(SCR 06-35)

In the Matter of the Amendment of SDCL 15-6-37(c)




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OF SDCL 15-6-37(c) RULE 06-35
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    A hearing was held on February 16, 2006, at Pierre, South Dakota, relating to the amendment of SDCL 15-6-37(c), and the Court having considered the proposed amendment, the correspondence and oral presentations relating thereto and being fully advised in the premises, now, therefore, it is

    ORDERED that SDCL 15-6-37(c) be and it is hereby amended to read in its entirety as follows:

     15-6-37(c).   Expenses on failure to admit Failure to disclose--False or misleading disclosure--Refusal to admit.

             (1)      A party that without substantial justification fails to disclose information required by subdivision 15-6-26(e)(1), or to amend a prior response to discovery as required by subdivision 15-6-26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed. In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses, including attorneys' fees, caused by the failure, these sanctions may include any of the actions authorized under subdivision 15-6-37(b)(2)(A), (B), and (C) and may include informing the jury of the failure to make the disclosure.

             (2)      If a party fails to admit the genuineness of any document or the truth of any matter as requested under § 15-6-36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, he the requesting party may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney's fees. The court shall make the order unless it finds that:

             (1)(A)      The request was held objectionable pursuant to § 15-6-36(a); or

             (2)(B)      The admission sought was of no substantial importance; or

             (3)(C)      The party failing to admit had reasonable ground to believe that he the party might prevail on the matter; or

             (4)(D)      There was other good reason for the failure to admit.

    IT IS FURTHER ORDERED that this rule shall become effective July 1, 2006.

    DATED at Pierre, South Dakota, this 17th day of March 2006.