Rule 1-037. Failure to make discovery; sanctions.

A. Motion for order compelling discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows: (1) An application for an order to a deponent who is not a party but whose deposition is being taken within the state or for an order to a party may be made to the court where the action is pending. If a deposition is being taken outside the state, whether of a party or a nonparty, this shall not preclude the seeking of appropriate relief in the jurisdiction where the deposition is being taken. (2) If a deponent fails to answer a question propounded or submitted under Rule 1-030 NMRA or Rule 1-031 NMRA, or a corporation or other entity fails to make a designation under Rule 1-030 NMRA or Rule 1-031 NMRA, or a party fails to answer an interrogatory submitted under Rule 1-033 NMRA, or if a party, in response to a request for inspection submitted under Rule 1-034 NMRA, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order. If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to Rule 1-026 NMRA. (3) For purposes of this paragraph an evasive or incomplete answer is to be treated as a failure to answer. (4) If the motion is granted, 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 attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. Any motion filed pursuant to this paragraph shall state that counsel has made a good faith effort to resolve the issue with opposing counsel prior to filing a motion to compel discovery. A motion filed pursuant to this paragraph shall set forth or have attached the interrogatory or the request for production or admission, and any response thereto. If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the moving party or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner. B. Failure to comply with order. (1) If a deponent fails to be sworn or to answer a question after being directed to do so by a court with jurisdiction, the failure may be considered a contempt of that court. (2) If a party or an officer, director or managing agent of a party or a person designated under Rule 1-030 NMRA or Rule 1-031 NMRA to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under Paragraph A of this rule or Rule 1-035 NMRA, or if a party fails to obey an order under Rule 1-026 NMRA, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following: (a) an order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (b) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence; (c) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; (d) in lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination; (e) where a party has failed to comply with an order under Rule 1-035 NMRA requiring that party to produce another for examination, such orders as are listed in Subparagraphs (a), (b) and (c) of Subparagraph (2) of this paragraph, unless the party failing to comply shows that that party is unable to produce such person for examination. In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. C. Expenses on failure to admit. If a party fails to admit the genuineness of any documents or the truth of any matters as requested under Rule 1-036 NMRA, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may apply to the court for an order requiring the other party to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees. The court shall make the order unless it finds that: (1) the request was held objectionable pursuant to Rule 1-036 NMRA; (2) the admission sought was of no substantial importance; (3) the party failing to admit had reasonable grounds to believe that the party might prevail on the matter; or (4) there was another good reason for the failure to admit. D. Failure of party to attend at own deposition or serve answers to interrogatories or respond to request for inspection. If a party or an officer, director or managing agent of a party or a person designated under Rule 1-030 NMRA or Rule 1-031 NMRA to testify on behalf of a party fails: (1) to appear before the officer who is to take the deposition, after being served with a proper notice; (2) to serve answers or objections to interrogatories submitted under Rule 1- 033 NMRA, after proper service of the interrogatories; or (3) to serve a written response to a request for inspection submitted under Rule 1-034 NMRA, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under Subparagraphs (a), (b) and (c) of Subparagraph (2) of Paragraph B of this rule. In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. The failure to act described in this paragraph may not be excused on the grounds that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by Rule 1-026 NMRA. Committee commentary for 2009 amendments. — A number of amendments to the Rules of Civil Procedure for the District Courts were approved in 2009 to incorporate provisions from the Federal Rules of Civil Procedure addressing the discovery of electronically stored information. See the 2009 committee commentary to Rule 1-026 NMRA for additional information. However, one difference between the New Mexico and federal rules pertaining to electronic discovery is the omission of that portion of Federal Rule 37(f) commonly referred to as the “safe harbor” provision, which provides: (f) Electronically Stored Information. 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. The committee is of the view that nothing in the nature of the discovery of electronically stored information requires curtailment of the existing discretion of the district court to determine an appropriate sanction for violation of discovery rules. But even without inclusion of the federal “safe harbor” provision, the committee is of the view that New Mexico’s civil discovery rules should not treat the routine, good-faith purging of electronic files any differently than the good-faith, routine destruction of paper files according to an established records retention schedule. The destruction of electronic information pursuant to the routine, good-faith operation of an electronic information system is, of course, something the district court can take into account when considering a request for discovery sanctions. However, regardless of the form of information sought within the context of discovery, a bad faith approach to discovery warrants the imposition of sanctions. See United Nuclear Corp. v. General Atomic Co., 96 N.M. 155, 241, 629 P.2d 231, 317 (1980)(“When a party has displayed a willful, bad faith approach to discovery, it is not only proper, but imperative, that severe sanctions be imposed to preserve the integrity of the judicial process and the due process rights of the other litigants.”). Indeed, even under the federal safe harbor provision, one may be sanctioned for the bad faith destruction of electronically stored information.