Rule 37: Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

Rule 37 is the enforcement mechanism for the entire discovery system. When parties fail to cooperate — whether by ignoring disclosure obligations, refusing to answer discovery, failing to comply with court orders, or destroying evidence — Rule 37 provides a graduated system of sanctions.

The first step is typically a motion to compel under Rule 37(a). If the court grants the motion, it must require the losing party or their attorney to pay the reasonable expenses, including fees, caused by the failure — unless the failure was substantially justified or the fee award would be unjust. If a party then violates the court's order compelling discovery, sanctions escalate dramatically under Rule 37(b): the court may deem facts established, prohibit the party from introducing evidence, strike pleadings, dismiss the case, or enter default judgment.

Rule 37(c)(1) provides an automatic sanction for failing to make initial disclosures: the party cannot use the undisclosed information at trial unless the failure was substantially justified or harmless. Rule 37(e), amended in 2015, specifically addresses spoliation of electronically stored information, allowing adverse inference instructions or other sanctions when ESI that should have been preserved is lost.