Rule 37. Discovery and disclosure motions; Sanctions.
(a) Motion for order
compelling disclosure or discovery.
(a)(1) A party may move to compel
disclosure or discovery and for appropriate sanctions if another party:
(a)(1)(A) fails to disclose, fails
to respond to a discovery request, or makes an evasive or incomplete disclosure
or response to a request for discovery;
(a)(1)(B) fails to disclose, fails
to respond to a discovery request, fails to supplement a disclosure or response
or makes a supplemental disclosure or response without an adequate explanation of
why the additional or correct information was not previously provided;
(a)(1)(C) objects to a discovery
request ;
(a)(1)(D) impedes, delays, or frustrates
the fair examination of a witness; or
(a)(1)(E) otherwise fails to make
full and complete disclosure or discovery.
(a)(2) A motion may be made to the
court in which the action is pending, or, on matters relating to a deposition or
a document subpoena, to the court in the district where the deposition is being
taken or where the subpoena was served. A motion for an order to a nonparty witness
shall be made to the court in the district where the deposition is being taken or
where the subpoena was served.
(a)(3) The moving party must attach
a copy of the request for discovery, the disclosure, or the response at issue. The
moving party must also attach a certification that the moving party has in good
faith conferred or attempted to confer with the other affected parties in an effort
to secure the disclosure or discovery without court action and that the discovery
being sought is proportional under Rule 26(b)(2).
(b) Motion for protective
order.
(b)(1) A party or the person from
whom disclosure is required or discovery is sought may move for an order of protection.
The moving party shall attach to the motion a copy of the request for discovery
or the response at issue. The moving party shall also attach a certification that
the moving party has in good faith conferred or attempted to confer with other affected
parties to resolve the dispute without court action.
(b)(2) If the motion raises issues
of proportionality under Rule 26(b)(2), the party seeking the discovery has the
burden of demonstrating that the information being sought is proportional.
(c) Orders. The court may make orders regarding disclosure
or discovery or to protect a party or person from discovery being conducted in bad
faith or from annoyance, embarrassment, oppression, or undue burden or expense,
or to achieve proportionality under Rule 26(b)(2), including one or more of the
following:
(c)(1) that the discovery not be
had;
(c)(2) that the discovery may be
had only on specified terms and conditions, including a designation of the time
or place;
(c)(3) that the discovery may be
had only by a method of discovery other than that selected by the party seeking
discovery;
(c)(4) that certain matters not be
inquired into, or that the scope of the discovery be limited to certain matters;
(c)(5) that discovery be conducted
with no one present except persons designated by the court;
(c)(6) that a deposition after being
sealed be opened only by order of the court;
(c)(7) that a trade secret or other
confidential information not be disclosed or be disclosed only in a designated way;
(c)(8) that the parties simultaneously
file specified documents or information enclosed in sealed envelopes to be opened
as directed by the court;
(c)(9) that a question about a statement
or opinion of fact or the application of law to fact not be answered until after
designated discovery has been completed or until a pretrial conference or other
later time; or
(c)(10) that the costs, expenses
and attorney fees of discovery be allocated among the parties as justice requires.
(c)(11) If a protective order terminates
a deposition, it shall be resumed only upon the order of the court in which the
action is pending.
(d) Expenses and
sanctions for motions. If the motion
to compel or for a protective order is granted or denied, or if a party provides disclosure or discovery or
withdraws a disclosure or discovery request after a motion is filed, the court may
order the party, witness or attorney to pay the reasonable expenses and attorney
fees incurred on account of the motion if the court finds that the party, witness,
or attorney did not act in good faith or asserted a position that was not substantially
justified. A motion to compel or for a protective order does not suspend or toll
the time to complete standard discovery.
(e) Failure to comply
with order.
(e)(1) Sanctions by court in district
where deposition is taken. Failure to follow an order of the court in the district
in which the deposition is being taken or where the document subpoena was served
is contempt of that court.
(e)(2) Sanctions by court in which
action is pending. Unless the court finds that the failure was substantially justified,
the court in which the action is pending may impose appropriate sanctions for the
failure to follow its orders, including the following:
(e)(2)(A) deem the matter or any
other designated facts to be established in accordance with the claim or defense
of the party obtaining the order;
(e)(2)(B) prohibit the disobedient
party from supporting or opposing designated claims or defenses or from introducing
designated matters into evidence;
(e)(2)(C) stay further proceedings
until the order is obeyed;
(e)(2)(D) dismiss all or part of
the action, strike all or part of the pleadings, or render judgment by default on
all or part of the action;
(e)(2)(E) order the party or the
attorney to pay the reasonable expenses, including attorney fees, caused by the
failure;
(e)(2)(F) treat the failure to obey
an order, other than an order to submit to a physical or mental examination, as
contempt of court; and
(e)(2)(G) instruct the jury regarding
an adverse inference.
(f) Expenses on failure
to admit. If a party fails to admit
the genuineness of any document or the truth of any matter as requested under Rule
36, and if the party requesting the admissions proves the genuineness of the document
or the truth of the matter, the party requesting the admissions may apply to the
court for an order requiring the other party to pay the reasonable expenses incurred
in making that proof, including reasonable attorney fees. The court shall make the
order unless it finds that:
(f)(1) the request was held objectionable
pursuant to Rule 36(a);
(f)(2) the admission sought was of
no substantial importance;
(f)(3) there were reasonable grounds
to believe that the party failing to admit might prevail on the matter;
(f)(4) that the request is not proportional
under Rule 26(b)(2); or
(f)(5) there were other good reasons
for the failure to admit.
(g) Failure of party
to attend at own deposition. The court
on motion may take any action authorized by paragraph (e)(2) if a party or an officer,
director, or managing agent of a party or a person designated under Rule 30(b)(6)
or 31(a) to testify on behalf of a party fails to appear before the officer taking
the deposition, after proper service of the notice. The failure to act described
in this paragraph may not be excused on the ground that the discovery sought is
objectionable unless the party failing to act has applied for a protective order
under paragraph (b).
(h) Failure to disclose. If
a party fails to disclose a witness, document or other material, or to amend a prior
response to discovery as required by Rule 26(d), that party shall not be permitted
to use the witness, document or other material at any hearing unless the failure
to disclose is harmless or the party shows good cause for the failure to disclose.
In addition to or in lieu of this sanction, the court on motion may take any action
authorized by paragraph (e)(2).
(i) Failure to preserve evidence. Nothing in this rule limits the inherent power
of the court to take any action authorized by paragraph (e)(2) if a party destroys,
conceals, alters, tampers with or fails to preserve a document, tangible item, electronic
data or other evidence in violation of a duty. Absent exceptional circumstances,
a court may not impose sanctions under these rules on a party for failing to provide
electronically stored information lost as a result of the routine, good-faith operation
of an electronic information system.