Rule 37.Statement of discovery issues; Sanctions; Failure to admit, to attend deposition or to preserve evidence

Utah handles discovery disputes through a statement of discovery issues rather than a conventional motion. Any party, or a person from whom discovery is sought, can ask a judge to enter an order on a discovery issue — failing to disclose under Rule 26, extraordinary discovery under Rule 26, a subpoena under Rule 45, protection from discovery, or compelling a party to make full and complete disclosure. The statement itself is capped at four pages, not counting permitted attachments, and has to lay out, in order, the relief sought and its grounds, a certification that the filer tried in good faith to work things out with the other side before involving the court, a statement about proportionality under Rule 26(b)(3), a discovery-budget certification if extraordinary discovery is at issue, and, where relevant, proof that a subpoena-related objection was served on the affected non-party. Any other party has seven days to file an objection, also capped at four pages, and a person subject to a subpoena who objected under Rule 45(e)(4) can object to the statement too. The only attachment allowed is a copy of the disclosure, request, or response at issue, and each side has to file a proposed order along with its statement or objection. Once the objection window closes, either side may, and the filer must, request a decision under Rule 7(g); the court then decides on the papers, holds a hearing (preferably remote, consistent with Rule 43(b)'s safeguards), or orders further briefing.

The range of orders a court can enter is broad: barring or compelling discovery, limiting its terms or methods, restricting who's present, protecting trade secrets or confidential information, controlling how sealed material or simultaneous exchanges are handled, delaying a question until later in the case, and allocating the costs, expenses, and fees of discovery as justice requires — including ordering a party to pay the other side's reasonable costs and fees if the party, witness, or attorney didn't act in good faith or took a position that wasn't substantially justified. A statement of discovery issues can ask for those costs and fees, but not for sanctions, and filing one doesn't pause or extend the clock on standard discovery.

Separately, when a party violates a discovery order, the court can impose sanctions unless the failure was substantially justified: deeming facts established against the disobedient party, barring that party from supporting or opposing designated claims or defenses or from introducing certain evidence, staying the case until the order is obeyed, dismissing or striking all or part of the action or entering default judgment, ordering payment of reasonable costs and fees caused by the failure, or instructing the jury on an adverse inference.

Rule 37 also connects to Rule 36. If a party denies the genuineness of a document or the truth of a matter under a request for admission, and the requesting party later proves it true, the requesting party can move for the reasonable costs and fees spent proving it — and the court has to grant that motion unless the denial was covered by a valid objection under Rule 36(a), the admission sought wasn't substantially important, the denying party had reasonable grounds to believe it might prevail, the request wasn't proportional under Rule 26(b)(3), or some other good reason excuses the failure to admit.

If a party, or an officer, director, managing agent, or a person designated under Rule 30(b)(6) to testify for a party, fails to show up for a properly noticed deposition, the other side can move for sanctions under this rule — and the absent party can't excuse the no-show by claiming the discovery was objectionable unless a statement of discovery issues was already on file. Separately, nothing in Rule 37 limits a court's inherent power to sanction a party that destroys, conceals, alters, tampers with, or otherwise fails to preserve evidence in violation of a duty to keep it, though absent exceptional circumstances, a court can't sanction a party for electronically stored information lost through the routine, good-faith operation of an electronic system.

The Advisory Committee Notes describe the 2011 overhaul of this rule as folding the old protective-order motion practice into the same rule as motions to compel, and building in the proportionality standard adopted for Rule 26 as a central factor in resolving both. The expedited statement-of-discovery-issues procedure in section (a) replaced the state's prior discovery-motion practice and governs discovery disputes unless a judge orders otherwise.