Rule 37.Failure to make or cooperate in discovery: Sanctions

Current through July 1, 2026 · Last verified July 13, 2026

In one sentenceRule 37 gives a court the tools to compel discovery and to punish a party or witness who won’t cooperate with it — ranging from paying the other side’s expenses to having facts deemed established, striking claims or defenses, or dismissal or default judgment.

Full Text of Rule 37

Text sizeJump to: (A) (B) (C) (D)

(A) Motion for order compelling discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:

(1) Appropriate court. An application for an order to a party may be made to the court in which the action is pending, or alternately, on matters relating to a deposition or an order under Rule 34, to the court in the county where the deposition is being taken or where compliance is to be made under Rule 34. An application for an order to a deponent who is not a party shall be made to the court in the county where the deposition is being taken.

(2) Motion. If a party refuses to allow inspection under Rule 9.2(E), or if a deponent fails to answer a question propounded or submitted under Rule 30 or 31, or an organization, including without limitation a governmental organization or a partnership, fails to make designation under Rule 30(B)(6) or 31(A), or a party fails to answer an interrogatory submitted under Rule 33, or if a party or witness or other person, in response to a request submitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before he applies for an order. If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to Rule 26(C).

(3) Evasive or incomplete answer. For purposes of this subdivision an evasive or incomplete answer is to be treated as a failure to answer.

(4) Award of expenses of motion. If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney’s fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.

(B) Failure to comply with order.

(1) Sanctions by court in county where deposition is taken. If a deponent fails to be sworn or to answer a question after being directed to do so by the court in the county in which the deposition is being taken, the failure may be considered a contempt of that court.

(2) Sanctions by court in which action is pending. If a party or an officer, director, or managing agent of a party or an organization, including a governmental organization, or a person designated under Rule 30(B)(6) or 31(A) to testify on behalf of a party or an organization, including a governmental organization, fails to obey an order to provide or permit discovery, including an order made under subdivision (A) of this rule or Rule 35, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:

(a) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(b) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;

(c) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;

(d) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination under Rule 35;

(e) Where a party has failed to comply with an order under Rule 35(A) requiring him to produce another for examination, such orders as are listed in paragraphs (a), (b), and (c) of this subdivision, unless the party failing to comply shows that he is unable to produce such person for examination. In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

(C) Failure of party to attend at own deposition or serve answers to interrogatories or respond to requests for inspection. If a party or an officer, director, or managing agent of a party or an organization, including without limitation a governmental organization, or a person designated under Rule 30(B)(6) or 31(A) to testify on behalf of a party or an organization, including without limitation a governmental organization, fails (1) to appear before the officer who is to take the deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or (3) to serve a written response to a request for inspection submitted under Rule 34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (a), (b), and (c) of subdivision (B)(2). In lieu of any order or in addition thereto, the court must require the party failing to act or the advising attorney or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. The failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by Rule 26(C).

(D) Electronically stored information. A court may impose sanctions on a party for failing to take reasonable steps to preserve electronically stored information that is relevant, material to the litigation, should have been preserved in anticipation of or during litigation and is lost because a party fails to take reasonable steps to preserve it, cannot be restored or replaced through additional discovery, and either prejudice results to another party from loss of the information or the party acted with the intent to deprive another party of the information’s use in the litigation. The sanctions available to the court include the following: a presumption that the lost information was unfavorable to the party, an instruction the jury must presume the information was unfavorable to the party, dismissal of the action, entry of a default judgment, or other orders as are just and necessary to cure the prejudice.

End

Amendment History

This rule’s current text took effect January 1, 2026. For the full history of earlier amendments and adoption orders, see the Indiana Office of Court Services.

