Federal motions to compel: the certification, who pays, and the sanctions ladder

Rule 37 is built around two ideas that surprise people. You cannot file a motion to compel without first certifying that you tried to resolve it. And once you file, somebody is presumptively paying the other side's fees — including, sometimes, the party who filed.

The certification is a filing requirement

Rule 37(a)(1):

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.

Not a best practice. A required component of the motion.

Rule 37(a)(2) routes it: a motion for an order to a party goes to the court where the action is pending; a motion for an order to a nonparty goes to the court where the discovery is or will be taken. That mirrors Rule 45's split between the issuing court and the compliance court.

What you can move to compel

Rule 37(a)(3)(A): if a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions.

Rule 37(a)(3)(B): a party seeking discovery may move for an order compelling an answer, designation, production or inspection where:

• a deponent fails to answer a question under Rule 30 or 31;
• a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a)(4);
• a party fails to answer an interrogatory under Rule 33;
• a party fails to produce documents, fails to respond that inspection will be permitted, or fails to permit inspection as requested under Rule 34.

Rule 37(a)(3)(C): when taking an oral deposition, the party asking a question may complete or adjourn the examination before moving for an order.

Evasive counts as absent

Rule 37(a)(4):

For purposes of this subdivision (a), an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.

There is no separate federal motion for "further responses" the way California has one. A deficient answer and no answer at all travel the same route under Rule 37(a).

Who pays — the part that shapes behaviour

Rule 37(a)(5) is where the rule gets its teeth, and it cuts three ways.

If the motion is granted — or the discovery arrives after it 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's fees."

Note the parenthetical: producing the discovery after the motion is filed does not avoid the fee award. It is the filing that fixes the exposure.

Three exceptions, and the court must not order payment if:

1. the movant filed before attempting in good faith to obtain the discovery without court action;
2. the opposing party's nondisclosure, response or objection was substantially justified; or
3. other circumstances make an award of expenses unjust.

If the motion is denied. Rule 37(a)(5)(B) runs the same machinery in reverse — the court may issue a protective order and must require the movant, the attorney advising the motion, or both, to pay the responding party's reasonable expenses, subject to the same substantially-justified and unjust exceptions.

If the motion is granted in part and denied in part. Rule 37(a)(5)(C): the court may issue a protective order and may apportion the reasonable expenses.

The design point is symmetry. Rule 37 does not favour the party seeking discovery; it penalizes whichever side was unreasonable.

Disobeying an order — the sanctions ladder

Rule 37(b) applies once there is an order and it hasn't been obeyed.

Rule 37(b)(1): where the court where the discovery is taken orders a deponent to be sworn or to answer and the deponent disobeys, the failure may be treated as contempt.

Rule 37(b)(2)(A): where a party, or a party's officer, director or managing agent, or a Rule 30(b)(6) or 31(a)(4) designee fails to obey an order to provide or permit discovery, the court where the action is pending may issue "further just orders," including:

• directing that designated facts be taken as established as the prevailing party claims;
• prohibiting the disobedient party from supporting or opposing designated claims or defences, or from introducing designated matters in evidence;
• striking pleadings in whole or in part;
• staying further proceedings until the order is obeyed;
• dismissing the action or proceeding in whole or in part;
• rendering a default judgment against the disobedient party;
• treating the failure as contempt of court — except for an order to submit to a physical or mental examination.

Rule 37(b)(2)(C) adds a fee provision on top: instead of or in addition to those orders, the court must order the disobedient party, the attorney advising the conduct, or both to pay the reasonable expenses, including attorney's fees, caused by the failure — unless the failure was substantially justified or other circumstances make an award unjust.

Lost electronically stored information — Rule 37(e)

Rule 37(e) is deliberately narrower than the rest of the rule, and its two tiers turn on intent.

It applies where ESI "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." Then:

(1) On a finding of prejudice to another party from the loss, the court "may order measures no greater than necessary to cure the prejudice."

(2) Only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may the court presume the lost information was unfavourable, instruct the jury that it may or must so presume, or dismiss the action or enter a default judgment.

The severe remedies require intent. Negligence — even serious negligence — gets curative measures under (e)(1), not an adverse-inference instruction.

Two more failures Rule 37 reaches

Rule 37(c)(1) — failure to disclose or supplement. A party that fails to provide information or identify a witness as required by Rule 26(a) or 26(e) "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 that sanction, the court may order payment of reasonable expenses caused by the failure, may inform the jury of the failure, and may impose other appropriate sanctions including those in Rule 37(b)(2)(A)(i)–(vi).

That exclusion operates automatically in the sense that it does not require a prior order — which makes it closer in effect to Rule 36's deemed admissions than to the rest of Rule 37.

Rule 37(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 under Rule 26(f), the court may, after giving an opportunity to be heard, require that party or attorney to pay the other parties' reasonable expenses, including attorney's fees, caused by the failure.

The order of operations

1. Confer, in good faith, and document it. Rule 37(a)(1) makes the certification part of the motion; Rule 37(a)(5)(A)(i) makes skipping it fatal to a fee award.
2. Check the court. Party or nonparty decides where the motion goes — Rule 37(a)(2).
3. Move under Rule 37(a). Evasive answers count as no answer.
4. If an order issues and is disobeyed, Rule 37(b) opens the ladder from cost-shifting through issue and evidence sanctions to dismissal or default.
5. For lost ESI, Rule 37(e) — and the severe remedies need intent.

Bear in mind that Rule 37 supplies no deadline for a motion to compel. The operative limit is generally the discovery cutoff in the Rule 16(b) scheduling order, and many districts impose their own timing requirements by local rule.

Where these rules live

• Rule 16 — Pretrial Conferences; Scheduling; Management
• Rule 26 — Duty to Disclose; General Provisions Governing Discovery
• Rule 30 — Depositions by Oral Examination
• Rule 33 — Interrogatories to Parties
• Rule 34 — Producing Documents and Electronically Stored Information
• Rule 37 — Failure to Make Disclosures or to Cooperate in Discovery
• Rule 45 — Subpoena

District local rules frequently add their own conferral and timing requirements on top of Rule 37. This page explains what the rules say. It isn't legal advice.