Motions to Compel and Discovery Sanctions Under Rule 37: From Meet and Confer to Default Judgment

Summary. This article explains how federal discovery enforcement works as a ladder, from the good-faith conference that must precede a motion to compel, through mandatory fee shifting under Rule 37(a)(5), to the escalating sanctions of Rule 37(b) that end in default judgment or dismissal. It traces the Supreme Court cases that set the outer limits, including Societe Internationale v. Rogers, National Hockey League v. Metropolitan Hockey Club, Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, Pierce v. Underwood, Chambers v. NASCO, and Goodyear Tire & Rubber Co. v. Haeger. It sets out what counts as a failure to respond, why boilerplate objections and silent withholding now lose motions, and how the circuits' multi-factor tests decide when terminating sanctions are just. Separate sections cover Rules 37(c), (d), (e), and (f), 28 U.S.C. § 1927 and inherent power, magistrate judge authority and Rule 72(a), nonparty enforcement under Rule 45, and the limits on immediate appeal. An extended worked example follows a commercial case from deficiency letter to default, and the article closes with common mistakes, an FAQ, and practical takeaways for both sides.

Thirty-one days after serving her first set of document requests, a litigator at a mid-sized firm opens the response. It runs eleven pages. Every one of the forty requests draws the same paragraph: the request is "overly broad, unduly burdensome, vague and ambiguous, and seeks information neither relevant nor proportional to the needs of the case," followed by "subject to and without waiving the foregoing objections, Defendant will produce responsive, non-privileged documents at a mutually agreeable time." No documents are attached. Nothing says whether anything is being held back. The scheduling order closes fact discovery in five months.

She has three options. She can call opposing counsel and try to fix it. She can file a motion to compel. Or she can wait, collect more evidence of obstruction, and ask for something bigger later. Each choice has a cost, and the rule that governs all three, Federal Rule of Civil Procedure 37, is built so that the order in which she makes them matters as much as the merits.

This article is about that order. Rule 37 is a ladder. The bottom rung is a conversation between lawyers. The middle rungs are a court order and a fee award. The top rungs are orders that take facts as established, strike pleadings, or end the case. Courts climb the ladder one rung at a time, and they punish litigants on both sides who try to skip rungs.

The short answer

• Talk first, and prove you talked. A motion to compel must include a certification that the movant conferred or tried to confer in good faith before filing, Fed. R. Civ. P. 37(a)(1). Many districts and individual judges add a letter, a joint submission, or a pre-motion conference on top of that.
• An evasive or incomplete answer is no answer. Rule 37(a)(4) treats it as a failure to disclose, answer, or respond. Boilerplate objections, "subject to" responses that hide whether anything is withheld, and answers that refer the reader to "documents produced" are the modern targets.
• Fees follow the loser. If the motion is granted, or the requested discovery arrives only after filing, the court "must" award reasonable expenses against the party or lawyer whose conduct required the motion, unless the position was substantially justified or other circumstances make an award unjust, Fed. R. Civ. P. 37(a)(5)(A). A losing movant can pay too.
• The heavy sanctions need an order first. Rule 37(b)(2)(A) lists seven sanctions for disobeying a discovery order, from designated facts taken as established to default judgment, dismissal, and contempt. Rule 37(d) is the main exception: a party that does not show up for its own deposition or serves no response at all can be sanctioned without a prior order.
• Terminating sanctions require fault and a reasoned choice. Dismissal or default is reserved for willfulness, bad faith, or fault, after the court considers lesser sanctions and the prejudice to the other side. Each circuit has its own factor test.
• Other tools sit beside Rule 37. Rule 26(g) sanctions improper certifications, 28 U.S.C. § 1927 reaches lawyers who multiply proceedings vexatiously, and inherent power fills gaps but requires bad faith and a causal link between misconduct and any fee award.
• Discovery orders are hard to appeal right away. Most go to a magistrate judge, objections go to the district judge under a deferential standard within 14 days, and sanctions orders, even against lawyers, generally wait for final judgment.

The structure of Rule 37

Rule 37 is organized by the kind of failure, not the kind of discovery. That makes it easier to use than its length suggests.

Two features of the table drive most of the strategy. First, the movant usually needs a Rule 37(a) order before the serious sanctions of Rule 37(b) become available. Second, fee shifting appears at every level and is phrased in mandatory terms, which means the most common sanction in federal discovery is not default or dismissal. It is a check for the cost of the motion.

A short history: why the rule looks the way it does

Discovery as federal courts practice it began with the Federal Rules of Civil Procedure in 1938. The original vision was generous. In Hickman v. Taylor, 329 U.S. 495 (1947), the Supreme Court said that "mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation," while also creating the work-product protection that limits it. A generation later, in Herbert v. Lando, 441 U.S. 153 (1979), the Court reaffirmed the broad scope of discovery and, in the same opinion, noted the growing concern about its cost and abuse, pointing to the district courts' power to limit it. The tension between those two ideas, openness and restraint, is the history of Rule 37.

The rule's enforcement machinery took its modern form in 1970. The Advisory Committee rewrote the expense provision so that the loser of a discovery motion would pay unless its position was substantially justified, and it reorganized the sanctions for disobeying orders. It also made clear that the willfulness language some courts had read into the rule bore on the choice of sanction, not on whether the court could act at all. The 1980 amendments added sanctions for failing to participate in framing a discovery plan. The 1983 amendments added the signature certification of Fed. R. Civ. P. 26(g), which makes every discovery request, response, and objection a representation to the court. The 1993 amendments added the good-faith conference certification and the automatic preclusion rule of Rule 37(c)(1). The 2006 amendments addressed electronically stored information, and the 2007 restyling renumbered the subdivisions into the order lawyers now use.

The 2015 amendments did more to change everyday motion practice than any set since 1970. They moved proportionality into the definition of discoverable information in Fed. R. Civ. P. 26(b)(1). They required objections to document requests to be stated "with specificity" and to say "whether any responsive materials are being withheld on the basis of that objection," Fed. R. Civ. P. 34(b)(2)(B)-(C). They added a motion to compel for a party that fails to produce documents, not just one that fails to respond. They invited judges to require a conference with the court before any discovery motion, Fed. R. Civ. P. 16(b)(3)(B)(v). And they rewrote Rule 37(e) to replace a patchwork of circuit spoliation standards with a single framework. They also amended Fed. R. Civ. P. 1 to say that the parties, not just the court, must construe and employ the rules to secure the "just, speedy, and inexpensive determination of every action." Chief Justice Roberts's 2015 Year-End Report on the Federal Judiciary described the package as a call for lawyers to cooperate and for judges to manage discovery actively. Judges took both messages seriously, and much of the case law discussed below applies them.

Rung one: the good-faith conference

What the rule requires

Rule 37(a)(1) requires a motion to compel to "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 discovery in an effort to obtain it without court action." Rule 37(d)(1)(B) has a parallel requirement for motions based on a failure to respond, and Fed. R. Civ. P. 26(c)(1) has one for protective order motions.

