The Wyoming motion to compel: thirty days for everyone, and two courts that can hold a witness in contempt

Wyoming's Rule 37 is the current federal rule with the numbering intact, so most of it will be familiar. Two things are not, and both bear on when you can file and where.

Thirty days, with no allowance for a new defendant

Almost every state that follows the federal model softens the interrogatory clock for a defendant who was served with discovery alongside the complaint — 45 days in Montana, North Dakota and South Carolina, 42 in Vermont. Wyoming's Rule 33(a)(2) does not:

The responding party must serve its answers and any objections within 30 days after being served with the interrogatories. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.

Thirty days, full stop. Rule 34 and Rule 36 run the same way.

Two consequences. For a party owed answers, the motion ripens sooner here than in neighboring states. For a defendant, discovery served with the complaint has to be answered on the same schedule as discovery served a year into the case — so the stipulation route in Rule 29 is worth using early rather than arguing about lateness afterwards.

Rule 33(a)(1) also caps the count: "a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts." Twenty-five is among the tightest limits in the country, so a Wyoming motion to compel interrogatory answers is usually about a small, specific set.

Contempt of either court

Rule 37(b)(1) handles the deposition dispute that has moved between districts, and its second sentence is the part worth knowing:

If the court where the discovery is taken orders a deponent to be sworn or to answer a question and the deponent fails to obey, the failure may be treated as contempt of court. If a deposition-related motion is transferred to the court where the action is pending, and that court orders a deponent to be sworn or to answer a question and the deponent fails to obey, the failure may be treated as contempt of either the court where the discovery is taken or the court where the action is pending.

Once a deposition-related motion is transferred, disobedience is punishable in either forum. For a recalcitrant out-of-district witness that is a real advantage: the party seeking enforcement is not confined to the court that happened to issue the order.

Which court, and the certification

Rule 37(a)(2) allows no choice: "A motion for an order to a party must be made in the court where the action is pending," and "[a] motion for an order to a nonparty must be made in the court where the discovery is or will be taken."

The conferral certificate appears where the federal rule puts it — in Rule 37(a)(1) for the motion to compel, and again in Rule 37(d)(1)(B):

A motion for sanctions for failing to answer or respond must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action.

Rule 26(c) requires the same of a protective-order motion, so the obligation runs both ways.

Expenses

Rule 37(a)(5)(A) makes the award mandatory when the motion succeeds and when the discovery arrives late:

(5) Payment of Expenses; Protective Orders. — (A) If the Motion Is Granted (or Disclosure or Discovery Is Provided After Filing). — If the motion is granted — or if the disclosure or requested discovery is provided after the motion was filed — the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.

Then the three exceptions:

But the court must not order this payment if: (i) the movant filed the motion before attempting in good faith to obtain the disclosure or 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) enforces the certification through money. (B) runs the same way against a movant whose motion is denied; (C) allows apportionment.

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)(4) — 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," listed (i) through (vi): deeming facts established, preclusion, striking pleadings, staying proceedings, dismissal, and default judgment.

An order under Rule 26(f) is inside that list. Ignoring the discovery plan is disobedience of an order.

Failure to disclose, and telling the jury

Rule 37(c)(1) starts with preclusion:

If a party fails to provide information or identify a witness as required by Rule 26 (a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.

And the additional remedies include the one that reaches the trial itself:

In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard: (A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure; (B) may inform the jury of the party's failure; and (C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).

Limb (B) is often the most useful request where a party held material back and then relied on it: it arrives during the trial and does not require the findings that (C) sanctions attract.

Rule 37(c)(2) is the failure-to-admit provision, and the court "must so order" the expenses of proof unless the request was held objectionable, the admission was of no substantial importance, the party had a reasonable ground to believe it might prevail, or there was other good reason.

When nothing was served at all

Rule 37(d)(1)(A) lets the court sanction a party who, after proper notice, fails to appear for a deposition, or who "after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34 , fails to serve its answers, objections, or written response." No prior order is required.

Rule 37(d)(2) closes off the excuse:

A failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26 (c).

"Pending." Intending to object does not help.

Rule 37(d)(3) then makes the money mandatory: sanctions "may include any of the orders listed in Rule 37(b)(2)(A)(i)-(vi)," and instead of or in addition to them "the court shall require the party failing to act, the attorney advising" that party, or both, to pay the resulting expenses.

Lost electronic information — two tiers

Rule 37(e) is the current federal provision, and Wyoming has adopted it in full:

If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment.

The word to build a motion around is "only." Prejudice alone buys a cure — nothing more. The adverse-inference instruction and the case-ending remedies require a finding of intent to deprive, so a spoliation motion that proves loss and prejudice but not intent should ask for tier (1) relief and say so.

Rule 37(f) prices a refusal to plan: a party or attorney who fails to participate in good faith in developing and submitting a proposed discovery plan under Rule 26(f) may be ordered to pay the resulting expenses and fees.

A short checklist

1. Count thirty days, for everyone. Wyoming gives a new defendant no extra time.
2. Stipulate under Rule 29 if you need longer; the rule expects it.
3. Check the twenty-five-interrogatory cap, subparts included, before complaining about answers.
4. Confer, then certify — Rule 37(a)(1) and Rule 37(d)(1)(B) both require it.
5. File nonparty motions where the discovery is or will be taken.
6. Remember the transferred-motion rule — contempt may lie in either court.
7. Ask for the jury instruction under (c)(1)(B) where withheld material is later relied on.
8. Use Rule 37(d) where nothing at all was served; no prior order is needed.
9. Plead intent to deprive if you want more than a curative ESI measure, and prove it.
10. Use Rule 37(f) where the problem is a party who will not help frame the plan.

Where these rules live

• Wyo. R. Civ. P. 26 — Duty to Disclose; General Provisions Governing Discovery
• Wyo. R. Civ. P. 33 — Interrogatories to Parties
• Wyo. R. Civ. P. 34 — Producing Documents and Electronically Stored Information
• Wyo. R. Civ. P. 36 — Requests for Admission
• Wyo. R. Civ. P. 37 — Failure to Make Disclosures or to Cooperate in Discovery: Sanctions
• Responding to a Wyoming complaint
• Wyoming 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.