concurring specially.
[¶ 26] I agree with the majority opinion and write only to reiterate what our Court has, said in the past about dismissal of a claim as a sanction for a discovery violation. We have made it clear that, under N.D.R.Civ.P. 37, “[s]anctions must be tailored to the severity of the misconduct, and dismissal of an action or entry of default judgment should be used sparingly, only in extreme situations, and should not be used if an alternative, less drastic sanction is available and would be just as effective.” Vorachek v. Citizens State Bank of Lankin, 421 N.W.2d 45, 51 (N.D.1988). “A Rule 37 dismissal requires that the discovery abuse be deliberate or in bad faith.” Bachmeier v. Wallwork Truck Ctr., 507 N.W.2d 527, 533 (N.D.1993). In Bachmeier, our Court said: “Dismissal of the entire case with prejudice is perhaps the most restrictive sanction which exists. Imposition of this sanction before the start of trial exacerbates this harshness. We prefer that disputes be settled on the merits.” Id.
[¶ 27] It concerns me that the decision-maker did not consider a less harsh sanction before choosing to dismiss.
[¶ 28]' MARY MUEHLEN MARING.