N.M. R. Civ. P. Dist. Ct. 1-037

As amended through April 22, 2022
Rule 1-037 - Failure to make discovery; sanctions
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:
(1) An application for an order to a deponent who is not a party but whose deposition is being taken within the state or for an order to a party may be made to the court where the action is pending. If a deposition is being taken outside the state, whether of a party or a nonparty, this shall not preclude the seeking of appropriate relief in the jurisdiction where the deposition is being taken.
(2) If a deponent fails to answer a question propounded or submitted under Rule 1-030 NMRA or Rule 1-031 NMRA, or a corporation or other entity fails to make a designation under Rule 1-030 NMRA or Rule 1-031 NMRA, or a party fails to answer an interrogatory submitted under Rule 1-033 NMRA, or if a party, in response to a request for inspection submitted under Rule 1-034 NMRA, 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 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 Rule 1-026 NMRA.

(3) For purposes of this paragraph an evasive or incomplete answer is to be treated as a failure to answer.
(4) If the motion is granted, the court shall, 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's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

Any motion filed pursuant to this paragraph shall state that counsel has made a good faith effort to resolve the issue with opposing counsel prior to filing a motion to compel discovery. A motion filed pursuant to this paragraph shall set forth or have attached the interrogatory or the request for production or admission, and any response thereto.

If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the moving party 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's 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.
(1) If a deponent fails to be sworn or to answer a question after being directed to do so by a court with jurisdiction, the failure may be considered a contempt of that court.
(2) If a party or an officer, director or managing agent of a party or a person designated under Rule 1-030 NMRA or Rule 1-031 NMRA to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under Paragraph A of this rule or Rule 1-035 NMRA, or if a party fails to obey an order under Rule 1-026 NMRA, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
(a) 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 action in accordance with the claim of the party obtaining the order;
(b) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence;
(c) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
(d) in lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;
(e) where a party has failed to comply with an order under Rule 1-035 NMRA requiring that party to produce another for examination, such orders as are listed in Subparagraphs (a), (b) and (c) of Subparagraph (2) of this paragraph, unless the party failing to comply shows that that party is unable to produce such person for examination.

In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorney'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.

C.Expenses on failure to admit. If a party fails to admit the genuineness of any documents or the truth of any matters as requested under Rule 1-036 NMRA, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may apply to the court for an order requiring the other party to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees. The court shall make the order unless it finds that:
(1) the request was held objectionable pursuant to Rule 1-036 NMRA;
(2) the admission sought was of no substantial importance;
(3) the party failing to admit had reasonable grounds to believe that the party might prevail on the matter; or
(4) there was another good reason for the failure to admit.
D.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 Rule 1-030 NMRA or Rule 1-031 NMRA to testify on behalf of a party fails:
(1) to appear before the officer who is to take the deposition, after being served with a proper notice;
(2) to serve answers or objections to interrogatories submitted under Rule 1-033 NMRA, after proper service of the interrogatories; or
(3) to serve a written response to a request for inspection submitted under Rule 1-034 NMRA, 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 Subparagraphs (a), (b) and (c) of Subparagraph (2) of Paragraph B of this rule. In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising that party or both to pay the reasonable expenses, including attorney'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.

The failure to act described in this paragraph may not be excused on the grounds that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by Rule 1-026 NMRA.

N.M. R. Civ. P. Dist. Ct. 1-037

As amended, effective 10/15/1986;8/1/1988;8/1/1989;1/1/1998; as amended by Supreme Court Order No. 09-8300-007, effective 5/15/2009.

Committee commentary for 2009 amendments. -

A number of amendments to the Rules of Civil Procedure for the District Courts were approved in 2009 to incorporate provisions from the Federal Rules of Civil Procedure addressing the discovery of electronically stored information. See the 2009 committee commentary to Rule 1-026 NMRA for additional information. However, one difference between the New Mexico and federal rules pertaining to electronic discovery is the omission of that portion of Federal Rule 37(f) commonly referred to as the "safe harbor" provision, which provides:

(f) Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

The committee is of the view that nothing in the nature of the discovery of electronically stored information requires curtailment of the existing discretion of the district court to determine an appropriate sanction for violation of discovery rules. But even without inclusion of the federal "safe harbor" provision, the committee is of the view that New Mexico's civil discovery rules should not treat the routine, good-faith purging of electronic files any differently than the good-faith, routine destruction of paper files according to an established records retention schedule. The destruction of electronic information pursuant to the routine, good-faith operation of an electronic information system is, of course, something the district court can take into account when considering a request for discovery sanctions. However, regardless of the form of information sought within the context of discovery, a bad faith approach to discovery warrants the imposition of sanctions. See United Nuclear Corp. v. General Atomic Co., 96 N.M. 155, 241, 629 P.2d 231, 317 (1980)("When a party has displayed a willful, bad faith approach to discovery, it is not only proper, but imperative, that severe sanctions be imposed to preserve the integrity of the judicial process and the due process rights of the other litigants."). Indeed, even under the federal safe harbor provision, one may be sanctioned for the bad faith destruction of electronically stored information.

