procedural guides

Motion for Discovery Sanctions At A Glance–United States District Court

Use this “At A Glance” Guide to learn the Federal Rules of Civil Procedure related to a motion for discovery sanctions in the United States District Courts. For a more detailed treatment, including local rules, on bringing a motion for discovery sanctions in a specific United States District Court, please see the SmartRules Guides:  Motion for Discovery Sanctions, Opposition to Motion for Discovery Sanctions and Reply in Support of Motion for Discovery Sanctions, for the United States District Court where your action is pending.

Motion for Discovery Sanctions Rules

The motion for discovery sanctions is brought in the court where the action is pending. An application for an order as to a person who is not a party is made in the district where the discovery is being taken. FRCP 37(a)(2)(eff 12/01/07).

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. FRCP 37(a)(3)(A)(eff 12/01/07).

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).

FRCP 37(c)(1)(eff 12/01/07).

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. FRCP 37(b)(1)(eff 12/01/07).

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. FRCP 37(b)(2)(eff 12/01/07).

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. FRCP 37(b)(2)(B)(eff 12/01/07).

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. FRCP 37(b)(2)(C)(eff 12/01/07).

Where a party has failed to comply with an order under Rule 35(a) requiring that party to produce another for examination, the court may impose any order listed in Rule 37(b)(2)(A)(i) – (vi), unless the party failing to comply shows that that party is unable to produce such person for examination. FRCP 37(b)(2)(B)(eff 12/01/07).

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. FRCP 37(d)(1)(A)(eff 12/01/07).

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. FRCP 37(d)(1)(B)(eff 12/01/07).

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). FRCP 37(d)(1)(B)(eff 12/01/07).

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. FRCP 37(d)(1)(B)(eff 12/01/07).

Absent exceptional circumstances, a court may not impose sanctions under the 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. FRCP 37(e)(eff 12/01/07).

The authorities cited in this At A Glance Guide are current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting.