Reporter’s Notes—2017 Amendment: Rule 37(f) is amended to adapt portions of the amendments to F.R.C.P. 37(e) effective December 1, 2015. The amendment is broader than the federal rule, applying not only to electronically stored, but to “other evidence,” that should have been preserved. In view of this greater breadth, the present amendment leaves remedies for intentional nondisclosure covered in F.R.C.P. 37(e)(2) to Vermont case law.
Reporter’s Notes—2009 Amendment: V.R.C.P. 37(f) is added as part of a series of amendments conforming the Vermont Rules of Civil Procedure to 2006 amendments of the Federal Rules of Civil Procedure that made specific provision for discovery of electronically stored information. See Reporter’s Notes to simultaneous amendment of V.R.C.P. 26. The present amendment is identical to F.R.C.P. 37(f) added by the 2006 federal amendments. The rule reflects “a distinctive feature of computer operations, the routine alteration and deletion of information that attends ordinary use.” Advisory Committee’s Note to 2006 Amendment Adding F.R.C.P. 37(f). Note that the rule applies only to “routine” operation—the result of the basic design of the system to serve its intended purposes. The rule also requires “good faith” operation, precluding the knowing continuation of an operation that results in destruction of information that a party was obligated to preserve. See, generally, Advisory Committee’s Note, supra.
Reporter’s Notes—2002 Amendment: Rule 37(c)(1) is added to conform to a 2000 amendment to Federal Rule 37(c)(1) specifying for the first time a sanction for failure to supplement responses as required by Rule 26(e). Existing Rule 37(c) is designated Rule 37(c)(2). The Federal Advisory Committee’s Note to the 2000 amendment states that previously courts could rely on inherent power to sanction for failure to supplement, “but that is an uncertain and unregulated ground for imposing sanctions.” The amendment to the Vermont rule is necessary to avoid the argument that failure to include this provision means that the rule does not permit sanctions for failure to supplement. Sanctions available include informing the jury of the failure to disclose, because preclusion of the evidence may not be a sufficient incentive to compel disclosure of evidence that might support the opposing party. See Federal Advisory Committee’s Note to 1993 amendment of Rule 37(c); Vosburgh v. Kimball, 130 Vt. 27, 285 A.2d 766 (1971). In addition to providing uniformity with the federal rule, the amendment essentially codifies the results of the Vermont cases. See White Current Corp. v. Vermont Elec. Coop., 158 Vt. 216, 223, 609 A.2d 222, 226 (1992) (affirming exclusion of expert testimony under inherent power to enforce V.R.C.P. 26(e)); Bacon v. Lascelles, 165 Vt. 214, 678 A.2d 902 (1996) (trial court properly excluded testimony of plaintiff ’s rebuttal witness because plaintiff failed to supplement discovery under Rule 26(e)).
Reporter’s Notes—1996 Amendment: Rule 37(a)(3) is amended, consistent with the 1993 amendment of Federal Rule 37(a)(3), to make clear that its sanction applies to responses to discovery requests as well as to answers to questions posed on depositions or interrogatories.
Reporter’s Notes—1982 Amendment: Rule 37(b) is amended and Rule 37(e) is added as part of the series of amendments to the discovery rules following the recent amendments to the Federal Rules of Civil Procedure. See Reporter’s Notes—1982 Amendments to Rule 26. These amendments create sanctions to implement the discovery conference, now provided for in Rule 26(f). The addition to subdivision (b)(2) includes in the list of discovery orders the order resulting from a discovery conference. As a result, violation of a discovery conference order is subject to the same sanctions as violation of other discovery orders. Subdivision (e) is added to provide a sanction for failure to participate “in good faith” in framing a discovery plan as required by Rule 26(f). The party damaged by this failure may collect the reasonable expenses, including attorney’s fees, caused by the failure to participate. A hearing is required before this sanction is imposed.
