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Rule 37. Statement of discoveryissues; Sanctions; Failure to admit, to attend deposition or to preserveevidence.

(a) Statement of discovery issues.

(1) A party orthe person from whom discovery is sought may request that the judge enter anorder regarding any discovery issue, including:

(A) failure to disclose under Rule 26;

(B) extraordinary discovery under Rule 26;

(C) a subpoena under Rule 45;

(D) protection from discovery; or

(E) compelling discovery from a party who fails to make full andcomplete discovery.

(2)Statement of discovery issues length and content. The statement of discovery issuesmust be no more than 4 pages, not including permitted attachments, and mustinclude in the following order:

(A) the relief sought and the grounds for the relief soughtstated succinctly and with particularity;

(B) a certification that the requesting party has in good faithconferred or attempted to confer with the other affected parties in person orby telephone in an effort to resolve the dispute without court action;

(C) a statement regarding proportionality under Rule 26(b)(2);and

(D) if the statement requests extraordinary discovery, astatement certifying that the party has reviewed and approved a discovery budget.

(3)Objection length and content. Nomore than 7 days after the statement is filed, any other party may file anobjection to the statement of discovery issues. The objection must be no morethan 4 pages, not including permitted attachments, and must address the issuesraised in the statement.

(4)Permitted attachments. The partyfiling the statement must attach to the statement only a copy of thedisclosure, request for discovery or the response at issue.

(5)Proposed order. Each partymust file a proposed order concurrently with its statement or objection.

(6)Decision. Upon filing of the objection orexpiration of the time to do so, either party may andthe party filing the statement must file a Request to Submit for Decision underRule 7(g).The court will promptly:

(A) decide theissues on the pleadings and papers;

(B) conduct a hearing, preferably remotely and if remotely, thenconsistent with the safeguards in Rule 43(b); or

(C) order additional briefing and establish a briefing schedule.

(7) Orders. The court may enter ordersregarding disclosure or discovery or to protect a party orperson from discovery being conducted in bad faith or from annoyance,embarrassment, oppression, or undue burden or expense, or to achieveproportionality under Rule 26(b)(2),including one or more of the following:

(A) that the discovery not be had or that additional discoverybe had;

(B) that the discovery may be had only on specified terms andconditions, including a designation of the time or place;

(C) that the discovery may be had only by a method of discoveryother than that selected by the party seeking discovery;

(D) that certain matters not be inquired into, or that the scopeof the discovery be limited to certain matters;

(E) that discovery be conducted with no one present exceptpersons designated by the court;

(F) that a deposition after being sealed be opened only by orderof the court;

(G) that a trade secret or other confidential information not bedisclosed or be disclosed only in a designated way;

(H) that the parties simultaneously deliver specified documentsor information enclosed in sealed envelopes to be opened as directed by thecourt;

(I) that aquestion about a statement or opinion of fact or the application of law to factnot be answered until after designated discovery has been completed or until apretrial conference or other later time;

(J) that the costs, expenses and attorney fees of discovery beallocated among the parties as justice requires; or

(K) that a partypay the reasonable costs, expenses, and attorney fees incurred on accountof the statement of discovery issues if the relief requested is granted ordenied, or if a party provides discovery or withdraws a discovery request aftera statement of discovery issues is filed and if the court finds that the party,witness, or attorney did not act in good faith or asserted a position that wasnot substantially justified.

(8)Request for sanctions prohibited. Astatement of discovery issues or an objection may include a request for costs,expenses and attorney fees but not a request for sanctions.

(9)Statement of discovery issues does not toll discovery time. A statement of discovery issues doesnot suspend or toll the time to complete standard discovery.

(b) Motion for sanctions. Unless the court finds that thefailure was substantially justified, the court, upon motion, may imposeappropriate sanctions for the failure to follow its orders, including thefollowing:

(1) deem the matter or any other designated facts to beestablished in accordance with the claim or defense of the party obtaining theorder;

(2) prohibit the disobedient party from supporting or opposingdesignated claims or defenses or from introducing designated matters intoevidence;

(3) stay further proceedings until the order is obeyed;

(4) dismiss all or part of the action, strike all or part of thepleadings, or render judgment by default on all or part of the action;

(5) order theparty or the attorney to pay the reasonable costs, expenses, and attorney fees,caused by the failure;

(6) treat the failure to obey an order, other than an order tosubmit to a physical or mental examination, as contempt of court; and

(7) instruct the jury regarding an adverse inference.

(c) Motion for costs, expenses and attorneyfees on failure to admit. If a partyfails to admit the genuineness of a document or the truth of a matter asrequested under Rule 36,and if the party requesting the admissions proves the genuineness of thedocument or the truth of the matter, the party requesting the admissions mayfile a motion for an order requiring the other party to pay the reasonablecosts, expenses and attorney fees incurred in making that proof. The court mustenter the order unless it finds that:

(1) the request was held objectionable pursuant to Rule 36(a);

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

(3) there were reasonable grounds to believe that the partyfailing to admit might prevail on the matter;

(4) that the request was not proportional under Rule 26(b)(2);or

(5) there were other good reasons for the failure to admit.

(d) Motion for sanctions for failure ofparty to attend deposition. If a partyor an officer, director, or managing agent of a party or a person designatedunder Rule 30(b)(6) totestify on behalf of a party fails to appear before the officer taking thedeposition after service of the notice, any other party may file a motion forsanctions under paragraph (b). The failure to appear may not be excused on theground that the discovery sought is objectionable unless the party failing toappear has filed a statement of discovery issues under paragraph (a).

(e) Failure to preserve evidence. Nothing in this rule limits theinherent power of the court to take any action authorized by paragraph (b) if aparty destroys, conceals, alters, tampers with or fails to preserve a document,tangible item, electronic data or other evidence in violation of a duty. Absentexceptional circumstances, a court may not impose sanctions under these ruleson a party for failing to provide electronically stored information lost as aresult of the routine, good-faith operation of an electronic informationsystem.

 

AdvisoryCommittee Notes

The 2011 amendments to Rule 37 make twoprincipal changes. First, the amended Rule 37 consolidates provisions formotions for a protective order (formerly set forth in Rule 26(c)) withprovisions for motions to compel.

Second, the amended Rule 37 incorporatesthe new Rule 26 standard of ?proportionality" as a principal criterion onwhich motions to compel or for a protective order should be evaluated.

Paragraph (a) adopts the expeditedprocedures for statements of discovery issues formerly found in Rule 4-502 ofthe Code of Judicial Administration. Statements of discovery issues replacediscovery motions, and paragraph (a) governs unless the judge orders otherwise.

 

Effective May 1, 2021