The words "in good faith" do real work. An email sent at 4:55 p.m. demanding production by the next morning, followed by a motion at 9:01 a.m., is an attempt to confer only in the most literal sense. Courts have long read the requirement to mean a genuine, two-way exchange in which each side states its position and its reasons and tries to narrow the dispute. A frequently cited formulation comes from Shuffle Master, Inc. v. Progressive Games, Inc., 170 F.R.D. 166 (D. Nev. 1996), which held that the movant must show an actual meeting or conference, by phone or in person, and a real effort to resolve the dispute, not a perfunctory exchange of letters. Many local rules now say the same thing directly, and some require the conference to happen in person or by video when counsel are in the same area.

Why judges enforce it

Judges enforce the conference requirement for a practical reason: most discovery disputes, once the lawyers talk about specific requests rather than general grievances, shrink or disappear. A motion that arrives without a real conference costs the court time that the parties should have spent. The consequences are concrete. A court can deny the motion without reaching the merits. And under Rule 37(a)(5)(A)(i), a movant who "filed the motion before attempting in good faith to obtain the disclosure or discovery without court action" loses its right to expenses even if it wins.

Local rules and the pre-motion layer

On top of the federal rule sits a layer of local practice that varies widely and changes often. Some districts and judges require a joint letter, limited to a few pages, that sets out each side's position on each disputed request. Others require a pre-motion conference with the magistrate judge, sometimes by telephone, before any formal motion can be filed. Some require the motion to quote each disputed request and response in full. Some impose a deadline for discovery motions tied to the response date or the discovery cutoff. Fed. R. Civ. P. 83 authorizes these local rules and individual practices, and Fed. R. Civ. P. 16(b)(3)(B)(v) lets a scheduling order require a conference with the court before any discovery motion. The safe practice is to read the local civil rules, the assigned district judge's and magistrate judge's individual practices, and the scheduling order before writing a word of the motion. A motion filed in the wrong form is often denied without prejudice, which costs weeks.

Rung two: the motion to compel

What can be compelled, and where

Rule 37(a)(3) lists the targets. A party may move to compel a Rule 26(a) disclosure. It may also move to compel an answer, designation, production, or inspection when a deponent fails to answer a question under Rule 30 or Rule 31, an organization fails to designate a witness under Rule 30(b)(6) or 31(a)(4), a party fails to answer an interrogatory under Rule 33, or a party fails to produce documents or respond that inspection will be permitted under Rule 34. During a deposition, the examiner may finish or adjourn the examination before applying for an order, Rule 37(a)(3)(C), which is why an instruction not to answer is usually met with "we will hold the deposition open."

Requests for admission are the odd one out. A party unhappy with an answer or objection moves under Fed. R. Civ. P. 36(a)(6) to determine its sufficiency, and the court may order the matter admitted or require an amended answer. Rule 36(a)(6) borrows Rule 37(a)(5) for expenses, so the economics are the same.

Venue follows the target. A motion directed to a party goes to the court where the action is pending. A motion directed to a nonparty goes to the court where the discovery is or will be taken, Rule 37(a)(2), and for a subpoena the "court for the district where compliance is required" under Fed. R. Civ. P. 45(d)(2)(B)(i). That nonparty route has its own protections, discussed below.

Evasive and incomplete responses are failures

The most important sentence in Rule 37(a) may be its shortest. Rule 37(a)(4) provides that "an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond." That sentence turns a response that looks complete on paper into a failure the court can compel. It is the doctrinal basis for most modern motions to compel, which are fights not about silence but about responses that say little while appearing to say a lot.

Four patterns recur.

Boilerplate objections. Courts have rejected generic objections for decades. In Josephs v. Harris Corp., 677 F.2d 985 (3d Cir. 1982), the Third Circuit said that the mere statement that an interrogatory was "overly broad, burdensome, oppressive and irrelevant" is not adequate to voice a successful objection; the objecting party must show specifically how each request is burdensome, typically with evidence of the burden. The rule text now says the same. Fed. R. Civ. P. 33(b)(4) requires interrogatory objections to be stated "with specificity" and provides that any ground not stated in a timely objection is waived unless the court excuses the failure for good cause. Rule 34(b)(2)(B) imposes the same specificity requirement on document requests.

Silent withholding. Before 2015, a responding party could object to a request, promise to produce "subject to" its objections, and leave the requesting party unable to tell whether the objections were actually being used to hold anything back. Rule 34(b)(2)(C) now requires the response to "state whether any responsive materials are being withheld on the basis of that objection." The Advisory Committee notes say the producing party need not provide a detailed description of what is withheld, but must alert the other side that something is. The most cited application is Magistrate Judge Andrew Peck's opinion in Fischer v. Forrest, No. 14 Civ. 1304, 2017 WL 773694 (S.D.N.Y. Feb. 28, 2017), which began by calling itself a "discovery wake-up call," held that general objections and unexplained "subject to" responses violate the 2015 amendments, and warned that future noncompliant responses would be deemed a waiver of all objections other than privilege.

The culture problem. A month later, Judge Mark Bennett of the Northern District of Iowa took on the same habit in Liguria Foods, Inc. v. Griffith Laboratories, Inc., 320 F.R.D. 168 (N.D. Iowa 2017). Both sides had served boilerplate objections. Judge Bennett declined to sanction them, in part because the practice was so widespread, but described boilerplate as a persistent and corrosive culture and warned that future offenders in his court would not get the same pass. The opinion is useful to movants and responding parties alike: it shows the court's view of the practice, and it shows that a court may be more willing to sanction once the bar has been warned.

Certification failures. Every discovery response and objection is signed under Fed. R. Civ. P. 26(g)(1), which certifies that, after a reasonable inquiry, the response is consistent with the rules, not interposed for an improper purpose, and not unreasonable or unduly burdensome. In Mancia v. Mayflower Textile Services Co., 253 F.R.D. 354 (D. Md. 2008), Judge Paul Grimm explained that Rule 26(g) is the discovery counterpart of Rule 11, that boilerplate objections served without a reasonable inquiry violate it, and that Rule 26(g)(3) makes a sanction mandatory for an unjustified violation. Mancia also tied the certification to cooperation: the court directed counsel to confer about proportionality instead of exchanging maximal demands and maximal objections.

Waiver as a remedy

When objections are untimely or too general, the movant usually asks for two things: an order compelling a complete response, and a finding that the objections are waived. The Ninth Circuit put the general rule bluntly in Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468 (9th Cir. 1992): a failure to object to discovery requests within the time required constitutes a waiver of any objection. Richmark is also a reminder that foreign secrecy laws do not automatically excuse compliance. The court upheld contempt sanctions against a Chinese state-owned company that cited Chinese secrecy law as a reason not to produce.

