Mary C. Simms

Following the dismissal of a motion to amend a counterclaim to add a plea of sexual battery, the court addressed the issue of costs.

The court reaffirmed the principle under Rule 57.03(1) of the Rules of Civil Procedure that the successful party on a contested motion is ordinarily entitled to costs unless justice requires otherwise.

Although some amendments were unopposed, the moving party was unsuccessful on the contested portion of the motion.

The court determined there was no sufficient reason to depart from the usual rule and awarded costs on a partial indemnity scale.

The defendant sought leave to amend a counterclaim to add a cause of action for sexual battery based on information discovered in the plaintiff’s compelled medical records during discovery.

The court considered the deemed undertaking rule under Rule 30.1 of the Rules of Civil Procedure, which restricts the use of discovery evidence to the proceeding in which it was obtained.

Although the proposed amendment was legally tenable and not statute‑barred, the court held that using discovery‑produced medical records to initiate a new cause of action would breach the deemed undertaking rule absent leave.

Applying the balancing test from appellate authority, the court found the potential injustice to the plaintiff and the public interest in full and frank discovery outweighed any prejudice to the defendant.

Relief from the deemed undertaking was denied and the amendment adding the new cause of action was refused.