37 of the Federal Rules of Civil Procedure (FRCP, for short) empowers a court to impose several different types of sanctions for parties unable or unwilling to comply with lawful discovery orders and requests. For example, upon failure to abide by a court order (including one for discovery), Rule 37(b)(2)(A) allows a court to impose sanctions including:

(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;

(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;

(iii) striking pleadings in whole or in part;

(iv) staying further proceedings until the order is obeyed;

(v) dismissing the action or proceeding in whole or in part;

(vi) rendering a default judgment against the disobedient party; or

(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.

Other, similar provisions in state rules of evidence and civil procedure allow state courts to impose these types of sanctions in the same circumstances.

Continue reading below to learn about discovery sanctions, including what they prohibit, how to avoid them, and what forms they can take.


What Are Rule 37 Discovery Sanctions?

In short, discovery sanctions are punitive orders made by courts to correct or punish behavior by a party to a lawsuit who fails to live up to their discovery obligations. For example, a defendant might fail to preserve electronically stored information (ESI). Or, a plaintiff might fail to turn over documents that are relevant to the proceeding by an agreed-upon date.


Where Does The Power To Impose Sanctions Come From?

The power to impose sanctions comes from several different sources, depending on whether you’re in federal or state court, and depending on whether there is a procedural rule to cover your specific situation.

Federal Rules of Civil Procedure – Rule 37

For federal matters, the source of a court’s sanctioning powers derives from Rule 37 of the FRCP (sometimes referred to on the web as FRCP 37). That rule sets out the procedures for:

– Making a motion for discovery when an opposing party won’t comply with a request for discovery

-Imposing sanctions for failing to abide by a court order (like an order directing discovery made in response to a motion for discovery)

-Imposing sanctions for failing to disclose material relevant to a proceeding

-Imposing sanctions for failing to attend a deposition, answer interrogatories, or respond to a request for inspection

-Imposing sanctions for failing to preserve ESI

These detailed provisions set out when and how a court will step in to penalize a party to a lawsuit who fails to uphold their discovery obligations.

State Rules of Civil Procedure

Every state has its own rules of civil procedure. For example, the California Code of Civil Procedure (CCP, for short) sets out the rules in that state for civil actions. These state codes typically include sanctions for failing to abide by court orders relating to discovery and failing to live up to your discovery responsibilities.

Inherent Jurisdiction

All superior courts have inherent jurisdiction to control their own process. This allows superior courts to make orders and create rules that ensure:

-The fair and efficacious use of judicial proceedings

-Convenience and fairness in legal proceedings

-The prevention of abuses of process

-The effectiveness of superior and inferior courts and tribunals

Typically, courts don’t have to rely on the concept of inherent jurisdiction to make orders for discovery sanctions since they have FRCP 37 and equivalent state rules on which to rely.

Misuse of the Discovery Process

The discovery process can be used and abused in myriad ways. Generally speaking, you have both a duty to refrain from certain kinds of conduct and a duty to perform other actions, lest you find yourself on the receiving end of Rule 37 sanctions.

Active Misconduct

What we’ve called active misconduct refers to actions designed to frustrate the discovery process, or the litigation more generally, through the use of vexatious motions and requests for evidence.

Abusive Discovery

Abusive discovery refers to any discovery requests that could fairly be characterized as excessive or improper, or designed to “wear down” an opponent by way of increasing the costs associated with complying with the requests.

For example, sending a flood of complex and unnecessary interrogatories and deposition requests would count as abusive discovery.

Parties responding to discovery requests can also engage in abusive discovery. For instance, a party responding to a document request might send over thousands of pages containing only a few relevant pages of information.

Overbroad Requests

Overbroad discovery requests are a frequently encountered problem for lawyers involved in civil litigation. A litigation opponent might send over a boilerplate request for discovery that contains no (or very little) specific information about what evidence is actually sought. Requests seeking information like “all evidence relevant to the litigation” frequently arise when a party to the litigation is relying on outdated and ineffective precedent forms and failing to customize them to the action at hand.

While the FRCP permits you to object to a request like this, Rule 34(b)(2)(c) of the FRCP requires you to indicate if any relevant materials are being withheld on the basis of the objection and specify the part of the request you’re objecting to. You’re also required to specify the reason you’re objecting to the request.

In Fischer v. Forrest, a defendant was chastised for using boilerplate language in their objection to a request for discovery:

“Third, the responses to requests 1-2 stating that the requests are “overly broad and unduly burdensome” is meaningless boilerplate. Why is it burdensome? How is it overly broad? This language tells the Court nothing.”

