Deposition by written questions of a person who has already been deposed in the case may only be taken with the consent of the deponent and parties, or by leave of the court. A party desiring to take a deposition upon written questions shall serve them upon every other party with a notice stating (1) the name and address of the person who is to answer them, if known, and if the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs, and (2) the name or descriptive title and address of the officer before whom the deposition is to be taken. A deposition upon written questions may be taken of a public or private corporation or a partnership or association or governmental agency in accordance with the provisions of subdivision 15-6-30(b)(6). Within fourteen days after the notice and written questions are served, a party may serve cross-questions upon all other parties. Within seven days after being served with cross-questions, a party may serve redirect questions upon all other parties. Within seven days after being served with redirect questions, a party may serve recross-questions upon all other parties. The court may for cause shown enlarge or shorten the time. Source: SDC 1939 & Supp 1960, §§ 36.0501, 36.0511; SD RCP, Rules 26 (a), 31 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SDCL, § 15-6-26(a); Supreme Court Rule 76-3, § 5; SL 2006, ch 300 (Supreme Court Rule 06-26), eff. July 1, 2006. 15-6-31(b). Officer to take responses and prepare record. A copy of the notice and copies of all questions served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed promptly, in the manner provided by §§ 15-6-30(c), 15-6-30(e), and 15-6-30(f), to take the testimony of the witness in response to the questions and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the questions received by the officer. Source: SD RCP, Rule 31 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 76-3, § 5; SL 2006, ch 301 (Supreme Court Rule 06-27), eff. July 1, 2006. 15-6-31(c). Notice of filing. When the deposition is filed, the party filing it shall promptly give notice thereof to all other parties. Source: SL 2006, ch 302 (Supreme Court Rule 06-28), eff. July 1, 2006. 15-6-31(d). Superseded 15-6-32. Effect of errors and irregularities in depositions 15-6-32(a). Use of depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any one of the following provisions: (1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness, or for any other purpose permitted by the South Dakota Rules of Evidence. (2) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under subdivision 15-6-30(b)(6) or § 15-6-31(a) to testify on behalf of a public or private corporation, limited liability company, partnership, association or governmental agency which is a party may be used by an adverse party for any purpose. (3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (A) That the witness is dead; or (B) That the witness is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition; or (C) That the witness is unable to attend or testify because of age, illness, infirmity, imprisonment, or occupational commitments; if the deposition was taken for purposes of use at the trial in the place of the witness' personal attendance because of such commitments; or (D) That the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (E) Upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used. (4) If only part of a deposition is offered in evidence by a party, an adverse party may require the offeror to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts. Substitution of parties does not affect the right to use depositions previously taken; and, when an action in any court of the United States or of any state has been dismissed and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor. Source: SDC 1939 & Supp 1960, § 36.0506; SD RCP, Rule 26(d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SDCL, § 15-6-26(d); Supreme Court Rule 76-3, § 6; Supreme Court Rules 86-6, 86-7; SL 1994, ch 351 , § 34; SL 2006, ch 303 (Supreme Court Rule 06-29), eff. July 1, 2006. 15-6-32(b). Objections to admissibility. Subject to the provisions of § 15-6-28(b) and subdivision 15-6-32(d)(3), objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying. Source: SDC 1939 & Supp 1960, § 36.0508; SD RCP, Rule 26 (e), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SDCL, § 15-6-26(e); Supreme Court Rule 76-3, § 6. 15-6-32(c). Effect of taking or using deposition. A party does not make a person his own witness for any purpose by taking his deposition. The introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition, but this shall not apply to the use by an adverse party of a deposition under subdivision 15-6-32(a)(2). At the trial or hearing any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any other party. Source: SDC 1939 & Supp 1960, § 36.0509; SD RCP, Rule 26 (f), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SDCL, § 15-6-26(f); Supreme Court Rule 76-3, § 6. 15-6-32(d). Effect of errors and irregularities in depositions. (1) As to notice. All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice. (2) As to disqualification of officer. Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence. (3) As to taking of deposition. (A) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time. (B) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition. (C) Objections to the form of written questions submitted under § 15-6-31 are waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or other questions and within five days after service of the last questions authorized. (4) As to completion and return of deposition. