RULE 37. FAILURE TO MAKE OR COOPERATE IN DISCOVERY; SANCTIONS
1 (a) Motion for an Order Compelling Discovery.
2 (1) In General. On notice to other parties and all affected persons, a party
3 may move for an order compelling discovery. The motion must include a
4 certification that the movant has in good faith conferred or attempted to confer
5 with the person or party failing to make discovery in an effort to obtain it without
6 court action.
7 (2) Appropriate Court. A motion for an order to a party must be made in the
8 court where the action is pending. A motion for an order to a nonparty may be
9 made in the court where the discovery is or will be taken or in the court where the
10 action is pending.
11 (3) Specific Motions.
12 (A) To Compel a Discovery Response. A party seeking discovery may
13 move for an order compelling an answer, designation, production, or inspection.
14 This motion may be made if:
15 (i) a deponent fails to answer a question asked under Rule 30 or 31;
16 (ii) a corporation or other entity fails to make a designation under Rule
17 30(b)(6) or 31(a);
18 (iii) a party fails to answer an interrogatory submitted under Rule 33; or
19 (iv) a party fails to produce documents or fails to respond that inspection
20 will be permitted - or fails to permit inspection - as requested under Rule 34.
21 (B) Related to a Deposition. When taking an oral deposition, the party
22 asking a question may complete or adjourn the examination before moving for an
24 (4) Evasive or Incomplete Answer or Response. For purposes of this
25 subdivision (a), an evasive or incomplete answer or response must be treated as a
26 failure to answer or respond.
27 (5) Payment of Expenses; Protective Order.
28 (A) If the Motion Is Granted (or Discovery Is Provided After Filing). If the
29 motion is granted--or if the requested discovery is provided after the motion was
30 filed--the court must, after giving an opportunity to be heard, require the party or
31 deponent whose conduct necessitated the motion, the party or attorney advising
32 that conduct, or both to pay the movant's reasonable expenses incurred in making
33 the motion, including attorney's fees. But the court must not order this payment if:
34 (i) the movant filed the motion before attempting in good faith to obtain
35 discovery without court action;
36 (ii) the opposing party's nondisclosure, response, or objection was
37 substantially justified; or
38 (iii) other circumstances make an award of expenses unjust.
39 (B) If the Motion Is Denied. If the motion is denied, the court may issue any
40 protective order authorized under Rule 26(c) and must, after giving an opportunity
41 to be heard, require the movant, the attorney filing the motion, or both to pay the
42 party or deponent who opposed the motion its reasonable expenses incurred in
43 opposing the motion, including attorney's fees. But the court must not order this
44 payment if the motion was substantially justified or other circumstances make an
45 award of expenses unjust.
46 (C) If the Motion Is Granted in Part and Denied in Part. If the motion is
47 granted in part and denied in part, the court may issue any protective order
48 authorized under Rule 26(c) and may, after giving an opportunity to be heard,
49 apportion the reasonable expenses for the motion.
50 (b) Failure to Comply With a Court Order.
51 (1) Sanctions in the District Where the Deposition Is Taken. If the court
52 where the discovery is taken orders a deponent to be sworn or to answer a question
53 and the deponent fails to obey, the failure may be treated as contempt of court.
54 (2) Sanctions by the Court in Which the Action Is Pending.
55 (A) For Not Obeying a Discovery Order. If a party or a party's officer,
56 director, or managing agent - or a witness designated under Rule 30(b)(6) or 31(a)
57 - fails to obey an order to provide or permit discovery, including an order under
58 Rule 26(f), 35, or 37(a), the court where the action is pending may issue further
59 just orders. They may include the following:
60 (i) directing that the matters embraced in the order or other designated facts
61 be taken as established for purposes of the action, as the prevailing party claims;
62 (ii) prohibiting the disobedient party from supporting or opposing
63 designated claims or defenses, or from introducing designated matters in evidence;
64 (iii) striking pleadings in whole or in part;
65 (iv) staying further proceedings until the order is obeyed;
66 (v) dismissing the action or proceeding in whole or in part;
67 (vi) rendering a default judgment against the disobedient party; or
68 (vii) treating as contempt of court the failure to obey any order except an
69 order to submit to a physical or mental examination.
70 (B) For Not Producing a Person for Examination. If a party fails to comply
71 with an order under Rule 35(a) requiring it to produce another person for
72 examination, the court may issue any of the orders listed in Rule
73 37(b)(2)(A)(i)-(vi), unless the disobedient party shows that it cannot produce the
74 other person.
75 (C) Payment of Expenses. Instead of or in addition to the orders above, the
76 court must order the disobedient party, the attorney advising that party, or both to
77 pay the reasonable expenses, including attorney's fees, caused by the failure, unless
78 the failure was substantially justified or other circumstances make an award of
79 expenses unjust.
80 (c) Failure to Admit. If a party fails to admit what is requested under Rule
81 36 and if the requesting party later proves a document to be genuine or the matter
82 true, the requesting party may move that the party who failed to admit pay the
83 reasonable expenses, including attorney's fees, incurred in making that proof. The
84 court must so order unless:
85 (1) the request was held objectionable under Rule 36(a);
86 (2) the admission sought was of no substantial importance;
87 (3) the party failing to admit had reasonable ground to believe that it might
88 prevail on the matter; or
89 (4) there was other good reason for the failure to admit.