[Adopted by Supreme Court Order No. 09-8300-007, effective May 15, 2009.]

ANNOTATIONS The 2009 amendment, approved by Supreme Court Order No. 09-8300-007, effective May 15, 2009, added the references to "NMRA". The 1997 amendment, effective January 1, 1998, substituted "by a court with jurisdiction" for "by the court in which the action is pending" in Subparagraph B(1) and made gender neutral changes throughout the rule. Compiler's notes. - Paragraph C of this Rule and Rule 1-036 NMRA are deemed to have superseded 105-834, C.S. 1929, containing similar provisions relating to failure of a party to make an admission. I. GENERAL CONSIDERATION. Compliance with rules expected. - When plaintiff in a civil action files a lawsuit, his adversaries are entitled to generally understand that he will proceed in a lawful manner and that compliance will be had with the Rules of Civil Procedure, including those relating to discovery. Pizza Hut of Santa Fe, Inc. v. Branch, 1976-NMCA-051, 89 N.M. 325, 552 P.2d 227; Doanbuy Lease & Co. v. Melcher, 1971-NMSC-086, 83 N.M. 82, 488 P.2d 339. Power of court to initiate proceedings hereunder. - Trial courts have supervisory control over their dockets and inherent power to manage their own affairs so as to achieve the orderly and expeditious disposition of cases, and the trial judge has such inherent supervisory control that he can initiate proceedings under this rule. Pizza Hut of Santa Fe, Inc. v. Branch, 1976-NMCA-051, 89 N.M. 325, 552 P.2d 227; Miller v. City of Albuquerque, 1975-NMCA-099, 88 N.M. 324, 540 P.2d 254, cert. denied, 88 N.M. 319, 540 P.2d 249. Written court order not required as basis for sanctions. - A court order issued under Paragraph A is not a prerequisite to imposition of Paragraph B sanctions because any clearly articulated order requiring or permitting discovery can provide the basis of sanctions for noncompliance; moreover, the order to provide or permit discovery need not be written, but can be made orally from the bench. Marchman v. NCNB Tex. Nat'l. Bank, 1995-NMSC-041, 120 N.M. 74, 898 P.2d 709. Power to impose sanctions at any time. - Because the award of sanctions is not an order on the judgment, the court is not limited by the statutory bar of fourteen years, and a party may be held accountable for an abuse of the discovery process under the court's inherent powers to impose sanctions at any time, subject to constitutional limitations or equitable defenses. Gonzales v. Surgidev Corp., 1995-NMSC-047, 120 N.M. 151, 899 P.2d 594. Dismissal as a sanction. - Where the State sued defendant for medicare fraud because, defendant knowingly submitted bills for services by caregivers because the caregivers provided services before the Department of Health had confirmed that the caregivers had a clear criminal history and issued clearance letters; the date of the clearance letter for each caregiver was critical to the State's theory of liability; the State's prosecutor asked an investigator for the Attorney General's office to obtain copies of the caregivers' clearance letters for use in a deposition of defendant's president; the investigator could not locate copies of the original clearance letters; even though the Department's computer system had updated several fields in the clearance letter template since the caregiver's clearance letters had been issued, the investigator asked the Department to print copies of the letters with the updated data; the Department delivered the letters to the investigator with a cover sheet informing the investigator that the letters were false and fictitious; the investigator gave the letters to the prosecutor without telling the prosecutor that the letters were false and fictitious; and the prosecutor used the letter in the deposition to impeach defendant's president, the district court did not abuse its discretion in dismissing the State's complaint with prejudice as a sanction. State ex rel. King v. Advantageous Cmty. Servs., LLC, 2014-NMCA-076. Failure to make disclosures in responses to interrogatories is sufficient grounds to exclude expert witness testimony. - In an action for negligence, inverse condemnation, injunctive relief and damages, where the parties jointly filed a motion for entry of stipulated permanent injunction and voluntary dismissal with prejudice, and where plaintiff filed suit against defendant, the New Mexico Transportation Department, seeking enforcement of the permanent injunction, and where defendant, in response to interrogatories, did not provide information concerning its expert witness's opinions, the grounds for those opinions, or the facts, documents, or other information upon which the expert relied informing his opinions, nor did defendant provide plaintiff with the expert witness's report, the district court did not abuse its discretion by excluding defendant's expert witness's testimony. Allred v. N.M. Dep't of Transp., 2017-NMCA-019, cert. denied. Authority of administrative tribunals. - Paragraph B, together with the procedural components of the Rules Governing Discipline, authorizes the disciplinary board and its duly appointed hearing committees to impose discovery sanctions under appropriate circumstances. In re Chavez, 2000-NMSC-015, 