Privilege objections get gentler treatment. In Burlington Northern & Santa Fe Railway Co. v. United States District Court, 408 F.3d 1142 (9th Cir. 2005), the Ninth Circuit held that a boilerplate privilege objection is insufficient, but rejected a per se rule that a late privilege log waives the privilege. It adopted a holistic analysis that weighs how specific the assertion was, how timely the log was, the magnitude of the production, and other circumstances. The practical lesson is that a court will rarely order privileged material produced as a penalty for a slow log, but it will order a log by a date certain and treat a missed date as a much more serious matter. For log content and timing, see Preparing a Privilege Log: A Practical Checklist.

Burden and proportionality on the motion

Who bears the burden on a motion to compel is a question the rules do not answer directly. The traditional statement is that the party resisting discovery must show why it should not be allowed, especially once the requesting party shows facial relevance. That formulation grew out of the broad relevance standard the Supreme Court described in Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978), which spoke of any matter that bears on, or reasonably could lead to other matter that could bear on, any issue in the case.

The 2015 amendments changed the text but, according to the Advisory Committee, not the allocation of burdens. Rule 26(b)(1) now limits discovery to nonprivileged matter relevant to a claim or defense and "proportional to the needs of the case," considering the importance of the issues, the amount in controversy, relative access to information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense outweighs the likely benefit. The committee note says the change does not place on the requesting party the burden of addressing every proportionality factor, and does not authorize a refusal to respond on the strength of a boilerplate proportionality objection. In practice, courts expect both sides to bring specifics: the movant explains why the discovery matters, and the resisting party explains, usually with a declaration, what it would cost to provide.

ESI that is not reasonably accessible has its own two-step test. Under Rule 26(b)(2)(B), the responding party must show undue burden or cost, and the court may still order the discovery for good cause, often with conditions such as cost sharing. The classic framework for cost shifting remains Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003), which held that cost shifting should be considered only for inaccessible data and set out factors for deciding it. For negotiated limits that prevent these fights, see Negotiating an ESI Protocol and Managing E-Discovery Costs.

The resisting party also has its own motion. A party that believes discovery is improper can move for a protective order under Rule 26(c), which requires good cause and allows the court to forbid, limit, condition, or reshape discovery. The Supreme Court in Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) described the rule as conferring broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required. The protective order route matters for timing. Rule 37(d)(2) provides that a failure to respond to interrogatories or document requests, or to appear for a deposition, "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)." A party that simply does not show up because it thinks the deposition is improper takes a serious risk. For the mechanics, see Obtaining and Defending a Protective Order: A Practical Guide.

The fee rung: Rule 37(a)(5)

Loser pays, with three exceptions

If a motion to compel is granted, or the disclosure or discovery is provided after the motion was filed, Rule 37(a)(5)(A) says 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 expenses incurred in making the motion, including attorney's fees." The court must not order payment if (i) the movant filed before attempting in good faith to get the discovery without court action, (ii) the opposing party's nondisclosure, response, or objection was substantially justified, or (iii) other circumstances make an award unjust.

The mirror image applies when the motion fails. Under Rule 37(a)(5)(B), if the motion is denied, the court must require the movant, its lawyer, or both to pay the opposing party's expenses unless the motion was substantially justified or other circumstances make an award unjust. When the motion is granted in part and denied in part, Rule 37(a)(5)(C) lets the court apportion expenses.

Judge Easterbrook summarized the policy in Rickels v. City of South Bend, 33 F.3d 785 (7th Cir. 1994): the great operative principle of the rule is that the loser pays, and fee shifting when the judge must resolve a discovery dispute deters unjustified positions and spares the court disputes the parties should have settled themselves. Many judges still treat fee awards as discretionary in practice and decline them in close cases. The text does not support that habit, and a well-drafted motion quotes it.

What "substantially justified" means

The Supreme Court has never decided a Rule 37 fee case on the meaning of "substantially justified," but it interpreted the same phrase in the Equal Access to Justice Act and drew on the Rule 37 history to do it. In Pierce v. Underwood, 487 U.S. 552 (1988), the Court held that "substantially justified" means "justified in substance or in the main," that is, "justified to a degree that could satisfy a reasonable person," and that the standard is satisfied if there is a "genuine dispute" or if reasonable people could differ about the appropriateness of the contested action. Lower courts apply that formulation to Rule 37. The Eleventh Circuit, for example, in Devaney v. Continental American Insurance Co., 989 F.2d 1154 (11th Cir. 1993), applied the "genuine dispute" and "reasonable people could differ" tests to discovery conduct.

The practical consequence is that a responding party with a genuinely debatable legal position, such as a privilege question on which courts are split or a proportionality objection supported by real cost evidence, is likely to avoid fees even if it loses. A party that relied on boilerplate, ignored deadlines, or reversed course only after the motion was filed is not.

Who pays: party, lawyer, or both

Rule 37(a)(5) authorizes an award against the party, "the attorney advising that conduct," or both. Courts look at who was responsible. A lawyer who drafted boilerplate objections without asking the client a single question owns that choice. A client that refused to search its own email after counsel told it to owns that one. The Supreme Court's decision in Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980) confirmed that Rule 37 expenses may be assessed against counsel and that courts also have inherent power to assess fees against lawyers who litigate in bad faith, provided the lawyer gets fair notice and an opportunity to be heard. Lawyers facing a fee motion against them personally should consider whether they need separate counsel, since their interests and the client's may now diverge.

How much

Rule 37 awards "reasonable expenses, including attorney's fees" incurred in making or opposing the motion. Courts generally compute them using the lodestar method: reasonable hours multiplied by a reasonable hourly rate, Hensley v. Eckerhart, 461 U.S. 424 (1983), with rates set by "prevailing market rates in the relevant community," Blum v. Stenson, 465 U.S. 886 (1984), and a strong presumption that the lodestar is reasonable, Perdue v. Kenny A., 559 U.S. 542 (2010). The award is limited to fees caused by the failure. Time spent on the meet-and-confer process is sometimes excluded on the theory that the rule requires it regardless, while time spent on the motion, reply, and hearing is included. Courts are not required to audit every entry; as the Court said of fee awards generally in Fox v. Vice, 563 U.S. 826 (2011), the goal is "rough justice, not auditing perfection." A fee declaration with contemporaneous time entries, a rate justification, and a clean separation of compensable from noncompensable work is the difference between a full award and a heavily discounted one. For fee petition mechanics generally, see the Attorney Fee Petition and Bill of Costs Checklist: A Practical Checklist.

Rung three: disobeying an order under Rule 37(b)

The order requirement

Rule 37(b)(2)(A) applies when a party, or its officer, director, managing agent, or Rule 30(b)(6) designee, "fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a)." The predicate is an order. In Daval Steel Products v. M/V Fakredine, 951 F.2d 1357 (2d Cir. 1991), the Second Circuit, relying on Salahuddin v. Harris, 782 F.2d 1127 (2d Cir. 1986), explained that Rule 37(b)(2) requires a valid order in force, that the order need not be one entered under Rule 37(a), and that an oral directive from the bench can qualify. But the court reversed the sanction against a company to which no order had been directed. The lesson for movants is to get a clear order, with a deadline, aimed at the party to be sanctioned, and preferably in writing. A vague instruction at a status conference to "work it out" is a poor foundation for a later sanctions motion.

