RULE 104. ENFORCEMENT ACTION AND SANCTIONS
- (a) Failure To Attend Deposition or To Answer
Interrogatories or Respond to Request for Inspection or Production:
If a party, or an officer, director, or managing agent of a party,
or a person designated in accordance with Rule
74(b), 75(c), or 81(c) to testify on behalf of a party fails
(1) to appear before the officer who is to take such person's
deposition pursuant to Rule 74, 75, 76, 81, 82, 83, or 84, or (2) to
serve answers or objections to interrogatories submitted under Rule 71, after proper service thereof, or (3)
to serve a written response to a request for production or
inspection submitted under Rule 72 or 73 after proper service of the request, then
the Court on motion may make such orders in regard to the failure
as are just, and among others it may take any action authorized
under paragraph (b) or (c) of this Rule. If any person, after being
served with a subpoena or having waived such service, willfully
fails to appear before the officer who is to take such person's
deposition or refuses to be sworn, or if any person willfully fails
to obey an order requiring such person to answer designated
interrogatories or questions, then such failure may be considered
contempt of court. The failure to act described in this paragraph
(a) may not be excused on the ground that the deposition sought, or
the interrogatory submitted, or the production or inspection
sought, is objectionable, unless the party failing to act has
theretofore raised the objection, or has applied for a protective
order under Rule 103, with respect
thereto at the proper time and in the proper manner, and the Court
has either sustained or granted or not yet ruled on the objection
or the application for the order.
- (b) Failure to Answer: If a person fails to answer a
question or interrogatory propounded or submitted in accordance
with Rule 71, 74,
75, 76, 81, 82, 83, or 84, or fails
to respond to a request to produce or inspect or fails to produce
or permit the inspection in accordance with Rule 72 or 73, or
fails to make a designation in accordance with Rule 74(b), 75(e),
or 81(c), the aggrieved party may, within
the time for completion of discovery under Rule 70(a)(2), move the Court for an order
compelling an answer, response, or compliance with the request, as
the case may be. When taking a deposition on oral examination, the
examination may be completed on other matters or the examination
adjourned, as the proponent of the question may prefer, before
applying for such order.
- (c) Sanctions: If a party or an officer, director, or
managing agent of a party or a person designated in accordance with
Rule 74(b), 75(c), or 81(c)
fails to obey an order made by the Court with respect to the
provisions of Rule 71, 72, 73, 74, 75, 76, 81, 82, 83, 84, or 90, then the
Court may make such orders as to the failure as are just, and among
others the following:
- (1) An order that the matter regarding which the order was
made or any other designated facts shall be taken to be established
for the purposes of the case in accordance with the claim of the
party obtaining the order.
- (2) An order refusing to allow the disobedient party to
support or oppose designated claims or defenses, or prohibiting
such party from introducing designated matters in evidence.
- (3) An order striking out pleadings or parts thereof, or
staying further proceedings until the order is obeyed, or
dismissing the case or any part thereof, or rendering a judgment by
default against the disobedient party.
- (4) In lieu of the foregoing orders or in addition thereto,
the Court may treat as a contempt of the Court the failure to obey
any such order, and the Court may also require the party failing to
obey the order or counsel advising such party, or both, to pay the
reasonable expenses, including counsel'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.
- (d) Evasive or Incomplete Answer or Response: For purposes of this Rule and Rules 71, 72, 73, 74, 75, 76, 81, 82, 83, 84, and 90, an
evasive or incomplete answer or response is to be treated as a
failure to answer or respond.
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