129 N.M. 035, 1 P.3d 417. No notice required before sanctions imposed. - Nothing in this rule requires notice before imposition of sanctions. Thornfield v. First State Bank, 1983-NMCA-149, 103 N.M. 229, 704 P.2d 1105. Punitive damages distinguished. - Since the factual information available to the court and jury at the time of trial did not support sanctions against the defendant, sanctions could not have been included in an award of punitive damages, and an award of sanctions more than two years after the final judgment, based on discovery violations, did not duplicate the award for punitive damages; even if available information had been sufficient to sustain sanctions at the time of the trial, the sanctions would not have been subsumed by the award of punitive damages since such damages concern the defendant's misconduct toward the injured party and are noncompensatory, and civil sanctions concern the defendant's conduct toward the tribunal and are compensatory. Gonzales v. Surgidev Corp., 1995-NMSC-047, 120 N.M. 151, 899 P.2d 594. II. MOTION FOR ORDER. Protection from self-incrimination. - Defendant had the right to refuse to answer certain interrogatories in a civil suit until he was protected against use of his compelled answers, and evidence derived therefrom, in any subsequent criminal case in which he might be a defendant; absent such protection, if defendant were compelled to answer, his answers would be inadmissible against him in a later criminal prosecution. Rainbo Baking Co. v. Apodaca, 1975-NMCA-122, 88 N.M. 501, 542 P.2d 1191, cert. denied, 89 N.M. 6, 546 P.2d 71. Where defendant was not given any protection against later criminal prosecution, he had the right to refuse to orally answer several interrogatories, as well as those questions which extended beyond court order. Rainbo Baking Co. v. Apodaca, 1975-NMCA-122, 88 N.M. 501, 542 P.2d 1191, cert. denied, 89 N.M. 6, 546 P.2d 71. Substantial justification for refusal to answer. - Defendant's refusal to answer questions propounded during a deposition, where he claimed the privilege under U.S. Const., amend. V, seeking a court ruling pursuant to Rule 30(b) (see now Rule 1-026 NMRA) on whether the answers to questions propounded would reasonably tend to incriminate him and were privileged, was with substantial justification, and the trial court improperly assessed attorneys' fees and costs against him. Rainbo Baking Co. v. Apodaca, 1975-NMCA-122, 88 N.M. 501, 542 P.2d 1191, cert. denied, 89 N.M. 6, 546 P.2d 71. Response affidavit to summary judgment improperly struck. - Defendant had a duty to resist plaintiffs' motion for summary judgment with whatever evidentiary material he could produce, and the trial court was bound to consider such evidence in arriving at its decision to grant or deny the motion; the trial court mistakenly struck defendant's response affidavit on grounds that he had allegedly refused to furnish certain information contained therein to plaintiffs during discovery proceedings. Rainbo Baking Co. v. Apodaca, 1975-NMCA-122, 88 N.M. 501, 542 P.2d 1191, cert. denied, 89 N.M. 6, 546 P.2d 71. III. FAILURE TO COMPLY WITH ORDER. Constitutional to impose sanctions without hearing where party warned and hearing not necessary. - Where a party has been warned that failure to comply with the court's discovery orders may result in the imposition of sanctions under this rule, and where the court, pursuant to Rule 43(c) (see now Rule 1-043 NMRA) has determined that an evidentiary hearing under the circumstances is not necessary before ruling on a motion to impose sanctions, the imposition of such sanctions does not amount to a denial of due process. United Nuclear Corp. v. General Atomic Co., 1980-NMSC-094, 96 N.M. 155, 629 P.2d 231, appeal dismissed, 451 U.S. 901, 101 S. Ct. 1966, 68 L. Ed. 2d 289 (1981). Only unreasonable sanction unconstitutional. - It is only where the sanction invoked is more stern than reasonably necessary, so as to rise to the level of a reprisal, that a denial of due process results. United Nuclear Corp. v. General Atomic Co., 1980-NMSC-094, 96 N.M. 155, 629 P.2d 231, appeal dismissed, 451 U.S. 901, 101 S. Ct. 1966, 68 L. Ed. 2d 289 (1981). Court cannot hold party in contempt until discovery order entered and disregarded. - A district court may not hold a party in contempt unless and until the district court has entered a discovery order compelling the party to act and the district court's order has been disregarded. Bellamah Corp. v. Rio Vista Apts., 1982-NMSC-155, 99 N.M. 188, 656 P.2d 238. Factors to be considered by court. - In determining the nature of sanctions to be imposed for noncompliance with discovery orders, the trial court must balance the nature of the offense, the potential prejudice to the parties, the effectiveness of the sanction, and the imperative that the integrity of the court's orders and the judicial process must be protected. Lewis v. Samson, 2001-NMSC-035, 131 N.M. 317, 35 P.3d 972. Choice of sanctions under this rule lies within sound discretion of trial court. Only an abuse of that discretion will warrant reversal. Although the severest of the sanctions should be imposed only in extreme circumstances, in this day of