This text of Fed. R. Civ. P. 37 (Failure to Make Disclosures or to Cooperate in Discovery; Sanctions) is published on Counsel Stack Legal Research, covering United States primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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(a)MOTIONFORANORDERCOMPELLINGDISCLOSUREORDISCOVERY.
(1)In General. On notice to other parties and all affected per-
sons, a party may move for an order compelling disclosure or
discovery. The motion must include a certification that the
movant has in good faith conferred or attempted to confer
with the person or party failing to make disclosure or discov-
ery in an effort to obtain it without court action.
(2)Appropriate Court. A motion for an order to a party must
be made in the court where the action is pending. A motion for
an order to a nonparty must be made in the court where the
discovery is or will be taken.
(3)Specific Motions.
(A)To Compel Disclosure. If a party fails to make a disclo-
sure required by Rule 26(a), any other party may move to
compel disclosure and for appropri
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(a) MOTIONFORANORDERCOMPELLINGDISCLOSUREORDISCOVERY.
(1) In General. On notice to other parties and all affected per-
sons, a party may move for an order compelling disclosure or
discovery. The motion must include a certification that the
movant has in good faith conferred or attempted to confer
with the person or party failing to make disclosure or discov-
ery in an effort to obtain it without court action.
(2) Appropriate Court. A motion for an order to a party must
be made in the court where the action is pending. A motion for
an order to a nonparty must be made in the court where the
discovery is or will be taken.
(3) Specific Motions.
(A) To Compel Disclosure. If a party fails to make a disclo-
sure required by Rule 26(a), any other party may move to
compel disclosure and for appropriate sanctions.
(B) To Compel a Discovery Response. A party seeking dis-
covery may move for an order compelling an answer, des-
ignation, production, or inspection. This motion may be
made if:
(i) a deponent fails to answer a question asked under
Rule 30 or 31;
(ii) a corporation or other entity fails to make a des-
ignation under Rule 30(b)(6) or 31(a)(4);
(iii) a party fails to answer an interrogatory submit-
ted under Rule 33; or
(iv) a party fails to produce documents or fails to re-
spond that inspection will be permitted—or fails to
permit inspection—as requested under Rule 34.
(C) Related to a Deposition. When taking an oral deposi-
tion, the party asking a question may complete or adjourn
the examination before moving for an order.
(4) Evasive or Incomplete Disclosure, Answer, or Response. For
purposes of this subdivision (a), an evasive or incomplete dis-
closure, answer, or response must be treated as a failure to
disclose, answer, or respond.
(5) Payment of Expenses; Protective Orders.
(A) If the Motion Is Granted (or Disclosure or Discovery Is
Provided After Filing). If the motion is granted—or if the
disclosure or requested discovery is provided after the mo-
tion was filed—the court must, after giving an opportunity
to be heard, require the party or deponent whose conduct
necessitated the motion, the party or attorney advising
that conduct, or both to pay the movant’s reasonable ex-
penses incurred in making the motion, including attor-
ney’s fees. But the court must not order this payment if:
(i) the movant filed the motion before attempting in
good faith to obtain the disclosure or discovery with-
out court action;
(ii) the opposing party’s nondisclosure, response, or
objection was substantially justified; or
(iii) other circumstances make an award of expenses
unjust.
(B) If the Motion Is Denied. If the motion is denied, the
court may issue any protective order authorized under
Rule 26(c) and must, after giving an opportunity to be
heard, require the movant, the attorney filing the motion,
or both to pay the party or deponent who opposed the mo-
tion its reasonable expenses incurred in opposing the mo-
tion, including attorney’s fees. But the court must not
order this payment if the motion was substantially justi-
fied or other circumstances make an award of expenses un-
just.
(C) If the Motion Is Granted in Part and Denied in Part. If
the motion is granted in part and denied in part, the court
may issue any protective order authorized under Rule 26(c)
and may, after giving an opportunity to be heard, appor-
tion the reasonable expenses for the motion.
(b) FAILURETOCOMPLYWITHACOURTORDER.
(1) Sanctions Sought in the District Where the Deposition Is
Taken. If the court where the discovery is taken orders a depo-
nent to be sworn or to answer a question and the deponent
fails to obey, the failure may be treated as contempt of court.
If a deposition-related motion is transferred to the court
where the action is pending, and that court orders a deponent
to be sworn or to answer a question and the deponent fails to
obey, the failure may be treated as contempt of either the
court where the discovery is taken or the court where the ac-
tion is pending.
(2) Sanctions Sought in the District Where the Action Is Pending.
(A) For Not Obeying a Discovery Order. If a party or a par-
ty’s officer, director, or managing agent—or a witness des-
ignated under Rule 30(b)(6) or 31(a)(4)—fails to obey an
order to provide or permit discovery, including an order
under Rule 26(f), 35, or 37(a), the court where the action is
pending may issue further just orders. They may include
the following:
(i) directing that the matters embraced in the order
or other designated facts be taken as established for
purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from support-
ing or opposing designated claims or defenses, or from
introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is
obeyed;
(v) dismissing the action or proceeding in whole or in
part;
(vi) rendering a default judgment against the disobe-
dient party; or
(vii) treating as contempt of court the failure to
obey any order except an order to submit to a physical
or mental examination.
