The decided cases, and the commentators, are consentient in the view that Rule 37(b)(2)'s plain language means exactly what it says. See, e.g., Badalamenti v. Dunham's, Inc. 896 F.2d 1359, 1362 (Fed. Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 142, 112 L.Ed.2d 109 (1990); Salahuddin v. Harris, 782 F.2d 1127, 1131 (2d Cir. 1986); Laclede Gas Co. v. G. W. Warnecke Corp., 604 F.2d 561, 565 (8th Cir. 1979); 4A J. Moore J. Lucas, Moore's Federal Practice ¶ 37.03[2], at 37-62 to 37-64 (2d ed. 1991); 8 C. Wright A. Miller, Federal Practice and Procedure § 2289, at 790 (1970). In this case, therefore, the propriety of dismissing plaintiffs' complaint under Rule 37(b)(2) hinges on the answer to the following question: Did either Ward's refusal to answer the tax exemption questions during his deposition or the plaintiffs' failure to produce the Impex documents transgress "an order to provide or permit discovery," Fed.R.Civ.P. 37(b)(2), then in effect?

The “majority view” is that “sanctions may be imposed where evasive or incomplete responses impede discovery.” Badalamenti v. Dunham's, Inc., 896 F.2d 1359, 1363 (Fed. Cir. 1990) (citations omitted). The Badalamenti court summarizes the split as follows:

The courts of appeals disagree about whether an incomplete or evasive response to written discovery-as distinguished from a total failure to respond-may provide a basis for sanctions under Fed.R.Civ.P. 37(d) or, instead, must first be addressed by a motion to compel under Fed.R.Civ.P. 37(a)(3)(B). See Badalementi v. Dunham's Inc., 896 F.2d 1359, 1363 (Fed. Cir. 1990) (collecting cases). For example, in Fox v. Studebaker-Worthington, Inc., 516 F.2d 989 (8th Cir. 1975), the Eighth Circuit concluded that “[t]he provisions of Rule 37(d) with regard to interrogatories do not apply when the failure to comply is anything less than a total failure to respond.”

The courts of appeals disagree about whether an incomplete or evasive response to written discovery-as distinguished from a total failure to respond-may provide a basis for sanctions under Fed.R.Civ.P. 37(d) or, instead, must first be addressed by a motion to compel under Fed.R.Civ.P. 37(a)(3)(B). See Badalementi v. Dunham's Inc., 896 F.2d 1359, 1363 (Fed. Cir. 1990) (collecting cases). For example, in Fox v. Studebaker-Worthington, Inc., 516 F.2d 989 (8th Cir. 1975), the Eighth Circuit concluded that “[t]he provisions of Rule 37(d) with regard to interrogatories do not apply when the failure to comply is anything less than a total failure to respond.”

Hewitt charges that it is Plaintiffs, not Hewitt, that have misconstrued the Rule when they argue that Rule 37(d) relates only to Rule 37 discovery sanctions, which they are not seeking here. Badalamenti v. Dunham's Inc., 896 F.2d 1359, 1362 (Fed.Cir.1990) (" The plain terms of the rules of civil procedure show that a party served with a document request has four options: (1) respond to the document request by agreeing to produce documents as requested (Fed.R.Civ.P. 34(b)); (2) respond to the document request by objecting (Fed.R.Civ.P. 34(b)); (3) move for a protective order (Fed.R.Civ.P. 26(c) and 37(d)); or (4) ignore the request." ).

First, an award of fees is designed to "to compensate the prevailing party for its monetary outlays in the prosecution or defense of the suit," Central Soya Co. v. Geo. A. Hormel Co., 723 F.2d 1573, 1578 (Fed. Cir. 1983), "where it would be grossly unjust that the winner be left to bear the burden of his own counsel which prevailing litigants normally bear." Badalamenti v. Dunham's Inc., 896 F.2d 1359, 1364 (Fed. Cir. 1990) (quotingJ.P. Stevens Co. v. Lex Tex Ltd., 822 F.2d 1047, 1052 (Fed. Cir. 1987)) (emphasis in original). Additionally, § 285 is designed to deter parties from bringing or prosecuting bad faith litigation, see Mathis v. Spears, 857 F.2d 749, 754 (Fed. Cir. 1988).

First, it "compensate[s] the prevailing party for its monetary outlays in the prosecution or defense of the suit," Central Soya Co. v. Geo. A. Hormel Co., 723 F.2d 1573, 1578 (Fed. Cir. 1983), "where it would be grossly unjust that the winner be left to bear the burden of his own counsel which prevailing litigants normally bear." Badalamenti v. Dunham's Inc., 896 F.2d 1359, 1364 (Fed. Cir. 1990) (quoting J.P. Stevens Co. v. Lex Tex Ltd., 822 F.2d 1047, 1052 (Fed. Cir. 1987)) (emphasis in original). Second, and of equal, if not greater, importance, the sanction serves to deter parties from bringing or prosecuting bad faith litigation, see Mathis v. Spears, 857 F.2d 749, 754 (Fed. Cir. 1988).

The party seeking an exceptional case status has the burden of proving that its case is exceptional by clear and convincing evidence. Badalamenti v. Dunham's Inc., 896 F.2d 1359, 1364 (Fed. Cir. 1990).

His prior misleading answer constitutes a failure to respond. See Badalamenti v. Dunham's, Inc., 896 F.2d 1359, 1363 (Fed. Cir. 1990) (concluding that "clear misrepresentation" constitutes "failure to respond"). His belated disclosure in the Combined Response does not excuse him from sanctions.

According to the Federal Circuit, sanctions may not be imposed under RCFC 37(d) unless a party wholly fails to respond to a discovery request. See, e.g., Badalmenti v. Dunham's Inc., 896 F.2d 1359, 1362-63 (Fed. Cir.), cert. denied sub nom., Hyde Athletic Indus., Inc. v. Badalmenti, 498 U.S. 851 (1990). Here, there is insufficient evidence to demonstrate that one or more government employees deliberately destroyed the records in question to prevent their discovery.