burgeoning, costly and protracted litigation courts should not shrink from imposing harsh sanctions where they are clearly warranted. United Nuclear Corp. v. General Atomic Co., 1980-NMSC-094, 96 N.M. 155, 629 P.2d 231, appeal dismissed, 451 U.S. 901, 101 S. Ct. 1966, 68 L. Ed. 2d 289 (1981). Choice of sanctions imposed under this rule lies within the sound discretion of the trial court and only a clear abuse of discretion will warrant reversal of the choice of sanctions. Pittard v. Four Seasons Motor Inn, Inc., 1984-NMCA-044, 101 N.M. 723, 688 P.2d 333; Lewis v. Samson, 2001-NMSC-035, 131 N.M. 317, 35 P.3d 972. The choice of sanctions lies within the discretion of the trial court, and it will be reversed only for an abuse of discretion. Smith v. FDC Corp., 1990-NMSC-020, 109 N.M. 514, 787 P.2d 433. Court need not exhaust lesser sanctions. - Although the severest of sanctions should be imposed only when the court in its discretion determines that none of the lesser sanctions available to it would truly be appropriate, the court need not exhaust the lesser sanctions. United Nuclear Corp. v. General Atomic Co., 1980-NMSC-094, 96 N.M. 155, 629 P.2d 231, appeal dismissed, 451 U.S. 901, 101 S. Ct. 1966, 68 L. Ed. 2d 289 (1981); Lewis v. Samson, 2001-NMSC-035, 131 N.M. 317, 35 P.3d 972. Severe sanctions only imposed when party willfully at fault. - This rule applies to any failure to comply with discovery orders of the type specified. However, the sanctions provided by Subdivision (B)(2) (see now Paragraph B(2)), entailing the denial of an opportunity for a hearing on the merits, may only be imposed when the failure to comply is due to the willfulness, bad faith or fault of the disobedient party. United Nuclear Corp. v. General Atomic Co., 1980-NMSC-094, 96 N.M. 155, 629 P.2d 231, appeal dismissed, 451 U.S. 901, 101 S. Ct. 1966, 68 L. Ed. 2d 289 (1981). Severe sanctions, such as denying a party the right to a hearing on the merits, should be imposed only where there is a willful or bad faith failure to comply with a discovery order. Pittard v. Four Seasons Motor Inn, Inc., 1984-NMCA-044, 101 N.M. 723, 688 P.2d 333. Under Paragraph B(2), a prerequisite to applying extreme discovery sanctions (such as entry of default or dismissal of a case), without a hearing on the merits, is a finding by the trial court that plaintiff's failure to comply involves a conscious or intentional failure, as distinguished from an accidental or involuntary noncompliance. Bishop v. Lloyd McKee Motors, Inc., 1987-NMCA-012, 105 N.M. 399, 733 P.2d 368. Such as where illicit attempt to conceal information, or gross disregard for discovery. - The willfulness required to sustain the severe sanctions of this rule may be predicated upon either an illicit attempt to conceal damaging information, or a gross disregard for the requirements of the discovery process. United Nuclear Corp. v. General Atomic Co., 1980-NMSC-094, 96 N.M. 155, 629 P.2d 231, appeal dismissed, 451 U.S. 901, 101 S. Ct. 1966, 68 L. Ed. 2d 289 (1981). Conscious, intentional failure to comply with discovery requests and orders. - Dismissal of medical malpractice claims was warranted where there was a clear showing that plaintiffs' actions constituted conscious, intentional failures to comply with discovery requests and with the order of the district court, and were not accidental or involuntary actions on plaintiffs' part. Allred ex rel. Allred v. Board of Regents, 1997-NMCA-070, 123 N.M. 545, 943 P.2d 579. In imposing stringent sanctions, courts are free to consider the general deterrent effect their orders may have on the instant case and on other litigation, provided that the party on whom they are imposed is, in some sense, at fault. United Nuclear Corp. v. General Atomic Co., 1980-NMSC-094, 96 N.M. 155, 629 P.2d 231, appeal dismissed, 451 U.S. 901, 101 S. Ct. 1966, 68 L. Ed. 2d 289 (1981). False answers to deposition questions may be subject to Subsection D sanctions. Reed v. Furr's Supermarkets, Inc., 2000-NMCA-091, 129 N.M. 639, 11 P.3d 603, cert. denied, 129 N.M. 599, 11 P.3d 563. A false interrogatory answer may be subject to Subsection D sanctions. Sandoval v. Martinez, 1989-NMCA-042, 109 N.M. 5, 780 P.2d 1152. Contempt citation not improper. - Where defendant city's administrative officer directed certain deponents to comply with the directions of its attorney with regard to attendance or nonattendance, and the attorney failed to produce these deponents after proper notice and court order, there was nothing showing an abuse of discretion on the court's part in holding the attorney in contempt. Miller v. City of Albuquerque, 1975-NMCA-099, 88 N.M. 324, 540 P.2d 254 (Ct. App.), cert. denied, 88 N.M. 319, 540 P.2d 249 (1975). Award of attorneys' fees for depositions was not abuse of discretion when imposed because of a sustained and deliberate disobedience of court orders concerning discovery. Miller v. City of Albuquerque, 1975-NMCA-099, 88 N.M. 324, 540 P.2d 254, cert. denied, 88 N.M. 319, 540 P.2d 249. Dismissal for failure to comply with order. - Just as it is proper for a trial court to dismiss an action for failure of the plaintiff to appear for deposition under Subdivision (d) (see now Paragraph D), it is also proper