Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
TITLE V. DISCLOSURES AND DISCOVERY
Rule 26. Duty to Disclose; General Provisions
Governing Discovery
(a) Required Disclosures.
(1) Initial Disclosure.
(A) In General. Except as exempted by Rule
26(a)(1)(B) or as otherwise stipulated or
ordered by the court, a party must, without
awaiting a discovery request, provide to the
other parties:
(i) the name and, if known, the address
and telephone number of each
individual likely to have discoverable
information — along with the subjects
of that information — that the
disclosing party may use to support its
claims or defenses, unless the use
would be solely for impeachment;
(ii) a copy — or a description by category
and location — of all documents,
electronically stored information, and
tangible things that the disclosing party
has in its possession, custody, or control
and may use to support its claims or
defenses, unless the use would be solely
for impeachment;
(iii) a computation of each category of
damages claimed by the disclosing
party — who must also make available
for inspection and copying as under
Rule 34 the documents or other
evidentiary material, unless privileged
or protected from disclosure, on which
each computation is based, including
materials bearing on the nature and
extent of injuries suffered; and
(iv) for inspection and copying as under
Rule 34, any insurance agreement
under which an insurance business may
be liable to satisfy all or part of a
possible judgment in the action or to
indemnify or reimburse for payments
made to satisfy the judgment.
(B) Proceedings Exempt from Initial Disclosure.
The following proceedings are exempt from
initial disclosure:
(i) an action for review on an
administrative record;
(ii) a petition for habeas corpus or any
other proceeding to challenge a criminal
conviction or sentence;
(iii) an action brought without an attorney
by a person in the custody of the United
States, a state, or a state subdivision;
(iv) an action to enforce or quash an
administrative summons or subpoena;
(v) an action by the United States to
recover benefit payments;
(vi) an action by the United States to collect
on a student loan guaranteed by the
United States;
(vii) a proceeding ancillary to a proceeding
in another court; and
(viii) an action to enforce an arbitration
award.
(C) Time for Initial Disclosures — In General. A
party must make the initial disclosures at or
within 14 days after the parties' Rule 26(f)
conference unless a different time is set by
stipulation or court order, or unless a party
objects during the conference that initial
disclosures are not appropriate in this
action and states the objection in the
proposed discovery plan. In ruling on the
objection, the court must determine what
disclosures, if any, are to be made and must
set the time for disclosure.
(D) Time for Initial Disclosures — For Parties
Served or Joined Later. A party that is first
served or otherwise joined after the Rule
26(f) conference must make the initial
disclosures within 30 days after being
served or joined, unless a different time is
set by stipulation or court order.
(E) Basis for Initial Disclosure; Unacceptable
Excuses. A party must make its initial
disclosures based on the information then
reasonably available to it. A party is not
excused from making its disclosures because
it has not fully investigated the case or
because it challenges the sufficiency of
another party's disclosures or because
another party has not made its disclosures.
(2) Disclosure of Expert Testimony.
(A) In General. In addition to the disclosures
required by Rule 26(a)(1), a party must
disclose to the other parties the identity of
any witness it may use at trial to present
evidence under Federal Rule of Evidence
702, 703, or 705.
(B) Written Report. Unless otherwise stipulated
or ordered by the court, this disclosure must
be accompanied by a written report —
prepared and signed by the witness — if the
witness is one retained or specially
employed to provide expert testimony in the
case or one whose duties as the party's
employee regularly involve giving expert
testimony. The report must contain:
(i) a complete statement of all opinions the
witness will express and the basis and
reasons for them;
(ii) the data or other information
considered by the witness in forming
them;
(iii) any exhibits that will be used to
summarize or support them;
(iv) the witness's qualifications, including a
list of all publications authored in the
previous ten years;
(v) a list of all other cases in which, during
the previous four years, the witness
testified as an expert at trial or by
deposition; and
(vi) a statement of the compensation to be
paid for the study and testimony in the
case.
