Rule 37 - Failure to Make Disclosures or to Cooperate in Discovery; Sanctions(a)Motion for an Order Compelling Disclosure or Discovery.(1)In General. On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.(2)Appropriate Court. A motion for an order to a party must be made in the court where the action is pending. A motion for an order to a nonparty must be made in the court where the discovery is or will be taken.(3)Specific Motions.(A)To Compel Disclosure. If a party fails to make a disclosure required by Rule 16.1(a), 16.2(d), or 16.205(d), any other party may move to compel disclosure and for appropriate sanctions.(B) To Compel a Discovery Response. A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if: (i) a deponent fails to answer a question asked under Rule 30 or 31;(ii) a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a)(4);(iii) a party fails to answer an interrogatory submitted under Rule 33; or(iv) a party fails to produce documents or fails to respond that inspection will be permitted-or fails to permit inspection-as requested under Rule 34.(C)Related to a Deposition. When taking an oral deposition, the party asking a question may complete or adjourn the examination before moving for an order.(4)Evasive or Incomplete Disclosure, Answer, or Response. For purposes of Rule 37(a), an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond. A party's production of documents that is not in compliance with Rule 34(b)(2)(E)(i) may also be treated as a failure to produce documents.(5)Payment of Expenses; Protective Orders.(A)If the Motion Is Granted (or Disclosure or Discovery Is Provided After Filing). If the motion is granted-or if the disclosure or requested discovery is provided after the motion was filed-the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney fees. But the court must not order this payment if: (i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action;(ii) the opposing party's nondisclosure, response, or objection was substantially justified; or(iii) other circumstances make an award of expenses unjust.(B)If the Motion Is Denied. If the motion is denied, the court may issue any protective order authorized under Rule 26(c) and must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney fees. But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.(C) If the Motion Is Granted in Part and Denied in Part. If the motion is granted in part and denied in part, the court may issue any protective order authorized under Rule 26(c) and may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.(b)Sanctions for Failure to Comply With a Court Order.(1)For Not Obeying a Discovery Order. If a party or a party's officer, director, or managing agent-or a witness designated under Rule 30(b)(6) or 31(a)(4) -fails to obey an order to provide or permit discovery, including an order under Rule 35 or 37(a), the court may issue further just orders that may include the following: (A) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;(B) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;(C) striking pleadings in whole or in part;(D) staying further proceedings until the order is obeyed;(E) dismissing the action or proceeding in whole or in part;(F) rendering a default judgment against the disobedient party; or(G) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.(2)For Not Producing a Person for Examination.If a party fails to comply with an order under Rule 35(a) requiring it to produce another person for examination, the court may issue any of the orders listed in Rule 37(b)(1), unless the disobedient party shows that it cannot produce the other person.(3)Payment of Expenses. Instead of or in addition to the orders above, the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.(c)Failure to Disclose, to Supplement an Earlier Response, or to Admit.(1)Failure to Disclose or Supplement. If a party fails to provide information or identify a witness as required by Rule 16.1(a)(1), 16.2(d) or (e), 16.205(d) or (e), or 26(e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard: (A) may order payment of the reasonable expenses, including attorney fees, caused by the failure;(B) may inform the jury of the party's failure; and(C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(1).(2)Failure to Admit. If a party fails to admit what is requested under Rule 36 and if the requesting party later proves a document to be genuine or the matter true, the requesting party may move that the party who failed to admit pay the reasonable expenses, including attorney fees, incurred in making that proof. The court must so order unless: (A) the request was held objectionable under Rule 36(a);(B) the admission sought was of no substantial importance;(C) the party failing to admit had a reasonable ground to believe that it might prevail on the matter; or(D) there was other good reason for the failure to admit.(d)Party's Failure to Attend Its Own Deposition, Serve Answers to Interrogatories, or Respond to a Request for Inspection. (1)In General.(A)Motion; Grounds for Sanctions. The court may, on motion, order sanctions if: (i) a party or a party's officer, director, or managing agent-or a person designated under Rule 30(b)(6) or 31(a)(4) -fails, after being served with proper notice, to appear for that person's deposition; or(ii) a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objections, or written response.(B)Certification. A motion for sanctions for failing to answer or respond must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action.(2)Unacceptable Excuse for Failing to Act. A failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c).(3)Types of Sanctions. Sanctions may include any of the orders listed in Rule 37(b)(1). Instead of or in addition to these sanctions, the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.(e)Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or(2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may: (A) presume that the lost information was unfavorable to the party;(B) instruct the jury that it may or must presume the information was unfavorable to the party; or(C) dismiss the action or enter a default judgment.(f)Failure to Participate in Framing a Discovery Plan. If a party or its attorney fails to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 16.1(b), the court may, after giving an opportunity to be heard, require that party or attorney to pay to any other party the reasonable expenses, including attorney fees, caused by the failure.Last amended effective 7/1/2008; amended effective 3/1/2019.Drafter's Note
2004 Amendment
Subdivision (a) is amended to conform to the federal rule, as amended in 1993. The amendments reflect the changes to Rule 16.1(a), requiring disclosure of matters without a discovery request. New paragraph (2)(A) provides for a motion to compel disclosures required by revised Rule 16.1(a) and requires a meet-and-confer or a good faith attempt to meet and confer before seeking court intervention. The language of former paragraph (2), except the last sentence of the former paragraph, is retained in paragraph (2)(B) with the addition of a meet-and-confer requirement that is identical to paragraph (2)(A). Paragraph (3) is amended to apply to disclosures under Rule 16.1(a) and responses to discovery. Paragraph (4) is divided into three subparagraphs consistent with the federal rule and in each provision the phrase "after opportunity for hearing" is changed to "after affording an opportunity to be heard" to clarify that the court may consider sanctions on written submissions as well as on oral hearings. Subparagraph (A) is amended to address the situation where the withheld information is produced after the motion is filed but before it is heard and to provide that the moving party is not entitled to an award for its expenses if a meet-and-confer could have prevented the need for a motion. Subparagraph (C) is amended to include the provision that was included as the last sentence of former subdivision (a)(2).
The amendments to subdivision (b) are technical except that the reference to Rule 26(f) in paragraph (2) is changed to Rules 16 and 16.1 consistent with amendments to those rules.
Subdivision (c) is amended to conform to the 1993 and 2000 amendments to the federal rule. New paragraph (1) sets forth sanctions for failing to make disclosures required by Rules 16.1 and 26(e)(1). The language of former subdivision (c) is retained in paragraph (2) with technical amendments.
Subdivision (e) is retained as a reserved provision for future amendments.
Subdivision (f) corresponds to subdivision (g) of the federal rule. It is amended to conform to the revision of Rules 26(f) and 16.1(b)(2).
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