(B) For Not Producing a Person for Examination. If a party
fails to comply with an order under Rule 35(a) requiring it
to produce another person for examination, the court may
issue any of the orders listed in Rule 37(b)(2)(A)(i)–(vi), un-
less the disobedient party shows that it cannot produce
the other person.
(C) Payment of Expenses. Instead of or in addition to the
orders above, the court must order the disobedient party,
the attorney advising that party, or both to pay the rea-
sonable expenses, including attorney’s fees, caused by the
failure, unless the failure was substantially justified or
other circumstances make an award of expenses unjust.
(c) FAILURE TO DISCLOSE, TO SUPPLEMENT AN EARLIER RESPONSE,
ORTOADMIT.
(1) Failure to Disclose or Supplement. If a party fails to provide
information or identify a witness as required by Rule 26(a) or
(e), the party is not allowed to use that information or witness
to supply evidence on a motion, at a hearing, or at a trial, un-
less the failure was substantially justified or is harmless. In
addition to or instead of this sanction, the court, on motion
and after giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, in-
cluding attorney’s fees, caused by the failure;
(B) may inform the jury of the party’s failure; and
(C) may impose other appropriate sanctions, including
any of the orders listed in Rule 37(b)(2)(A)(i)–(vi).
(2) Failure to Admit. If a party fails to admit what is re-
quested under Rule 36 and if the requesting party later proves
a document to be genuine or the matter true, the requesting
party may move that the party who failed to admit pay the
reasonable expenses, including attorney’s fees, incurred in
making that proof. The court must so order unless:
(A) the request was held objectionable under Rule 36(a);
(B) the admission sought was of no substantial impor-
tance;
(C) the party failing to admit had a reasonable ground to
believe that it might prevail on the matter; or
(D) there was other good reason for the failure to admit.
(d) PARTY’S FAILURE TO ATTEND ITS OWN DEPOSITION, SERVE AN-
SWERS TO INTERROGATORIES, OR RESPOND TO A REQUEST FOR INSPEC-
TION.
(1) In General.
(A) Motion; Grounds for Sanctions. The court where the
action is pending may, on motion, order sanctions if:
(i) a party or a party’s officer, director, or managing
agent—or a person designated under Rule 30(b)(6) or
31(a)(4)—fails, after being served with proper notice, to
appear for that person’s deposition; or
(ii) a party, after being properly served with inter-
rogatories under Rule 33 or a request for inspection
under Rule 34, fails to serve its answers, objections, or
written response.
(B) Certification. A motion for sanctions for failing to an-
swer or respond must include a certification that the mov-
ant has in good faith conferred or attempted to confer with
the party failing to act in an effort to obtain the answer
or response without court action.
(2) Unacceptable Excuse for Failing to Act. A failure described
in Rule 37(d)(1)(A) is not excused on the ground that the dis-
covery sought was objectionable, unless the party failing to
act has a pending motion for a protective order under Rule
26(c).
(3) Types of Sanctions. Sanctions may include any of the or-
ders listed in Rule 37(b)(2)(A)(i)–(vi). Instead of or in addition
to these sanctions, the court must require the party failing to
act, the attorney advising that party, or both to pay the rea-
sonable expenses, including attorney’s fees, caused by the fail-
ure, unless the failure was substantially justified or other cir-
cumstances make an award of expenses unjust.
(e) FAILURE TO PRESERVE ELECTRONICALLY STORED INFORMATION.
If electronically stored information that should have been pre-
served in the anticipation or conduct of litigation is lost because
a party failed to take reasonable steps to preserve it, and it can-
not be restored or replaced through additional discovery, the
court:
(1) upon finding prejudice to another party from loss of the
information, may order measures no greater than necessary to
cure the prejudice; or
(2) only upon finding that the party acted with the intent to
deprive another party of the information’s use in the litiga-
tion may:
(A) presume that the lost information was unfavorable
to the party;
(B) instruct the jury that it may or must presume the in-
formation was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
(f) FAILURE TO PARTICIPATE IN FRAMING A DISCOVERY PLAN. If a
party or its attorney fails to participate in good faith in develop-
ing and submitting a proposed discovery plan as required by Rule
26(f), the court may, after giving an opportunity to be heard, re-
quire that party or attorney to pay to any other party the reason-
able expenses, including attorney’s fees, caused by the failure.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 30, 1970, eff. July
1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Pub. L. 96–481, §205(a), Oct.
21, 1980, 94 Stat. 2330, eff. Oct. 1, 1981; Mar. 2, 1987, eff. Aug. 1, 1987;
Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 17, 2000, eff. Dec. 1, 2000; Apr.
12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec. 1, 2007; Apr. 16, 2013,
eff. Dec. 1, 2013; Apr. 29, 2015, eff. Dec. 1, 2015.)