The Hawaii motion to compel: sixty interrogatories, four circuits, and no fees against the State

Hawaii allows more written discovery than most states and then makes the motion to compel harder to place than most states, because the right court depends on who you are moving against and where the deposition is happening. Add a fee provision that switches off entirely when the responding party is the government, and three questions have to be answered before drafting.

Which circuit

Rule 37(a)(1) draws the line between parties and everyone else:

An application for an order to a party may be made to the court in which the action is pending or, on matters related to a deposition, to the court in the circuit where the deposition is being taken. An application for an order to a person who is not a party shall be made to the court in the circuit where the deposition is being, or is to be, taken.

"May" for a party; "shall" for a nonparty. In an island jurisdiction the difference is not academic — a deposition on Maui and a case in the First Circuit are two courts and a flight apart, and a nonparty motion filed in the wrong one is filed in a court the rule does not send it to.

Note also that the nonparty provision looks forward: the circuit where the deposition "is being, or is to be, taken." You do not have to wait for the deposition to begin.

The certification

Rule 37(a)(2) requires it in the motion itself:

The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action.

"Conferred or attempted to confer" — an opponent who will not engage cannot block the motion. A second certificate is required for protective-order motions by Rule 26(c), which allows the motion only when "accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action."

Both sides of a Hawaii discovery dispute therefore carry a conferral obligation. Neither can go straight to court.

Sixty interrogatories, subparts counted

Rule 33(a) sets a limit that is generous in number and strict in method:

Without leave of court or written stipulation, any party may serve upon any other party written interrogatories, not exceeding 60 in number, counting any subparts or subquestions as individual questions

Sixty is among the highest caps in the country — compare fifty in South Carolina and twenty-five in West Virginia. But the counting rule is the strict half: every subpart and subquestion counts as its own interrogatory, without the "discrete subparts" qualifier that softens the federal formulation. A set drafted to a fifty-question federal habit can exceed sixty here once subparts are counted individually.

Where a responding party objects that the set is over the cap, that objection has to be resolved before the answers are. Address it in the motion rather than treating it as evasion.

The clocks

Hawaii's initial-disclosure regime runs alongside these on a different schedule; the guide to Hawaii discovery deadlines sets it out.

Expenses, and the government exception

Rule 37(a)(4)(A) makes the award mandatory when the motion is granted or when the material arrives after the motion was filed, subject to three exceptions: that the movant did not first make a good-faith effort, that the opposing position was substantially justified, or that other circumstances make an award unjust. (B) mirrors it against a movant whose motion is denied, and (C) allows apportionment where the result is split.

Then Rule 37(e) removes all of it in one sentence:

Except to the extent permitted by statute, expenses and fees may not be awarded against the State or a county under this rule.

Not merely the State — a county as well. In a jurisdiction of four counties that is a large share of the institutional defendants a litigant is likely to meet. The fee shift still runs in the government's favor against a losing movant; it simply does not run the other way.

Plan the motion accordingly. Against a county, the reason to file is the order, not the costs.

Once an order is disobeyed

Rule 37(b)(1) makes a refusal to be sworn or to answer, after a direction from the court in the circuit where the deposition is taken, contempt of that court.

Rule 37(b)(2) supplies the sanctions where a party disobeys a discovery order: facts taken as established, preclusion of designated claims or defenses, striking pleadings, staying proceedings, dismissal, default judgment, and contempt for disobeying anything but a physical or mental examination order. Expenses follow unless the failure was substantially justified.

The duty to amend, and telling the jury

Rule 37(c)(1) attaches a consequence to the supplementation duty that parties routinely overlook:

A party that without substantial justification fails to amend a prior response to discovery as required by Rule 26 (e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed.

An answer that was accurate when served and has since become wrong is a Rule 37 problem here, and the remedy is preclusion of the material at trial.

The additional sanctions include one worth asking for where a party held something back and then relied on it: they "may include any of the actions authorized under Rule 37(b)(2)(A), (B), and (C) and may include informing the jury of the failure to make the disclosure."

Rule 37(c)(2) is the failure-to-admit provision. A party who proves a matter the other side refused to admit may recover the expenses of making that proof, and the court "shall make the order" unless the request was held objectionable, the admission was of no substantial importance, the party had reasonable ground to believe it might prevail, or there was other good reason.

When nothing was served at all

Rule 37(d) covers the party who does not appear at a properly noticed deposition or serves no answers, objections or written response. The court may impose the (A), (B) and (C) sanctions without any prior order, and expenses follow unless the failure was substantially justified. A certificate is required here too:

Any motion specifying a failure under clause (2) or (3) of this subdivision shall include a certification that the movant has in good faith conferred or attempted to confer with the party failing to answer or respond in an effort to obtain such answer or response without court action.

Lost electronic information

Rule 37(f) is the older federal safe harbor, and Hawaii has kept it rather than adopting the later two-tier provision:

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.

A shield, with no matching sword. There is no subdivision here authorising an adverse inference on a finding of intent to deprive, so a spoliation argument in Hawaii is made from the general sanctions power in (b) rather than from a dedicated provision.

A short checklist

1. Count the interrogatories — sixty, with every subpart and subquestion counted separately.
2. Confer and certify in the motion; Rule 37(a)(2) requires it and Rule 37(d) repeats it.
3. File nonparty motions in the circuit where the deposition is or will be taken.
4. Check whether the responding party is the State or a county before pricing the motion.
5. Count 45 days where the responding party is a recently served defendant.
6. Quote Rule 37(a)(3) where the answer was evasive rather than absent.
7. Use Rule 37(c)(1) where a response was right when served and is now wrong.
8. Ask about informing the jury where withheld material is later relied on.
9. Use Rule 37(d) where nothing at all was served; no prior order is needed.
10. Do not expect a dedicated spoliation rule. Rule 37(f) is a shield only.

Where these rules live

• Haw. R. Civ. P. 26 — General Provisions Governing Discovery
• Haw. R. Civ. P. 33 — Interrogatories to Parties
• Haw. R. Civ. P. 34 — Production of Documents and Things
• Haw. R. Civ. P. 36 — Requests for Admission
• Haw. R. Civ. P. 37 — Failure to Make or Cooperate in Discovery; Sanctions
• Hawaii discovery deadlines
• Responding to a Hawaii complaint

This page explains what the rules say. It isn't legal advice, and statutes outside these rules may permit an award against the State or a county that Rule 37 does not.