Rule 46.Failure to Make Discovery; Sanctions

Current through June 1, 2026 · Last verified July 11, 2026

In one sentenceRule 46 spells out how a party can ask the court to compel discovery when another side stalls or refuses, and what sanctions — from paying expenses to dismissal or default — a court can impose for ignoring a discovery order.

Full Text of Rule 46

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 move for an order compelling discovery as follows:

(1) Appropriate court.

(a) Parties. A motion for an order directed against a party may be made to the court in which the action is pending and, on matters relating to a deponent's failure to answer questions at a deposition, a motion may also be made to the circuit court for the county where the deponent is located.

(b) Non-parties. A motion for an order directed against a deponent who is not a party shall be made to the circuit court for the county where the non-party deponent is located.

(2) Motion. If a party fails to furnish a report under Rule 44 B or C, or if a deponent fails to answer a question propounded or served under Rule 39 or Rule 40, or if a corporation or other entity fails to make a designation under Rule 39 C(6) or Rule 40 A, or if a party fails to respond to a request for a copy of an insurance agreement or policy under Rule 36 B(2), or if a party in response to a request for production or inspection submitted under Rule 43 fails to produce or to permit inspection as requested, the discovering party may move for an order compelling discovery in accordance with the request. Any motion made under this subsection shall identify at the beginning of the motion the items that the moving party seeks to discover. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order. If the court denies the motion in whole or in part, it may make any protective order it would have been empowered to make on a motion made pursuant to Rule 36 C.

(3) Evasive or incomplete answer. For purposes of this section, 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 may, after an 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 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 may, after an 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 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 the county where the deponent is located. If a deponent fails to be sworn or to answer a question after being directed to do so by a circuit court judge of the county in which the deponent is located, the failure may be considered a contempt of court.

(2) Sanctions by court in which action is pending. If a party or an officer, director, or managing agent or a person designated under Rule 39 C(6) or Rule 40 A to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under section A of this rule or Rule 44, the court in which the action is pending may make any order in regard to the failure as is just including, but not limited to, the following:

(a) Establishment of facts. An order that the matters that caused the motion for the sanction 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) Designated matters. An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the disobedient party from introducing designated matters in evidence.

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

(d) Contempt of court. In lieu of or in addition to any of the orders listed in paragraph B(2)(a), B(2)(b), or B(2)(c) of this rule, an order treating as a contempt of court the failure to obey any order except an order to submit to a physical or mental examination.

(e) Inability to produce person. Any of the orders listed in paragraph B(2)(a), B(2)(b), or B(2)(c) of this rule, when a party has failed to comply with an order under Rule 44 A requiring the party to produce another person for examination, unless the party failing to comply shows inability to produce the person for examination.

(3) Payment of expenses. In lieu of or in addition to any order listed in subsection B(2) of this rule, the court shall require the party failing to obey the order or the attorney advising that party, or both, to pay the reasonable expenses, including attorney 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. EXPENSES ON FAILURE TO ADMIT If a party fails to admit the genuineness of any document or the truth of any matter, as requested under Rule 45, and if the party requesting the admission thereafter proves the genuineness of the document or the truth of the matter, the party requesting the admission may apply to the court for an order requiring the other party to pay the party requesting the admission the reasonable expenses incurred in making that proof, including reasonable attorney fees. The court shall make the order unless it finds that: the request was held objectionable pursuant to Rule 45 B or C; the admission sought was of no substantial importance; the party failing to admit had reasonable grounds to believe that it might prevail on the matter; or there was other good reason for the failure to admit.

D. FAILURE OF PARTY TO ATTEND OWN DEPOSITION OR TO RESPOND TO REQUEST FOR PRODUCTION OR INSPECTION If a party or an officer, director, or managing agent of a party or a person designated under Rule 39 C(6) or Rule 40 A to testify on behalf of a party fails to appear before the officer who is to take the deposition of that party or person, after being served with a proper notice, or to comply with or to serve objections to a request for production or inspection submitted under Rule 43, after proper service of the request, the court where the action is pending on motion may make any order in regard to the failure as is just including, but not limited to, any action authorized under paragraphs B(2)(a), B(2)(b), and B(2)(c) of this rule. In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising that party, or both, to pay the reasonable expenses, including attorney 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 section 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 36 C.

End

Amendment History

[CCP 12/2/78; §§ A(2), D amended by CCP 12/13/80; §§ A(1), B(1) amended by CCP 12/12/92; § B(1) amended by 1999 c. 59 § 4 ; § A amended by CCP 12/11/04 eff. 1/1/06; amended by CCP 12/6/14, eff. 1/1/2016]

Plain-English Summary

Rule 46 is the enforcement mechanism behind Oregon’s discovery rules — the rule a party turns to when the other side will not produce a document, will not answer a deposition question, or otherwise stonewalls discovery. Section A lets the discovering party move to compel, naming at the outset exactly what it wants. Most motions go to the court where the case is pending, but a motion aimed at a non-party deponent who will not answer belongs in the circuit court for the county where that deponent is located. The rule treats an evasive or incomplete answer the same as no answer at all, so a technically responsive but hollow answer will not defeat the motion.

