The Rhode Island motion to compel: ask for an order that dismisses the case by itself

In most states an order compelling discovery is a first step: obey it or face a second motion asking for sanctions. Rhode Island lets the first order carry the sanction inside it.

That single sentence changes what you ask for, and it is the reason to draft a Rhode Island motion to compel with the proposed order already written.

The self-executing order

Rule 37(a)(4)(A) ends with a provision that has no counterpart in the federal rule or in most of its state descendants:

An order compelling discovery may expressly provide for entry of a final judgment dismissing the underlying claim or entry of a default judgment against the nonmoving party if the order is not complied with within thirty (30) days or such shorter or longer time as the court may order or as the parties may stipulate.

Four things follow.

It must be express. The rule says the order "may expressly provide" for the consequence. An ordinary order to produce documents does not carry it by implication. If you want it, ask for it and draft it.

Thirty days is the default, not the limit. The court may set a shorter or longer period, and — a notable touch — "the parties may stipulate" to one. Agreement between the parties can move the date without a further application.

The consequence runs both ways. Against a plaintiff it is "a final judgment dismissing the underlying claim." Against a defendant it is "entry of a default judgment." Whichever side is withholding, the rule reaches it.

It removes the second motion. The ordinary sequence — motion, order, non-compliance, sanctions motion, hearing — collapses to one application if the first order is drafted properly.

For a party on the receiving end, the practical point is the mirror image: a Rhode Island order to compel should be read to the end, because the thirty-day clock in it may be the last one you get. If judgment has already been entered, setting aside a Rhode Island default judgment is the next question.

Fees are permissive, not mandatory

Rhode Island departs from the federal model in the other direction on expenses. Rule 37(a)(4)(A) opens:

If the motion is granted or if requested discovery is provided after the motion was filed, the court may, after affording an opportunity to be heard, 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 making the motion, including attorney's fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party's nondisclosure, response, or objection was substantially justified, or that other circumstances make an award of expenses unjust.

"May," where Montana, Maine and Wyoming say "shall" or "must." The same word governs a denied motion under (B) and an apportioned one under (C). And the middle limb of the exceptions still bites: a movant who did not try first loses the award even where the motion succeeds.

The permissive fee shift and the self-executing order pull in opposite directions, and together they describe Rhode Island's approach fairly well. The money is discretionary; the case-ending consequence is available on request.

The certification, and where it is required

Rhode Island puts the conferral requirement in an unusual place. It does not appear in Rule 37(a)(2) with the motion itself. It appears in Rule 37(d), for the party who served nothing at all:

Any motion specifying a failure under cause (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.

Clauses (2) and (3) are the failure to serve answers or objections to interrogatories and the failure to serve a written response to a request for inspection.

Two further certification requirements sit in Rule 26. A protective-order motion must be "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," and Rule 26(a)(2)(F) requires the same for electronic-discovery planning:

Any motion under Rule 26(a)(2) must include a certification that the movant has in good faith conferred or attempted to confer with the other party or parties in an effort to agree upon a plan relating to the discovery of electronically stored information without court action.

Even where no rule demands a certificate, the fee provision quoted above withdraws the award from a movant who did not try first. Confer, and say so.

The clocks, which are not the usual ones

Rhode Island's response periods are longer than the thirty days most states use, and the differences are easy to miss.

Rule 33 adds two more limits. Interrogatories served by a plaintiff within sixty days after service of process need leave of court, "granted with or without notice." And the total is capped: a party may serve more than one set "provided the total number of interrogatories shall not exceed thirty (30) unless the court otherwise orders for good cause shown." Thirty is among the tightest caps in the country, so a motion to compel answers to interrogatories in Rhode Island is usually a fight about a small, specific set.

Counting to forty rather than thirty before filing is the single most common way to file this motion early.

Which court, and which judge

Rule 37(a)(1) gives the forum, and its last sentence is broader than it first appears:

This provision shall also apply to a deponent who is not a party.

The preceding sentence allows an application "to the court in which the action is pending or, on matters relating to a deposition, in the county in which the deposition is being taken." Applying that same choice to nonparty deponents is unusual: elsewhere a nonparty motion must go to the court where the deposition is happening. In Rhode Island the movant keeps the option.

Once an order is disobeyed

Rule 37(b)(1) is short and reaches beyond parties: "If a party or other witness refuses to be sworn or refuses to answer any question after being directed to do so by the court, the refusal may be punished as a contempt of court."

Rule 37(b)(2) supplies the rest, and its opening words are wider than the federal version — the court may make such orders "and enter such judgment" as are just where a party "fails or refuses to obey" a discovery order. The list runs through deemed-established facts, preclusion of claims or defenses, striking pleadings, staying proceedings, dismissal and default judgment.

Refusal to admit, and lost data

Rule 37(c) allows a party who proves a matter the other side refused to admit to recover the expenses of making that proof — and here too Rhode Island softens the verb. Where most states say the court "shall make the order" unless an exception applies, Rhode Island says the court "may make the order unless it finds" one of four things.

Rule 37(a)(4)(D) carries the older electronic-discovery safe harbor:

Absent exceptional circumstances, the court may not impose sanctions on a party under these rules for failure to provide electronically stored information lost as a result of the routine, good faith operation of an electronic information system.

Note where it sits — inside the expenses paragraph of subdivision (a), not in a subdivision of its own. Rhode Island has not adopted the later federal provision that turns on an intent to deprive.

A short checklist

1. Count to forty, not thirty, on interrogatories and requests for production.
2. Check whether leave was needed if the plaintiff served interrogatories within 60 days of service of process.
3. Confer before filing — no rule may require a certificate, but the fee provision withdraws the award if you did not.
4. Certify where the rule does require it: Rule 37(d) motions, protective orders, and Rule 26(a)(2) electronic-discovery motions.
5. Draft the order you want, including the thirty-day dismissal or default clause if the conduct warrants it.
6. Say "expressly" — the consequence has to be in the order, not implied by it.
7. Consider stipulating the period rather than litigating it; the rule allows the parties to set it.
8. Read any order against you to the end, and diary the day it expires.
9. Do not count on a fee award. Every fee provision in this rule is discretionary.
10. Use Rule 37(c) after proving something wrongly denied — but expect "may," not "shall."

Where these rules live

• R.I. Super. R. Civ. P. 26 — General Provisions Governing Discovery
• R.I. Super. R. Civ. P. 33 — Interrogatories to Parties
• R.I. Super. R. Civ. P. 34 — Production of Documents and Things
• R.I. Super. R. Civ. P. 36 — Requests for Admission
• R.I. Super. R. Civ. P. 37 — Failure to Make Discovery: Sanctions
• Responding to a Rhode Island complaint
• Rhode Island summary judgment

This page explains what the rules say. It isn't legal advice, and when a court will actually enter a dismissal under an order of this kind is developed in case law this site doesn't cover.