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

Group V: Depositions and Discovery · Not amended since adoption on record · Last verified July 13, 2026

In one sentenceRule 37 provides the procedure and remedies for discovery disputes — motions to compel answers, designations, or inspection, and escalating sanctions for disobeying a discovery order, along with fee-shifting rules and a safe harbor for electronically stored information lost through routine system operation.

Full Text of Rule 37

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(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, on matters relating to a deposition in progress, to the court where the deposition is being taken. An application for an order to a deponent who is not a party shall be made to the court in the place where the deposition is being taken.

(2) Motion. If a deponent fails to answer a question propounded or submitted under Rule 30 or 31, or a corporation or other entity fails to make a 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, in response to a request for inspection 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 Circuit 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 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 a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or Rule 35, or if a party fails to obey an order entered under Rule 26(f), 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;

(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 show 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) 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 36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney's fees. The court shall make the order unless it finds that (1) the request was held objectionable pursuant to Rule 36(a), or (2) the admission sought was of no substantial importance, or (3) the party failing to admit had reasonable ground to believe that he might prevail on the matter, or (4) there was other good reason for the failure to admit.

(d) Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection. If a party or an officer, director or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails (1) to appear before the officer who is to take his 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) 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 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.

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).

(e) Failure to Participate in the Framing of a Discovery Plan. If a party or his attorney fails to participate in good faith in the framing of a discovery plan by agreement as is required by Rule 26(f), the court may, after opportunity for hearing, require such party or his attorney to pay to any other party the reasonable expenses, including attorney's fees caused by the failure.

(f) Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

End

Notes

Note: This Rule 37 is the language of the Federal Rule with minor changes. The Federal Rule provides that a motion to compel discovery or for sanctions may be brought either in the court where the action is pending or in the place where the discovery or deposition is taken. Thus, if a deposition were being taken in another state or Federal district, the parties do not have to adjourn the deposition and return to the court where the action is pending for assistance. However, this Rule 37 deletes that provision with reference to the deposition of a party. Such motion may be brought only in the court where the action is pending. A motion to compel a witness deponent (not a party) to proceed, however, may be brought in the circuit court in the place where the deposition is being taken, usually the county of residence of the deponent.

Note to 2011 Amendment: The amendments to Rules 16, 26, 33, 34, 37 and 45 of the South Carolina Rules of Civil Procedure concerning electronic discovery are substantially similar to the corresponding provisions in the Federal Rules of Civil Procedure. The rules concerning electronic discovery are intended to provide a practical, efficient and cost-effective method to assure reasonable discovery. Pursuit of electronic discovery must relate to the claims and defenses asserted in the pleadings and should serve as a means for facilitating a just and cost-effective resolution of disputes.

Plain-English Summary

Rule 37 is the enforcement mechanism behind every other discovery rule. When a deponent will not answer, a corporation will not designate a Rule 30(b)(6) witness, a party stonewalls interrogatories, or a party refuses to permit an inspection, the frustrated party can move to compel. The motion generally goes to the court where the case is pending, though disputes tied to an ongoing deposition can go to the court where the deposition is happening. An answer that is evasive or incomplete counts as no answer at all for these purposes.

Money follows fault. If the court grants the motion, it must — after a hearing — make the resisting party or attorney pay the reasonable expenses of bringing the motion, including attorney's fees, unless the resistance was substantially justified or an award would otherwise be unjust. The same rule runs the other way: a losing movant can be ordered to pay the other side's expenses in opposing a motion that should not have been filed. Where a motion is granted in part and denied in part, the court can split the expenses among everyone involved.

Disobeying an actual court order escalates things further. A court can treat matters as established against the disobedient party, bar that party from supporting or opposing designated claims or defenses, strike pleadings, stay the case, or enter a default judgment. Contempt is available too, with one carve-out: a party cannot be held in contempt specifically for refusing to submit to a physical or mental examination, though the other listed sanctions still apply if a party will not produce someone for a Rule 35 exam.

Separate provisions cover a party who fails to appear for its own deposition, answer interrogatories, or respond to an inspection request at all — sanctionable without any prior order to compel, unless the party first sought a protective order — and a party or attorney who will not participate in good faith in framing a discovery plan under Rule 26(f). Rule 37(f) closes the rule with a safe harbor: absent exceptional circumstances, a court cannot sanction a party for electronically stored information lost through the routine, good-faith operation of an electronic information system.

Frequently Asked Questions

Can someone be held in contempt for refusing a mental examination?

Not under the contempt provision of Rule 37(b)(2)(D), which carves out orders to submit to a Rule 35 physical or mental examination. Other sanctions — like treating facts as established or striking pleadings — remain available.

What if my opposition to a discovery motion was reasonable?

Rule 37(a)(4) excuses fee-shifting where the losing side's position was substantially justified, or where other circumstances make an award unjust.

What is the electronically stored information safe harbor?

Rule 37(f) bars sanctions for ESI lost through the routine, good-faith operation of a system — like automatic deletion — absent exceptional circumstances.

Can I recover attorney's fees if I win a motion to compel?

Generally yes. Rule 37(a)(4) requires the court, after a hearing, to make the resisting party or its attorney pay the reasonable expenses of the motion unless an exception applies.

Do I have to move to compel before a party can be sanctioned for skipping its own deposition?

No. Rule 37(d) allows sanctions directly against a party who fails to appear for its own deposition, answer interrogatories, or respond to an inspection request, without a separate order compelling the discovery first.

Source & verification. Rule text, official Notes, and amendment history are reproduced verbatim from the South Carolina Rules of Civil Procedure, adopted by the Supreme Court of South Carolina. Last verified July 13, 2026. · Official source

Also known as: motion to compel South Carolinadiscovery sanctions SCRCPfailure to answer interrogatoriesESI spoliation safe harbordiscovery abuse sanctions