

corresponding provisions in the Federal Rules of Civil Procedure. The rules concerning

electronic discovery are intended to provide a practical, efficient and cost-effective

method to assure reasonable discovery. Pursuit of electronic discovery must relate to

the claims and defenses asserted in the pleadings and should serve as a means for

facilitating a just and cost-effective resolution of disputes.