dissenting.
I dissent.
The Order Vacating Judgment and Directing Reassignment of the Case does not fairly represent what occurred in the district court at the district court hearing on April 8, 1988, conducted as required by *378Order of this court entered February 24, 1988. The cited statements of the district judge do not demonstrate any bias against petitioner Continental but do show a strong bias against the Supreme Court of Wyoming. I know of no way shown by the circumstances of this case how a bias against this court can be transferred to, and be a bias against, Continental. The trial judge at one point during the hearing stated to Continental’s counsel, “No. No need to apologize. I’m not mad at anybody but the Supreme Court.”
The trial judge allowed Continental’s counsel to say everything and argue any point he desired during the hearing, other than what was in his briefs filed with the court, which the court pointed out he had read and understood. I would say that Judge Ranck had adequately responded to this court’s order to hold a hearing on various questions.
This court’s current order also seems to find some bias of the trial judge against Continental in the requirement that plaintiff have its president present at all hearings. This requirement also went to the defendant banking organization. The court did not require more of one party than the other. I see that requirement as an effort by the trial court to dispose of the case by dispute resolution in a fashion other than trial. This is not an uncommon practice in trial courts and, according to some of the best judicial thinking, is encouraged or should be. It is necessary that there be present someone with authority to close litigation.
I have no argument with the majority with respect to the right of this court to supervise district courts in proper cases. I do not consider this a proper case for the court’s order as written. It seems to me that the majority has taken the wrong position in this matter and is flexing its muscles in a show of strength out of line with appropriate judicial behavior under the circumstances.
I must also disagree with the majority’s position that the district judge improperly dismissed plaintiff’s complaint, entered judgment for defendant on its counterclaim, and ordered a further hearing on the question of damages. This action by the trial judge is authorized by W.R.C.P. 37(b)(2)(C) providing that if a party fails to provide discovery, the court may make
[a]n Order * * * dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party[.]
While it is true that, by the provisions of W.R.C.P. 26(b)(1), “[pjarties may obtain discovery regarding any matter, not privileged,” this does not excuse failure to respond.1 The record discloses, and the trial judge found in his judgment, that discovery was propounded by defendants upon Continental in June of 1987, and thus they were required to object or respond no later than July of 1987. W.R.C.P. 33 and 34. Several months passed and no objection or response of any kind was forthcoming. The trial court entered an order requiring responses to discovery by a particular date and the order contained a warning of the consequences of dismissal and default judgment upon failure to do so. The trial judge even extended that time. Rather than responding to discovery, Continental filed several motions of protest.
The Wyoming Supreme Court has previously held such district court action in dismissal and default judgment an appropriate sanction for failure to file answers to interrogatories or excuse such failure. Farrell v. Hursh, Agency, Inc., 713 P.2d 1174 (Wyo.1986); Zweifel v. State ex rel. Brimmer, 517 P.2d 493 (Wyo.1974); Welsh v. Welsh, 469 P.2d 404 (Wyo.1970). It was not an abuse of discretion; the trial judge only did what he was authorized to do.
The problem here is not that the plaintiff has been required to produce materials not available on discovery because privileged, but because plaintiff Continental made no response at all, nor did it timely object or *379timely seek a protective order. “A party may not defend against sanctions under Rule 37(d) by contending that the request was improper and objectionable. If he takes this view he is required to apply for a protective order under Rule 26(c).” Wright and Miller, Federal Practice and Procedure: Civil § 2291 at 810-11 (1970). Rule 26(c) does not specify a time for such a motion, but Wright and Miller, § 2035 at 262-63 (footnotes omitted) states that
undoubtedly the courts will consider the timeliness of a motion under the amended rule, and will, as in the past, look to all of the circumstances in determining whether the motion is timely. Ordinarily the order must be obtained before the date set for the discovery, and failure to move at that time will be held to preclude objection later, but it may be that this rule will not be applied if there was no opportunity to move for a protective order. A party may not remain completely silent even when he regards a notice^ to take his deposition or a set of interrogatories or requests to inspect as improper. If he desired not to appear or not to respond he must seek a protective order, but if there are extenuating circumstances that explain his failure, the court may take these into account in determining what sanctions to impose.
I find no extenuating circumstances to excuse Continental’s failure to timely seek a protective order.2
It is my view that the court is violating its own rule, as conceived by it, in requiring the district judge to step aside and assign another district judge to assume responsibility for the case. W.R.C.P. 40.1 clearly states that when a party seeks to disqualify a judge for cause, he must file a motion supported by adequate facts set out to show the existence of such grounds showing a bias or prejudice “against the party or his counsel.” Any other party may file counter-affidavits. “The presiding judge shall rule on the motion and if he grants the same, shall immediately call in another district judge to try the action.” W.R.C.P. 40.1(b)(2)(E) (emphasis added). W.R.C.P. 40.1(b)(3) provides that:
A ruling on a motion for a change of district judge shall not be an appealable order, but the ruling shall be entered on the docket and made a part of the record and may be assigned as error in an appeal of the case.
If the court is to willy-nilly disregard its own rules, then perhaps it should set aside all its rules. The district judge is entitled to make the initial decision here. Otherwise, it is imposing on the prerogative of the district trial judge granted by this court.
I can find no just reason for this court to verbally castigate Judge Ranck and divest him of his court. I would have denied extraordinary relief and sent the matter back to the district court for trial on the issue of damages to a final judgment and let these matters be taken up on appeal. If not, the trial judge has become the victim and the real scamps will escape.
. When I use the term "respond,” I regard it as meaning to object, seek a protective order or answer.
. Wright & Miller, § 2291 at 331 (1988 pocket part) adds that:
Once a motion for sanctions under Rule 37(d) has been made, the delinquent party cannot avoid the sanctions by then making the response to discovery requests that should have been made earlier. Although the court may consider the belated response in determining what sanction, if any, to impose, the rule does not become inapplicable because a response is made in the interim between the filing of the motion for sanctions and the hearing on the motion.
Continental applied for a protective order after the Bank’s motion for sanctions.