Rule 37.Failure to make disclosures or to cooperate in discovery; sanctions

Rule 37 is the enforcement mechanism behind every other discovery rule. When a party will not disclose what Rule 26(a) requires, will not answer a deposition question, will not designate a witness under Rule 30(b)(6) or 31(a)(4), will not answer an interrogatory under Rule 33, or will not produce documents or permit inspection under Rule 34, the other side can move to compel -- but only after certifying that it tried in good faith to work the problem out without asking the court to step in. An evasive or incomplete answer counts as no answer at all for these purposes. Whichever side loses the motion generally pays the winner's reasonable expenses, including attorney's fees, though the court will not order that if the movant filed before making a real effort to resolve things, if the other side's position was substantially justified, or if some other circumstance makes an expense award unjust; the same logic runs in reverse if the motion is denied, and the court can split the difference when a motion is granted in part and denied in part.

Once a court orders a party to provide discovery and that party still refuses, the available sanctions escalate. A court can hold a disobedient deponent in contempt, and for a party who defies a discovery order more broadly, the court can deem disputed facts established against that party, block it from supporting or opposing designated claims or defenses, strike pleadings, stay the case, dismiss it, or enter a default judgment -- with contempt reserved as the sanction for every kind of violation except refusing to submit to a physical or mental examination under Rule 35. Separate provisions cover a party who never shows up for its own deposition, or never answers interrogatories or a production request in the first place, without needing a prior order to violate; the same menu of sanctions is available there too, and expenses are mandatory unless the failure was substantially justified. A party cannot excuse a no-show by arguing the discovery sought was objectionable unless it already had a pending motion for a protective order when the deadline passed.

The rule also reaches conduct that happens outside the courtroom: a party who fails to admit something under Rule 36 that later gets proven true or genuine can be ordered to pay the cost of that proof, unless the request was objectionable, of no real importance, or the party had a reasonable basis to think it would prevail, or some other good reason excuses the refusal. Rule 37(e) addresses lost electronically stored information -- if a party fails to take reasonable steps to preserve information it should have preserved, and the loss cannot be fixed through more discovery, the court can order measures no greater than necessary to cure any prejudice, and if the loss was intentional, the court can go further and presume the lost information was unfavorable, instruct the jury accordingly, or dismiss the case or enter default judgment. Finally, a party or lawyer who will not participate in good faith in putting together a discovery plan under Rule 26(f) can be ordered to cover the expenses that failure caused.