(C) Time to Disclose Expert Testimony. A party
must make these disclosures at the times
and in the sequence that the court orders.
Absent a stipulation or a court order, the
disclosures must be made:
(i) at least 90 days before the date set for
trial or for the case to be ready for trial;
or
(ii) if the evidence is intended solely to
contradict or rebut evidence on the
same subject matter identified by
another party under Rule 26(a)(2)(B),
within 30 days after the other party's
disclosure.
(D) Supplementing the Disclosure. The parties
must supplement these disclosures when
required under Rule 26(e).
(3) Pretrial Disclosures.
(A) In General. In addition to the disclosures
required by Rule 26(a)(1) and (2), a party
must provide to the other parties and
promptly file the following information
about the evidence that it may present at
trial other than solely for impeachment:
(i) the name and, if not previously
provided, the address and telephone
number of each witness — separately
identifying those the party expects to
present and those it may call if the need
arises;
(ii) the designation of those witnesses
whose testimony the party expects to
present by deposition and, if not taken
stenographically, a transcript of the
pertinent parts of the deposition; and
(iii) an identification of each document or
other exhibit, including summaries of
other evidence — separately identifying
those items the party expects to offer
and those it may offer if the need arises.
(B) Time for Pretrial Disclosures; Objections.
Unless the court orders otherwise, these
disclosures must be made at least 30 days
before trial. Within 14 days after they are
made, unless the court sets a different time,
a party may serve and promptly file a list of
the following objections: any objections to
the use under Rule 32(a) of a deposition
designated by another party under Rule
26(a)(3)(A)(ii); and any objection, together
with the grounds for it, that may be made to
the admissibility of materials identified
under Rule 26(a)(3)(A)(iii). An objection not
so made — except for one under Federal
Rule of Evidence 402 or 403 — is waived
unless excused by the court for good cause.
(4) Form of Disclosures. Unless the court orders
otherwise, all disclosures under Rule 26(a) must
be in writing, signed, and served.
(b) Discovery Scope and Limits.
(1) Scope in General.
Unless otherwise limited by
court order, the scope of discovery is as follows:
Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any
party's claim or defense — including the
existence, description, nature, custody, condition,
and location of any documents or other tangible
things and the identity and location of persons
who know of any discoverable matter. For good
cause, the court may order discovery of any
matter relevant to the subject matter involved in
the action. Relevant information need not be
admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of
admissible evidence. All discovery is subject to
the limitations imposed by Rule 26(b)(2)(C).
(2) Limitations on Frequency and Extent.
(A) When Permitted. By order, the court may
alter the limits in these rules on the number
of depositions and interrogatories or on the
length of depositions under Rule 30. By
order or local rule, the court may also limit
the number of requests under Rule 36.
(B) Specific Limitations on Electronically Stored
Information. A party need not provide
discovery of electronically stored
information from sources that the party
identifies as not reasonably accessible
because of undue burden or cost. On motion
to compel discovery or for a protective order,
the party from whom discovery is sought
must show that the information is not
reasonably accessible because of undue
burden or cost. If that showing is made, the
court may nonetheless order discovery from
such sources if the requesting party shows
good cause, considering the limitations of
Rule 26(b)(2)(C). The court may specify
conditions for the discovery.
(C) When Required. On motion or on its own,
the court must limit the frequency or extent
of discovery otherwise allowed by these
rules or by local rule if it determines that:
(i) the discovery sought is unreasonably
cumulative or duplicative, or can be
obtained from some other source that is
more convenient, less burdensome, or
less expensive;
(ii) the party seeking discovery has had
ample opportunity to obtain the
information by discovery in the action;
or
(iii) the burden or expense of the proposed
discovery outweighs its likely benefit,
considering the needs of the case, the
amount in controversy, the parties'
resources, the importance of the issues
at stake in the action, and the
importance of the discovery in resolving
the issues.
