ALASKA COURT RULES

(3) Standard for Imposition of Sanctions. Prior to making an order under sections (A), (B), or (C) of subparagraph (b)(2) the court shall consider (A) the nature of the violation, including the willfulness of the conduct and the materiality of the information that the party failed to disclose; (B) the prejudice to the opposing party; (C) the relationship between the information the party failed to disclose and the proposed sanction; (D) whether a lesser sanction would adequately protect the opposing party and deter other discovery violations; and (E) other factors deemed appropriate by the court or required by law. The court shall not make an order that has the effect of establishing or dismissing a claim or defense or determining a central issue in the litigation unless the court finds that the party acted willfully. (c) Failure to Disclose; False or Misleading Disclosure; Refusal to Admit. (1) A party that without substantial justification fails to disclose information required by Rules 26(a), 26(e)(1), or 26.1(b) shall not, unless such failure is harmless, be 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 attorney’s fees, caused by the failure, these sanctions may include any of the actions authorized under sections (A), (B), and (C) of subparagraph (b)(2) of this rule 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 Rule 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 attorney’s fees. The court shall make the order unless it finds that (A) the request was held objectionable pursuant to Rule 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. the interrogatories, or (3) to serve a written response to a request for inspection submitted under Rule 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 sections (A), (B), and (C) of subparagraph (b)(2) of this rule. Any motion specifying a failure under clause (2) or (3) of this subdivision shall include a certification that the movant has in good faith conferred or attempted to confer with the party failing to answer or respond in an effort to obtain such answer or response without court action. 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 is that objectionable unless the party failing to act has a pending motion for a protective order as provided by Rule 26(c). the discovery sought the ground (e) Reserved. (f) Electronically Information. Absent Stored 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. (g) Failure to Cooperate in Discovery or to Participate in the Framing of a Discovery Plan. If a party or a party’s attorney engages in unreasonable, groundless, abusive, or obstructionist conduct during the course of the discovery or fails development and submission of a proposed discovery plan as required by Rule 26(f), the court may, after opportunity for hearing, require such party or attorney to pay to any other party the reasonable expenses, including attorney’s fees, caused by the conduct. in good faith to participate in (Adopted by SCO 5 October 9, 1959; amended by SCO 158 effective February 15, 1973; by SCO 888 effective July 15, 1988; by SCO 1026 effective July 15, 1990; by SCO 1153 effective July 15, 1994; by SCO 1172 effective July 15, 1995; by SCO 1325 effective July 15, 1998; and by SCO 1682 effective April 15, 2009) Cross References (b)(1) CROSS REFERNCE: AS 09.50.010 PART VI. TRIAL