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Behind the Bar: “Getting What You Want” – Rule 37. Failure to Make Disclosures or Cooperate in Discovery

“Behind the Bar” is a multi-part blog series that will focus on specific aspects of the practice of law ranging from the Rules of Evidence, Rules of Civil Procedure, and other important legal practice technicalities in an effort to provide readers a better understanding of regularly overlooked and misunderstood concepts that lawyers are faced with on a day-to-day basis. 

The information gathering stage of the legal process is commonly referred to as the “Discovery Process.” Discovery is generally guided by Rule 26 of the Federal Rules of Civil Procedure and is the way that information is gathered by associated parties to litigation. It is during this time that each party submits various requests for information from adverse parties through a variety of common methods: interrogatories (questions), request for admissions, and request for production of documents.  While it is the hope of all parties involved that each party will, in good faith, cooperate with their requests for information, there are times when that is not the case and court intervention is necessary for proper recourse; enter: Rule 37.

Where a party has failed to comply with the discovery procedures set forth by court order, party ask for discovery may ask the Court for an order compelling the requested action.  Before such a motion may be entered, it must be indicated that the moving party has in good faith contacted the party failing to make the discovery to try and secure the information without court action.  This requirement supports the keeping of unnecessary proceedings out of the court system and promoting judicial efficiency. If such a motion is granted the court will typically award reasonable costs incurred by the moving party and place the burden on nonmoving party; this burden is shifted if the court denies the motion unless there is a finding that such motion was substantially justified or other factors, make award of expenses unjust.  This is the most common form of award afforded by the courts, as in these circumstances the court is not trying to punish either party, they are merely incentivizing parties to comply with orders of the court.

Harsher penalties may occur where an order has been entered compelling nonmoving party to disclose/produce requested information.  Sanctions may be handed down by the court in the case of a failure to appear at a deposition or failure to answer questions as considered contempt of court.  The Judge may prevent disobedient party from support or designating claims or defenses and introducing designated matters into evidence.  In egregious instances, a judge may strike out pleadings or parts therein, stay further proceedings until compliance, dismiss action or part thereof, and even go as far as rendering a default judgment against disobedient party.  The court has broad discretion in imposing sanctions, and there is no hierarchy of sanctions that limit judicial action; however, most courts will err on the side of less severe sanctions for the purpose of allowing the matter to be decided on its merits, rather than procedural deficiencies.

The discovery process plays a large role in the strategy of an attorney’s approach to each case they undertake and like any other strategic tool, it is used and manipulated so as to provide the greatest benefit to each participant.  Rule 37 aims to level the playing field as much as possible and prevent abuse of the discovery process as a means to avoid obligations and responsibilities of each party under the law and to promote efficiency within the litigation process as a whole.


Behind the Bar Series

Rule 4 (Part I & Part II) | Rule 5 | Rule 7 | Rule 37