The menu

Rule 37(b)(2)(A) lists sanctions in roughly ascending order of severity:

Rule 37(b)(2)(C) adds that "instead of or in addition to" these orders, the court "must" order the disobedient party, the attorney advising it, or both to pay reasonable expenses caused by the failure, unless it was substantially justified or other circumstances make an award unjust. A separate provision, Rule 37(b)(2)(B), deals with a party that fails to produce another person for a Rule 35 examination; most of the menu applies unless the party shows it cannot produce the person.

The rule says the court "may issue further just orders," and the list is not exhaustive. Courts have imposed monetary sanctions beyond fees, ordered forensic examinations at the violator's expense, and given juries instructions about the failure. Fed. R. Civ. P. 16(f) incorporates the same menu (except contempt) for violations of scheduling and pretrial orders, which matters when the failure is a missed deadline in a case management order rather than a discovery order as such.

The constitutional floor: two old cases

Two nineteenth- and early twentieth-century cases set the due process limits that still frame every terminating sanction. In Hovey v. Elliott, 167 U.S. 409 (1897), the Court held that a court could not strike a defendant's answer and enter a decree against him as punishment for contempt, unrelated to the merits, without violating due process. Twelve years later, in Hammond Packing Co. v. Arkansas, 212 U.S. 322 (1909), the Court upheld striking an answer and entering default for a refusal to produce evidence, reasoning that a party's suppression of evidence justifies a presumption that its defense lacks merit. The difference between the cases is the key to modern doctrine. A sanction that punishes disobedience in the abstract is suspect. A sanction that reflects what the withheld evidence would likely have shown is not.

Societe Internationale: inability is not willfulness

The modern Supreme Court cases begin with Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197 (1958). A Swiss holding company sued under the Trading with the Enemy Act to recover assets the United States had seized during World War II. The government sought the records of a Swiss bank. Swiss law made disclosure a crime, and the Swiss government had in fact seized the records. The company made extensive efforts, produced large volumes of documents, and sought waivers from Swiss authorities, but could not produce everything. The district court dismissed the complaint.

The Supreme Court reversed. It held that Rule 37 should not be read to authorize dismissal where the failure to comply was due to inability, "and not to willfulness, bad faith, or any fault" of the plaintiff. The phrase "willfulness, bad faith, or fault" entered the doctrine through this case and every circuit still uses it. The Court did leave room for lesser consequences: the district court could still draw inferences on the merits from the lack of complete production. Societe remains the starting point when a party says it cannot comply, whether because of foreign law, a third party's control of documents, or genuine loss. Richmark shows its limits: foreign law excuses nothing when the party has not tried in good faith to comply, and the Supreme Court later made clear in Societe Nationale Industrielle Aerospatiale v. United States District Court, 482 U.S. 522 (1987) that the Hague Evidence Convention is not an exclusive route for discovery from foreign parties.

National Hockey League: deterrence counts

Eighteen years later the Court turned to the opposite problem: a party that could comply and did not. In National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639 (1976), an antitrust plaintiff failed for about seventeen months to answer crucial interrogatories, despite extensions, warnings, and its own commitments to answer by specific dates. The district court found "flagrant bad faith" and "callous disregard" of counsel's responsibilities and dismissed. The Third Circuit reversed, finding that the district court had abused its discretion. The Supreme Court summarily reinstated the dismissal.

The per curiam opinion is short, and its most quoted passage is about purpose. The most severe sanctions in Rule 37 must be available "not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent." The Court also warned that if appellate courts reflexively second-guessed terminating sanctions, parties would feel free to flout discovery orders. NHL is why appellate review of discovery sanctions is deferential, and why a well-documented record of warnings and missed deadlines usually survives appeal.

Insurance Corp. of Ireland: the "specifically related" test

The third case shows a middle-rung sanction at work. In Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982), foreign insurers contested personal jurisdiction in Pennsylvania. The plaintiff sought discovery about their business contacts with the forum. The insurers failed to comply with repeated orders. The district court warned them, then applied Rule 37(b)(2)(A)(i) and took as established that they were subject to personal jurisdiction.

The insurers argued that a court cannot create its own jurisdiction by sanction. The Supreme Court disagreed. Personal jurisdiction is a waivable individual right, and a party's failure to provide discovery on the jurisdictional facts can justify a presumption, as in Hammond Packing, that the facts would have supported jurisdiction. The Court then stated the two requirements that govern every Rule 37(b) sanction: the sanction must be "just," and it must be "specifically related to the particular 'claim' which was at issue in the order to provide discovery." That second requirement is the most useful sentence in the case for a movant drafting a sanctions request. Ask for a sanction that matches the withheld evidence: if the hidden documents concern damages, ask to preclude the damages evidence or establish a damages fact, not for an unrelated penalty.

The circuit factor tests

The Supreme Court has left the details of terminating sanctions to the courts of appeals, which have written multi-factor tests. They differ in wording more than substance. Each asks about the culpability of the noncompliant party, prejudice to the other side, the impact on the court, warnings, and whether lesser sanctions would work.

A few features of these tests deserve emphasis.

Fault is not intent. In Marrocco, the Seventh Circuit explained that "fault," unlike willfulness or bad faith, does not speak to the party's state of mind but to the reasonableness of the conduct that led to the violation. A party that is grossly careless about its discovery obligations can suffer a terminating sanction without a finding that it meant to hide anything.

Warnings matter, but are not always required. The Tenth Circuit lists advance warning as a factor, and the Second Circuit weighs it heavily, particularly for pro se litigants as in Agiwal. The Ninth Circuit in Connecticut General treated explicit warnings as relevant to whether the court considered lesser sanctions. A court that issues a written warning ("further noncompliance may result in default") makes a later terminating sanction far more defensible.

The Ninth Circuit's key question is the integrity of the merits. Valley Engineers involved a party that concealed a crucial memo through years of litigation and repeated court orders. The court affirmed dismissal and stressed that where a party's violations make it impossible to be confident that the case can be decided on a truthful record, the policy favoring decision on the merits points toward the sanction, not away from it.

Lawyer misconduct can cost the client. In Malautea, the Eleventh Circuit affirmed a default judgment against an automobile manufacturer whose defense obstructed discovery for years, along with monetary sanctions against its lawyers. The Third Circuit's first Poulis factor, the party's personal responsibility, and the Fifth Circuit's attention to whether the client or counsel was at fault cut in the other direction and make courts more cautious when the client was unaware. Link v. Wabash Railroad Co., 370 U.S. 626 (1962), the Supreme Court's failure-to-prosecute case, stands for the proposition that a client is bound by its chosen agent, but most courts still try to impose the lightest sanction that protects the innocent opponent when the client's personal role is minimal.

