Federal Rule of Civil Procedure 37 lets a federal court impose Rule 37 discovery sanctions on a party that fails to disclose information, fails to respond to discovery requests, or disobeys a court order compelling discovery. The penalties run from paying the other side’s attorney fees to having evidence excluded, claims struck, or the case dismissed outright. People sometimes search for “Order 37,” but there is no rule by that name in federal practice; the phrase usually refers either to Rule 37 itself or to the specific order a judge enters under it.
What Conduct Triggers Rule 37
Four kinds of discovery failure open the door to sanctions.
The first is failing to make the initial disclosures required by Rule 26(a), which obligates every party to hand over the names of people with relevant knowledge and copies or descriptions of key documents at the start of a case, without waiting for a request.1Legal Information Institute. Federal Rules of Civil Procedure Rule 26 – Duty to Disclose; General Provisions Governing Discovery
The second is failing to respond to formal discovery: not answering interrogatories, not producing requested documents, not allowing inspection of property.2Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions Going silent is worse than objecting. A party that objects is engaging with the process; a party that ignores the request entirely exposes itself to immediate sanctions under Rule 37(d) without the other side first having to obtain a court order.
The third is failing to appear for a properly noticed deposition. Rule 37(d) treats a no-show the same as a complete failure to respond in writing, and it specifically says that having objections to the deposition is not a valid excuse for skipping it unless the party has filed a motion for a protective order.2Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
The fourth is failing to supplement. Rule 26(e) requires you to update disclosures and responses when you learn new information. If a prior answer becomes incomplete or a new document surfaces, you have a duty to correct the record, and failing to do so triggers Rule 37(c)(1).2Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
The Motion to Compel
For most discovery disputes, sanctions begin with a motion to compel. This motion asks the court to order the other side to produce what has been requested.2Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions Courts want to see that the parties tried to resolve the issue on their own first.
The Meet-and-Confer Requirement
Every motion to compel must include a written certification that the moving party genuinely tried to work things out before filing.2Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions A boilerplate line will not do. Many districts require specifics: date, method, what was said, and why the effort broke down. Local rules vary, so check the rules for your district before filing.
When You Can Skip the Compel Step
Rule 37(d) carves out an exception for the most egregious failures. If a party completely fails to appear at its own deposition, or completely fails to serve any response to interrogatories or document requests, the other side can move directly for sanctions, including the severe penalties in Rule 37(b), without first getting an order to compel.2Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions If a party refuses to participate at all, there is nothing for a compel order to fix. The meet-and-confer certification is still required.
Who Pays for the Motion
If the court grants a motion to compel, it must order the non-compliant party, the attorney who advised the noncompliance, or both to pay the moving party’s reasonable expenses, including attorney fees.2Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions The word “must” matters. Fee shifting is the default, not the exception. The court can withhold the award only if the noncompliance was substantially justified, the moving party did not meet and confer in good faith, or other circumstances make the award unjust. The same rule runs in reverse: if the motion is denied, the party that filed it can be ordered to pay the opposing side’s costs of resisting it.
Automatic Exclusion of Undisclosed Evidence
One of the most consequential sanctions in Rule 37 operates automatically. Under Rule 37(c)(1), a party that fails to make an initial disclosure or fails to supplement a prior response cannot use the undisclosed witness or information at a hearing, on a motion, or at trial.2Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions Exclusion is the default. The court will let the evidence in only if the failure was substantially justified or harmless.
This is where cases are quietly won and lost. A party that identifies a key witness late but fails to disclose that person may find the witness barred from testifying entirely. The court can also add penalties on top of exclusion, including ordering payment of expenses caused by the failure, informing the jury about it, or imposing any of the sanctions listed in Rule 37(b).2Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
Sanctions for Disobeying a Discovery Order
The harshest sanctions come into play when a party violates a court order compelling discovery. Rule 37(b)(2)(A) gives the court an escalating menu:2Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
- Directing that designated facts be taken as established for the rest of the case, as the other party claims them to be.
- Prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated evidence.
- Striking pleadings in whole or in part.
- Staying further proceedings until the order is obeyed.
- Dismissing the action in whole or in part.