(3) Trial Preparation: Materials.
(A) Documents and Tangible Things.
Ordinarily, a party may not discover
documents and tangible things that are
prepared in anticipation of litigation or for
trial by or for another party or its
representative (including the other party's
attorney, consultant, surety, indemnitor,
insurer, or agent). But, subject to Rule
26(b)(4), those materials may be discovered
if:
(i) they are otherwise discoverable under
Rule 26(b)(1); and
(ii) the party shows that it has substantial
need for the materials to prepare its
case and cannot, without undue
hardship, obtain their substantial
equivalent by other means.
(B) Protection Against Disclosure. If the court
orders discovery of those materials, it must
protect against disclosure of the mental
impressions, conclusions, opinions, or legal
theories of a party's attorney or other
representative concerning the litigation.
(C) Previous Statement. Any party or other
person may, on request and without the
required showing, obtain the person's own
previous statement about the action or its
subject matter. If the request is refused, the
person may move for a court order, and Rule
37(a)(5) applies to the award of expenses. A
previous statement is either:
(i) a written statement that the person has
signed or otherwise adopted or
approved; or
(ii) a contemporaneous stenographic,
mechanical, electrical, or other
recording — or a transcription of it —
that recites substantially verbatim the
person's oral statement.
(4) Trial Preparation: Experts.
(A) Expert Who May Testify. A party may
depose any person who has been identified
as an expert whose opinions may be
presented at trial. If Rule 26(a)(2)(B)
requires a report from the expert, the
deposition may be conducted only after the
report is provided.
(B) Expert Employed Only for Trial Preparation. Ordinarily, a party may not, by
interrogatories or deposition, discover facts
known or opinions held by an expert who
has been retained or specially employed by
another party in anticipation of litigation or
to prepare for trial and who is not expected
to be called as a witness at trial. But a
party may do so only:
(i) as provided in Rule 35(b); or
(ii) on showing exceptional circumstances
under which it is impracticable for the
party to obtain facts or opinions on the
same subject by other means.
(C) Payment. Unless manifest injustice would
result, the court must require that the party
seeking discovery:
(i) pay the expert a reasonable fee for time
spent in responding to discovery under
Rule 26(b)(4)(A) or (B); and
(ii) for discovery under (B), also pay the
other party a fair portion of the fees and
expenses it reasonably incurred in
obtaining the expert's facts and
opinions.
(5) Claiming Privilege or Protecting Trial-
Preparation Materials.
(A) Information Withheld. When a party
withholds information otherwise
discoverable by claiming that the
information is privileged or subject to
protection as trial-preparation material, the
party must:
(i) expressly make the claim; and
(ii) describe the nature of the documents,
communications, or tangible things not
produced or disclosed — and do so in a
manner that, without revealing
information itself privileged or
protected, will enable other parties to
assess the claim.
(B) Information Produced. If information
produced in discovery is subject to a claim of
privilege or of protection as trial preparation
material, the party making the
claim may notify any party that received the
information of the claim and the basis for it.
After being notified, a party must promptly
return, sequester, or destroy the specified
information and any copies it has; must not
use or disclose the information until the
claim is resolved; must take reasonable
steps to retrieve the information if the party
disclosed it before being notified; and may
promptly present the information to the
court under seal for a determination of the
claim. The producing party must preserve
the information until the claim is resolved.
(c) Protective Orders.
(1) In General.