to dismiss an action for failure of a plaintiff to comply with an order of the court in this case, an order to answer interrogatories. Pizza Hut of Santa Fe, Inc. v. Branch, 1976-NMCA-051, 89 N.M. 325, 552 P.2d 227. Dismissal for willful noncompliance. - A district court may impose the sanction of dismissal for violation of discovery orders under Paragraph B when the failure to comply is due to the willfulness, bad faith, or fault of the disobedient party. Medina v. Foundation Reserve Ins. Co., 1994 -NMSC-016, 117 N.M. 163, 870 P.2d 125. The district court expressly found that the plaintiff willfully failed to comply with discovery obligations, willfully violated a discovery order, and repeatedly gave false and misleading information to the defendant; thus the plaintiff's flagrant disregard for his discovery obligations clearly justifies the sanction of dismissal. Medina v. Foundation Reserve Ins. Co., 1994 -NMSC-016, 117 N.M. 163, 870 P.2d 125. Willfulness necessary to support dismissal of complaint under Subdivision (B)(2) (see now Paragraph B(2)) is a conscious or intentional failure to comply with a court order or request, as distinguished from accidental or involuntary noncompliance, and no wrongful intent need be shown. Thornfield v. First State Bank, 1983-NMCA-149, 103 N.M. 229, 704 P.2d 1105. Dismissal not dependent on ultimate importance of information. - When a plaintiff misrepresents information during discovery, dismissal is not dependent upon whether the information goes to the merits of the case nor upon the ultimate importance of the false or deceptive information. Reed v. Furr's Supermarkets, Inc., 2000-NMCA-091, 129 N.M. 639, 11 P.3d 603, cert. denied, 129 N.M. 599, 11 P.3d 563. Dismissal as to all defendants. - Appellate court would not say that trial court abused its discretion in dismissing as to all defendants for failure to plaintiff to obey court order to answer interrogatories. Pizza Hut of Santa Fe, Inc. v. Branch, 1976-NMCA-051, 89 N.M. 325, 552 P.2d 227. Dismissal with prejudice was not warranted where plaintiff had supplied the required discovery before her complaint was dismissed, and the evidence did not support a finding that she willfully failed to comply with the order compelling discovery. Lopez v. Wal-Mart Stores, Inc., 1989-NMCA-013, 108 N.M. 259, 771 P.2d 192. Dismissal with prejudice was the appropriate sanction where plaintiff lied in answers to interrogatories, and the answers (1) were not direct assertions of material elements of a claim or defense and (2) deceived defendants about the existence of discoverable information that could have been critical to preparation for trial. Sandoval v. Martinez, 1989-NMCA-042, 109 N.M. 5, 780 P.2d 1152. Dismissal must be for discovery abuse. - Paragraph D does not empower a judge to dismiss a claim because of perjury regarding the material issues in the case. The purpose of the rule is to curb discovery abuse which would impair preparation for trial, as opposed to merely outlining which issues are in dispute. Bustillos v. Construction Contracting, 1993-NMCA-142, 116 N.M. 673, 866 P.2d 401. Plaintiff's credibility. - District court's assessment of credibility as it relates to abuse of the discovery process is merely a determination of whether the party was providing answers that obstructed the discovery process. This determination, while it does involve credibility and truthfulness, does not preempt trial on the merits because the district court is not deciding the truth of the merits or the ultimate facts of the case. Reed v. Furr's Supermarkets, Inc., 2000-NMCA-091, 129 N.M. 639, 11 P.3d 603, cert. denied, 129 N.M. 599, 11 P.3d 563. Default judgment justified. - Where defendant's attempts to comply with court's order to produce documents came substantially after appointed time for their submission, where trips were made to have documents examined without advance notice and where none of defendant's actions were performed in a true effort to comply with court's order, failure to produce documents was willful and justified default judgment; denial of motion to vacate same did not constitute an abuse of discretion. Rio Grande Gas Co. v. Gilbert, 1971-NMSC-113, 83 N.M. 274, 491 P.2d 162. Default judgment requires a hearing on damages when the damages claimed are unliquidated. - A default judgment entered as a discovery sanction under this rule is subject to Rule 1-055 NMRA, and although Rule 1-055 NMRA gives the district court discretion to conduct a hearing to determine the amount of damages, where the damages claimed are unliquidated, it would be an abuse of discretion not to have a hearing and to put the plaintiff to the test of presenting evidence to support the claim for damages. Couch v. Williams, 2016-NMCA-014. Where the district court entered a default judgment against defendants as a sanction for discovery abuses pursuant to Rule 1-037(B) NMRA, the default judgment was subject to Rule 1-055 NMRA, and it was an abuse of discretion not to have a hearing and to put the plaintiff to the test of presenting evidence to support the claim for damages when the damages claimed were unliquidated. Couch v. Williams, 2016-NMCA-014. Deliberately storing documents in foreign