The court also said:

“The December 1, 2015 amendments to the Federal Rules of Civil Procedure are now 15 months old. It is time for all counsel to learn the now-current Rules and update their “form” files. From now on in cases before this Court, any discovery response that does not comply with Rule 34’s requirement to state objections with specificity (and to clearly indicate whether responsive material is being withheld on the basis of objection) will be deemed a waiver of all objections (except as to privilege).”


It’s become clear that attorneys are expected to be competent in ediscovery if they take on cases involving ESI. A failure to be competent in the area could lead to serious errors in the handling of electronically stored information, sanctions against their client, or even the dismissal of their case or the awarding of a summary judgment against them.

The State Bar of California Standing Committee on Professional Responsibility and Conduct, Formal Opinion Interim No. 11-0004 sets out several tasks a lawyer must be capable of when dealing with e-discovery cases:

-initially assess e-discovery needs and issues, if any;

-implement/cause to implement appropriate ESI preservation procedures;

-analyze and understand a client’s ESI systems and storage;

-identify custodians of relevant ESI;

-perform data searches;

-collect responsive ESI in a manner that preserves the integrity of that ESI;

-advise the client on available options for collection and preservation of ESI;

-engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan;

-produce responsive ESI in a recognized and appropriate manner.

That Opinion also indicates that a lawyer must:

1. Acquire sufficient learning and skill before performance is required,

2. Associate with or consult technical consultants or competent counsel, or

3. Decline the client representation.

It’s equally clear that unfamiliarity with technology or the relative novelty of ediscovery will be no excuse if a lawyer is found to be ineffective or incompetent with respect to issues surrounding ESI and e-discovery. Rule 37 sanctions will likely follow in these circumstances.

Passive Misconduct

In addition to having a duty to refrain from undertaking predatory or abusive discovery, litigants have a duty to take active steps and participate fully in the discovery process. Since discovery is a cooperative enterprise, litigants must diligently preserve, find, and produce relevant evidence when it is requested.

Failure To Preserve

Litigants have a duty to preserve evidence, including ESI, once they reasonably contemplate litigation.

Failure to preserve evidence, and produce it when required, can result in costly and punitive sanctions. Consider the case of The Pension Committee of the University of Montreal Pension Plan et al. v. Banc of America Securities, LLC, 685 F.Supp.2d 456 (2010).

In an action that was concerned with hundreds of millions of dollars of alleged hedge fund losses the motions judge described the case thusly (on Page 463 of the judgment):

This is a case where plaintiffs failed to timely institute written litigation holds and engaged in careless and indifferent collection efforts after the duty to preserve arose. As a result, there can be little doubt that some documents were lost or destroyed.

As a result, some of the plaintiffs became subject to an adverse jury charge. All plaintiffs became responsible to pay monetary sanctions, including the defendant attorneys’ fees. This was due to what the judge described as the plaintiffs’ conducting “…discovery in an ignorant and indifferent fashion.” (Page 496.)

In the more egregious case of Victor Stanley, Inc. v. Creative Pipe, Inc. (Dist. Court, D. Maryland 2010), the judge entered default judgment on behalf of the plaintiff’s copyright infringement claim. The judge also required the defendant to pay the plaintiff’s attorney costs and fees. Interestingly, the judge held that the defendant’s failure to meet his discovery obligations was contempt of court, and ordered the defendant CEO imprisoned for a period no longer than two years if he failed to pay the plaintiff’s costs and fees. 

Failure To Search

Rule 34 of the FRCP obligates a party to litigation to search for and produce relevant evidence sought by another party to the litigation. A failure to conduct a reasonable search can result in sanctions being imposed by a court.

It’s important to note that there is no rule that says a request for production must include “search terms” or other technical criteria in order to be valid. All that matters is that the information sought is relevant and non-objectionable (for overbreadth, for example).

In Uehling v. Millennium Laboratories, Inc., Dist. Court, SD California 2017, a judge ruling on a discovery dispute between a former employee and employer wrote:

…[T]he Court is concerned that Defendants failed to satisfy their obligations under Rule 34. First, Defendants failed to state that they are withholding information based upon their objections. Of greater concern, and unlike the other RFPs, there clearly is information requested by this RFP that is relevant and non-objectionable. Non-privileged communications about Plaintiff’s job performance and about any complaints he expressed regarding the manner that Millennium conducted business, were and are discoverable. Defendants were obligated, under Rule 34, to produce this material. No sanctions will be imposed at this time, but counsel needs to refresh themselves regarding revised Rule 34.