Standard of proof

The circuits have not agreed on how certain a court must be before imposing a terminating sanction. In Ramirez v. T&H Lemont, Inc., 845 F.3d 772 (7th Cir. 2016), the Seventh Circuit held that the preponderance of the evidence standard applies to dismissal sanctions under Rule 37 and inherent authority, overruling its earlier requirement of clear and convincing evidence. The D.C. Circuit in Shepherd v. American Broadcasting Cos., 62 F.3d 1469 (D.C. Cir. 1995) required clear and convincing evidence of misconduct before a court may enter a default or dismissal under its inherent power, while allowing lesser inherent-power sanctions on a preponderance. Other circuits have taken positions, sometimes without much discussion. A movant should brief the standard in its circuit and offer proof that satisfies the higher one anyway.

Contempt

Rule 37(b)(2)(A)(vii) lets the court treat disobedience as contempt, and Rule 37(b)(1) provides that a deponent who refuses to be sworn or answer after being directed to do so by the court where the discovery is taken may be held in contempt. Contempt in discovery is usually civil and coercive: a daily fine until the party complies, or until it purges by producing. The line between civil and criminal contempt matters because criminal contempt requires criminal procedural protections. In International Union, United Mine Workers v. Bagwell, 512 U.S. 821 (1994), the Court held that serious fines imposed for out-of-court violations of a complex injunction were criminal in nature and required a jury trial. Most discovery contempt fines are structured to avoid that problem: they are prospective, conditional, and end when the party complies. For contempt practice in more detail, see Contempt and Enforcing Injunctions: Civil, Criminal, and What an Order Actually Compels.

The side doors: Rules 37(c), (d), (e), and (f)

Four subdivisions let a court sanction without first issuing a Rule 37(a) order. Each has its own trigger and its own MC Law treatment, so the summary here is short.

Rule 37(c)(1): undisclosed evidence. A party that fails to provide information or a witness as required by Rule 26(a) or (e) "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." The court may add fees, inform the jury of the failure, or impose any of the 37(b)(2)(A)(i) to (vi) sanctions. Preclusion is described as automatic, but most of the litigation is about harmlessness and whether exclusion amounts to a dismissal in disguise. See Rule 37(c)(1) Preclusion of Undisclosed Evidence: A Practical Guide, and for raising it before trial, Motions in Limine: Strategy, Timing, and Preserving Error for Appeal.

Rule 37(c)(2): failure to admit. If a party denies a request for admission and the requesting party later proves the matter, the court must order the denying party to pay the reasonable expenses of the proof unless the request was objectionable, the admission was of no substantial importance, the party had a reasonable ground to believe it might prevail, or there was another good reason. See Strategic Responses to Requests for Admission: A Comprehensive Guide for Legal Practitioners.

Rule 37(d): total failures. A court may sanction, on motion and without a prior order, a party (or its officer, director, managing agent, or 30(b)(6) designee) that fails to appear for its own properly noticed deposition, or a party that, after proper service, fails to serve any answers, objections, or written response to interrogatories or document requests. The available sanctions are those in 37(b)(2)(A)(i) to (vi), and expenses are mandatory unless the failure was substantially justified. A motion based on a failure to respond needs a good-faith conference certification, Rule 37(d)(1)(B). The most consequential application concerns organizations. In Black Horse Lane Associates, L.P. v. Dow Chemical Corp., 228 F.3d 275 (3d Cir. 2000), the Third Circuit held that producing a Rule 30(b)(6) designee who is unprepared to testify on the noticed topics can amount to a failure to appear under Rule 37(d). For designee preparation, see Preparing and Defending a Rule 30(b)(6) Deposition.

Rule 37(e): lost electronically stored information. Since 2015, Rule 37(e) has been the exclusive source of sanctions for the loss of ESI that should have been preserved, could not be restored or replaced, and was lost because a party failed to take reasonable steps. If the loss prejudices another party, the court may order measures "no greater than necessary to cure the prejudice." Only on a finding of "intent to deprive another party of the information's use in the litigation" may the court presume the information was unfavorable, give an adverse inference instruction, or dismiss or enter default. Spoliation of tangible evidence remains governed by inherent power. The full treatment is in Litigation Holds, Spoliation, and Rule 37(e): Preserving Electronic Evidence Before It Costs You the Case. Lost text messages and chat data are now among the most common Rule 37(e) disputes; collection practices that prevent them are covered in Collecting and Authenticating Messaging and Social Media Evidence: A Practical Guide.

Rule 37(f): the discovery plan. If a party or its attorney fails to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26(f), the court may, after giving an opportunity to be heard, require that party or attorney to pay reasonable expenses caused by the failure. It is rarely litigated, but it makes the Rule 26(f) conference something more than a formality. See Rule 26 Initial Disclosures and Discovery Planning: A Practical Checklist.

Beyond Rule 37: certification, Section 1927, and inherent power

Rule 26(g)

Rule 26(g)(3) provides that if a certification violates the rule "without substantial justification," the court "must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both," which may include reasonable expenses caused by the violation. Rule 26(g) covers ground Rule 37 does not reach well: an overbroad request served to harass, a response certified as complete after no real search, or an objection asserted with no factual basis. Because Rule 11 does not apply to discovery papers, Fed. R. Civ. P. 11(d), Rule 26(g) is the certification rule for discovery, and it has no safe harbor.

28 U.S.C. § 1927

Under 28 U.S.C. § 1927, an attorney "who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct." The statute reaches only lawyers, not parties, and the circuits disagree about the state of mind it requires, with some requiring subjective bad faith and others accepting objective recklessness. Congress added attorneys' fees to the statute in 1980, the same year the Supreme Court in Roadway Express held that the earlier version did not cover them. Section 1927 is useful in discovery when a lawyer's conduct, such as repeatedly re-noticing the same deposition or relitigating a decided dispute, is the problem rather than any party's failure to produce.

Inherent power

Federal courts have inherent power to sanction bad-faith conduct in litigation. In Chambers v. NASCO, Inc., 501 U.S. 32 (1991), the Court upheld a fee award of nearly a million dollars against a party who had engaged in a sustained campaign of fraud and delay, holding that the existence of rules and statutes addressing some sanctionable conduct does not displace the inherent power. The Court cautioned that when a rule is "up to the task," the court ordinarily should rely on it, and that inherent power "must be exercised with restraint and discretion." The Court reinforced that caution in Degen v. United States, 517 U.S. 820 (1996). Inherent power generally requires a finding of bad faith. The Ninth Circuit in Fink v. Gomez, 239 F.3d 989 (9th Cir. 2001) held that recklessness alone is not enough, but recklessness combined with an additional factor such as frivolousness, harassment, or an improper purpose can be. And in the discovery context, the Ninth Circuit has required a relationship between the misconduct and the matters in controversy before an inherent-power dismissal, so that the sanction reflects a threat to "the rightful decision of the case," Anheuser-Busch, Inc. v. Natural Beverage Distributors, 69 F.3d 337 (9th Cir. 1995).

