Fed. R. Civ. P. 37

(a) MOTION FOR AN ORDER COMPELLING DISCLOSURE OR DISCOVERY.

(1) In General. On notice to other parties and all affected persons, 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 discovery 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 disclosure 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 discovery may move for an order compelling an answer, designation, 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 designation under Rule 30(b)(6) or 31(a)(4);

(iii) a party fails to answer an interrogatory submitted under Rule 33; or

61 Rule 37 FEDERAL RULES OF CIVIL PROCEDURE

(iv) a party fails to produce documents or fails to respond that inspection will be permitted—or fails to

permit inspection—as requested under Rule 34.

(C) Related to a Deposition. When taking an oral deposition, 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 disclosure, 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 motion 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 expenses incurred in making the motion, including attorney’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 without 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 motion its reasonable expenses incurred in opposing the motion, including attorney’s fees. But the court must not

order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.

(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, apportion the reasonable expenses for the motion.

(b) FAILURE TO COMPLY WITH A COURT ORDER.

(1) Sanctions Sought in the District Where the Deposition Is

Taken. If the court where the discovery is taken 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 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 action is pending.

(2) Sanctions Sought in the District Where the Action Is Pending.

62 Rule 37 FEDERAL RULES OF CIVIL PROCEDURE

(A) For Not Obeying a Discovery Order. If a party or a party’s officer, director, or managing agent—or a witness designated 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 supporting 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 disobedient 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), unless 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 reasonable 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,

OR TO ADMIT.

(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, unless 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, including 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 requested 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:

63 Rule 37 FEDERAL RULES OF CIVIL PROCEDURE

(A) the request was held objectionable under Rule 36(a);

(B) the admission sought was of no substantial importance;

(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 ANSWERS TO INTERROGATORIES, OR RESPOND TO A REQUEST FOR INSPECTION.

(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 interrogatories 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 answer or respond must include a certification that the movant 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 discovery 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 orders 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 reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.

(e) FAILURE TO PRESERVE ELECTRONICALLY STORED INFORMATION.

If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because

a party failed to take reasonable steps to preserve it, and it cannot 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 litigation may:

(A) presume that the lost information was unfavorable

to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment.

64 Rule 38 FEDERAL RULES OF CIVIL PROCEDURE

(f) FAILURE TO PARTICIPATE IN FRAMING A DISCOVERY PLAN. If a

party or its attorney fails to participate in good faith in developing and submitting a proposed discovery plan as required by Rule

26(f), the court may, after giving an opportunity to be heard, require that party or attorney to pay to any other party the reasonable 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.)

TITLE VI. TRIALS