A party or any person from whom
discovery is sought may move for a protective
order in the court where the action is pending —
or as an alternative on matters relating to a
deposition, in the court for the district where the
deposition will be taken. The motion must
include a certification that the movant has in
good faith conferred or attempted to confer with
other affected parties in an effort to resolve the
dispute without court action. The court may, for
good cause, issue an order to protect a party or
person from annoyance, embarrassment,
oppression, or undue burden or expense,
including one or more of the following:
(A) forbidding the disclosure or discovery;
(B) specifying terms, including time and place,
for the disclosure or discovery;
(C) prescribing a discovery method other than
the one selected by the party seeking
discovery;
(D) forbidding inquiry into certain matters, or
limiting the scope of disclosure or discovery
to certain matters;
(E) designating the persons who may be present
while the discovery is conducted;
(F) requiring that a deposition be sealed and
opened only on court order;
(G) requiring that a trade secret or other
confidential research, development, or
commercial information not be revealed or
be revealed only in a specified way; and
(H) requiring that the parties simultaneously
file specified documents or information in
sealed envelopes, to be opened as the court
directs.
(2) Ordering Discovery. If a motion for a
protective order is wholly or partly denied, the
court may, on just terms, order that any party or
person provide or permit discovery.
(3) Awarding Expenses. Rule 37(a)(5) applies to
the award of expenses.
(d) Timing and Sequence of Discovery.
(1) Timing.
A party may not seek discovery from
any source before the parties have conferred as
required by Rule 26(f), except in a proceeding
exempted from initial disclosure under Rule
26(a)(1)(B), or when authorized by these rules,
by stipulation, or by court order.
(2) Sequence. Unless, on motion, the court orders
otherwise for the parties' and witnesses'
convenience and in the interests of justice:
(A) methods of discovery may be used in any
sequence; and
(B) discovery by one party does not require any
other party to delay its discovery.
(e) Supplementing Disclosures and Responses.
(1) In General.
A party who has made a disclosure
under Rule 26(a) — or who has responded to an
interrogatory, request for production, or request
for admission — must supplement or correct its
disclosure or response:
(A) in a timely manner if the party learns that
in some material respect the disclosure or
response is incomplete or incorrect, and if
the additional or corrective information has
not otherwise been made known to the other
parties during the discovery process or in
writing; or
(B) as ordered by the court.
(2) Expert Witness. For an expert whose report
must be disclosed under Rule 26(a)(2)(B), the
party's duty to supplement extends both to
information included in the report and to
information given during the expert's deposition.
Any additions or changes to this information
must be disclosed by the time the party's pretrial
disclosures under Rule 26(a)(3) are due.
(f) Conference of the Parties; Planning for
Discovery.
(1) Conference Timing.
Except in a proceeding
exempted from initial disclosure under Rule
26(a)(1)(B) or when the court orders otherwise,
the parties must confer as soon as practicable —
and in any event at least 21 days before a
scheduling conference is to be held or a
scheduling order is due under Rule 16(b).
(2) Conference Content; Parties'
Responsibilities. In conferring, the parties
must consider the nature and basis of their
claims and defenses and the possibilities for
promptly settling or resolving the case; make or
arrange for the disclosures required by Rule
26(a)(1); discuss any issues about preserving
discoverable information; and develop a proposed
discovery plan. The attorneys of record and all
unrepresented parties that have appeared in the
case are jointly responsible for arranging the
conference, for attempting in good faith to agree
on the proposed discovery plan, and for
submitting to the court within 14 days after the
conference a written report outlining the plan.
The court may order the parties or attorneys to
attend the conference in person.
(3) Discovery Plan. A discovery plan must state
the parties' views and proposals on:
(A) what changes should be made in the timing,
form, or requirement for disclosures under
Rule 26(a), including a statement of when
initial disclosures were made or will be
made;
(B) the subjects on which discovery may be
needed, when discovery should be
completed, and whether discovery should be
conducted in phases or be limited to or
focused on particular issues;
(C) any issues about disclosure or discovery of
electronically stored information, including
the form or forms in which it should be
produced;
(D) any issues about claims of privilege or of
protection as trial-preparation materials,
including — if the parties agree on a
procedure to assert these claims after
production — whether to ask the court to
include their agreement in an order;
(E) what changes should be made in the
limitations on discovery imposed under
these rules or by local rule, and what other
limitations should be imposed; and
(F) any other orders that the court should issue
under Rule 26(c) or under Rule 16(b) and (c).