country may be basis of default judgment. - Where there is substantial evidence to support a finding that a party followed a deliberate policy of storing documents in a foreign country, and that this policy amounted to courting legal impediments to their production, this finding may be the basis for the imposition of such a discovery sanction as a default judgment. United Nuclear Corp. v. General Atomic Co., 1980-NMSC-094, 96 N.M. 155, 629 P.2d 231, appeal dismissed, 451 U.S. 901, 101 S. Ct. 1966, 68 L. Ed. 2d 289 (1981). Upon default, complaint's allegations taken as true. - When a party takes a cavalier approach to its discovery obligations, the entry of a default judgment is an appropriate sanction. Upon the default, the allegations of the complaint are taken as true. United Nuclear Corp. v. General Atomic Co., 1980-NMSC-094, 96 N.M. 155, 629 P.2d 231, appeal dismissed, 451 U.S. 901, 101 S. Ct. 1966, 68 L. Ed. 2d 289 (1981). Court may enter default judgment sua sponte. - The sanction of judgment by default, pursuant to Subdivision (B)(2) (see now Paragraph B(2)), is available with or without a request by the party entitled to the judgment: The court may enter the judgment sua sponte. Thornfield v. First State Bank, 1983-NMCA-149, 103 N.M. 229, 704 P.2d 1105. Authority of different judges of same court. - Prior oral interlocutory order, made by one judge, staying discovery depositions pending decision on a motion to dismiss, did not divest another judge of the same court of authority to enter a subsequent interlocutory order concerning depositions in the same case, or to enter orders imposing sanctions when his discovery orders were violated. Miller v. City of Albuquerque, 1975-NMCA-099, 88 N.M. 324, 540 P.2d 254, cert. denied, 88 N.M. 319, 540 P.2d 249. An order requiring that the judgment be paid by a nonparty is not an appropriate sanction for violation of a discovery order. Smith v. FDC Corp., 1990-NMSC-020, 109 N.M. 514, 787 P.2d 433. Intimidation of witnesses. - A court finding that a party had intimidated witnesses and caused them to fail to appear at their scheduled depositions, in violation of the court's order, was sufficient to support an award of expenses and fees in pursuing a motion for sanctions. Marchman v. NCNB Tex. Nat'l. Bank, 1995-NMSC-041, 120 N.M. 74, 898 P.2d 709. Failure to supplement disclosure of witnesses. - The failure to comply with the duty to seasonably supplement the disclosure of witnesses subjects a party to the discovery sanctions. Lewis v. Samson, 2001-NMSC-035, 131 N.M. 317, 35 P.3d 972. District court has authority to grant and enforce sanctions for discovery violations. - In an action for negligence, inverse condemnation, injunctive relief and damages, where the parties jointly filed a motion for entry of stipulated permanent injunction and voluntary dismissal with prejudice, and where plaintiff filed suit against defendant, the New Mexico Transportation Department, seeking enforcement of the permanent injunction, and where defendant, in response to interrogatories, did not provide information concerning its expert witness's opinions, the grounds for those opinions, or the facts, documents, or other information upon which the expert relied informing his opinions, nor did defendant provide plaintiff with the expert witness's report, the district court did not abuse its discretion by excluding defendant's expert witness's testimony. Allred v. N.M. Dep't of Transp., 2017-NMCA-019, cert. denied. Amount of sanction was not unreasonable. - Where plaintiff sued defendant for injuries sustained by the decedent in plaintiff's nursing home; even though plaintiff had granted defendant several extensions to respond to requests for production, defendant produced only a small percentage of the documents requested by plaintiff; in response to plaintiff's motion to compel, the district court ordered defendant to produce the documents in two weeks; defendant discovered that the decedent's admission agreement contained an arbitration claim, filed a motion to compel arbitration and stay the proceedings, and refused to engage in discovery; the district court imposed a $25,000 sanction because defendant intentionally failed to comply with the discovery order, defendant misrepresented pertinent facts to the court, and defendant's counsel was unprepared; and plaintiff did not present any evidence of plaintiff's discovery costs that resulted from defendant's dilatory discovery conduct, the district court did not abuse its discretion in imposing a $25,000 sanction on defendant. Weiss v. THI of N.M. at Valle Norte, L.L.C., 2013 -NMCA-054, 301 P.3d 875, cert. denied, 2013-NMCERT-004. IV. EXPENSES ON FAILURE TO ADMIT. Order and findings mandatory. - Compliance with Subdivision (c) (see now Paragraph C) is mandatory, and trial court must enter an order either requiring payment of the expenses or finding that there were good reasons for denying such expenses or that the admissions sought were of no substantial importance; however, this does not mean that the trial court has no discretion in the matter. Schrib v. Seidenberg, 1969-NMCA-078, 80 N.M. 573, 458 P.2d 825. Where defendant admitted one and denied five requested findings, and trial court