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, endorsed, transmitted, filed, or otherwise dealt with by the officer under §§ 15-6-30 and 15-6-31 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained. Source: SDC 1939 & Supp 1960, §§ 36.0507, 36.0508; SD RCP, Rules 32 (a) to 32 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SDCL, §§ 15-6-32(a) to 15-6-32(c); Supreme Court Rule 76-3, § 6. 15-6-33. Interrogatories to parties 15-6-33(a). Availability--Procedures for use. Any party may serve upon any other party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish such information as is available to the party. Interrogatories may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the objecting party shall state the reasons for the objection and shall answer to the extent the interrogatory is not objectionable. The answers are to be signed by the person making them, and the objections signed by the attorney making them. The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections, if any, within thirty days after the service of the interrogatories, except that a defendant may serve answers or objections within forty-five days after service of the summons and complaint upon that defendant. A shorter or longer time may be directed by the court or, in the absence of such order, agreed to in writing by the parties. All grounds for an objection to an interrogatory shall be stated with specificity. Any ground not stated in a timely objection is waived unless the party's failure to object is excused by the court for good cause shown. The party submitting the interrogatories may move for an order under § 15-6-37(a) with respect to any objection to or other failure to answer an interrogatory. A party answering interrogatories must set out the interrogatory immediately preceding the answer thereto. Source: SDC 1939 & Supp 1960, § 36.0531; SD RCP, Rule 33, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SDCL, § 15-6-33 ; Supreme Court Rule 76-3, § 7; SL 2006, ch 304 (Supreme Court Rule 06-30), eff. July 1, 2006. 15-6-33(b). Scope--Use at trial. Interrogatories may relate to any matters which can be inquired into under § 15-6-26(b), and the answers may be used to the extent permitted by the rules of evidence. An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the court may order that such interrogatory need not be answered until after designated discovery has been completed or until a pretrial conference or other later time. Source: SDC 1939 & Supp 1960, § 36.0531; SD RCP, Rule 33, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SDCL, § 15-6-33 ; Supreme Court Rule 76-3, § 7. 15-6-33(c). Option to produce business records. Where the answer to an interrogatory may be derived or ascertained from the business records of the party upon whom the interrogatory has been served or from an examination, audit, or inspection of such business records, including a compilation, abstract, or summary thereof, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit, or inspect such records and to make copies, compilations, abstracts, or summaries. A specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be ascertained. Source: SDCL, § 15-6-33 as added by Supreme Court Rule 76-3, § 7; Supreme Court Rule 86-8. 15-6-34. Discovery and production of documents and things for inspection, copying, or photographing 15-6-34(a). Scope. Any party may serve on any other party a request: (1) To produce and permit the party making the request, or someone acting on his behalf, to inspect and copy, any designated documents (including writings, drawings, graphs, charts, photographs, phono - records, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form), or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of § 15-6-26(b) and which are in the possession, custody, or control of the party upon whom the request is served; or (2) To permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of § 15-6-26(b). Source: SDC 1939 & Supp 1960, § 36.0601; SD RCP, Rule 34, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SDCL, § 15-6-34 ; Supreme Court Rule 76-3, § 8. 15-6-34(b). Procedure. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. The request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. The party upon whom the request is served shall serve a written response within thirty days after the service of the request, except that a defendant may serve a response within forty - five days after service of the summons and complaint upon that defendant. The court may allow a shorter or longer time. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified. The party submitting the request may move for an order under § 15-6-37(a) with respect to any objection to or other failure to respond to the request or of any part thereof, or any failure to permit inspection as requested. A party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request. Source: SDC 1939 & Supp 1960, § 36.0601; SD RCP, Rule 34, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SDCL, § 15-6-34 ; Supreme Court Rule 76-3, § 8; Supreme Court Rule 86-9. 15-6-34(c). Persons not parties. This rule does not preclude an independent action against a person not a party for production of documents and things and permission to enter upon land. Source: SDCL, § 15-6-34 as added by Supreme Court Rule 76-3, § 8. 