State v. Kuespert
Decision Date | 15 October 1980 |
Docket Number | No. 1-480A83,1-480A83 |
Parties | STATE of Indiana et al., Defendants-Appellants, v. Thomas L. KUESPERT et al., Plaintiffs-Appellees. |
Court | Indiana Appellate Court |
Theodore L. Sendak, Atty., Gen., David A. Arthur, Deputy Atty. Gen., Indianapolis, for defendants-appellants.
Hugh E. Reynolds, Jr., Michael A. Bergin and Kevin Charles Murray, Locke, Reynolds, Boyd & Weisell, Indianapolis, Jerry L. Susong, Gregg & Susong, Thorntown, E. Davis Coots, Coots & Henke, Carmel, for plaintiffs-appellees.
The state appeals from an award of attorney fees to plaintiffs pursuant to Ind.
Rules of Procedure, Trial Rule 37(B)(2)(c) for evasive, incomplete, and inadequate responses to discovery. We affirm.
The underlying facts of this case have been reported at Kuespert v. State, (1978) Ind.App., 378 N.E.2d 888 at 889-92, trans. den. Upon reversal and remand by this court, a class action was certified, and plaintiffs pursued discovery, filing a motion to require the state to supplement and answer interrogatories, a request for admissions, and a request for production. Plaintiffs' petition expediting discovery was granted, and the trial court ordered the state to respond to discovery on or before February 4, 1979. The state responded on February 20, 1979. The answers given appeared incomplete or inaccurate in light of a previous hearing. Thus, on June 8, 1979, plaintiffs filed another request for production seeking the same information as sought by previous interrogatories within thirty days. The state responded on July 26, 1979, again inaccurately and incompletely. On October 31, 1979, plaintiffs filed a motion to compel production and for order awarding attorney's fees and expenses on the grounds that the state had repeatedly given partial, inaccurate, or untrue and misleading information in response to discovery procedures. The hearing was held on November 8, 1979, and on November 20, 1979, the trial court sustained plaintiffs' motion and awarded attorney's fees and expenses in the sum of one thousand three hundred eighty-one dollars and thirty-four cents (1,381.34).
The state alleges two grounds of error for our attention:
Issue I
The state contends that the plaintiffs and the court should have proceeded under T.R. 37(A) first to issue an order compelling discovery and then, only after "waiting to see what effect, if any, it would have," to proceed under T.R. 37(B) with sanctions.
We set forth below T.R. 37 in full:
(a) punishable for disobedience of a subpoena or order under subdivision (B) (1) of this rule; or
(b) in bad faith and abusively making or seeking a deposition, interrogatories, production of evidence, inspection, examination, request, question, enforcement order, subpoena, protective order or any other remedy under the discovery provisions of these rules; or
(c) in bad faith and abusively resisting or obstructing a deposition, interrogatories, production of evidence, inspection, examination, request, question, enforcement order, subpoena, protective order or any other remedy under the discovery provisions of these rules.
We find nothing in the wording of the rule itself which makes the court's use of the sanctions set out in subsection (B) dependent upon the court's issuance of an order pursuant to subsection (A). Neither does the state cite any case or authority in support of its hypothesis. This court has pointed out that "(a) primary objective in the adoption of our present procedural rules was elimination of delay resulting in protracted litigation." Clark County State Bank v. Bennett, (1975) 166 Ind.App. 471, 336 N.E.2d 663, 666. We have likewise noted that our discovery rules, and specifically T.R. 37, are closely patterned on the Federal Rules. 1 Finley v. Finley, (1977) Ind.App., 367 N.E.2d 1126. The purpose of Fed.R.Civ.P. 37, and thus of T.R. 37, is to facilitate discovery without the necessity of the court's involvement. See, 8 Federal Practice and Procedures § 2288 (1970); Chustak v. Northern Indiana Public Service Co., (1972) 259 Ind. 390, 288 N.E.2d 149. Federal Rule 37 provides for costs and expenses to be assessed when a party must go to the trouble of obtaining a court's intervention to compel discovery. 4A Moore's Federal Practice P 37.02 (1980). We believe the same to be true of our T.R. 37. Furthermore, it is Dean Harvey's opinion that a court order is not necessary for relief to be had pursuant to T.R. 37(B)(2) against a party who fails to comply with discovery. 3 Harvey, Indiana Practice § 37.2 (1970). The state's argument being unsupported by any authority, therefore, must fail.
The state alleges further that plaintiffs provided no evidence at the November 8, 1979, hearing which would have established that the state's failure to comply with discovery was both "in bad faith and abusively resisting or obstructing" discovery. The state claims that an error was made in February and that Ind. Rules of Procedure, Trial Rule 26(E)(2) permits such errors to be seasonably corrected. The state also contends it should have been given an opportunity to correct its errors since plaintiffs have shown no prejudice...
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