Reporter’s Notes: This rule, based on Federal Rule 37 as amended in 1970, carries forward the substance of 12 V.S.A. §§ 1243, 1267 (now superseded). Rule 37(a) provides a detailed procedure for motions to compel discovery under any of the discovery devices. Orders under this subdivision are not in themselves punitive orders but merely command the party to permit or submit to the particular discovery that has been refused. Such orders are essential in view of the fact that all discovery except physical and mental examinations under Rule 35 is to be carried out in the first instance on request of the discovering party, who has the burden of seeking an order under Rule 37 if dissatisfied with the response. If an order issued under Rule 37(a) is disobeyed, resort may then be had to Rule 37(b) for a further order imposing sanctions. There was no equivalent to Rule 37(a) in prior Vermont law, but a party seeking an order to compel discovery could proceed by motion under 12 V.S.A. § 1267, which provided not only the sanctions for disobedience of an order found in Rule 37(b) but also a broad power to make orders with regard to a refusal to comply with any discovery statutes or rules. Rule 37(a)(1) provides that an application for an order may for convenience be made to any Superior Judge, or, where discovery is sought outside the state, to any court having general jurisdiction in the place where it is sought. The latter provision, taken from Maine Rule 37(a)(1), does not purport to confer jurisdiction on a foreign court. The intention is to encourage such court to act as a matter of comity by making clear that its exercise of jurisdiction will be recognized by the Vermont court. See Reporter’s Notes to Maine Rule 37, 1 Field, McKusick & Wroth, Maine Civil Practice 542 (2d ed. 1970). The sentence forbidding submission of an application to a second judge, like the comparable provision of Rule 65(f), is intended to prevent judge-shopping. See Reporter’s Notes to Rule 65. Rule 37(a)(2) authorizes motions to compel specific answers or other appropriate response under Rules 30, 31, 33, and 34. (Rules 35 and 36 also contain the authority for such motions.) The subdivision also provides that if an order compelling discovery is denied, the judge may issue a protective order in behalf of the opposing party without the need for a separate motion. See Reporter’s Notes to Rule 26(c). Rule 37(a)(3) makes clear that the judge may compel an adequate answer if the response is incomplete or evasive. Rule 37(a)(4) is intended to prevent abuse in unnecessarily carrying discovery questions to court. Under the 1970 federal amendment, incorporated here, expenses against the losing party on such an order should ordinarily be awarded unless the judge finds that such party’s action was justified because there was a genuine issue or because the prevailing party’s conduct was unjustified. Rule 37(b)(1) provides for the sanction of contempt for failure of a party or nonparty to obey an order under Rule 37(a) made by any Superior Judge or by the court in a place outside Vermont where discovery is sought. Cf. 12 V.S.A. § 1243. Like Rule 37(a)(1), this provision does not confer, but merely recognizes, the power of a foreign court to act. Rule 37(b)(2) provides for a variety of other sanctions to be imposed against a party for failure to obey an order under Rules 35 or 37(a), or other orders, such as one under Rule 36(a) that an answer be served. These sanctions carry forward in very similar form the provisions of 12 V.S.A. § 1267, which was based on former Federal Rule 37(b), except that the statute provided for sanctions against “any person.” Under the rule only the contempt sanction of Rule 37(b)(1) may be asserted against a nonparty. New provisions of the subdivision deal with the change in Rule 35 permitting physical or mental examinations of certain nonparties and provide for the payment of reasonable expenses by the disobedient party in terms similar to Rule 37(a)(4). Rule 37(c) provides sanctions to be applied after trial for refusal to admit on request under Rule 36. If the requested party denies the matter as to which admission is sought or states that he is unable to admit or deny it, the expenses of proof may be assessed against him if the requesting party prevails at trial. It must be emphasized, however, that this sanction applies only if the refusal to admit was unjustified. In particular, if there was a genuine issue as to the matter in question, the losing party will be excused under Rule 37(c)(3) as having “had reasonable ground to believe that he might prevail on the matter.” Rule 37(d) makes failure to appear for a deposition, to answer interrogatories, or to respond to a request for production under Rules 