South Dakota Motion to Compel under Section 37

Introduction

Key Things to Know

1. 1

   A South Dakota motion to compel asks the circuit court for an order compelling an answer, a designation or an inspection under SDCL 15-6-37(a)(2), and the state gives you an official starting point. Form 21 in the Appendix of Forms is captioned Motion to Compel under Section 37 and lists what the Court expects the motion to say. Read the two sentences that set its weight together: SDCL 15-6-84 provides that the forms contained in the Appendix of Forms are sufficient under this chapter and are intended to indicate the simplicity and brevity of statement which this chapter contemplates, while Appendix C's introductory statement provides that the forms are intended for illustration only.

2. 2

   The attachment Form 21 calls for is detailed and is the part most worth preparing carefully. The Certification of Good Faith Efforts to Resolve asks counsel to certify, pursuant to SDCL 15-6-37(a)(2), an attempt to resolve the dispute without involving the Court, to state the date the movant communicated that the responses were inadequate and why, to list each successive communication including who participated, the date and if relevant the time, and the manner of each communication, and then to summarize the outcome, identifying the substantive dispute that has stalemated the parties' discussions and which the Court must resolve.

3. 3

   SDCL 15-6-37(a)(4)(A) is mandatory and it keeps three escape hatches where most of its relatives kept two. If the motion is granted, or if the requested discovery is provided after the motion was filed, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion, or the party or attorney advising that conduct, to pay the moving party's reasonable expenses incurred in obtaining the order including attorneys' fees. The three findings that excuse it are a motion filed before any attempt to obtain the discovery without court action, a substantially justified nondisclosure, response or objection, or other circumstances making an award unjust. (B) runs the same shall against a losing movant on two findings, and (C) lets the court apportion on a split result.

4. 4

   In the ordinary track South Dakota caps nothing, and it says so rather than leaving the question open. SDCL 15-6-26(a) lists the discovery methods and then provides that unless the court orders otherwise under SDCL 15-6-26(c), the frequency of use of these methods is not limited. So an objection that a set of interrogatories exceeds some number is not available on the face of the rules, and a numerical argument has to come from a protective order instead.

5. 5

   Article IX, the Expedited Civil Action track, is the exception and it changes everything about what is compellable. SDCL 15-6-72(1) makes it available where the sole relief sought is a money judgment and all claims other than compulsory counterclaims by or against any one party total $75,000 or less. SDCL 15-6-73(2) then caps each side at no more than 10 interrogatories, 10 requests for production and 10 requests for admission, each including all discrete subparts, allows one deposition of each party and up to two nonparty depositions per side, and SDCL 15-6-73(3) allows one retained expert per side. SDCL 15-6-72(9) defines side as all the litigants with generally common interests in the litigation, so the caps aggregate across co-parties.

6. 6

   The expedited track also carries the one hard discovery date in the rules. SDCL 15-6-73(1) provides that except upon agreement of the parties or leave of court granted upon a showing of good cause, all discovery must be completed no later than 60 days before trial. In the ordinary track no statute sets a period within which this motion has to be brought; your dates come from SDCL 15-6-16 instead, which requires the court to enter a scheduling order limiting the time to file and hear motions and the time to complete discovery, and provides that a schedule shall not be modified except by leave of the judge upon a showing of good cause.

7. 7

   Two structural points about Rule 37 itself. It stops at (d): the chapter lists 15-6-37(a) motion for order compelling, (b) failure to comply with order, (c) failure to disclose or refusal to admit, and (d) failure of a party to attend at its own deposition or serve answers, and then goes to 15-6-38. There is no (e) and no (f), so there is no electronically-stored-information safe harbour in the rule. And 15-6-37(a)(1) gives a party-side applicant only the court in which the action is pending, with no deposition-location alternative, while an application for an order to a person who is not a party shall be made to the court in the circuit where the discovery is being, or is to be, taken.

South Dakota Requirements for Motion to Compel

• Form 21 as Your Starting Point, and the Two Sentences That Set Its Weight

  SD RCP Form 21, in the Appendix of Forms, is captioned Motion to Compel under Section 37 and sets out three numbered grounds: that the discovery was properly served, that the opposing party has failed to respond, and the certification SDCL 15-6-37(a)(2) requires, all as set forth in the accompanying Brief in Support of the movant's Motion to Compel Discovery. SDCL 15-6-84 provides that the forms contained in the Appendix of Forms are sufficient under this chapter and are intended to indicate the simplicity and brevity of statement which this chapter contemplates, while Appendix C's introductory statement provides that the forms are intended for illustration only. Using it is safe; departing from it is not a defect.

