The North Dakota motion to compel: you choose the court, even for a nonparty

Almost every version of Rule 37 splits the forum the same way: a motion against a party goes to the trial court, and a motion against a nonparty goes to the court where the discovery is happening. North Dakota keeps the first half and rewrites the second.

The forum, and the choice

Rule 37(a)(2) reads:

A motion for an order to a party must be made in the court where the action is pending. A motion for an order to a nonparty may be made in the court where the discovery is or will be taken or in the court where the action is pending.

"May," and then two options joined by "or." Compare the same paragraph in Montana or Wyoming, where a nonparty motion "must be made in the court where the discovery is or will be taken." In North Dakota you keep the case in front of the judge who knows it, or you move where the witness is — whichever serves the case better.

That is worth real time in a state of eight judicial districts and long distances. It also means the opposing party cannot object to the trial court hearing a subpoena dispute simply because the deposition was noticed elsewhere.

The certification

Rule 37(a)(1) puts it in the first paragraph and applies it to every motion under the subdivision:

On notice to other parties and all affected persons, a party may move for an order compelling discovery. 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 discovery in an effort to obtain it without court action.

Three obligations. Notice to affected persons, which includes a nonparty whose documents are at issue. A good-faith conferral or attempt. And the certification inside the motion — conferring and not saying so does not satisfy the rule.

What you may move about

Rule 37(a)(3)(A) lists the triggers, and the list is worth checking against your facts before drafting:

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); (iii) a party fails to answer an interrogatory submitted under Rule 33 ; or (iv) a party fails to respond that inspection will be permitted - or fails to permit inspection - as requested under Rule 34 .

And Rule 37(a)(4) closes the gap a thin answer would otherwise open: "For purposes of this subdivision (a), an evasive or incomplete answer or response must be treated as a failure to answer or respond."

Rule 37(a)(3)(B) preserves the deposition option: "When taking an oral deposition, the party asking a question may complete or adjourn the examination before moving for an order." You are not obliged to suspend the deposition to run to court, and you are not obliged to continue it either.

The clocks

Rule 33 also caps the count: no more than 50 written interrogatories, including all discrete subparts, unless stipulated or ordered otherwise.

Before any of that: the discovery meeting

North Dakota's Rule 26(f) meeting is not automatic. It happens because somebody asks for it:

No earlier than 40 days after the complaint is filed in an action, any party's attorney or a self-represented party may request in writing a meeting on the subject of discovery, including the discovery of electronically stored information. If such a request is made, the parties must meet within 21 days, unless agreed otherwise by the parties or their attorneys or another time for the meeting is ordered by the court.

Forty days before you may ask; twenty-one days for the meeting once you have. A party who wants a discovery plan in place has to start the sequence, and the rule gives the request teeth — once made, the meeting is compulsory.

Failing to take part has its own price. Rule 37(g):

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 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.

That runs against the attorney as readily as the party, and it does not require any particular request to have gone unanswered.

Expenses

Rule 37(a)(5)(A) makes the award mandatory when the motion is granted or when the discovery turns up after the motion was filed — so a late producer does not escape by complying on the courthouse steps. The exceptions are the familiar three:

But the court must not order this payment if: (i) the movant filed the motion before attempting in good faith to obtain discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust.

Exception (i) is the certification requirement wearing different clothes. A movant who did not try first loses the fees even on a motion that succeeds.

(B) mirrors it against a movant whose motion is denied — and the court may enter a protective order at the same time. (C) allows apportionment where the result is split.

One limit sits at Rule 37(e): "Except to the extent permitted by statute, expenses and fees may not be awarded against the State of North Dakota under this rule." Against the State, the fee shift does not operate.

Once an order is disobeyed

Rule 37(b)(2)(A) applies where a party, "a party's officer, director, or managing agent - or a witness designated under Rule 30 (b)(6) or 31(a) - fails to obey an order to provide or permit discovery, including an order under Rule 26 (f), 35, or 37(a)"; the court "may issue further just orders." The list runs from deeming facts established, through preclusion and striking pleadings, to dismissal, default judgment and contempt.

Note that an order under Rule 26(f) — a discovery-planning order — counts. Disobeying the schedule is not a lesser category of default.

Rule 37(b)(1) handles the deposition that stalls in another district: if that court orders a deponent to answer and the deponent refuses, the failure may be treated as contempt.

Failing to respond at all, and lost data

Rule 37(d) covers the party who does not appear at a properly noticed deposition or serves nothing in answer to interrogatories or a request for production. Its second paragraph forecloses the usual excuse:

(2) Unacceptable excuse for failing to act.

A party cannot justify silence by saying the discovery was objectionable unless a motion for a protective order is already pending. Objecting is a response. Ignoring is not.

Rule 37(f) supplies the safe harbor for electronic evidence: "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." North Dakota has kept the older federal formulation rather than the later provision turning on an intent to deprive.

Refusal to admit

Where a party proves a matter the other side refused to admit, the court "must so order" the payment of the expenses of making that proof unless:

(1) the request was held objectionable under Rule 36 (a); (2) the admission sought was of no substantial importance; (3) the party failing to admit had reasonable ground to believe that it might prevail on the matter; or (4) there was other good reason for the failure to admit.

This is often the cheapest sanction to obtain, because it is measured by what the proof cost rather than by what the misconduct deserved.

A short checklist

1. Confer, then certify it in the motion — Rule 37(a)(1) requires both.
2. Decide which court for a nonparty: North Dakota lets you pick.
3. Give notice to affected persons, not only to parties.
4. Count 45 days, not 30, where the responding party is a defendant recently served.
5. Check the interrogatory count against the 50-subpart cap before complaining about answers.
6. Quote the evasive-answer provision where the response was thin rather than absent.
7. Ask for the meeting under Rule 26(f) if no plan exists; nobody else has to.
8. Use Rule 37(g) where the problem is a party who will not engage with planning at all.
9. File promptly even if compliance looks near — late compliance still supports a fee award.
10. Expect no fees against the State of North Dakota.

Where these rules live

• N.D. R. Civ. P. 26 — Duty to Disclose; General Provisions Governing Discovery
• N.D. R. Civ. P. 33 — Interrogatories to Parties
• N.D. R. Civ. P. 34 — Producing Documents and Electronically Stored Information
• N.D. R. Civ. P. 36 — Requests for Admission
• N.D. R. Civ. P. 37 — Failure to Cooperate in Discovery: Sanctions
• Responding to a North Dakota complaint
• North Dakota summary judgment

This page explains what the rules say. It isn't legal advice, and an individual court's scheduling order may set discovery deadlines this page does not cover.