Failure To Respond

A common tactic, especially for well-heeled litigants who can afford the quickly mounting costs of predatory discovery, is intentionally failing to respond to interrogatories in a timely fashion.

This issue was discussed in a Pennsylvania case that dealt with that state’s rules rather than Rule 37 of the FRCP. In any event, the principles were the same as those contained in Rule 37. In Solara Ventures IV, LLC v. PNC Bank the plaintiff’s responses to the defendant’s legitimate ediscovery requests were wildly contradictory and confusing. After the plaintiff failed to comply with a court order compelling the production of over 40,000 emails, the court dismissed the plaintiff’s claim, a sanction which was upheld by the state Supreme Court.


Types of Rule 37 Discovery Sanctions

There are several types of discovery sanctions judges may impose pursuant to Rule 37 when discovery rules are not complied with.

Monetary Sanctions (Costs)

One of the most common, and least serious, discovery sanctions is the imposition and awarding of costs against a party who has failed to comply with a court order, the FRCP, or any other rule regarding discovery.

While not specifically listed in Rule 37(b)(2)(A), the awarding of costs is permitted by Rule 37(d)(3), which states:

Sanctions may include any of the orders listed in Rule 37(b)(2)(A)(i)—(vi). Instead of or in addition to these sanctions, the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.

Due to the nature of complicated civil proceedings, these cost awards can quickly become substantial. In the case of In re Tutu Wells Contamination Litigation, 120 F. 3d 368, a defendant’s attorney was required to pay $120,000 to the plaintiff for miscellaneous discovery misconduct (other monetary and disciplinary sanctions were vacated on appeal).

In the even more egregious case of United States v. Philip Morris USA, Inc., 327 F. Supp. 2d 21, the defendant tobacco company was required to pay $2,750,000 to the Court Registry after a series of failures to preserve electronically stored information and comply with court orders. At page 25, the court wrote:

In short, it is astounding that employees at the highest corporate level in Philip Morris, with significant responsibilities pertaining to issues in this lawsuit, failed to follow Order # 1, the document retention policies of their own employer, and, in particular, the “print and retain” policy which, if followed, would have ensured the preservation of those emails which have been irretrievably lost. Moreover, it must be noted that Philip Morris is a particularly sophisticated corporate litigant which has been involved in hundreds, and more likely thousands, of smoking-related lawsuits.

Evidentiary Rulings

In addition to costs, courts can impose evidentiary rulings on the parties to litigation that impairs, or even eliminates, their ability to successfully prosecute or defend an action. We refer here to the sanctions described in Rule 37(b)(2)(A)(i)-(ii):

(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;

(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;

These kinds of sanctions, depending on their scope, can all but determine the course of an action.

In Serra Chevrolet, Inc. v. General Motors Corp, 446 F. 3d 1137, the Court of Appeals for the 11th circuit reversed wide-ranging evidentiary sanctions against the defendant for failing to comply with a number of court orders and discovery deadlines. Although the sanctions were ultimately reversed, the case highlights the risk one runs when violating discovery rules and orders.

Adverse Inferences

An adverse inference is a jury instruction in which the jury is told they are to infer, from a party’s failure to produce evidence, that the lost evidence would have proved a fact in issue for the benefit of the other side. For example, a jury might be instructed to infer that lost emails would have proved the use of proprietary technology in a patent case.

In Mosaid Technologies, Inc. v. Samsung Electronics Co., 348 F. Supp. 2d 332, the plaintiff was granted the benefit of an adverse inference instruction after the defendant failed to produce a single technical email in response to the plaintiff’s reasonable discovery requests. This was despite the court finding that the defendant had acted merely negligently and not in bad faith.

Default Judgment

Default judgment (or the striking out of pleadings) are among the most severe sanctions a court can craft in response to discovery abuses. Also referred to as “terminating sanctions,” they effectively end the litigation, subject only to successful appeal.

In Electronic Funds Solutions v. Murphy, 36 Cal. Rptr. 3d 663, the appellate court upheld the terminating sanctions imposed by the trial court for the failure to produce ESI and the intentional destruction of data by the defendants. In this case, the defendants also made misrepresentations to the court. The trial court struck the defendant’s answer and ordered the entry of default judgment.


Factors Courts Will Consider When Crafting Rule 37 Sanctions

A court will not automatically impose sanctions when a party to litigation loses or destroys evidence. The party who was seeking the evidence that’s been lost must show both that the evidence in question was relevant to their case and that it’s loss caused them to suffer prejudice.