• The Certification of Good Faith Efforts to Resolve, Item by Item

  Form 21 directs you to attach it, and it asks for specifics. The certification states that counsel attempted, in good faith, to resolve the dispute without involving the Court; gives the date the movant communicated that the responses were inadequate and why; lists each successive communication including who participated, the date and if relevant the time, and the manner of each; and summarizes the outcome, identifying the substantive dispute that has stalemated the parties' discussions and which the Court must resolve. Keep a contemporaneous log, because participants and manner are hard to reconstruct later.

• The Brief in Support That Form 21 Names

  Form 21's third ground ends with the words all as set forth in the accompanying Brief in Support of the movant's Motion to Compel Discovery. The form therefore assumes a short motion and a separate brief carrying the argument, which is a different shape from a single long motion. South Dakota prescribes no contents for that brief, so it is the place to set out each request, the response received and why it does not answer, alongside SDCL 15-6-37(a)(3): an evasive or incomplete disclosure, answer, or response is to be treated as a failure to disclose, answer, or respond.

• Which Track the Case Is In, Because It Changes What Is Compellable

  In the ordinary track SDCL 15-6-26(a) provides that unless the court orders otherwise under SDCL 15-6-26(c), the frequency of use of these methods is not limited. In an Expedited Civil Action under article IX, available where the sole relief sought is a money judgment and all claims other than compulsory counterclaims by or against any one party total $75,000 or less, SDCL 15-6-73(2) caps each side at 10 interrogatories, 10 requests for production and 10 requests for admission, each including all discrete subparts, with one deposition of each party and up to two nonparty depositions per side. SDCL 15-6-72(9) defines side as all the litigants with generally common interests in the litigation.

• The Right Court Under SDCL 15-6-37(a)(1)

  An application for an order to a party may be made to the court in which the action is pending, and that is the only option on the party side: South Dakota carries no deposition-location alternative. An application for an order to a person who is not a party shall be made to the court in the circuit where the discovery is being, or is to be, taken. Note the breadth of the nonparty branch, which speaks of a person rather than a deponent and of discovery rather than a deposition, and reaches discovery that is to be taken as well as discovery under way.

• Proof That the Response Period Had Run, and Any Written Agreement Extending It

  SDCL 15-6-33(a) gives 30 days after service of the interrogatories, except that a defendant may serve answers or objections within 45 days after service of the summons and complaint. The same subdivision then provides that a shorter or longer time may be directed by the court or, in the absence of such order, agreed to in writing by the parties, so an agreed extension needs no order. Check the objections too: all grounds shall be stated with specificity, and any ground not stated in a timely objection is waived unless excused by the court for good cause shown.

• Your Scheduling Order Dates, and the Expedited Completion Limit If It Applies

  No South Dakota statute sets a period within which this motion must be brought. SDCL 15-6-16 instead requires the court, on its own motion or a party's, to enter a scheduling order limiting the time to join parties and amend pleadings, to file and hear motions, to complete discovery, and the dates for pretrial conferences and trial, and provides that a schedule shall not be modified except by leave of the judge upon a showing of good cause. In an Expedited Civil Action SDCL 15-6-73(1) adds a statutory outer limit: except upon agreement of the parties or leave of court on good cause, all discovery must be completed no later than 60 days before trial.

• The Expenses Request Under SDCL 15-6-37(a)(4), and Your Own Exposure

  15-6-37(a)(4)(A) provides that if the motion is granted, or if the requested discovery is provided after the motion was filed, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion, or the party or attorney advising that conduct, or both, to pay the moving party's reasonable expenses incurred in obtaining the order including attorneys' fees, subject to three findings: a motion filed before any attempt to obtain the discovery without court action, a substantially justified nondisclosure, response or objection, or other circumstances making an award unjust. (B) runs the same shall against a losing movant on two findings, and (C) lets the court apportion where the motion is granted in part and denied in part.