Federal Rule of Civil Procedure 37: Discovery Enforcement and Sanctions

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What Federal Rule of Civil Procedure 37 covers

Federal Rule of Civil Procedure 37 is the enforcement rule for much of civil discovery. It addresses motions to compel, failure to obey discovery orders, missing disclosures, failures to admit, complete nonresponses, lost electronically stored information, and failure to participate in a discovery plan. It works together with Rule 26 and the rules for particular discovery tools.

Rule 37 does not make every discovery disagreement sanctionable. Its subsections identify different conduct, procedures, standards, and remedies. A court’s response therefore depends on what failed, whether an order already existed, whether the conduct was justified or harmless, and what prejudice resulted.

Motions to compel under Rule 37(a)

A party may move to compel a required disclosure or a discovery response. The motion may address an unanswered deposition question, a missing organizational-witness designation, an unanswered interrogatory, or a failure to produce documents or permit inspection. An evasive or incomplete answer is treated as a failure to answer for this purpose.

The motion must include a certification that the movant conferred or attempted to confer in good faith with the person or party that failed to provide discovery. A motion directed to a party is made in the court where the action is pending; a motion directed to a nonparty is made in the court where discovery is or will be taken.

Expenses after a motion to compel

When a motion to compel is granted, or discovery is supplied only after filing, Rule 37(a)(5) generally requires an opportunity to be heard and an award of reasonable motion expenses, including attorney’s fees. The rule bars that award when the movant skipped the required good-faith effort, the opposing position was substantially justified, or other circumstances make an award unjust.

If the motion is denied, the court may issue a protective order and generally applies a parallel expense rule against the movant, subject to substantial justification and injustice exceptions. When each side prevails in part, the court may apportion expenses.

Disobeying a discovery order

Rule 37(b) applies after a person or party disobeys an order to provide or permit discovery. Available orders include treating facts as established, prohibiting support for claims or defenses, excluding evidence, striking pleadings, staying proceedings, dismissing the action, entering default judgment, or treating certain failures as contempt.

Those remedies are alternatives, not an automatic ladder. The court selects a just response to the violation. Rule 37(b) also generally requires payment of reasonable expenses caused by the failure unless it was substantially justified or an expense award would be unjust.

Missing disclosures and failures to admit

Under Rule 37(c)(1), a party that fails to disclose information or identify a witness as Rule 26(a) or (e) requires generally cannot use that material or witness on a motion, at a hearing, or at trial unless the failure was substantially justified or harmless. The court may also order expenses, inform the jury, or impose other appropriate sanctions.

Rule 37(c)(2) concerns requests for admission. When a party fails to admit a matter and the requesting party later proves it, the court generally must award reasonable proof expenses unless one of the rule’s exceptions applies. The exceptions include an objection sustained under Rule 36, lack of substantial importance, a reasonable basis to expect success, or another good reason.

Complete failures to participate

Rule 37(d) covers a party’s failure to attend its own properly noticed deposition and a party’s failure to serve answers, objections, or a written response to properly served interrogatories or an inspection request. Sanctions may be available without a prior order compelling the omitted response.

A party cannot justify complete silence merely by asserting that the discovery was objectionable, unless a motion for a protective order is pending. The distinction between a specific objection and no response is important. The site’s explanation of a motion to compel places this enforcement mechanism in the wider discovery process.

Lost electronically stored information

Rule 37(e) supplies a specific framework when electronically stored information that should have been preserved for litigation is lost because reasonable preservation steps were not taken and the information cannot be restored or replaced through additional discovery. If the loss prejudices another party, the court may order measures no greater than necessary to cure the prejudice.

The most serious measures require more. Only after finding an intent to deprive another party of the information’s use may the court presume the information was unfavorable, give an adverse-inference instruction, dismiss the action, or enter default judgment. Negligent loss alone does not satisfy that intent requirement.

Jurisdiction and local practice

This article describes Rule 37 in federal civil actions. State courts use their own discovery rules, even when a state rule carries the same number or resembles the federal text. Federal district local rules and scheduling orders may also require particular conference procedures or motion formats consistent with the national rules.

Rule 37 is best read with the discovery request, response, protective-order record, and any existing court order. The label “discovery sanction” does not identify the necessary findings or available remedy without that procedural context.

Sources

• Federal Rule of Civil Procedure 37: Discovery Failures and Sanctions
• Federal Rule of Civil Procedure 26: General Discovery Provisions
• Federal Rule of Civil Procedure 30: Oral Depositions
• Federal Rule of Civil Procedure 33: Interrogatories
• Federal Rule of Civil Procedure 34: Production and Inspection
• Federal Rule of Civil Procedure 45: Subpoenas