Rule 37.Failure to make discovery: Sanctions

Rule 37 is what turns the other discovery rules into enforceable obligations rather than suggestions. Rule 37(a) lets a party move to compel discovery after showing compliance with Rule 26(i), and reaches several specific failures: a deponent who will not answer a question asked under Rule 30 or 31, a corporation or other entity that will not designate a witness under Rule 30(b)(6) or 31(a), a party who will not answer an interrogatory served under Rule 33, or a party who, in response to a Rule 34 inspection request, will not agree to permit the inspection or will not permit it as requested. The rule treats an evasive or incomplete answer the same as an outright failure to answer, so a party cannot dodge the rule's force with a response that is technically responsive but substantively empty.

Expense-shifting runs through the whole motion-to-compel process under Rule 37(a)(4). If the motion is granted, the court -- after giving the parties an opportunity to be heard -- must require the party or deponent whose conduct made the motion necessary, or the attorney advising that conduct, or both, to pay the moving party's reasonable expenses, including attorney fees, unless the opposition was substantially justified or other circumstances make an award unjust. The same logic runs in reverse if the motion is denied: the moving party or its attorney can be ordered to pay the responding side's expenses, absent substantial justification for the motion. And where a motion is granted in part and denied in part, the court can apportion the reasonable expenses among the parties and persons involved as it sees fit.

Rule 37(b) addresses what happens once a court order compelling discovery already exists and someone disobeys it. A deponent who will not be sworn or answer, after being directed to do so by the court in the county where the deposition is taken, can be held in contempt of that court. For a party, or an officer, director, or managing agent of a party, or a person designated under Rule 30(b)(6) or 31(a), who disobeys an order to provide or permit discovery -- including an order under Rule 37(a) or Rule 35, or an order entered under Rule 26(f) -- the court in which the action is pending can enter a range of sanctions: treating disputed facts as established, barring the disobedient party from supporting or opposing designated claims or defenses, striking pleadings, staying proceedings, dismissing the action, or entering a default judgment, plus contempt as an alternative or addition to any of those -- except that contempt is not available for refusing a physical or mental examination. Rule 37(d) covers the related scenario where a party never responds at all: failing to appear for its own deposition, or never serving interrogatory answers or a response to a production or inspection request, opens the door to the same range of sanctions listed for Rule 37(b)(2)(A) through (C), along with an expense award, unless the failure was substantially justified. That subsection also makes clear that objecting to the discovery as improper does not excuse the failure to act unless the party sought a protective order under Rule 26(c).

Two more provisions round out the rule. Rule 37(c) lets a party who proves a fact or a document's genuineness after the other side refused to admit it under Rule 36 recover the reasonable expenses of that proof, including attorney fees, unless the request was objectionable, the admission sought was unimportant, the party had reasonable grounds to believe its position was correct, or there was other good reason for the refusal. And Rule 37(e) allows the court, after a hearing, to require a party or attorney who fails to participate in good faith in framing a discovery plan under Rule 26(f) to pay the other side's reasonable expenses, including attorney fees, caused by that failure.