15-6-35. Physical and mental examinations and blood tests of persons 15-6-35(a). Order for examination. In an action in which the mental or physical condition of a party or the consanguinity of a party with another person or party is in controversy, the court in which the action is pending may order such person or party to submit to a physical or mental examination or blood test by a physician. The order may be made only on motion for good cause shown and upon notice to the person or party to be examined and to all other persons or parties involved and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. Source: SDC 1939 & Supp 1960, § 36.0602; SD RCP, Rule 35 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-35(b). Report of examining physician. (1) If requested by the party against whom an order is made under § 15-6-35(a) or the person examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings, including results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition. After delivery the party causing the examination shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition, unless, in the case of a report of examination of a person not a party, the party shows that he is unable to obtain it. The court on motion may make an order against a party requiring delivery of a report on such terms as are just, and if a physician fails or refuses to make a report the court may exclude his testimony if offered at the trial. (2) By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical condition. (3) This subdivision applies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise. This subdivision does not preclude discovery of a report of an examining physician or the taking of a deposition of the physician in accordance with the provisions of any other rule. Source: SDC 1939 & Supp 1960, §§ 36.0603, 36.0604; SD RCP, Rule 35 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 76-3, § 9. 15-6-36. Admission of facts and of genuineness of documents 15-6-36(a). Request for admission. A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of subdivision 15-6-26(b)(1) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within thirty days after service of the request, or within such shorter or longer time as the court may allow or as the parties may agree to in writing, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party's attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of forty-five days after service of the summons and complaint upon him. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that the party has made reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; the party may, subject to provisions of § 15-6-37(c), deny the matter or set forth reasons why the party cannot admit or deny it. The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. The court may, in lieu of these orders, determine that final disposition of the request be made at a pretrial conference or at a designated time prior to trial. The provisions of subdivision 15-6-37(a)(4) apply to the award of expenses incurred in relation to the motion. Source: SDC 1939 & Supp 1960, § 36.0605; SD RCP, Rule 36 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 76-3, § 10; SL 2006, ch 305 (Supreme Court Rule 06-31), eff. July 1, 2006. 15-6-36(b). Effect of admission. Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to the provisions of § 15-6-16 governing amendment of a pretrial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining his action or defense on the merits. Any admission made by a party under this rule is for the purpose of the pending action only and is not an admission for any other purpose nor may it be used against the party in any other proceeding. Source: SDC 1939 & Supp 1960, § 36.0605; SD RCP, Rule 36 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 76-3, § 10; SL 2006, ch 306 (Supreme Court Rule 06-32), eff. July 1, 2006. 15-6-37. Refusal to make discovery--consequences 15-6-37(a). Motion for order compelling disclosure or discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows: (1) Appropriate court. An application for an order to a party may be made to the court in which the action is pending. An application for an order to a person who is not a party shall be made to the court in the circuit where the discovery is being, or is to be, taken. (2) Motion. If a deponent fails to answer a question propounded or submitted under § 15-6-30 or 15-6-31 , or a corporation or other entity fails to make a designation under subdivision 15-6-30(b)(6) or § 15-6-31(a), or, a party fails to answer an interrogatory submitted under § 15-6-33 , or if a party in response to a request for inspection submitted under § 15-6-34 , 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. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order. (3) Evasive or incomplete disclosure, answer, or response. For purposes of this subdivision an evasive or incomplete disclosure, answer, or response is to be treated as a failure to disclose, answer, or respond. (4) Expenses and sanctions. (A) If the motion is granted or if the requested discovery is provided after the motion was filed, 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 attorneys' fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party's nondisclosure, response or objection was substantially justified or that other circumstances make an award of expenses unjust. (B) If the motion is denied, the court may enter any protective order authorized under § 15-6-26(c) and shall, after affording an opportunity to be heard, require the moving party or the attorney filing 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, including attorneys' fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust. (C) If the motion is granted in part and denied in part, the court may enter any protective order authorized under § 15-6-26(c) and may, after affording an opportunity to be heard, apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner. Source: SDC 1939 & Supp 1960, § 36.0607; SD RCP, Rule 37 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 76-3, § 11; SL 2006, ch 307 (Supreme Court Rule 06-33), eff. July 1, 2006. 