Section 442-12-011 - Failure to Make Discovery: Sanctions (Rule 37)011.01 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:
011.01A Motion. If a deponent fails to answer a question propounded or submitted under sections 004 or 005, or a corporation or other entity fails to make a designation under subsection 004.02F or 005.01, or a party fails to answer an interrogatory submitted under section 007, or if a party, in response to a request for inspection submitted under section 008, 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 the proponent applies for an order. If the Commission 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 subsection 001.03.
011.01B Evasive or Incomplete Answer. For purposes of this subdivision an evasive or incomplete answer is to be treated as a failure to answer.011.01C Award of Expenses of Motion. If the motion is granted, the Commission may, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or legal counsel advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, unless the Commission 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 Commission may, after opportunity for hearing, require the moving party or the legal counsel 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, unless the Commission 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 Commission may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.
011.02 Failure to Comply With Order 011.02A Sanctions. If a party or an officer, director, or managing agent of a party or a person designated under subsection 004.02F or 005.01 to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subsection 011.01 of this rule, the Commission may make such orders in regard to the failure as are just, and among others the following: 011.02A1 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 petition or appeal in accordance with the claim of the party obtaining the order;011.02A2 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;011.02A3 An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the petition or appeal or any part thereof, or rendering a judgment by default against the disobedient party;011.02A4 Where a party has failed to comply with an order as are listed in subsections 011.02A1, 011.02A2, and 011.02A3, unless the party failing to comply shows that the party is unable to produce such person for examination. In lieu of any of the foregoing orders or in addition thereto, the Commission may require the party failing to obey the order or the legal counsel advising the party, or both to pay the reasonable expenses caused by the failure, unless the Commission finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
011.03 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 section 010, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, may, within 30 days of so proving, apply to the Commission for an order requiring the other party to pay the party's reasonable expenses incurred in making that proof. The Commission may make the order unless it finds that:
011.03A The request was held objectionable pursuant to subsection 010.01, or011.03B The admission sought was of no substantial importance, or011.03C The party failing to admit had reasonable ground to believe that the party might prevail on the matter, or011.03D There was other good reason for the failure to admit.011.04 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 subsection 004.02F or 005.01 to testify on behalf of a party fails 011.04A To appear before the officer who is to take his or her deposition, after being served with a proper notice, or011.04B To serve answers or objections to interrogatories submitted under section 007, after proper service of the interrogatories, or011.04C To serve a written response to a request for inspection submitted under section 008, after proper service of the request, the Commission on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under subsections 011.02A 1, 011.02A 2, and 011.02A 3 of this rule.
In lieu of any order or in addition thereto, the Commission may require the party failing to act or the legal counsel advising the party, or both to pay the reasonable expenses, caused by the failure, unless the Commission finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
The failure to act described in this subdivision 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 subsection 001.03.
442 Neb. Admin. Code, ch. 12, § 011