W.R.C.P.Ch.C. 37

(a) Motion for an Order Compelling Disclosure or Discovery.

(1) In General. Except as otherwise ordered, the court will not entertain

any motions relating to discovery disputes unless counsel for the moving

party has first conferred orally, in person or by telephone, and has made

reasonable good faith efforts to resolve the dispute with opposing counsel. In

the event that the parties cannot settle the discovery dispute on their own,

then counsel shall jointly contact the chancery court judge’s chambers for

approval prior to filing any written discovery motion. The court will attempt

to resolve as many disputes as possible in this informal manner. If the court

determines that the issue requires the formal filing of a motion and briefing,

the court will permit the parties to file a written motion. If the chancery

court is satisfied with the party’s compliance with this provision, permission

may be granted to the parties to proceed as set forth below.

(2) Appropriate Court. A motion for an order to a party or a nonparty must

be made in the chancery court where the action is pending.

(3) Specific Motions.

(A) To Compel Disclosure. If a party fails to make a disclosure required

by Rule 26(a), any other party may move to compel disclosure and for

appropriate sanctions.

(B) To Compel a Discovery Response. A party seeking discovery may

move for an order compelling an answer, designation, production, or

inspection. This motion may be made if:

(i) a deponent fails to answer a question asked under Rule 30 or 31;

(ii) a corporation or other entity fails to make a designation under

Rule 30(b)(6) or 31(a)(4);

(iii) a party fails to answer an interrogatory submitted under Rule 33;

or

(iv) a party fails to produce documents or fails to respond that

inspection will be permitted--or fails to permit inspection--as requested

under Rule 34.

(C) Related to a Deposition. When taking an oral deposition, the party

asking a question may complete or adjourn the examination before moving

for an order.

(4) Evasive or Incomplete Disclosure, Answer, or Response. For purposes of

this subdivision (a), an evasive or incomplete disclosure, answer, or response

must be treated as a failure to disclose, answer, or respond.

(5) Payment of Expenses; Protective Orders.

(A) If the Motion Is Granted (or Disclosure or Discovery Is Provided

After Filing). If the motion is granted--or if the disclosure or requested

discovery is provided after the motion was filed--the chancery court must,

after giving an opportunity to be heard, require the party or deponent

whose conduct necessitated the motion, the party or attorney advising

that conduct, or both to pay the movant’s reasonable expenses incurred in

making the motion, including attorney’s fees. But the chancery court must

not order this payment if:

(i) the movant filed the motion before attempting in good faith to

obtain the disclosure or discovery without chancery court action;

(ii) the opposing party’s nondisclosure, response, or objection was

substantially justified; or

(iii) other circumstances make an award of expenses unjust.

(B) If the Motion Is Denied. If the motion is denied, the chancery court

may issue any protective order authorized under Rule 26(c) and must,

after giving an opportunity to be heard, require the movant, the attorney

filing the motion, or both to pay the party or deponent who opposed the

motion its reasonable expenses incurred in opposing the motion, including

attorney’s fees. But the chancery court must not order this payment if the

motion was substantially justified or other circumstances make an award

of expenses unjust.

(C) If the Motion Is Granted in Part and Denied in Part. If the motion

is granted in part and denied in part, the chancery court may issue any

protective order authorized under Rule 26(c) and may, after giving an

opportunity to be heard, apportion the reasonable expenses for the motion.

(b) Failure to Comply with Chancery Court Order.

(1) Sanctions Sought in the District Where the Deposition Is Taken. If the

chancery court where the discovery is taken orders a deponent to be sworn

or to answer a question and the deponent fails to obey, the failure may be

treated as contempt of court. If a deposition-related motion is transferred to

the court where the action is pending, and that court orders a deponent to be

sworn or to answer a question and the deponent fails to obey, the failure may

be treated as contempt of either the court where the discovery is taken or the

court where the action is pending.

(2) Sanctions Sought in Pending Action.

(A) For Not Obeying a Discovery Order. If a party or a party’s officer,

director, or managing agent--or a witness designated under Rule 30(b)(6)

or 31(a)(4)--fails to obey an order to provide or permit discovery, including

an order under Rule 26(f), 35, or 37(a), the chancery court may issue

further just orders. They may include the following:

(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the

prevailing party claims;

(ii)

prohibiting the disobedient party from supporting or opposing

designated claims or defenses, or from introducing designated matters

in evidence;

(iii) striking pleadings in whole or in part;

(iv) staying further proceedings until the order is obeyed;

(v) dismissing the action or proceeding in whole or in part;

(vi) rendering a default judgment against the disobedient party; or

(vii) treating as contempt of chancery court the failure to obey any

order except an order to submit to a physical or mental examination.

(B) For Not Producing a Person for Examination. If a party fails to

comply with an order under Rule 35(a) requiring it to produce another

person for examination, the chancery court may issue any of the orders

listed in Rule 37(b)(2)(A)(i)-(vi), unless the disobedient party shows that it

cannot produce the other person.

(C) Payment of Expenses. Instead of or in addition to the orders above,

the chancery court must order the disobedient party, the attorney advising

that party, or both to pay the reasonable expenses, including attorney’s

fees, caused by the failure, unless the failure was substantially justified or

other circumstances make an award of expenses unjust.

(c) Failure to Disclose, to Supplement an Earlier Response, or to Admit.

(1) Failure to Disclose or Supplement. If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not

allowed to use that information or witness to supply evidence on a motion, at

a hearing, or at a trial, unless the failure was substantially justified or is

harmless. In addition to or instead of this sanction, the chancery court, on

motion and after giving an opportunity to be heard:

(A) may order payment of the reasonable expenses, including attorney’s

fees, caused by the failure; and(B) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).

(2) Failure to Admit. If a party fails to admit what is requested under Rule

36 and if the requesting party later proves a document to be genuine or the

matter true, the requesting party may move that the party who failed to

admit pay the reasonable expenses, including attorney’s fees, incurred in

making that proof. The chancery court must so order unless:

(A) the request was held objectionable under Rule 36(a);

(B) the admission sought was of no substantial importance;

(C) the party failing to admit had a reasonable ground to believe that it

might prevail on the matter; or

(D) there was other good reason for the failure to admit.

(d) Party’s Failure to Attend Its Own Deposition, Serve Answers to Interrogatories, or Respond to a Request for Inspection.

(1) In General.

(A) Motion; Grounds for Sanctions. The court where the action is

pending may, on motion, order sanctions if:

(i) a party or a party’s officer, director, or managing agent--or a person

designated under Rule 30(b)(6) or 31(a)(4)--fails, after being served with

proper notice, to appear for that person’s deposition; or

(ii) a party, after being properly served with interrogatories under

Rule 33 or a request for inspection under Rule 34, fails to serve its

answers, objections, or written response.

(B) Certification. A motion for sanctions for failing to answer or respond

must include a certification that the movant has in good faith conferred or

attempted to confer with the party failing to act in an effort to obtain the

answer or response without chancery court action.

(2) Unacceptable Excuse for Failing to Act. A failure described in Rule

37(d)(1)(A) is not excused on the ground that the discovery sought was

objectionable, unless the party failing to act has a pending motion for a

protective order under Rule 26(c).

(3) Types of Sanctions. Sanctions may include any of the orders listed in

Rule 37(b)(2)(A)(i)-(vi). Instead of or in addition to these sanctions, the

chancery court shall require the party failing to act, the attorney advising

that party, or both to pay the reasonable expenses, including attorney’s fees,

caused by the failure, unless the failure was substantially justified or other

circumstances make an award of expenses unjust.

(e) Failure to Preserve Electronically Stored Information. If electronically

stored information that should have been preserved in the anticipation or

conduct of litigation is lost because a party failed to take reasonable steps to

preserve it, and it cannot be restored or replaced through additional discovery,

the chancery court:

(1) upon finding prejudice to another party from loss of the information,

may order measures no greater than necessary to cure the prejudice; or

(2) only upon finding that the party acted with the intent to deprive

another party of the information’s use in the litigation may:

(A) presume that the lost information was unfavorable to the party; or

(B) dismiss the action or enter a default judgment.

(f) Failure to Participate in Framing a Discovery Plan. If a party or its

attorney fails to participate in good faith in developing and submitting a

proposed discovery plan as required by Rule 26(f), the chancery court may,

after giving an opportunity to be heard, require that party or attorney to pay

to any other party the reasonable expenses, including attorney’s fees, caused

by the failure.