90 (d) Party's Failure to Attend Its Own Deposition, Serve Answers to
91 Interrogatories, or Respond to a Request for Inspection.
92 (1) In General.
93 (A) Motion; Grounds for Sanctions. The court where the action is pending
94 may, on motion, order sanctions if:
95 (i) a party or a party's officer, director, or managing agent - or a person
96 designated under Rule 30(b)(6) or 31(a) - fails, after being served with proper
97 notice, to appear for that person's deposition; or
98 (ii) a party, after being properly served with interrogatories under Rule 33
99 or a request for inspection under Rule 34, fails to serve its answers, objections, or
100 written response.
101 (B) Certification. A motion for sanctions for failing to answer or respond
102 must include a certification that the movant has in good faith conferred or
103 attempted to confer with the party failing to act in an effort to obtain the answer or
104 response without court action.
105 (2) Unacceptable Excuse for Failing to Act. A failure described in Rule
106 37(d)(1)(A) is not excused on the ground that the discovery sought was
107 objectionable, unless the party failing to act has a pending motion for a protective
108 order under Rule 26(c).
109 (3) Types of Sanctions. Sanctions may include any of the orders listed in
110 Rule 37(b)(2)(A)(i)-(vi). Instead of or in addition to these sanctions, the court must
111 require the party failing to act, the attorney advising that party, or both to pay the
112 reasonable expenses, including attorney's fees, caused by the failure, unless the
113 failure was substantially justified or other circumstances make an award of
114 expenses unjust.
115 (e) Expenses Against the State. Except to the extent permitted by statute,
116 expenses and fees may not be awarded against the State of North Dakota under this
118 (f) Failure to Preserve Electronically Stored Information.
exceptional circumstances, a court may not impose sanctions under these rules on
party for failing to provide electronically stored information lost as a result of the
routine, good-faith operation of an electronic information system. If electronically
122 stored information that should have been preserved in the anticipation or conduct
123 of litigation is lost because a party failed to take reasonable steps to preserve it,
124 and it cannot be restored or replaced through additional discovery, the court:
125 (1) upon finding prejudice to another party from loss of the information,
126 may order measures no greater than necessary to cure the prejudice; or
127 (2) only upon finding that the party acted with the intent to deprive another
128 party of the information's use in the litigation may:
129 (A) presume that the lost information was unfavorable to the party;
130 (B) instruct the jury that it may or must presume the information was
131 unfavorable to the party; or
132 (C) dismiss the action or enter a default judgment.
133 (g) Failure to Participate in the Framing of a Discovery Plan. If a party or its
134 attorney fails to participate in good faith in developing and submitting a proposed
135 discovery plan as required by Rule 26(f), the court may, after giving an opportunity
136 to be heard, require that party or attorney to pay to any other party the reasonable
137 expenses, including attorney's fees, caused by the failure.
138 EXPLANATORY NOTE
139 Rule 37 was amended, effective July 1, 1981; March 1, 1990; January 1,
140 1995; March 1, 1997; March 1, 2004; March 1, 2008; March 1,
142 Paragraph (a)(2) was amended, effective March 1, 2004, to require a party
143 moving for a discovery order to certify that a good faith effort was made to resolve
144 the discovery dispute prior to seeking court intervention.
145 Subdivision (f) was amended, effective_______________, to specify
146 measures a court may employ when electronically stored information is lost and to
147 specify the findings a court must make to justify imposition of these measures.
148 Rule 37 was amended, effective March 1, 2008, in response to the 2006
149 federal revision. A new subdivision (f) on electronically stored information was
150 added and material dealing with expenses against the state was moved to
151 subdivision (e).
152 Rule 37 was amended, effective March 1, 2011, in response to the
153 December 1, 2007, revision of the Federal Rules of Civil Procedure. The language
154 and organization of the rule were changed to make the rule more easily understood
155 and to make style and terminology consistent throughout the rules.
156 SOURCES: Joint Procedure Committee Minutes of ______________;
157 January 29-30, 2009, pages 31-32; January 25, 2007, page 10; September 28-29,
158 2006, pages 22-25; January 30-31, 2003, pages 15-16; September 28-29, 1995,
159 pages 15-16; January 27-28, 1994, pages 16-17; April 20, 1989, page 2; December
160 3, 1987, page 11; December 11-12, 1980, page 3; October 30-31, 1980, pages
161 22-26; November 29-30, 1979, page 80; Fed.R.Civ.P. 37.
162 CROSS REFERENCE: N.D.R.Civ.P. 26 (General Provisions Governing
163 Discovery), N.D.R.Civ.P. 30 (Depositions Upon Oral Examination), N.D.R.Civ.P.
164 31 (Depositions of Witnesses Upon Written Questions), N.D.R.Civ.P. 33
165 (Interrogatories to Parties), N.D.R.Civ.P. 34 (Production of Documents and Things
166 and Entry Upon Land for Inspection and Other Purposes), N.D.R.Civ.P. 35
167 (Physical and Mental Examination of Persons), N.D.R.Civ.P. 36 (Requests for
168 Admission) and N.D.R.Civ.P. 45 (Subpoena).