Goodyear v. Haeger: fees must be caused by the misconduct

The most important recent Supreme Court sanctions case arose from a discovery failure. In Goodyear Tire & Rubber Co. v. Haeger, 581 U.S. 101 (2017), plaintiffs whose motorhome had crashed sued the tire manufacturer. Goodyear withheld internal heat test results that the plaintiffs had requested and that bore directly on their theory of the case. The case settled. After the plaintiffs' counsel later learned from another case that the test data existed, the district court found bad faith and ordered Goodyear and its lawyers to pay all of the plaintiffs' fees from the moment of the first dishonest discovery response, roughly $2.7 million.

The Supreme Court vacated the award. A fee sanction under inherent power must be compensatory, not punitive, and so it is limited to the fees the innocent party would not have incurred but for the misconduct. Shifting fees for the entire case is permissible only in exceptional situations, such as when the whole suit was brought in bad faith or when the misconduct so permeated the litigation that every fee is attributable to it. A larger punitive sanction would require criminal-type procedural protections. The Court also said that trial courts may use estimates and need not achieve auditing perfection, citing Fox v. Vice.

Haeger was an inherent-power case, but its causation logic has spread. Rule 37(b)(2)(C) and 37(d)(3) speak of expenses "caused by the failure," and many courts now ask a Haeger-style question about which fees the misconduct actually caused. A movant's fee declaration should be built around that question from the start.

Who decides, and when the losing side can appeal

Magistrate judges and Rule 72(a)

Most discovery motions are referred to a magistrate judge under 28 U.S.C. § 636(b)(1)(A), which allows a magistrate judge to "hear and determine" pretrial matters other than a list of dispositive motions. A party may object to a nondispositive order within 14 days after being served with it, and the district judge must modify or set aside any part that is "clearly erroneous or is contrary to law," Fed. R. Civ. P. 72(a). A party that does not object within 14 days "may not assign as error a defect in the order not timely objected to."

Monetary sanctions and orders compelling discovery are generally nondispositive. The Second Circuit so held in Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522 (2d Cir. 1990), and the Ninth Circuit reached a similar conclusion about coercive daily fines in Grimes v. City & County of San Francisco, 951 F.2d 236 (9th Cir. 1991). A sanction that ends the case is different. The Tenth Circuit in Ocelot Oil Corp. v. Sparrow Industries, 847 F.2d 1458 (10th Cir. 1988) treated a magistrate judge's order striking pleadings and entering default as dispositive, requiring de novo review by the district judge. Courts have split on intermediate sanctions, such as preclusion orders that may decide a claim in practice, and many look to the effect of the sanction rather than its label. A party facing a severe sanction before a magistrate judge should consider asking that it be handled as a report and recommendation under Rule 72(b).

Appeals

Discovery orders, including sanctions, are usually reviewable only after final judgment under 28 U.S.C. § 1291. In Cunningham v. Hamilton County, 527 U.S. 198 (1999), a lawyer was sanctioned under Rule 37(a) and appealed immediately. The Supreme Court held that a sanctions order is not a collateral order subject to immediate appeal, even when the lawyer no longer represents the party, because the sanction is usually intertwined with the merits and allowing appeals would undermine the district court's management of the case. Similarly, Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009) held that disclosure orders adverse to the attorney-client privilege are not immediately appealable. Mohawk listed the alternatives: certification under 28 U.S.C. § 1292(b), mandamus under 28 U.S.C. § 1651 in extraordinary cases, or defying the order, incurring a sanction such as contempt, and appealing that. The last route is high risk. Mandamus is reserved for clear abuses; the Court's discussion in Cheney v. United States District Court, 542 U.S. 367 (2004) shows how unusual a discovery order must be to qualify. See Interlocutory Appeals and Mandamus: Getting Appellate Review Before Final Judgment.

On appeal from a final judgment, sanctions are reviewed for abuse of discretion, the same deferential standard the Court adopted for Rule 11 in Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990). NHL explains the deference. Reversals happen, but they tend to involve a missing predicate (no order, as in Daval), a failure to consider lesser sanctions, or a sanction unconnected to the withheld evidence.

Nonparties: Rule 45 enforcement

A nonparty is not subject to Rule 37(b)(2) or 37(d). Discovery from a nonparty is obtained by subpoena under Rule 45, and enforcement follows Rule 45's own path. The serving party may move to compel in the court for the district where compliance is required, and the order "must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance," Rule 45(d)(2)(B)(ii). That expense protection is mandatory and is one of the most underused tools on the nonparty's side. The compliance court may transfer the motion to the issuing court if the nonparty consents or exceptional circumstances exist, Rule 45(f), and either court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it, Rule 45(g).

A nonparty that agrees to production deadlines and then misses them can face serious consequences. The D.C. Circuit's decision in In re Fannie Mae Securities Litigation, 552 F.3d 814 (D.C. Cir. 2009) affirmed a contempt finding against a federal agency that had stipulated to a production schedule, spent more than $6 million on the effort (over 9 percent of its annual budget), and still failed to meet it. The court held that by agreeing to the schedule, the agency had given up its right to complain about the burden. For the nonparty side, see Rule 45 Subpoenas to Nonparties: Service, Objections, and Motions to Quash and Responding to a Third-Party Subpoena: A Practical Guide for Businesses.

Splits and open questions

Several questions recur without a uniform answer. A brief should identify which position its circuit and district have taken, and acknowledge the other side's best authority.

Is there a deadline for a motion to compel? Rule 37 sets none. Courts deny untimely motions under their case management authority, often when a motion is filed after the discovery cutoff or long after the party knew of the deficiency. Some districts set a fixed deadline by local rule, for example measured from the discovery cutoff. The safest assumption is that a motion should be filed before the close of discovery and promptly after the meet-and-confer process fails.

Does a waiver finding follow automatically from boilerplate? Fischer announced that noncompliant responses would be treated as waivers going forward, and Richmark states the waiver rule for untimely objections. Other courts treat waiver as discretionary and reserve it for bad faith or repeated violations, particularly where privilege is involved, as Burlington Northern illustrates.

How much warning is required before a terminating sanction? The Tenth Circuit treats warning as a factor; the Second Circuit treats it as important but not indispensable; other courts have affirmed dismissals without an express warning where the conduct was egregious. Courts generally agree that a warning is the best evidence that the court considered lesser sanctions.

What standard of proof applies? As noted, the Seventh Circuit applies a preponderance standard after Ramirez, while the D.C. Circuit requires clear and convincing evidence for inherent-power terminating sanctions. Other circuits are not uniform.

Does Haeger apply to Rule 37 fees? Haeger interpreted inherent power, but the rule's "caused by" language invites the same analysis. The open question is how strictly courts will separate fees for the motion from fees for downstream work, such as a deposition retaken because documents arrived late.

Can a party be sanctioned for its lawyer's discovery conduct without its knowledge? Link supports binding the client, Poulis and the Fifth Circuit's tests counsel caution, and courts often split the difference by sanctioning counsel monetarily and the client only with measures tied to the evidence.

When is a magistrate judge's sanction dispositive? Monetary and coercive sanctions are not; default and dismissal are. Preclusion orders that effectively decide a claim divide the courts.