(4) Expedited Schedule. If necessary to comply
with its expedited schedule for Rule 16(b)
conferences, a court may by local rule:
(A) require the parties' conference to occur less
than 21 days before the scheduling
conference is held or a scheduling order is
due under Rule 16(b); and
(B) require the written report outlining the
discovery plan to be filed less than 14 days
after the parties' conference, or excuse the
parties from submitting a written report
and permit them to report orally on their
discovery plan at the Rule 16(b) conference.
(g) Signing Disclosures and Discovery Requests,
Responses, and Objections.
(1) Signature Required; Effect of Signature.
Every disclosure under Rule 26(a)(1) or (a)(3)
and every discovery request, response, or
objection must be signed by at least one attorney
of record in the attorney's own name — or by the
party personally, if unrepresented — and must
state the signer's address, e-mail address, and
telephone number. By signing, an attorney or
party certifies that to the best of the person's
knowledge, information, and belief formed after
a reasonable inquiry:
(A) with respect to a disclosure, it is complete
and correct as of the time it is made; and
(B) with respect to a discovery request,
response, or objection, it is:
(i) consistent with these rules and
warranted by existing law or by a
nonfrivolous argument for extending,
modifying, or reversing existing law, or
for establishing new law;
(ii) not interposed for any improper
purpose, such as to harass, cause
unnecessary delay, or needlessly
increase the cost of litigation; and
(iii) neither unreasonable nor unduly
burdensome or expensive, considering
the needs of the case, prior discovery in
the case, the amount in controversy,
and the importance of the issues at
stake in the action.
(2) Failure to Sign. Other parties have no duty to
act on an unsigned disclosure, request, response,
or objection until it is signed, and the court must
strike it unless a signature is promptly supplied
after the omission is called to the attorney's or
party's attention.
(3) Sanction for Improper Certification. If a
certification violates this rule without
substantial justification, the court, on motion or
on its own, must impose an appropriate sanction
on the signer, the party on whose behalf the
signer was acting, or both. The sanction may
include an order to pay the reasonable expenses,
including attorney's fees, caused by the violation.
(1) Petition. A person who wants to perpetuate
testimony about any matter cognizable in a
United States court may file a verified petition in
the district court for the district where any
expected adverse party resides. The petition
must ask for an order authorizing the petitioner
to depose the named persons in order to
perpetuate their testimony. The petition must
be titled in the petitioner's name and must show:
(A) that the petitioner expects to be a party to
an action cognizable in a United States
court but cannot presently bring it or cause
it to be brought;
(B) the subject matter of the expected action
and the petitioner's interest;
(C) the facts that the petitioner wants to
establish by the proposed testimony and the
reasons to perpetuate it;
(D) the names or a description of the persons
whom the petitioner expects to be adverse
parties and their addresses, so far as known;
and
(E) the name, address, and expected substance
of the testimony of each deponent.
(2) Notice and Service. At least 20 days before the
hearing date, the petitioner must serve each
expected adverse party with a copy of the
petition and a notice stating the time and place
of the hearing. The notice may be served either
inside or outside the district or state in the
manner provided in Rule 4. If that service
cannot be made with reasonable diligence on an
expected adverse party, the court may order
service by publication or otherwise. The court
must appoint an attorney to represent persons
not served in the manner provided in Rule 4 and
to cross-examine the deponent if an unserved
person is not otherwise represented. If any
expected adverse party is a minor or is
incompetent, Rule 17(c) applies.
(3) Order and Examination. If satisfied that
perpetuating the testimony may prevent a
failure or delay of justice, the court must issue
an order that designates or describes the persons
whose depositions may be taken, specifies the
subject matter of the examinations, and states
whether the depositions will be taken orally or
by written interrogatories. The depositions may
then be taken under these rules, and the court
may issue orders like those authorized by Rules
34 and 35. A reference in these rules to the court
where an action is pending means, for purposes
of this rule, the court where the petition for the
deposition was filed.
