Rule 4:12.Failure to Make Discovery; Sanctions.

Part Four: Pretrial Procedures, Dispositions and Production at Trial · Last amended 2022 · Last verified July 16, 2026

In one sentenceRule 4:12 is Virginia’s discovery-enforcement rule — it sets the procedure for a motion to compel a deposition answer, an interrogatory answer, or document production, authorizes escalating sanctions up to dismissal or default for disobeying a discovery order, and shifts attorney’s fees to whichever side’s position was not substantially justified.

Full Text of Rule 4:12

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, on matters relating to a deposition, to the court in the county or city where the deposition is to be taken. An application for an order to a deponent who is not a party must be made to the court in the county or city where the deposition is being taken.

(2) Motion. If a deponent fails to answer a question propounded or submitted under Rule 4:5 or 4:6, or a corporation or other entity fails to make a designation under Rule 4:5(b)(6) or 4:6(a), or a party fails to answer an interrogatory submitted under Rule 4:8, or if a party, in response to a request for inspection submitted under Rule 4:9, 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.

A motion under subdivision (a) of this Rule must be accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action.

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 4:1(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 must, 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 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 must, 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 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 or City 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 or city 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 a person designated under Rule 4:5(b) (6) or 4:6(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 4:10, 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 will 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 4:10(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 must require the party failing to obey the order or the attorney advising him 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 4:11, 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 fees. The court must make the order unless it finds that (1) the request was held objectionable pursuant to Rule 4:11(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 Requests for Production or Inspection. — If a party or an officer, director, or managing agent of a party or a person designated under Rule 4:5(b)(6) or 4:6(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 4:8, after proper service of the interrogatories, or (3) to serve a written response to a request for production or inspection submitted under Rule 4:9, 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 – without prior entry of a Rule 4:12(b) order to compel regarding this failure – impose any of the sanctions listed in paragraphs (A), (B), and (C) of subdivision (b)(2) of this Rule. In lieu of any order or in addition thereto, the court must require the party failing to act or the attorney advising him 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 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 4:1(c).

A motion under subdivision (d) of this Rule must be accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action.

End

Plain-English Summary

Rule 4:12 supplies the consequences behind Virginia’s discovery rules. When a deponent will not answer, an organization will not designate a witness under Rule 4:5(b)(6) or 4:6(a), a party will not answer an interrogatory, or a party will not permit an inspection, the discovering party may move to compel — but only after certifying a good-faith effort to resolve the dispute without the court’s help. An evasive or incomplete answer counts as no answer at all. Whichever side loses the motion generally pays the other’s reasonable expenses, including attorney’s fees, unless the losing position was substantially justified or an award would otherwise be unjust; if the motion succeeds only in part, the court may split the expenses.

Disobeying a court order is a separate, more serious problem. A deponent who refuses to be sworn or to answer after the court directs it can be held in contempt by the court where the deposition is happening. If a party, or a person designated to speak for it, disobeys an order compelling discovery or a Rule 4:10 examination order, the court where the action is pending has a full menu of sanctions: deeming disputed facts established, barring the disobedient party from supporting or opposing designated claims or introducing certain evidence, striking pleadings, staying the case, dismissing it, entering a default judgment, or treating the violation as contempt — though contempt is not available for disobeying an examination order. The court must also make the disobedient party pay the resulting expenses unless the failure was substantially justified.

Two more failure scenarios get their own treatment. If a party denies a request for admission that the requesting party later proves true, the court must award the cost of that proof — including attorney’s fees — unless the denial was objectively reasonable, unimportant, or otherwise excusable. And if a party fails to show up for its own deposition, fails to answer interrogatories, or fails to respond to a production request, the court can impose the fact-establishing, evidence-barring, and pleading-striking sanctions without first having to enter a separate order compelling discovery — objecting to the discovery is not itself an excuse for silence unless the party sought a protective order.

Frequently Asked Questions

What do you have to do before filing a motion to compel discovery in Virginia?

Certify that you made a good-faith effort to confer with the other side and resolve the dispute without court action (Rule 4:12(a)(2)).

What sanctions can a Virginia court impose for disobeying a discovery order?

A range including deeming facts established, barring evidence or defenses, striking pleadings, staying the case, dismissal, default judgment, and contempt — though contempt is unavailable for disobeying a physical or mental examination order (Rule 4:12(b)(2)).

Who pays the attorney’s fees on a motion to compel in Virginia?

Generally the losing side, unless its position was substantially justified or an award would otherwise be unjust; if the motion is granted in part and denied in part, the court can apportion the expenses (Rule 4:12(a)(4)).

What happens if you deny a request for admission that turns out to be true?

The requesting party can recover the cost of proving it, including attorney’s fees, unless your denial was objectively reasonable, the matter was unimportant, or there was other good reason for the denial (Rule 4:12(c)).

Do you need a court order before being sanctioned for missing your own deposition or failing to answer interrogatories?

No. Rule 4:12(d) lets the court impose sanctions for failing to appear at your own deposition or respond to interrogatories or production requests without a prior order compelling discovery.

Amendment History

Last amended by Order dated June 13, 2022; effective August 12, 2022.

Source & verification. Rule text and amendment history are reproduced verbatim from the Rules of Supreme Court of Virginia, published by the Supreme Court of Virginia. Last verified July 16, 2026. · Official source

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