Section A(2) lists the specific failures that trigger a motion to compel: not furnishing a physical or mental exam report owed under Rule 44 B or C, not answering a deposition question under Rule 39 or Rule 40, not designating a witness to speak for a corporation or other entity, not turning over a copy of an insurance policy that Rule 36 B(2) makes discoverable, or not producing documents or allowing an inspection requested under Rule 43. Whichever side loses the motion typically pays the reasonable expenses, including attorney fees, that the other side spent bringing or fighting it — the court skips that award only if the losing position was substantially justified or an award would otherwise be unjust.

Defying an actual court order is more serious than resisting a request. Once a party ignores an order compelling discovery, Rule 46 B gives the court a wide menu of sanctions: treating disputed facts as established, barring the disobedient party from supporting or opposing particular claims or defenses, striking pleadings, staying the case, dismissing it, entering a default judgment, or holding the party in contempt. The one carve-out is physical or mental examinations — a party who defies an order under Rule 44 A to submit to one cannot be held in contempt for that specific refusal, though every other sanction on the list remains available. Whatever sanction the court chooses, it must also make the disobedient party or attorney pay the reasonable expenses the failure caused, unless that failure was substantially justified. Section D runs a parallel track that skips the order-and-disobey sequence entirely: a party who fails to show up for a properly noticed deposition of themselves, or who fails to comply with or object to a Rule 43 document request, faces the same striking, staying, or dismissal sanctions available under B(2)(a) through (c) directly, plus mandatory expense-shifting. Thinking the discovery was objectionable does not excuse the failure unless the party sought a protective order under Rule 36 C first.

Frequently Asked Questions

What discovery failures can I file a motion to compel over?

Rule 46 A(2) lists them: a party who owes a physical or mental exam report under Rule 44 B or C and has not furnished it, a deponent who will not answer a question under Rule 39 or Rule 40, a corporation or other entity that will not designate a witness to testify on its behalf, a party who will not turn over a discoverable insurance policy under Rule 36 B(2), and a party who will not produce documents or allow an inspection requested under Rule 43.

Which court do I file a motion to compel in?

Generally the court where the action is already pending. The one exception is a motion aimed at a deponent’s failure to answer a deposition question — that motion can also go to the circuit court for the county where the deponent is located, which matters most when the deponent is not a party to the case.

Who pays the costs of a motion to compel?

Usually whoever loses. If the court grants the motion, it will generally order the losing party or their attorney to pay the reasonable expenses, including attorney fees, that the moving party spent bringing it. If the court denies the motion, it will generally shift those same kinds of expenses onto the party who brought it. Either way, the court skips the award if the losing side’s position was substantially justified or if an award would otherwise be unjust, and it can split the expenses when a motion is granted in part and denied in part.

What sanctions can a court impose if a party disobeys a discovery order?

Rule 46 B(2) gives the court a broad range of options: deeming disputed facts established, barring the disobedient party from supporting or opposing designated claims or defenses, excluding designated evidence, striking pleadings, staying the case, dismissing it, entering a default judgment, or treating the violation as contempt of court. The court can combine these and must also order payment of the reasonable expenses the violation caused, unless the failure was substantially justified.

Can I be held in contempt for refusing a court-ordered physical exam?

Not for that specific refusal. Rule 46 B(2)(d) exempts an order to submit to a physical or mental examination from the contempt sanction. The court is not powerless, though — it can still impose any of the other sanctions in Rule 46 B(2), including deeming the facts the exam would have addressed to be established against the party who refused.

Do I need a court order already in place before facing sanctions for missing my own deposition?

No. Rule 46 D lets the court impose the same serious sanctions available under section B(2)(a) through (c) — striking pleadings, staying the case, or dismissal, among others — against a party who fails to appear for their own properly noticed deposition or who fails to comply with or object to a Rule 43 document request, even without a prior order compelling discovery already in place. The court must also order payment of the reasonable expenses the failure caused, and the party cannot excuse the failure by claiming the discovery was objectionable unless it sought a protective order under Rule 36 C beforehand.

Source & verification. The rule text is reproduced verbatim from the official Oregon Rules of Civil Procedure (ORCP 46). Prescribed by the Council on Court Procedures (ORS 1.735), subject to amendment, repeal, or supplementation by the Oregon Legislative Assembly. The plain-English summary is original and written by us. Last verified July 11, 2026. · Official source

Also known as: motion to compel oregondiscovery sanctions oregonfailure to make discovery oregonoregon motion to compel discovery expensesdiscovery violation sanctions oregon lawsuit