Relevance of the Evidence Lost

In order to make out a case for sanctions under FRCP 37, the moving party (the party that’s bringing a motion for sanctions) must demonstrate that the evidence was relevant to their case. 

In most courts, they don’t need to go as far as showing that the evidence was relevant according to the standard set out in Rule 401 of the Federal Rules of Evidence. However, they do need to show that the lost evidence “would have supported [their] claims or defenses…” (Thompson v. U.S. Dep’t of Hous. & Urban Dev., 219 F.R.D. 93, 100)

The more relevant the evidence, the more likely it is that a court will impose sanctions on the offending party, and the more likely it is that the sanction will be of a more serious type or greater amount.

Prejudice to Another Party

The moving party also needs to show that it suffered prejudice as a result of the failure of the other side to preserve, find, or produce evidence. Prejudice occurs when a party’s ability to prosecute or defend an action is compromised by the actions of another party.

The degree of prejudice can vary significantly, from barely present to substantial. The greatest degree of prejudice is suffered when a party can no longer successfully defend or prosecute an action because of the loss of evidence occasioned by the other side.

The greater the prejudice suffered by the moving party, the greater the likelihood that a court will impose sanctions. It also becomes more likely that a court will impose more serious sanctions.

Willfulness of the Breach

In the previously cited case of Victor Stanley, Inc. v. Creative Pipe Inc. the judge undertakes a broad analysis of the state of mind (also called mens rea, in legal terminology) a claimant must prove in order to warrant a sanction. The judge in this case notes three categories that come up often in the jurisprudence: willfulness, gross negligence, and negligence.

Negligent Conduct

Negligent conduct can be referred to as “culpable carelessness.” This is conduct that departs from the standard of care a reasonable person would exercise in a particular set of circumstances. The “reasonable person” standard becomes extremely important in this analysis, as it sets the bar for what you’re expected to do in the event of litigation.

Grossly Negligent Conduct

Grossly negligent conduct is different from simple negligence, but only in degree, not in kind. In other words, it can also be described as carelessness but would be found only in cases where that carelessness was particularly marked. For example, failing entirely to impose a litigation hold after being served with a lawsuit could, sometimes, qualify as grossly negligent.

Willful/Intentional Conduct

Willful conduct refers to actions intentionally taken. For example, the intentional deletion of emails would count as willful conduct. It’s important to note that willful conduct doesn’t imply a motive. So if an employee intentionally deletes emails relevant to a lawsuit, but does so for a reason unconnected with that lawsuit, the behavior could be seen as willful but not an example of bad faith.

A Note About Bad Faith

Bad faith conduct in this context refers to any behavior designed to disrupt or defeat the course of litigation. For example, an employee who deletes emails that are damaging to his employer’s case in an attempt to prevent the emails from coming to light would be engaging in bad faith behavior.

Courts frequently conflate evidence of willfulness with evidence of bad faith, although the two actually refer to significantly different states of mind.

Generally speaking, courts will become more likely to impose Rule 37 discovery sanctions as we move down the above list. Negligent conduct is less deserving of sanction than grossly negligent conduct. Grossly negligent conduct is less deserving of sanction than wilful conduct. And bad faith conduct is most deserving of sanction.

A Note About the “Safe Harbor Provision”

Rule 37(3) of the FRCP sets out that:

If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or

(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:

      (A) presume that the lost information was unfavorable to the party;

      (B) instruct the jury that it may or must presume the information was unfavorable to the party; or

      (C) dismiss the action or enter a default judgment.

Note that the provision effectively prohibits the imposition of sanctions where ESI is lost in circumstances where the party did not fail to take reasonable steps to preserve it. In other words, only when a party fails to take reasonable steps to preserve information, that information is lost, and that information cannot be replaced, will sanctions be imposed.

This rule, imposed in 2015, replaced the one implemented in 2006, which read:

Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

The old provision led to some confusion about how to handle reasonable mistakes made by reasonable people that were not caused by the “operation of an electronic information system.” The new provision aims to reduce or eliminate that confusion.



Rule 37 of the FRCP gives courts wide latitude to craft appropriate sanctions for virtually all conceivable forms of discovery abuse. And while the list of situations that will give rise to the implementation of sanctions is as varied as it is long, you can avoid Rule 37 sanctions entirely by simply abiding by the Federal Rules of Civil Procedure. 


Read more on eDiscovery Law and Sanctions:

FRCP 26: The Scope of Discovery

Bad Timing Blocks Sanctions Over Discovery in Lawsuit Likely to Revolve Around Bad Timing

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