Rule 5-503.2 - Depositions; failure to make discovery; sanctionsA.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 in depositions 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 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 5-503 NMRA, or a corporation or other entity fails to make a designation under Rule 5-503(E)(5) NMRA, or if a party, in response to a request for inspection 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 5-507 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 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 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.
If the motion is denied, the court may, 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 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 5-503 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 if a party fails to obey an order under Rule 5-507 NMRA, the court in which the action is pending may make such orders in regard to the failure as are just. N.M. R. Crim. P. Dist. Ct. 5-503.2
Approved, effective May 15, 2000. ANNOTATIONS Exclusion of testimony for refusal to comply with discovery order. - Where police officers used a confidential informant to purchase methamphetamine; the confidential informant was the only eye witness to the alleged crime; the state's case rested on the veracity of the confidential informant; the defendant requested disclosure of information about the confidential informant's prior work as a confidential informant; the trial court held an in camera hearing to review the documents the defendant sought to discover; the trial court ordered defense counsel not to disclose the information to any other person; and the state refused to comply with the discovery order, the trial court did not abuse its discretion in excluding the confidential informant's evidence from trial. State v. Layne, 2008-NMCA-103, 144 N.M. 574, 189 P.3d 707.