(4) Using the Deposition. A deposition to
perpetuate testimony may be used under Rule
32(a) in any later-filed district-court action
involving the same subject matter if the
deposition either was taken under these rules or,
although not so taken, would be admissible in
evidence in the courts of the state where it was
taken.
(b) Pending Appeal.
(1) In General.
The court where a judgment has
been rendered may, if an appeal has been taken
or may still be taken, permit a party to depose
witnesses to perpetuate their testimony for use
in the event of further proceedings in that court.
(2) Motion. The party who wants to perpetuate
testimony may move for leave to take the
depositions, on the same notice and service as if
the action were pending in the district court.
The motion must show:
(A) the name, address, and expected substance
of the testimony of each deponent; and
(B) the reasons for perpetuating the testimony.
(3) Court Order. If the court finds that
perpetuating the testimony may prevent a
failure or delay of justice, the court may permit
the depositions to be taken and may issue orders
like those authorized by Rules 34 and 35. The
depositions may be taken and used as any other
deposition taken in a pending district-court
action.
(c) Perpetuation by an Action. This rule does not
limit a court's power to entertain an action to
perpetuate testimony.
Rule 28. Persons Before Whom Depositions May
Be Taken
(a) Within the United States.
(1) In General. Within the United States or a
territory or insular possession subject to United
States jurisdiction, a deposition must be taken
before:
(A) an officer authorized to administer oaths
either by federal law or by the law in the
place of examination; or
(B) a person appointed by the court where the
action is pending to administer oaths and
take testimony.
(2) Definition of "Officer." The term "officer" in
Rules 30, 31, and 32 includes a person appointed
by the court under this rule or designated by the
parties under Rule 29(a).
(b) In a Foreign Country.
(1) In General.
A deposition may be taken in a
foreign country:
(A) under an applicable treaty or convention;
(B) under a letter of request, whether or not
captioned a "letter rogatory";
(C) on notice, before a person authorized to
administer oaths either by federal law or by
the law in the place of examination; or
(D) before a person commissioned by the court
to administer any necessary oath and take
testimony.
(2) Issuing a Letter of Request or a Commission.
A letter of request, a commission, or both may be
issued:
(A) on appropriate terms after an application
and notice of it; and
(B) without a showing that taking the
deposition in another manner is
impracticable or inconvenient.
(3) Form of a Request, Notice, or Commission.
When a letter of request or any other device is
used according to a treaty or convention, it must
be captioned in the form prescribed by that
treaty or convention. A letter of request may be
addressed "To the Appropriate Authority in
[name of country]." A deposition notice or a
commission must designate by name or
descriptive title the person before whom the
deposition is to be taken.
(4) Letter of Request — Admitting Evidence.
Evidence obtained in response to a letter of
request need not be excluded merely because it is
not a verbatim transcript, because the testimony
was not taken under oath, or because of any
similar departure from the requirements for
depositions taken within the United States.
(c) Disqualification. A deposition must not be taken
before a person who is any party's relative, employee,
or attorney; who is related to or employed by any
party's attorney; or who is financially interested in
the action.
Unless the court orders otherwise, the parties may
stipulate that:
(a) a deposition may be taken before any person, at any
time or place, on any notice, and in the manner
specified — in which event it may be used in the
same way as any other deposition; and
(b) other procedures governing or limiting discovery be
modified — but a stipulation extending the time for
any form of discovery must have court approval if it
would interfere with the time set for completing
discovery, for hearing a motion, or for trial.
(1) Without Leave. A party may, by oral questions,
depose any person, including a party, without
leave of court except as provided in Rule 30(a)(2).
The deponent's attendance may be compelled by
subpoena under Rule 45.
