Rule 46 Failure to Make Discovery; Sanctions
Rule Text
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:
A(1) Appropriate Court. A motion for an order to a party or to a deponent who is not a party, must be made to this court. On matters relating to a deponent’s failure to answer questions at a deposition taken in another state, the motion must be made to a judge of a court having jurisdiction of such matters in the state where the deposition is being taken.
A(2) Motion. If a deponent fails to answer a question propounded or submitted under TCR 39 or TCR 40, if a corporation or other entity fails to make a designation under TCR 39 C(6) or TCR 40 A, or if a party in response to a request for inspection submitted under TCR 43 fails to permit inspection as requested, the discovering party may move for an order compelling discovery in accordance with the request. Any motion made under this subsection must set out at the beginning of the motion the items that the moving party seeks to discover. 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 TCR 36 C.
A(3) Evasive or Incomplete Answer. For purposes of this section, an evasive or incomplete answer is to be treated as a failure to answer.
A(4) Award of Expenses of Motion. If the motion is granted, the court may, 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 fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is denied, the court may, after opportunity for hearing, require the moving party or the attorney advising the motion 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 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.
B(1) Sanctions by Court for Failure to Answer in Deposition. If a deponent fails to be sworn or to answer a question after being directed to do so by the court the failure may be considered a contempt of court.
B(2) Sanctions by Court. If a party or an officer, director, or managing agent or a person designated under TCR 39 C(6) or TCR 40 A to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under section A of this rule, the court may make such orders in regard to the failure as are just, including among others, the following:
B(2)(a) Establishment of facts. An order that the matters that caused the motion for the sanction or any other designated facts must be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
B(2)(b) Designated matters. An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the disobedient party from introducing designated matters in evidence;
B(2)(c) Strike, stay, or dismissal. An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party;
B(2)(d) Contempt of court. In lieu of or in addition to any of the orders listed in paragraph B(2)(a), B(2)(b), or B(2)(c) of this rule, an order treating as a contempt of court the failure to obey any order.
B(3) Payment of Expenses. In lieu of any order listed in subsection (2) of this section or in addition thereto, the court will require the party failing to obey the order or the attorney advising such 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.
C Expenses on Failure to Admit. If a party fails to admit the genuineness of any document or the truth of any matter, as requested under TCR 45, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the party requesting the admissions may apply to the court for an order requiring the other party to pay the party requesting the admissions the reasonable expenses incurred in making that proof, including reasonable attorney fees. The court will make the order unless it finds that (1) the request was held objectionable pursuant to TCR 45 B or TCR 45 C, (2) the admission sought was of no substantial importance, (3) the party failing to admit had reasonable ground to believe that such party might prevail on the matter, or (4) there was other good reason for the failure to admit.
D Failure of Party to Attend at Own Deposition or Respond to Request for Inspection. If a party or an officer, director, or managing agent of a party or a person designated under TCR 39 C(6) or TCR 40 A to testify on behalf of a party fails (1) to appear before the officer who is to take the deposition of that party or person, after being served with a proper notice or (2) to comply with or serve objections to a request for production and inspection submitted under TCR 43, after proper service of the request, the court on motion may make such orders in regard to the failure as are just, including among others it may take any action authorized under paragraphs (a), (b), and (c) of subsection B(2) of this rule. In lieu of any order or in addition thereto, the court will require the party failing to act or the attorney advising such 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 section 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 TCR 36 C. TCR amended Jan 1, 2026.