Practical implications

For the requesting party

• Build the record before you need it. A sanctions motion is only as strong as the paper trail behind it: specific deficiency letters, a dated conference log, the court's orders and warnings, and the opponent's missed commitments.
• Climb the ladder in order. Get an order compelling specific discovery by a specific date before asking for Rule 37(b) sanctions. If the opponent served nothing at all, Rule 37(d) is available, but a court will still want to see a reasonable attempt to resolve the matter.
• Ask for fees every time. The text is mandatory. Asking consistently changes the opponent's incentives and builds a pattern a court can see.
• Match the sanction to the withheld evidence. Insurance Corp. of Ireland requires a sanction "specifically related" to the discovery at issue, and that framing makes judges more comfortable granting it.
• Read the judge's individual practices. Many disputes are lost on form: the wrong submission type, too many pages, no joint letter, or no pre-motion conference.

For the responding party

• Object specifically and say what you are withholding. Rules 33(b)(4) and 34(b)(2)(B)-(C) make generic objections a liability, not protection.
• Use a protective order motion instead of silence. Rule 37(d)(2) does not excuse a failure to respond because the discovery was objectionable unless a protective order motion is pending.
• Put burden in a declaration. Courts rarely credit burden arguments without facts: custodians, volumes, hit counts, vendor quotes, time estimates.
• If you are going to lose, concede early. Production after the motion is filed still triggers fees under Rule 37(a)(5)(A). Production before it does not.
• Document inability. Societe Internationale protects a party that genuinely cannot comply, but only with evidence of what it did to try.
• Separate lawyer and client interests when fees against counsel are sought. A lawyer facing personal sanctions should consider independent counsel.

Extended worked example: Arden Valve v. Kestrel Industrial

Arden Valve Company, an Ohio maker of industrial control valves, sues Kestrel Industrial Supply, LLC, a former distributor, in federal court for breach of a distribution agreement and misappropriation of pricing data. Arden alleges that Kestrel, in its final months as distributor, copied Arden's customer pricing files and used them to steer accounts to a competing manufacturer.

The responses. Arden serves twenty-five document requests and twelve interrogatories. Kestrel's responses are timely but follow the pattern described at the start of this article: the same five general objections incorporated into every response, a promise to produce "relevant, non-privileged documents" without saying when, no statement whether anything is withheld, and interrogatory answers that say "see documents to be produced." Kestrel produces 400 pages, mostly invoices.

The deficiency letter and conference. Arden's counsel sends a letter that goes request by request. For each, it quotes the request and response, explains why the response is deficient under Rule 34(b)(2)(B)-(C) or Rule 33(b)(4), proposes a narrowing where appropriate (for example, limiting custodians to five named employees and the date range to the final eighteen months of the relationship), and asks for a call. The call happens. Kestrel's counsel agrees to amend the responses within 21 days, to state whether anything is withheld, and to run search terms against the five custodians. Arden's counsel records the agreement in a confirming email the same day and keeps a log.

The motion. Twenty-one days pass. Kestrel serves amended responses that drop the general objections but still do not say whether anything is withheld on the burden objection to the pricing-file requests, and no email arrives. A second conference produces a promise to produce "soon." Arden follows the magistrate judge's individual practice, which requires a joint letter of no more than five pages per side. The letter lists three disputes: the withholding statement, the email production, and a complete answer to the interrogatory asking Kestrel to identify every customer to which it quoted a competitor's valves. Arden certifies its conferences under Rule 37(a)(1) and asks for fees.

The ruling. At a telephone conference, the magistrate judge orders Kestrel to serve a compliant written response within 14 days, to produce email from the five custodians within 30 days, and to answer the customer interrogatory fully under oath. The written order warns that "failure to comply may result in sanctions under Rule 37(b)(2)(A), including preclusion of evidence and an order that designated facts be taken as established." On fees, the magistrate judge finds Kestrel's position not substantially justified and awards Arden its fees for the joint letter and conference, but not for the meet-and-confer time, and directs a fee declaration.

The fee declaration. Arden's declaration attaches contemporaneous entries, segregates the 14.6 hours spent on the joint letter and hearing from earlier conference time, and supports its rates with evidence of local market rates. Kestrel objects to the rates but not the hours. The court awards the lodestar with a modest rate reduction. Kestrel does not file Rule 72(a) objections within 14 days, which forfeits any later challenge to the order.

The violation. Kestrel produces email from three of five custodians on day 30. Its interrogatory answer lists eleven customers. Arden's own investigation, and documents from a nonparty competitor obtained by subpoena, show at least nineteen. When Arden asks about the missing custodians, Kestrel says that one former employee's mailbox was deleted after his departure "under normal retention," and the other's laptop was "reimaged."

The sanctions motion. Arden now has three distinct problems, and its motion treats them separately:

1. The incomplete interrogatory answer violates the court's order. Arden asks under Rule 37(b)(2)(A)(i) that the court take as established that Kestrel quoted competitor valves to the nineteen customers, and under (ii) that Kestrel be precluded from offering evidence that it did not.
2. The unproduced custodial email for the employee whose laptop was reimaged after the litigation hold should have issued is a Rule 37(e) problem, not a 37(b) problem. Arden asks for curative measures, including permission to present evidence of the loss, and, if the court finds intent to deprive, an adverse inference.
3. The overall pattern, coupled with the earlier warning, supports fees under Rule 37(b)(2)(C) for the motion and for the nonparty subpoena that was needed only because Kestrel's answer was incomplete.

Arden does not ask for default. It explains why: under the Sixth Circuit's four factors in Harmon v. CSX Transportation, Inc., 110 F.3d 364 (6th Cir. 1997) and the general rule that lesser sanctions must be considered, a targeted establishment order is the sanction "specifically related" to the withheld information, and it gives Arden what the missing evidence would have shown.

The result. The district judge, hearing the motion herself because of its potential dispositive effect, grants the establishment and preclusion requests, finds prejudice but not intent to deprive on the email and permits Arden to present evidence and argument about the loss to the jury, and awards fees limited to those caused by the violations, applying Haeger's but-for logic to exclude Arden's general trial preparation. Kestrel's exposure on liability is now largely fixed. The parties settle within two months. The settlement discussion turned on the sanctions order, a common pattern discussed in Planning and Running a Litigation Settlement Negotiation: A Practical Guide.

What Kestrel could have done. Kestrel's position would have been far better if it had served specific objections with a withholding statement from the start, moved for a protective order on the pricing-file requests supported by a cost declaration, issued a litigation hold that reached departing employees' devices, and told the court promptly about the lost data rather than letting Arden discover it. Each of those steps either avoids a rung of the ladder or gives the court a reason to stop on a lower one.

If Kestrel had refused to participate at all, the next rung would have been default under Rule 37(b)(2)(A)(vi), with damages proved through the procedures discussed in Default and Default Judgment in Federal Court: Rules 55 and 60 and the Cost of Ignoring a Lawsuit.