30(b)(5) or 34 ground for sanctions under Rule 37(b)(2). This provision is necessary to take care of the situation where a party has not merely declined to answer specific questions or requests but has declined to participate in discovery at all. A similar result could have been reached under 12 V.S.A. § 1267, which unlike Federal Rule 37, applied to noncompliance with statutes and rules as well as orders of court. There is no equivalent to Federal Rule 37(e), covering subpoenas in foreign countries, because the provision is inapplicable to state practice. Annotations Construction. Contempt. Default judgment. Discretion of court. Failure to comply with scheduling order. Failure to supplement responses. Findings of fact. Particular cases. Prejudice. Review. Construction. Where responses to interrogatories and requests to produce are incomplete, subdivision (a) of this rule requires a motion for an order compelling discovery; only if there has been a failure to comply with a specific discovery order would sanctions such as witness preclusion be appropriate. In re R.M., 150 Vt. 59, 549 A.2d 1050, 1988 Vt. LEXIS 125 (1988). Contempt. Once order compelling discovery is issued after reasonable notice to defendant court may treat failure to comply as a contempt of court, unless the order is for a physical or mental examination. Kingsbury v. Kingsbury, 137 Vt. 448, 407 A.2d 512, 1979 Vt. LEXIS 1009 (1979). Where plaintiff filed motion to compel discovery and order issued after reasonable notice to defendant, plaintiff later filed motion for sanctions for noncompliance and requested that defendant be found guilty of contempt, motion was served on defendant’s attorney, attorney appeared at a hearing, and ability to comply with discovery order was not disputed, nor was failure to comply explained, defendant could be found in contempt and any contention of lack of fair notice and opportunity to be heard simply ignored the reality of the situation and was untenable. Kingsbury v. Kingsbury, 137 Vt. 448, 407 A.2d 512, 1979 Vt. LEXIS 1009 (1979). Default judgment. Because the order imposed an invalid arbitration initiation obligation on defendant, defendant’s violation of the order could not support the award of a default judgment to plaintiff as a sanction. Even if the trial court could properly require that defendant initiate arbitration, default judgment was not a proper remedy in that this was not a scheduling order, this was not a flagrant violation meriting a litigation-ending sanction, and most important, there was no support in the Federal Arbitration Act, or the cases decided under it, to also impose a litigation-ending sanction on the party who waived the right to arbitrate. Hermitage Inn Real Estate Holding Co. v. Extreme Contr., LLC, 2017 VT 44, 205 Vt. 93, 170 A.3d 604, 2017 Vt. LEXIS 66 (2017). Trial court abused its discretion in sanctioning defendants by rendering a default judgment on liability against them when plaintiff did not establish that defendants had the ability to produce documents in the possession of a multinational company based in Canada. Defendants did not have “control” over the documents in the company’s possession as required by the rule governing production of documents, nor was there sufficient evidence that defendants exerted the kind of influence over the company that would justify imposing liability against them for the company’s actions in withholding the requested documents. Rathe Salvage, Inc. v. R. Brown & Sons, Inc., 2008 VT 99, 184 Vt. 355, 965 A.2d 460, 2008 Vt. LEXIS 93 (2008). Discretion of court. Award of sanctions for failure to comply with discovery requests is vested in the sound discretion of the trial judge. In re R.M., 150 Vt. 59, 549 A.2d 1050, 1988 Vt. LEXIS 125 (1988). Degree of severity of sanctions provided for by this rule is necessarily matter of judicial discretion and is not subject to appellate review unless it is clearly shown that discretion has been abused or withheld. John v. Medical Center Hospital of Vermont, Inc., 136 Vt. 517, 394 A.2d 1134, 1978 Vt. LEXIS 655 (1978). Failure to comply with scheduling order. Plaintiff failed to show that despite diligence he had good cause for filing belated motion to add claim for disability discrimination, based on information uncovered at his own deposition seven weeks earlier; trial court therefore did not err in denying plaintiff’s motion as untimely under scheduling order. Carpenter v. Central Vermont Medical Center, 170 Vt. 565, 743 A.2d 592, 1999 Vt. LEXIS 402 (1999) (mem.). Failure to supplement responses. Although procedure governing sanctions for discovery abuse does not specifically address party’s failure to seasonably supplement discovery, trial court has inherent authority to enforce