- Rendering a default judgment against the disobedient party.
- Treating the failure as contempt of court, except for orders to submit to a physical or mental examination.
On top of any of those, the court must also order the disobedient party or its attorney to pay the reasonable expenses, including attorney fees, caused by the failure, unless the failure was substantially justified or an award would be unjust.2Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
Dismissal and default are reserved for extreme situations. Courts generally impose the least severe sanction that will do the job, working up from warnings and fee-shifting to evidentiary limits, and reaching case-ending sanctions only for repeated or willful violations. A judge who jumps straight to dismissal without weighing lesser options risks reversal.
The Substantial Justification Safety Valve
“Substantially justified” runs throughout Rule 37. A party can avoid sanctions by showing its position had a reasonable basis in fact and law, even if the court disagreed with that position. The bar is not high; the party does not have to have been right, only to have had a genuine legal footing. Courts can also deny sanctions when other circumstances would make an award unjust, a catch-all that allows judges to soften rigid enforcement when fairness requires it.
Attorneys Are on the Hook Too
Rule 37 names attorneys as potential payors alongside their clients. When a party fails to obey a discovery order or loses a motion to compel, the court must order the party, the attorney advising the party, or both to pay the opposing side’s reasonable expenses.2Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions The reason is practical: discovery failures often trace back to counsel’s advice.
In practice, courts sometimes split the award between lawyer and client based on who was responsible. An attorney who told the client to withhold documents faces a different calculation than a client who ignored counsel’s repeated instructions to produce them. The award can be substantial because it covers not just the sanctions motion itself but all reasonable expenses caused by the underlying failure.
Lost Electronic Evidence Under Rule 37(e)
Rule 37(e) addresses the loss of electronically stored information: emails, texts, databases, and similar records. It applies when three conditions are met: the information should have been preserved for anticipated or pending litigation, it was lost because the party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery.2Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
Once those thresholds are met, the rule creates two tiers of remedy that turn on state of mind. If the loss prejudiced the other party but there was no intent to deprive, the court may order measures no greater than necessary to cure the prejudice, such as additional depositions or evidence about the loss. If the court finds the party acted with the intent to deprive the other side of the information, it may presume the lost information was unfavorable, instruct the jury to draw that presumption, or dismiss the case.2Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
The intent-to-deprive prong is powerful because it does not require a separate showing of prejudice. If the destruction was deliberate, the harshest remedies are available regardless of whether the other side can prove specific harm.
The duty to preserve does not begin when a lawsuit is filed. Under federal common law, the obligation attaches when litigation becomes reasonably foreseeable, which can be as early as a demand letter or a regulatory inquiry. Rule 37(e) itself does not define when the duty starts; it defers to existing law. When the duty attaches, the party is expected to issue a litigation hold telling employees and IT staff to stop routine deletion of potentially relevant electronic information. Skipping that step is the kind of failure to take reasonable steps that satisfies Rule 37(e)’s threshold.
Non-Parties Are Governed by Rule 45, Not Rule 37
Rule 37 governs parties. Witnesses, businesses, and other entities that receive a subpoena are covered by Rule 45. The court where compliance is required can compel a non-party to produce documents or testify and can impose sanctions on a party or attorney who issues an unduly burdensome subpoena.3Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena Non-parties get protection from significant expense that the rules do not extend as broadly to the parties themselves.
Challenging a Sanctions Order
Most discovery disputes are handled by magistrate judges, not the district judge assigned to the case. Under Federal Rule 72(a), a party that disagrees with a magistrate judge’s discovery ruling has 14 days to file objections with the district judge. Miss that window and the right to challenge is waived. The district judge reviews under a deferential standard, overturning only for rulings that are clearly erroneous or contrary to law. Local rules often add formatting and length requirements, so check them for the specific district.
Sanctions that effectively end the case, such as dismissal or default judgment, are typically treated as dispositive and eventually appealable as final judgments. Lesser sanctions like fee awards or evidentiary restrictions are generally reviewable only after the case concludes, unless they involve a collateral issue affecting someone other than the parties. For most parties, that reality means compliance is far cheaper than resistance.