Common mistakes

1. A perfunctory meet and confer. A single email followed by a motion risks denial and forfeits fees under Rule 37(a)(5)(A)(i).
2. Filing a motion about everything. A motion that challenges every response to every request signals that the movant has not prioritized. Judges respond to the three disputes that matter.
3. Moving for 37(b) sanctions without an order. Without a prior order, the motion fails unless Rule 37(d), (c), or (e) applies.
4. Asking for an unconnected sanction. A request for default because a party produced late damages documents invites a lesser sanction or a denial.
5. Ignoring the magistrate judge's order. Failing to object within 14 days under Rule 72(a) forfeits the objection, and failing to comply converts a discovery dispute into a sanctions dispute.
6. Boilerplate on the response side. General objections and "subject to" responses without a withholding statement violate Rule 34(b)(2)(C) and invite waiver.
7. No burden evidence. A proportionality or burden objection without a declaration is usually overruled.
8. A sloppy fee declaration. Block billing, no rate evidence, and time unconnected to the motion lead to reductions.
9. Self-help. Refusing to attend a deposition, rather than moving for a protective order, exposes a party to Rule 37(d) sanctions.
10. Hiding data loss. A party that conceals lost ESI turns a curable Rule 37(e)(1) problem into an intent question under 37(e)(2).

FAQ

Do I have to file a motion to compel before seeking sanctions? Usually, yes, because Rule 37(b) requires a prior order. The exceptions are Rule 37(d) (no-shows at depositions and complete failures to respond), Rule 37(c) (disclosure failures and failures to admit), and Rule 37(e) (lost ESI).

Is a fee award really mandatory? The text says "must," subject to three exceptions. Many judges exercise judgment through the "substantially justified" and "unjust" exceptions, and an award is far from automatic in practice, but a movant should always ask.

Can the court sanction my lawyer instead of me, or both of us? Yes. Rule 37(a)(5), (b)(2)(C), and (d)(3) all authorize awards against the party, the attorney advising the conduct, or both, and § 1927 reaches only attorneys.

How quickly must I object to a magistrate judge's discovery order? Within 14 days after being served with the order, under Rule 72(a). The district judge reviews for clear error or legal error.

Can I appeal a sanction immediately? Generally no. Cunningham holds that sanctions orders are not immediately appealable collateral orders, even against nonparty lawyers. Mandamus or § 1292(b) certification are rare exceptions.

What if foreign law forbids me from producing documents? Societe Internationale bars dismissal for genuine inability, but courts expect good-faith efforts, and Aerospatiale and Richmark show that foreign secrecy law is not a blanket excuse. For cross-border discovery tools, see Cross-Border Discovery Toolkit: 1782 Applications, Hague Requests, and Blocking Statute Analyses.

Can I compel a nonparty under Rule 37? Not directly. A nonparty's compliance is enforced under Rule 45 in the court for the district where compliance is required, with mandatory protection from significant expense and with contempt available under Rule 45(g).

Practical takeaways

• Rule 37 is a ladder. Climb it one rung at a time, and document each rung.
• The conference is a precondition, not a courtesy. Make it real and make a record.
• Rule 37(a)(4) makes evasive answers failures. Rules 33(b)(4) and 34(b)(2)(B)-(C) make generic objections and silent withholding liabilities.
• Fees are the most common sanction and the text is mandatory. Ask every time, and support the request with a clean declaration.
• Rule 37(b) sanctions require an order directed to the party, and the sanction must be just and specifically related to the withheld discovery.
• Terminating sanctions require willfulness, bad faith, or fault, consideration of lesser sanctions, and, in most circuits, attention to warnings and prejudice.
• Inherent power and § 1927 fill gaps, but Chambers, Degen, and Haeger require restraint, bad faith, and causation.
• Object to magistrate judge orders within 14 days, and expect to wait for final judgment to appeal.

For the step-by-step process of bringing or opposing the motion, see Bringing or Opposing a Motion to Compel Discovery: A Practical Guide. The task list is in the Motion to Compel and Rule 37 Sanctions Checklist: A Practical Checklist, and the forms are in the Discovery Enforcement Toolkit: Deficiency Letters, Meet-and-Confer Records, and Rule 37 Motions.

This document is general information, not legal advice for any particular situation. Local rules, individual judges' practices, and circuit law vary, and should be checked before any filing.

Related Documents

Related Articles

• Rule 11 and Inherent-Power Sanctions: The Safe Harbor, Fee Awards, and Attorney Conduct: the companion analysis of sanctions outside the discovery rules.
• Litigation Holds, Spoliation, and Rule 37(e): Preserving Electronic Evidence Before It Costs You the Case: the separate framework for lost ESI.
• A Practical Discovery Refresher: Mastering the Tools, Rules, and Pitfalls of Federal Civil Litigation: the discovery tools that Rule 37 enforces.
• Protective Orders, Confidentiality Designations, and Sealing: Secrecy and Its Limits in Federal Court: the responding party's Rule 26(c) alternative.
• Contempt and Enforcing Injunctions: Civil, Criminal, and What an Order Actually Compels: contempt as the top rung.
• Default and Default Judgment in Federal Court: Rules 55 and 60 and the Cost of Ignoring a Lawsuit: what happens after a default sanction.
• Motions in Limine: Strategy, Timing, and Preserving Error for Appeal: enforcing preclusion at trial.
• Interlocutory Appeals and Mandamus: Getting Appellate Review Before Final Judgment: the narrow routes to early review.

Related Guides

• Bringing or Opposing a Motion to Compel Discovery: A Practical Guide: the step-by-step companion to this article.
• Rule 37(c)(1) Preclusion of Undisclosed Evidence: A Practical Guide: the automatic exclusion rule for disclosure failures.
• Obtaining and Defending a Protective Order: A Practical Guide: the motion that protects a party from Rule 37(d).
• Responding to a Third-Party Subpoena: A Practical Guide for Businesses: the nonparty's side of Rule 45 enforcement.
• Collecting and Authenticating Messaging and Social Media Evidence: A Practical Guide: avoiding the chat-data losses that drive Rule 37(e) motions.

Related Checklists

• Motion to Compel and Rule 37 Sanctions Checklist: A Practical Checklist: every task in this article as a check-off list.
• Responding to Requests for Production Checklist: A Practical Checklist: responses that do not invite a motion.
• Preparing a Privilege Log: A Practical Checklist: logs that avoid waiver fights.
• Attorney Fee Petition and Bill of Costs Checklist: A Practical Checklist: proving the fee award.

Related Toolkits

• Discovery Enforcement Toolkit: Deficiency Letters, Meet-and-Confer Records, and Rule 37 Motions: templates for every rung of the ladder.
• Discovery Toolkit: A Roadmap and Resource Guide for Federal Discovery: a broad map of federal discovery resources.
• Cross-Border Discovery Toolkit: 1782 Applications, Hague Requests, and Blocking Statute Analyses: when the documents or the law are foreign.
• Order Enforcement Toolkit: Show Cause Motions, Contempt Briefing, and Sanctions: contempt papers when coercion is needed.