LCR 37. FAILURE TO MAKE DISCOVERY; SANCTIONS
(a)-(c) [Reserved].
(d) Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Production or Inspection. If a party or an officer, director, or managing agent of a party or a person designated under rule 30(b)(6) or 31(a) to testify on behalf of a party fails (1) to appear before the officer who is to take his or her deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories submitted under rule 33, after proper service of the interrogatories, or (3) to serve a written response to a request for production of documents or inspection submitted under CR 34, 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 CR 37. In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising the party or both to pay the reasonable expenses, including attorney 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 subsection 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 CR 26(c). For purposes of this section, an evasive or misleading answer is to be treated as a failure to answer.
( e) Conference of Counsel . The court will not entertain any motion or objection with respect to Civil Rules 26 through 37, unless it affirmatively appears that counsel have met and conferred with respect thereto. Counsel for the moving or objecting party shall arrange such a conference. If the court finds that counsel for any party, upon whom a motion or objection in respect to matters covered by such rules is served, willfully refuses to meet and confer, or having met, willfully refuses or fails to confer in good faith, the court may take appropriate action to encourage future good faith compliance.
(f) Certificate of Compliance. At the time of noting motion or objection for consideration, counsel for the moving or objecting party shall serve and file a certificate of compliance with this rule and enumerate therein the matters remaining for disposition by the Court.
(g) Completion of Discovery. Unless otherwise ordered by the Court for good cause and subject to such terms and conditions as are just, all discovery allowed under CR 26-37, including responses and supplementations thereto, must be completed no later than 49 calendar days before the assigned trial date (provided that deadlines shall be 28 days in all parentage cases and 35 days in all other family law proceedings as defined in LFLR 1). Discovery requests must be served early enough that responses will be due and depositions will have been taken by the cutoff date. Discovery requests that do not comply with this rule will not be enforced, absent a written agreement of all parties, and the parties shall not enter into such an agreement if it is likely to affect the trial date. Nothing in this rule shall modify a party's responsibility to seasonably supplement responses to discovery requests or otherwise to comply with discovery prior to the cutoff.
[Adopted effective January 1, 1983; amended effective September 1, 1986; January 1, 1990; September 1, 1992; September 1, 1999; September 1, 2001; September 1, 2007; September 1, 2008.]
Official Comment
Paragraph (d) of this rule requires a party who disagrees with the scope of production, or who wishes not to respond to seek a protective order consistent with CR 37(d); a party may not withhold discoverable materials. Physicians Insurance Exchange v. Fisons Corp., 122 Wn.2d 299 (1993) at 353 and 354; Johnson v. Mermis, 91 Wash. App. 127, at 133 (1998); Pamelin Industries v. Sheen-USA, Inc., 95 Wn.2d 398 (1981). If a responding party does not fully respond and/or interposes objections, and if the responding party does not seek a protective order or obtain the agreement of the party seeking the discovery to narrow the requested discovery, upon motion, the Court will ordinarily impose sanctions for such failure. If the requested relief is sanctions, a motion to compel is not a prerequisite. See Fisons, supra, at 345.
[Rule 37(g)] If the parties agree in writing to permit discovery after the discovery cutoff, and it later becomes necessary to continue the trial date as a result of such discovery, the Court will ordinarily impose sanctions on one or more of the attorneys or parties. The parties can avoid this risk by moving in advance to extend the discovery cutoff, provided they can show good cause for the extension. See LCR 4(d).
If an attorney's or party's lateness in responding to discovery requests makes it necessary for another party to request an extension of the discovery deadlines, the Court should ordinarily impose sanctions on the attorney or party whose responses were late. If the attorney or party requesting extension of the discovery deadlines delayed unreasonably in taking action to enforce its discovery requests, subject to the limitations imposed by paragraph (e) of this rule (pertaining to conference of counsel), the Court may also impose sanctions upon the attorney or party requesting extension of the discovery deadline.
