The South Dakota motion to compel: a statute, not a rule — and it stops at subdivision (d)

Two things about South Dakota's motion to compel are easy to miss, and both come from where the provision lives rather than from what it says.

It is a statute. SDCL § 15-6-37 is a section of the South Dakota Codified Laws, enacted and amended by the legislature. Everything it cross-references is a section too — § 15-6-26 for scope, § 15-6-33 for interrogatories, § 15-6-34 for production. Cite them that way in your papers.

And it ends early. The section runs (a), (b), (c), (d) — and stops. There is no subdivision reaching electronically stored information, and none reaching a party who will not help frame a discovery plan. States built on the same 1970 federal model have added both; South Dakota has not.

What the missing subdivisions mean

The first two are the significant ones. A party in South Dakota arguing about lost electronic evidence cannot point to § 15-6-37 for either a shield or a sword. There is no sentence saying sanctions may not be imposed for routine, good-faith deletion, and no sentence conditioning severe sanctions on a finding of intent to deprive. What is left is the general sanctions power in § 15-6-37(b) plus whatever the case law supplies — and case law is outside what this site covers.

The practical consequence is that preservation arguments here are made from the ordinary sanctions provisions and from the terms of the order, not from a dedicated rule. Say so plainly in the motion rather than borrowing a federal subdivision that South Dakota has not adopted.

The certification

§ 15-6-37(a)(2) puts the requirement in the middle of the paragraph, after the list of triggers:

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.

Inside the motion, not in a separate filing. "Conferred or attempted to confer" — an opponent who will not engage cannot block the motion by declining to talk.

Which court

§ 15-6-37(a)(1) is shorter than most states' and gives the movant no choice:

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

Note two departures from the common form. There is no alternative forum for party discovery relating to a deposition — South Dakota omits the "or, on matters relating to a deposition" clause entirely. And the nonparty provision is keyed to where the discovery is taken, not merely where a deposition is taken, so it covers a subpoena for documents as readily as a deposition.

The clocks

Two features of § 15-6-33 shape when the clock starts. Interrogatories may be served on the plaintiff "after commencement of the action" without leave, and on any other party "with or after service of the summons and complaint upon that party." A defendant can therefore be served with interrogatories at the same moment as the complaint — which is exactly the situation the forty-five-day allowance exists to handle.

South Dakota sets no numerical cap on interrogatories in § 15-6-33. Where a state like South Carolina caps them at fifty, disputes here are about scope and burden under § 15-6-26 rather than about counting.

Expenses

§ 15-6-37(a)(4)(A) makes the award mandatory when the motion succeeds — and when the discovery arrives late:

If the motion is granted or if the requested discovery is provided after the motion was filed, 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 attorneys' 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

Note the measure: expenses "incurred in obtaining the order," not merely in making the motion. And note the first exception, which is the certification requirement enforced through money — a movant who did not try first loses the fees even on a motion that succeeds.

(B) runs the same way against a movant whose motion is denied, and lets the court enter a protective order at the same time. (C) allows apportionment on a split result.

Once an order is disobeyed

§ 15-6-37(b)(1) makes it contempt where a deponent "fails to be sworn or to answer a question after being directed to do so by the court in the circuit in which the deposition is being taken."

§ 15-6-37(b)(2) supplies the sanctions where a party disobeys an order to provide or permit discovery: 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.

Non-disclosure, and the failure to amend

§ 15-6-37(c)(1) reaches two distinct failures, and the second is the one parties forget:

A party that without substantial justification fails to disclose information required by § 15-6-26(e)(1), or to amend a prior response to discovery as required by § 15-6-26(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 true when served and has since become wrong is a Rule 37 problem in South Dakota, not merely an untidiness. The remedy is preclusion, with additional sanctions available on motion.

§ 15-6-37(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 order it unless one of four exceptions applies.

When nothing at all was served

§ 15-6-37(d) covers non-appearance at a properly noticed deposition and the complete failure to serve answers, objections or a written response. The court may impose the (b)(2)(A), (B) and (C) sanctions directly — without any prior order — and expenses follow unless the failure was substantially justified.

Its closing sentence forecloses the obvious excuse, and South Dakota's version is stricter than most:

The failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by § 15-6-26(c).

"Has applied for" a protective order. Not intends to; not is preparing one. The application has to already have been made.

A short checklist

1. Cite sections, not rules. It is SDCL § 15-6-37, cross-referring to §§ 15-6-26, 15-6-33 and 15-6-34.
2. Confer, and certify it in the motion — § 15-6-37(a)(2) requires it, and the fee provision enforces it.
3. File nonparty motions in the circuit where the discovery is taken.
4. Do not assume a deposition forum option for party discovery. South Dakota does not give one.
5. Count forty-five days where a defendant was served with discovery alongside the complaint.
6. Do not quote a federal ESI subdivision. South Dakota has not adopted one.
7. Frame preservation disputes under the general § 15-6-37(b) power and the terms of the order.
8. Use § 15-6-37(c)(1) where a response was correct when served and has since become wrong.
9. Use § 15-6-37(d) where nothing was served at all; no prior order is required.
10. File the protective-order application before you go silent — afterwards is too late.

Where these rules live

• SDCL § 15-6-26 — General Provisions Governing Discovery
• SDCL § 15-6-33 — Interrogatories to Parties
• SDCL § 15-6-34 — Production of Documents and Things
• SDCL § 15-6-36 — Requests for Admission
• SDCL § 15-6-37 — Failure to Make Discovery: Sanctions
• Responding to a South Dakota complaint
• South Dakota summary judgment

This page explains what the statutes say. It isn't legal advice, and how South Dakota courts handle lost evidence in the absence of a dedicated provision is developed in case law this site doesn't cover.