Failure to Make Disclosures or to Cooperate in Discovery;

Sanctions (a) MOTION FOR AN ORDER COMPELLING DISCLOSURE OR DISCOVERY. (1) In General. On notice to other parties and all affected per- sons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discov- ery in an effort to obtain it without court action. (2) Appropriate Court. A motion for an order to a party must be made in the court where the action is pending. A motion for an order to a nonparty must be made in the court where the discovery is or will be taken. (3) Specific Motions. (A) To Compel Disclosure. If a party fails to make a disclo- sure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions. (B) To Compel a Discovery Response. A party seeking dis- covery may move for an order compelling an answer, des- ignation, production, or inspection. This motion may be made if: (i) a deponent fails to answer a question asked under Rule 30 or 31; (ii) a corporation or other entity fails to make a des- ignation under Rule 30(b)(6) or 31(a)(4); (iii) a party fails to answer an interrogatory submit- ted under Rule 33; or 61 FEDERAL RULES OF CIVIL PROCEDURE Rule 37 (iv) a party fails to produce documents or fails to re- spond that inspection will be permitted—or fails to permit inspection—as requested under Rule 34. (C) Related to a Deposition. When taking an oral deposi- tion, the party asking a question may complete or adjourn the examination before moving for an order. (4) Evasive or Incomplete Disclosure, Answer, or Response. For purposes of this subdivision (a), an evasive or incomplete dis- closure, answer, or response must be treated as a failure to disclose, answer, or respond. (5) Payment of Expenses; Protective Orders. (A) If the Motion Is Granted (or Disclosure or Discovery Is Provided After Filing). If the motion is granted—or if the disclosure or requested discovery is provided after the mo- tion was filed—the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant’s reasonable ex- penses incurred in making the motion, including attor- ney’s fees. But the court must not order this payment if: (i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery with- out court action; (ii) the opposing party’s nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust. (B) If the Motion Is Denied. If the motion is denied, the court may issue any protective order authorized under Rule 26(c) and must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the mo- tion its reasonable expenses incurred in opposing the mo- tion, including attorney’s fees. But the court must not order this payment if the motion was substantially justi- fied or other circumstances make an award of expenses un- just. (C) If the Motion Is Granted in Part and Denied in Part. If the motion is granted in part and denied in part, the court may issue any protective order authorized under Rule 26(c) and may, after giving an opportunity to be heard, appor- tion the reasonable expenses for the motion. (b) FAILURE TO COMPLY WITH A COURT ORDER. (1) Sanctions Sought in the District Where the Deposition Is Taken. If the court where the discovery is taken orders a depo- nent to be sworn or to answer a question and the deponent fails to obey, the failure may be treated as contempt of court. If a deposition-related motion is transferred to the court where the action is pending, and that court 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 either the court where the discovery is taken or the court where the ac- tion is pending. (2) Sanctions Sought in the District Where the Action Is Pending. Rule 37 FEDERAL RULES OF CIVIL PROCEDURE 62 (A) For Not Obeying a Discovery Order. If a party or a par- ty’s officer, director, or managing agent—or a witness des- ignated 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 support- ing 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 disobe- dient 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. (B) For Not Producing a Person for Examination. 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), un- less the disobedient party shows that it cannot produce the other person. (C) Payment of Expenses. 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 rea- sonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust. (c) FAILURE TO DISCLOSE, TO SUPPLEMENT AN EARLIER RESPONSE, OR TO ADMIT. (1) Failure to Disclose or Supplement. 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, un- less 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, in- cluding 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). (2) Failure to Admit. If a party fails to admit what is re- quested under Rule 36 and if the requesting party later proves a document to be genuine or the matter true, the requesting party may move that the party who failed to admit pay the reasonable expenses, including attorney’s fees, incurred in making that proof. The court must so order unless: 63 FEDERAL RULES OF CIVIL PROCEDURE Rule 37 (A) the request was held objectionable under Rule 36(a); (B) the admission sought was of no substantial impor- tance; (C) the party failing to admit had a reasonable ground to believe that it might prevail on the matter; or (D) there was other good reason for the failure to admit. (d) PARTY’S FAILURE TO ATTEND ITS OWN DEPOSITION, SERVE AN- SWERS TO INTERROGATORIES, OR RESPOND TO A REQUEST FOR INSPEC- TION. (1) In General. (A) Motion; Grounds for Sanctions. 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 inter- rogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objections, or written response. (B) Certification. A motion for sanctions for failing to an- swer or respond must include a certification that the mov- ant 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. (2) Unacceptable Excuse for Failing to Act. A failure described in Rule 37(d)(1)(A) is not excused on the ground that the dis- covery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c). (3) Types of Sanctions. Sanctions may include any of the or- ders 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 rea- sonable expenses, including attorney’s fees, caused by the fail- ure, unless the failure was substantially justified or other cir- cumstances make an award of expenses unjust. (e) FAILURE TO PRESERVE ELECTRONICALLY STORED INFORMATION. If electronically stored information that should have been pre- served in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it can- not be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litiga- tion may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the in- formation was unfavorable to the party; or (C) dismiss the action or enter a default judgment. Rule 38 FEDERAL RULES OF CIVIL PROCEDURE 64 (f) FAILURE TO PARTICIPATE IN FRAMING A DISCOVERY PLAN. If a party or its attorney fails to participate in good faith in develop- ing and submitting a proposed discovery plan as required by Rule 26(f), the court may, after giving an opportunity to be heard, re- quire that party or attorney to pay to any other party the reason- able expenses, including attorney’s fees, caused by the failure. (As amended Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 30, 1970, eff. July 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Pub. L. 96–481, § 205(a), Oct. 21, 1980, 94 Stat. 2330, eff. Oct. 1, 1981; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec. 1, 2007; Apr. 16, 2013, eff. Dec. 1, 2013; Apr. 29, 2015, eff. Dec. 1, 2015.) TITLE VI. TRIALS