15-6-37(b). Failure to comply with order. (1) Sanctions by court in circuit where deposition is taken. If a deponent fails to be sworn or to answer a question after being directed to do so by the court in the circuit in which the deposition is being taken, the failure may be considered a contempt of that court. (2) Sanctions by court in which action is pending. If a party or an officer, director, or managing agent of a party or a person designated under subdivision 15-6-30(b)(6) or § 15-6-31(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under § 15-6-37(a) or 15-6-35 , 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 § 15-6-35(a) requiring that party to produce another for examination, such orders as are listed in paragraphs (A), (B), and (C) of this subdivision, 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. Source: SDC 1939 & Supp 1960, § 36.0607; SD RCP, Rule 37 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 76-3, § 11; SL 2006, ch 308 (Supreme Court Rule 06-34), eff. July 1, 2006. 15-6-37(c). 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 subdivisions 15-6-37(b)(2)(A), (2)(B), and (2)(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, 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 attorneys' fees. The court shall make the order unless it finds that: (A) The request was held objectionable pursuant to § 15-6-36(a); or (B) The admission sought was of no substantial importance; or (C) The party failing to admit had reasonable ground to believe that the party might prevail on the matter; or (D) There was other good reason for the failure to admit. Source: SDC 1939 & Supp 1960, § 36.0606; SD RCP, Rule 37 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 76-3, § 11; SL 2006, ch 309 (Supreme Court Rule 06-35), eff. July 1, 2006. 15-6-37(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 subdivision 15-6-30(b)(6) or § 15-6-31(a) 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, or (2) to serve answers or objections to interrogatories submitted under § 15-6-33 , after proper service of the interrogatories, or (3) to serve a written response to a request for inspection submitted under § 15-6-34 , 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 subdivisions 15-6-37(b)(2)(A), (2)(B), and (2)(C). In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising him 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 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 § 15-6-26(c). Source: SD RCP, Rule 37 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 76-3, § 11; SL 2006, ch 310 (Supreme Court Rule 06-36), eff. July 1, 2006. 15-6-38. Jury trial of right 15-6-38(a). Right to jury trial preserved. The right of trial by jury as declared by S.D. Const., Art. VI, § 6 or as given by a statute of South Dakota shall be preserved to the parties inviolate. Source: SD RCP, Rule 38 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-38(b). Demand for jury trial. Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than ten days after the service of the last pleading directed to such issue. Such demand may be endorsed upon a pleading of the party. Source: SD RCP, Rule 38 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-38(c). Specification of issues in demand for jury trial. In the demand for jury trial a party may specify the issues which the party wishes so tried; otherwise the party shall be deemed to have demanded trial by jury for all the issues so triable. If the party has demanded trial by jury for only some of the issues, any other party within ten days after service of the demand or such lesser time as the court may order, may serve a demand for trial by jury of any other or all of the issues of fact in the action. Source: SD RCP, Rule 38 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 2006, ch 311 (Supreme Court Rule 06-37), eff. July 1, 2006. 15-6-38(d). Waiver of jury trial. The failure of a party to serve a demand as required by § 15-6-38 constitutes a waiver by the party of trial by jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties. Source: SD RCP, Rule 38 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 2006, ch 312 (Supreme Court Rule 06-38), eff. July 1, 2006. 15-6-39. Trial by jury or by the court 15-6-39(a). Trial by jury. When trial by jury has been demanded as provided in § 15-6-38 , the action shall be designated upon the docket as a jury action. The trial of all issues so demanded shall be by jury, unless: (1) The parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury, or a party waives the same by failing to appear at the trial or by proceeding to trial by the court without objecting thereto; or (2) The court upon motion or of its own initiative finds that a right of trial by jury of some or all of those issues does not exist under the Constitution or statutes of this state. Source: SDC 1939 & Supp 1960, §§ 33.1304, 33.1402; SD RCP, Rule 39 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-39(b). Trial by the court. Issues not demanded for trial by jury as provided in § 15-6-38 shall be tried by the court; but, notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by a jury of any or all issues. Source: SD RCP, Rule 39 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-39(c). Advisory jury and trial by consent. In all actions not triable of right by a jury the court upon motion or of its own initiative may try any issue with an advisory jury, or the court, with the consent of both parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right. Source: SDC 1939 & Supp 1960, § 33.1302; SD RCP, Rule 39 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-40. Assignment of cases for trial 15-6-40(a). Issues--When, where, and how tried. The judges of the court shall provide by order or by rule for the placing of actions upon the trial calendar in such manner as the court deems expedient. Precedence shall be given to actions entitled thereto. Source: SDC 1939 & Supp 1960, § 33.1111; SD RCP, Rule 40 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-40(b). Repealed by SL 1993, ch 386 15-6-40(c). Proceeding in absence of party. Either party from the time when a case is reached upon the calendar, and in the absence of the adverse party, unless the court for good cause shall otherwise direct, may proceed with the party's case and take a dismissal of the complaint, or a verdict, or judgment, as the case may require. Source: SDC 1939 & Supp 1960, § 33.1305; SD RCP, Rule 40 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 2006, ch 313 (Supreme Court Rule 06-39), eff. July 1, 2006. 15-6-41. Dismissal of actions 15-6-41(a). Voluntary dismissal--Effect thereof. (1) By Plaintiff; by Stipulation. Subject to the provisions of § 15-6-23(e), of § 15-6-66 , and of any statute of this state, an action may be dismissed by the plaintiff without order of court (A) By filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (B) By filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state action based on or including the same claim. (2) By Order of the Court. Except as provided in subdivision (1) of this section, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice. Source: SD RCP, Rule 41 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule No. 4, 1972, effective January 1, 1973; SL 2006, ch 314 (Supreme Court Rule 06-40), eff. July 1, 2006. 15-6-41(b). Involuntary dismissal--Effect thereof. For failure of the plaintiff to prosecute or to comply with this chapter or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of the plaintiff's evidence, the defendant, without waiving the defendant's right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in § 15-6-52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this section and any dismissal not provided for in § 15-6-41 , other than a dismissal for lack of jurisdiction, or for failure to join a party under § 15-6-19 , operates as an adjudication upon the merits. Source: SDC 1939 & Supp 1960, § 33.1704 (4); SD RCP, Rule 41 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; as amended by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969; SL 2006, ch 315 (Supreme Court Rule 06-41), eff. July 1, 2006. 15-6-41(c). Dismissal of counterclaim, cross - claim, or third - party claim. The provisions of § 15-6-41 apply to the dismissal of any counterclaim, cross - claim, or third - party claim. A voluntary dismissal by the claimant alone pursuant to paragraph (1) of § 15-6-41(a) shall be made before a responsive pleading is served or, if there is none, before the introduction of evidence at the trial or hearing. Source: SD RCP, Rule 41 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-41(d). Costs of previously dismissed action. If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order. Source: SD RCP, Rule 41 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-42. Consolidation--separate trials 15-6-42(a). Consolidation of actions. When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. Source: SDC 1939 & Supp 1960, § 33.0917; SD RCP, Rule 42 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-42(b). Separate trials. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy may order a separate trial of any claim, cross - claim, counterclaim, or third - party claim, or of any separate issue or of any number of claims, cross - claims, counterclaims, third - party claims, or issues, always preserving inviolate the right of trial by jury as declared by the state or federal Constitution or as given by a statute. Source: SDC 1939 & Supp 1960, § 33.0917; SD RCP, Rule 42 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; as amended by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969. 15-6-43. Evidence 15-6-43(a). Form and admissibility of evidence. In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by this chapter or by the South Dakota Rules of Evidence. Source: SD RCP, Rule 43 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 84-8. 15-6-43(b). Superseded 15-6-43(c). Superseded 15-6-43(d). Oath or affirmation. Whenever under this chapter an oath or affirmation is required, it may be in the form prescribed by §§ 19-19-603.1 and
The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes
— under RULES OF PROCEDURE IN CIRCUIT COURTS.