The Kentucky motion to compel: five separate rules, and one of them protects the Commonwealth

Kentucky splits its discovery sanctions across five separately numbered rules, and knowing which one you are in avoids citing the wrong provision:

That last one is easy to miss and decides whether a fee request is available at all.

The motion

Ky. CR 37.01(b)(i):

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 30.02 (6) or 31.01 (2), 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.

CR 37.01(c):

Evasive or Incomplete Answer. For the purposes of this rule an evasive or incomplete answer is to be treated as a failure to answer.

There is no certification requirement in CR 37.01. The motion is not conditioned on a prior attempt to resolve the dispute.

Where to file

CR 37.01(a):

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, to the court of equivalent jurisdiction in the county where the deposition is being taken.

Note the phrasing — "the court of equivalent jurisdiction" in the deposition county, rather than simply the court there.

CR 37.01(b)(ii) adds that a denied motion may draw a protective order under Rule 26.03.

Fees, both ways, both mandatory

CR 37.01(d)(i):

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.

CR 37.01(d)(ii):

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.

Symmetric and mandatory. Because no conference is required, the substantial-justification question is decided on the correspondence — so write the deficiency letter even though the rule does not oblige you to.

The Commonwealth is exempt

CR 37.05 is headed Expenses against the commonwealth, and it is the reason to check who the opposing party is before drafting a fee request. In a case against the Commonwealth or its agencies, the expense provisions in CR 37.01 do not operate in the ordinary way.

Read it before asking for fees in any case with a state party.

The other rules

CR 37.02 supplies the sanctions where an order is disobeyed — deemed-established facts, preclusion, striking pleadings, staying proceedings, dismissal, default judgment and contempt.

CR 37.03 allows a party who proves a matter the other side wrongly refused to admit to recover the expenses of making that proof.

CR 37.04 allows sanctions where a party fails to attend their own deposition, serve answers to interrogatories, or respond to a request for inspection.

Before you file

1. Confirm proper service and that the response period has run. Kentucky's answer period is only twenty days — see the Kentucky motion to dismiss.
2. Write the deficiency letter, even though no certification is required.
3. Pick the right court — the action's court, or the court of equivalent jurisdiction in the deposition county.
4. Check CR 37.05 if the Commonwealth is on the other side.
5. Quote CR 37.01(c) where the response was evasive or incomplete.

If the case is heading toward a dispositive motion, note that Kentucky's summary judgment rule counts backwards from the hearing — see Kentucky summary judgment.

How Kentucky compares

A short checklist

1. Cite the right rule — 37.01 to compel, 37.02 for disobedience, 37.03 for admissions, 37.04 for a total non-response.
2. Send the deficiency letter first. It is what substantial justification turns on.
3. File in the court of equivalent jurisdiction for a deposition dispute outside the action's county.
4. Quote the evasive-answer provision.
5. Expect a mandatory award either way.
6. Check CR 37.05 before seeking fees where the Commonwealth is a party.
7. Complete or adjourn the deposition before applying.

Where these rules live

• Ky. CR 26.03 — Protective orders
• Ky. CR 33.01 — Interrogatories to parties
• Ky. CR 37.01 — Motion for order compelling discovery
• Ky. CR 37.02 — Failure to comply with order
• Ky. CR 37.03 — Expenses on failure to admit
• Ky. CR 37.04 — Failure of party to attend own deposition
• Ky. CR 37.05 — Expenses against the commonwealth

This page explains what the rules say. It isn't legal advice, and what makes an opposition substantially justified is developed in case law this site doesn't cover.