denied motion for reasonable expenses incurred in proving the facts, case would be remanded for compliance with Subdivision (c) (see now Paragraph C). Schrib v. Seidenberg, 1969-NMCA-078, 80 N.M. 573, 458 P.2d 825. Obstructive behavior as factor. - So long as an award of attorney fees under Subsection A of 40-4-7 NMSA 1978 does not duplicate a sanction imposed for discovery abuse, obstructive behavior of a party during litigation is an appropriate factor for consideration in making such an award. Hakkila v. Hakkila, 1991-NMCA-029, 112 N.M. 172, 812 P.2d 1320. V. FAILURE TO ATTEND OR SERVE ANSWERS. "Willful failure". - Wrongful intent to disregard the requirements of this rule is not necessary to constitute a willful failure to appear, but willful failure does imply a conscious or intentional failure, as distinguished from an accidental or involuntary noncompliance. Kalosha v. Novick, 1967-NMSC-076, 77 N.M. 627, 426 P.2d 598; Sandoval v. United Nuclear Corp., 1986-NMCA-110, 105 N.M. 105, 729 P.2d 503. Misunderstanding or misapprehension does not import willfulness. Kalosha v. Novick, 1967-NMSC-076, 77 N.M. 627, 426 P.2d 598. Failure to comply by reason of the intervention of foreign law, ill health, financial inability or absence from the country cannot be said to constitute a willful failure. Kalosha v. Novick, 1967-NMSC-076, 77 N.M. 627, 426 P.2d 598. Absent willful failure, sanctions of this rule are not applicable and cannot properly be imposed (reversing dismissal of complaint with prejudice for failure of deponents, Russian citizens, to appear before officer for depositions). Kalosha v. Novick, 1967-NMSC-076, 77 N.M. 627, 426 P.2d 598. Sanction for inadequate answers. - Where defendant's responses were both inadequate and inaccurate, and the shortcomings were material, trial court had the power to impose a sanction without first ordering compliance under Paragraph A. Enriquez v. Cochran, 1998-NMCA-157, 126 N.M. 196, 967 P.2d 1136, cert. denied, 126 N.M. 532, 972 P.2d 351. Mere statement did not excuse failure to appear for deposition. - Bold, unsupported statement that to appear at a deposition was "utterly impossible for personal reasons" was no excuse for failure to appear. Wieneke v. Chalmers, 1963-NMSC-158, 73 N.M. 8, 385 P.2d 65. Dismissal with prejudice authorized. - Rule 41(b) (see now Rule 1-041 NMRA) deals with sanctions available for use during the trial, whereas Subdivision (d) (see now Paragraph D) spells out sanctions for failure to give a deposition or answer interrogatories, and is adequate in itself to allow a dismissal with prejudice. Chalmers v. Hughes, 1971-NMSC-111, 83 N.M. 314, 491 P.2d 531. Failure to attend deposition sufficient cause for dismissal. - Mere failure of a party to attend his deposition is adequate in itself to allow dismissal with prejudice. Pizza Hut of Santa Fe, Inc. v. Branch, 1976-NMCA-051, 89 N.M. 325, 552 P.2d 227. Actions amounting to refusal to appear. - Where the statements of the corporate plaintiff's president, who was an attorney, consisted of evasions, expressions of hostility, insults, admonitions, objections, demands that counsel explain what bearing questions had upon the issues as prerequisites to answering, arguments, statements of inability to remember which strained credulity to the breaking point and refusals to answer questions, president's actions amounted to a refusal to appear and the action was not improperly dismissed. Doanbuy Lease & Co. v. Melcher, 1971-NMSC-086, 83 N.M. 82, 488 P.2d 339. Condition for vacating dismissal not improper. - It was not an abuse of discretion for trial court to require that plaintiff pay attorney's fees and expenses as a condition for vacating order of dismissal made for plaintiff's failure to answer interrogatories. Pizza Hut of Santa Fe, Inc. v. Branch, 1976-NMCA-051, 89 N.M. 325, 552 P.2d 227. Res judicata effect of dismissal with prejudice. - Dismissal with prejudice, in alleged landowner's previous quiet title suit against plaintiff and others, after landowner had twice refused to permit her deposition to be taken, constituted an adjudication on the merits and was res judicata in plaintiff's later quiet title suit against purchasers from alleged landowner; such dismissal quieted title in plaintiff and extinguished any claim to title which alleged landowner might have had. Chalmers v. Hughes, 1971-NMSC-111, 83 N.M. 314, 491 P.2d 531. Default judgment was properly entered where, for 10 months, defendants failed to comply with the Rules of Civil Procedure relating to discovery and in addition filed a consent to withdrawal of their attorneys and failed to obtain other attorneys, failed to appear at the hearing on the motion for default judgment and failed to show any cause, oral or written, why default judgment should not be entered. Gallegos v. Franklin, 1976-NMCA-019, 89 N.M. 118, 547 P.2d 1160, cert. denied, 89 N.M. 206, 549 P.2d 284. Lesser sanctions proper. - For violation of Subdivision (d) (see now Paragraph D), court is not limited to imposing the drastic sanction of default or no sanction at all; court had authority to impose lesser sanction of payment of attorneys' fees. Miller v. City of Albuquerque, 1975-NMCA-099, 88 N.M. 324, 540 P.2d 