Plain-English Summary

Rule 37 is the enforcement mechanism behind every other discovery rule. Section A lets a party who’s been stonewalled — a deponent who won’t answer, an organization that won’t designate a witness, a party who won’t answer interrogatories, or a party who won’t permit an inspection requested under Rule 34 — move for an order compelling a response, after giving reasonable notice to everyone the order would affect. An evasive or incomplete answer counts as no answer at all. Whichever way the motion comes out, someone typically pays for it: if the court grants it, the party who caused the fight usually owes the winner’s reasonable expenses and attorney’s fees; if the court denies it, the party who filed it usually owes the other side’s expenses instead; and if the motion succeeds in part, the court can split the cost. The main exception is when the losing side’s position was substantially justified or an award would be unjust.

Section B raises the stakes once a court order is already on the table and someone ignores it. A deponent who won’t be sworn or won’t answer after the court directs it can be held in contempt by the court supervising the deposition. For broader violations — a party, or an officer, director, or managing agent who defies an order to provide discovery — the court hearing the case can treat the matters covered by the order as established against the disobedient party, block that party from supporting or opposing designated claims or defenses, strike pleadings, stay the case, dismiss it, or enter a default judgment. Contempt is available too, except a court can’t use it to punish a refusal to undergo a Rule 35 physical or mental examination; the rule sends that kind of refusal down the list of other sanctions instead, unless the disobedient party can show it can’t produce the person to be examined. Section C covers a related but distinct failure — not showing up for your own deposition, not answering interrogatories, or not responding to an inspection request at all, as opposed to disobeying a court order about it. The available sanctions look much the same, and paying expenses is close to mandatory rather than discretionary, unless the failure was substantially justified.

Section D deals with a newer problem: electronically stored information that vanishes. If a party should have preserved relevant electronic evidence in anticipation of or during litigation, doesn’t take reasonable steps to keep it, the information is lost for good, and either the other side is prejudiced by the loss or the party meant to keep the evidence from being used, the court can step in. Depending on what happened, the remedies range from a presumption — or a jury instruction — that the missing information would have hurt the party who lost it, to dismissing the case or entering a default judgment.

Frequently Asked Questions

What’s the difference between Section A and Section B of Rule 37?

Section A covers the first step — moving to compel a response when a party or witness has failed to cooperate with discovery. Section B covers what happens after a court order is already in place and someone disobeys it; the available sanctions there are broader and more severe.

If I win a motion to compel, do I get my attorney’s fees?

Usually. Rule 37(A)(4) requires the court to make the party or attorney who caused the dispute pay the reasonable expenses of the motion, including attorney’s fees, unless the opposition was substantially justified or an award would be unjust.

Can I be sanctioned for losing a motion to compel that I filed?

Yes. If the court denies your motion, it can order you or your attorney to pay the other side’s reasonable expenses in opposing it, unless the motion itself was substantially justified.

Can a court dismiss my case for a discovery violation?

Yes, dismissal or a default judgment is among the sanctions available under Section B when a party disobeys a discovery order, and under Section C when a party fails to attend its own deposition, answer interrogatories, or respond to an inspection request.

Can someone be jailed for refusing a court-ordered medical examination?

No. Rule 37(B)(2)(d) carves out an exception for orders to submit to a physical or mental examination under Rule 35 — contempt isn’t available for that kind of refusal, though the other sanctions in the rule still are.

What happens if evidence gets deleted before trial?

Section D lets a court sanction a party for losing electronically stored information it should have preserved, if the loss resulted from a failure to take reasonable steps and either the other side is prejudiced or the party meant to keep the evidence out of the case. Sanctions range from an unfavorable presumption to dismissal or default judgment.

Can I be sanctioned just for objecting to discovery I think is improper?

Not on its own. Section C says a failure to respond can’t be excused just because the discovery was objectionable, unless you’ve filed a motion for a protective order under Rule 26(C) to address the objection properly.

Source & verification. The rule text is reproduced verbatim from the official Indiana Rules of Trial Procedure (T.R. 37). Prescribed by the Supreme Court of Indiana, under its inherent constitutional rulemaking power (reaffirmed by Ind. Code 34-8-1-1 and 34-8-2-1); originally enacted by the Indiana General Assembly in 1969. The plain-English summary is original and written by us. Last verified July 13, 2026. · Official source

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