rule requiring supplementation by excluding evidence, granting a continuance, or by taking other appropriate action. White Current Corp. v. Vermont Electric Coop., 158 Vt. 216, 609 A.2d 222, 1992 Vt. LEXIS 46 (1992). Trial court did not abuse discretion by excluding expert testimony in breach of contract action between electricity producers, where party seeking to introduce testimony did not disclose intention to do so until one week before trial and did not disclose experts’ identities to court until day before trial, despite having received interrogatories requesting such information one and one-half years earlier; permitting testimony would have frustrated primary purpose of liberal civil discovery rules: prevention of surprise to one’s opponent. White Current Corp. v. Vermont Electric Coop., 158 Vt. 216, 609 A.2d 222, 1992 Vt. LEXIS 46 (1992). Findings of fact. No special findings of bad faith or prejudice or exhaustion of lesser discovery sanctions are required for anything less than the ultimate sanctions of dismissal or default, and thus the State’s claim of error based on the trial court’s omission of such findings was unavailing. State v. Howe Cleaners, 2010 VT 70, 188 Vt. 303, 9 A.3d 276, 2010 Vt. LEXIS 70 (2010). Although the trial court’s order striking the answer and defaulting defendant for not complying with an order compelling discovery recited certain relevant facts and thus arguably provided a basis for the sanction, the court did not find that defendant’s failure to comply was willful, and did not touch upon whether its failure to comply prejudiced plaintiff, or whether a less drastic sanction was considered; therefore, the case was reversed and remanded because it was impossible to ascertain the basis upon which the ultimate sanction was imposed. Manosh v. First Mountain Vermont, L.P., 2004 VT 122, 177 Vt. 616, 869 A.2d 79, 2004 Vt. LEXIS 387 (2004) (mem.). Where ultimate sanction of dismissal is invoked, trial court must indicate by findings of fact that there has been bad faith or deliberate and willful disregard for court’s orders and that party seeking sanction was prejudiced thereby. John v. Medical Center Hospital of Vermont, Inc., 136 Vt. 517, 394 A.2d 1134, 1978 Vt. LEXIS 655 (1978). Without findings of fact pertaining to sanctions under this rule, where record did not show what factors guided court’s discretion in dismissing plaintiff’s complaint with prejudice, appellate court was unable to say that trial court’s exercise of discretion was consistent with a correct view of the law. John v. Medical Center Hospital of Vermont, Inc., 136 Vt. 517, 394 A.2d 1134, 1978 Vt. LEXIS 655 (1978). Particular cases. Rather than sanction the State by dismissing or defaulting its case, the trial court tailored the sanction to fit the violation by precluding the State from using at trial evidence that should have been provided in accordance with an order requiring the State’s representative to be available for appellee’s noticed deposition. By its terms, the court’s order was the neutralizing evidentiary remedy contemplated by the rule authorizing a trial court to prohibit a disobedient party from introducing designated matters in evidence, not a dismissal under the rule authorizing the trial court to dismiss the action. State v. Howe Cleaners, 2010 VT 70, 188 Vt. 303, 9 A.3d 276, 2010 Vt. LEXIS 70 (2010). To avoid summary judgment, it was properly the State’s burden to identify, with supporting affidavits, the specific evidence upon which it continued to base its case that was not precluded by a discovery sanctions order. The State, however, failed to disclose or distinguish the full extent of the evidence in its possession; in short, the State failed to meet its burden of demonstrating precisely what evidence was not covered by the sanctions order and how that evidence was sufficient to defeat appellee’s motion for summary judgment. State v. Howe Cleaners, 2010 VT 70, 188 Vt. 303, 9 A.3d 276, 2010 Vt. LEXIS 70 (2010). Prejudice. Absent a showing of prejudice as a result of juvenile court’s refusal to impose sanctions for alleged discovery violations, reversal was not warranted. In re R.M., 150 Vt. 59, 549 A.2d 1050, 1988 Vt. LEXIS 125 (1988). Where there was no evidence of prejudice to defendant, defendant’s claim that the trial judge should have imposed sanctions upon plaintiff for delay in complying with certain discovery requests failed. My Sister's Place v. City of Burlington, 139 Vt. 602, 433 A.2d 275, 1981 Vt. LEXIS 536 (1981). Review. Absent an abuse of discretion, trial court’s use of sanctions for violating rule requiring discovery supplementation will be upheld. White Current Corp. v. Vermont Electric Coop., 158 Vt. 216, 609 A.2d 222, 1992 Vt. LEXIS 46 (1992).