Rule 37.Failure to Make or Cooperate in Discovery: Sanctions

Rule 37(a) lets a party move to compel discovery on reasonable notice, but a 2023 amendment requires the motion to include a certification that the moving party already tried in good faith to work out the dispute without court involvement. The motion covers a deponent who won't answer a question, an organization that won't designate a witness under Rule 30(b)(6) or Rule 31(a), a party that won't answer an interrogatory, or a party that won't permit or respond to an inspection request under Rule 34; an evasive or incomplete answer counts as no answer at all. If the court grants the motion, it must — after a chance for a hearing — order the losing side (or its attorney, or both) to pay the moving party's reasonable expenses, including attorney's fees, unless the movant filed before making a real attempt to resolve things, the opposition was substantially justified, or other circumstances would make an award unjust. The same fee-shifting runs the other way if the motion is denied, and the court can apportion expenses if the ruling is split.

Subsection (b) covers what happens when a party defies an actual court order. If a deponent refuses to be sworn or to answer after the court has directed an answer, that can be treated as contempt. More broadly, if a party — or its officer, director, managing agent, or Rule 30(b)(6)/31(a) designee — disobeys an order to provide or permit discovery, the court can do whatever is just, including deeming certain facts established, barring the disobedient party from supporting or opposing designated claims or defenses or introducing certain evidence, striking pleadings, staying the case, dismissing it, entering a default judgment, or treating the disobedience itself as contempt. A party who fails to produce another person for a Rule 35 examination faces the fact-establishment, evidence-preclusion, and pleading-striking/dismissal/default sanctions — but not the contempt sanction available for other order violations — unless it shows it cannot produce that person. Any of these sanctions can come with an order to pay the reasonable expenses the failure caused, again unless the failure was substantially justified or an award would otherwise be unjust.

Subsection (c) addresses the specific case of a party who denies a Rule 36 request for admission and is later proven wrong: the party who did the proving can ask the court to order payment of the reasonable expenses of that proof, including attorney's fees, and the court must make that order unless the request was objectionable, the admission sought wasn't substantially important, the denying party had reasonable grounds to think it might prevail on the point, or there was some other good reason for the denial. Subsection (d) covers a party's total failure to show up for its own deposition, answer interrogatories, or respond to a production request — the same fact-establishment, evidence-preclusion, and pleading-striking/dismissal/default sanctions apply (though not the separate contempt sanction), the same good-faith conferral certification is required, and a party cannot excuse total silence by calling the discovery objectionable unless it sought a protective order. Subsection (e) is a catch-all, letting the court sanction a party or counsel who fails without good cause to cooperate in framing a discovery plan or who otherwise abuses the discovery process.