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Rule 37. Statement of discovery issues; Sanctions; Failure toadmit, to attend deposition or to preserve evidence.

(a) Statement of discovery issues.

(a)(1) A party or the person fromwhom discovery is sought may request that the judge enter an order regardingany discovery issue, including:

(a)(1)(A) failure to discloseunder Rule 26;

(a)(1)(B) extraordinary discoveryunder Rule 26;

(a)(1)(C) a subpoena under Rule 45;

(a)(1)(D) protection fromdiscovery; or

(a)(1)(E) compelling discoveryfrom a party who fails to make full and complete discovery.

(a)(2) Statement of discovery issues length and content. The statement of discovery issues must be no more than 4 pages, notincluding permitted attachments, and must include in the following order:

(a)(2)(A) the relief sought andthe grounds for the relief sought stated succinctly and with particularity;

(a)(2)(B) a certification that therequesting party has in good faith conferred or attempted to confer with theother affected parties in person or by telephone in an effort to resolve thedispute without court action;

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

(a)(2)(D) if the statementrequests extraordinary discovery, a statement certifying that the party hasreviewed and approved a discovery budget.

(a)(3) Objection length and content. No more than 7 days after the statement is filed, any other party mayfile an objection to the statement of discovery issues. The objection must beno more than 4 pages, not including permitted attachments, and must address theissues raised in the statement.

(a)(4) Permitted attachments. The party filing the statement must attach to the statement only a copyof the disclosure, request for discovery or the response at issue.

(a)(5) Proposed order. Eachparty must file a proposed order concurrently with its statement or objection.

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

(a)(6)(A) decide the issues on thepleadings and papers;

(a)(6)(B) conduct a hearing bytelephone conference or other electronic communication; or

(a)(6)(C) order additionalbriefing and establish a briefing schedule.

(a)(7) Orders. The court may enter orders regarding disclosure or discovery or to protect a party or person from discovery beingconducted in bad faith or from annoyance, embarrassment, oppression, or undueburden or expense, or to achieve proportionality under Rule 26(b)(2), including one or more of the following:

(a)(7)(A) that the discovery notbe had or that additional discovery be had;

(a)(7)(B) that the discovery maybe had only on specified terms and conditions, including a designation of the timeor place;

(a)(7)(C) that the discovery maybe had only by a method of discovery other than that selected by the partyseeking discovery;

(a)(7)(D) that certain matters notbe inquired into, or that the scope of the discovery be limited to certain matters;

(a)(7)(E) that discovery beconducted with no one present except persons designated by the court;

(a)(7)(F) that a deposition afterbeing sealed be opened only by order of the court;

(a)(7)(G) that a trade secret or otherconfidential information not be disclosed or be disclosed only in a designatedway;

(a)(7)(H) that the partiessimultaneously deliver specified documents or information enclosed in sealedenvelopes to be opened as directed by the court;

(a)(7)(I) that a question about astatement or opinion of fact or the application of law to fact not be answereduntil after designated discovery has been completed or until a pretrialconference or other later time;

(a)(7)(J) that the costs, expensesand attorney fees of discovery be allocated among the parties as justicerequires; or

(a)(7)(K) that a party pay thereasonable costs, expenses andattorney fees incurred on account of the statement of discovery issues if the reliefrequested is granted or denied, or if a party provides discovery or withdraws adiscovery request after a statement of discovery issues is filed and if thecourt finds that the party, witness, or attorney did not act in good faith orasserted a position that was not substantially justified.

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

(a)(9) Statement of discovery issues does not toll discoverytime. 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:

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

(b)(2) prohibit the disobedient party from supporting oropposing designated claims or defenses or from introducing designated mattersinto evidence;

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

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

(b)(5) order the party or the attorney to pay the reasonablecosts, expenses, and attorney fees, caused by the failure;

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

(b)(7) instruct the jury regarding an adverse inference.

(c) Motion for costs, expenses and attorney fees on failure toadmit. If a party fails to admit thegenuineness of a document or the truth of a matter as requested under Rule 36, and ifthe party requesting the admissions proves the genuineness of the document orthe truth of the matter, the party requesting the admissions may file a motionfor an order requiring the other party to pay the reasonable costs, expensesand attorney fees incurred in making that proof. The court must enter the orderunless it finds that:

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

(c)(2) the admission sought was of no substantialimportance;

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

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

(c)(5) there were other good reasons for the failure toadmit.

(d) Motion for sanctions for failure of party to attenddeposition. If a party oran officer, director, or managing agent of a party or a person designated underRule 30(b)(6)to testify 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 topreserve evidence. Nothing in thisrule limits the inherent power of the court to take any action authorized byparagraph (b) if a party destroys, conceals, alters, tampers with or fails topreserve a document, tangible item, electronic data or other evidence inviolation of a duty. Absent exceptional circumstances, a court may not imposesanctions under these rules on a party for failing to provide electronicallystored information lost as a result of the routine, good-faith operation of anelectronic information system.

Advisory Committee Notes