254, cert. denied, 88 N.M. 319, 540 P.2d 249. Contempt order separate from order to pay attorneys' fees. - Contention that a court order that defendant and his attorney pay certain attorneys' fees was an improper modification of court's contempt order pending on appeal was without foundation, where, at the hearing in which plaintiffs sought attorneys' fees under this rule, judge pointed out it was beyond court's jurisdiction to modify the contempt order, and the record showed that order concerning attorneys' fees was separate and distinct from the contempt order. Miller v. City of Albuquerque, 1975-NMCA-099, 88 N.M. 324, 540 P.2d 254, cert. denied, 88 N.M. 319, 540 P.2d 249. Excludable alien status excusing noncompliance. - Termination of an employee's workmen's compensation benefits for failure to appear for a scheduled deposition was reversible error where his status as an excludable alien made him legally not eligible to enter the United States, constituting an excuse for noncompliance, and alternative methods of discovery were available and could have been utilized. Sandoval v. United Nuclear Corp., 1986-NMCA-110, 105 N.M. 105, 729 P.2d 503. Baseless objection may justify default sanction. - Serving a baseless objection in response to an interrogatory or a request for production may amount to a failure to respond which would justify the sanction of default in the absence of a court order compelling discovery. The circumstances, however, would have to be particularly egregious to justify sanctions under Paragraph D. State ex rel. N.M. State Police Dep't v. One 1978 Buick, 1989-NMCA-041, 108 N.M. 612, 775 P.2d 1329. Objections held not failure to respond. - Litigant's objections were not the equivalent of a failure to respond in a civil forfeiture case, where he had a colorable claim that he could not be compelled to provide information that could be used against him in a forfeiture proceeding predicated on offenses allegedly committed by him, even in the absence of a threat of criminal prosecution. State ex rel. N.M. State Police Dep't v. One 1978 Buick, 1989-NMCA-041, 108 N.M. 612, 775 P.2d 1329; State ex rel. Albuquerque Police Dep't v. One Black 1983 Chevrolet Van, 1995-NMCA-082,120 N.M. 280, 901 P.2d 211. Law reviews. - For survey, "Civil Procedure in New Mexico in 1975," see 6 N.M.L. Rev. 367 (1976). For article, "New Mexico Restraint of Trade Statutes - A Legislative Proposal," see 9 N.M.L. Rev. 1 (1978-79). Am. Jur. 2d, A.L.R. and C.J.S. references. - 23 Am. Jur. 2d Depositions and Discovery §§357 to 399; 24 Am. Jur. 2d Dismissal, Discontinuance and Nonsuit §59. Dismissal of action for failure or refusal of plaintiff to obey court order, 4 A.L.R.2d 348, 27 A.L.R.4th 61, 32 A.L.R.4th 212, 3 A.L.R.5th 237. Default decree in divorce action as estoppel or res judicata with respect of marital property rights, 22 A.L.R.2d 724. Power of court, in absence of express authority, to grant relief from judgment by default in divorce action, 22 A.L.R.2d 1312. Dismissal of state court action for failure or refusal of plaintiff to answer written interrogatories, 56 A.L.R.3d 1109. Construction and application of state statute or rule subjecting party making untrue allegations or denials to payment of costs or attorneys' fees, 68 A.L.R.3d 209. Attorney's conduct in delaying or obstructing discovery as basis for contempt proceeding, 8 A.L.R.4th 1181. Judgment in favor of plaintiff in state court action for defendant's failure to obey request or order for production of documents or other objects, 26 A.L.R.4th 849. Dismissal of state court action for failure or refusal of plaintiff to obey request or order for production of documents or other objects, 27 A.L.R.4th 61. Judgment in favor of plaintiff in state court action for defendant's failure to obey request or order to answer interrogatories or other discovery questions, 30 A.L.R.4th 9. Dismissal of state court action for failure or refusal of plaintiff to appear or answer questions at deposition or oral examination, 32 A.L.R.4th 212. Propriety of allowing state court civil litigant to call expert witness whose name and address was not disclosed during pretrial discovery proceedings, 58 A.L.R.4th 653. Propriety of allowing state court civil litigant to call nonexpert witness whose name or address was not disclosed during pretrial discovery proceedings, 63 A.L.R.4th 712. Right of defendant in criminal contempt proceeding to obtain information by deposition, 33 A.L.R.5th 761. Existence and nature of cause of action for equitable bill of discovery, 37 A.L.R.5th 645. Sanctions for failure to make discovery under Federal Civil Procedure Rule 37 as affected by defaulting party's good faith attempts to comply, 2 A.L.R. Fed. 811. Effect upon court's jurisdiction of informer's suit, under 31 USCS §232, of fact that informer was source of information possessed by government prior to suit, 49 A.L.R. Fed. 847. Lack of notice to contemnor at time of contemptuous conduct of possible criminal contempt sanctions as affecting prosecution for contempt in federal court, 76 A.L.R. Fed. 797. Federal district court's power to impose sanctions on non-parties for abusing discovery process, 149 A.L.R. Fed. 589. 27 C.J.S. Discovery § 79.