(2) With Leave. A party must obtain leave of court,
and the court must grant leave to the extent
consistent with Rule 26(b)(2):
(A) if the parties have not stipulated to the
deposition and:
(i) the deposition would result in more
than 10 depositions being taken under
this rule or Rule 31 by the plaintiffs, or
by the defendants, or by the third-party
defendants;
(ii) the deponent has already been deposed
in the case; or
(iii) the party seeks to take the deposition
before the time specified in Rule 26(d),
unless the party certifies in the notice,
with supporting facts, that the
deponent is expected to leave the
United States and be unavailable for
examination in this country after that
time; or
(B) if the deponent is confined in prison.
(b) Notice of the Deposition; Other Formal
Requirements.
(1) Notice in General.
A party who wants to
depose a person by oral questions must give
reasonable written notice to every other party.
The notice must state the time and place of the
deposition and, if known, the deponent's name
and address. If the name is unknown, the notice
must provide a general description sufficient to
identify the person or the particular class or
group to which the person belongs.
(2) Producing Documents. If a subpoena duces
tecum is to be served on the deponent, the
materials designated for production, as set out in
the subpoena, must be listed in the notice or in
an attachment. The notice to a party deponent
may be accompanied by a request under Rule 34
to produce documents and tangible things at the
deposition.
(3) Method of Recording.
(A) Method Stated in the Notice. The party who
notices the deposition must state in the
notice the method for recording the
testimony. Unless the court orders
otherwise, testimony may be recorded by
audio, audiovisual, or stenographic means.
The noticing party bears the recording costs.
Any party may arrange to transcribe a
deposition.
(B) Additional Method. With prior notice to the
deponent and other parties, any party may
designate another method for recording the
testimony in addition to that specified in the
original notice. That party bears the
expense of the additional record or
transcript unless the court orders otherwise.
(4) By Remote Means. The parties may stipulate
— or the court may on motion order — that a
deposition be taken by telephone or other remote
means. For the purpose of this rule and Rules
28(a), 37(a)(2), and 37(b)(1), the deposition takes
place where the deponent answers the questions.
(5) Officer's Duties.
(A) Before the Deposition. Unless the parties
stipulate otherwise, a deposition must be
conducted before an officer appointed or
designated under Rule 28. The officer must
begin the deposition with an on-the-record
statement that includes:
(i) the officer's name and business address;
(ii) the date, time, and place of the
deposition;
(iii) the deponent's name;
(iv) the officer's administration of the oath
or affirmation to the deponent; and
(v) the identity of all persons present.
(B) Conducting the Deposition; Avoiding
Distortion. If the deposition is recorded
nonstenographically, the officer must repeat
the items in Rule 30(b)(5)(A)(i)-(iii) at the
beginning of each unit of the recording
medium. The deponent's and attorneys'
appearance or demeanor must not be
distorted through recording techniques.
(C) After the Deposition. At the end of a
deposition, the officer must state on the
record that the deposition is complete and
must set out any stipulations made by the
attorneys about custody of the transcript or
recording and of the exhibits, or about any
other pertinent matters.
(6) Notice or Subpoena Directed to an
Organization. In its notice or subpoena, a
party may name as the deponent a public or
private corporation, a partnership, an
association, a governmental agency, or other
entity and must describe with reasonable
particularity the matters for examination. The
named organization must then designate one or
more officers, directors, or managing agents, or
designate other persons who consent to testify on
its behalf; and it may set out the matters on
which each person designated will testify. A
subpoena must advise a nonparty organization of
its duty to make this designation. The persons
designated must testify about information
known or reasonably available to the
organization. This paragraph (6) does not
preclude a deposition by any other procedure
allowed by these rules.
(c) Examination and Cross-Examination; Record of
the Examination; Objections; Written
Questions.
(1) Examination and Cross-Examination. The
examination and cross-examination of a
deponent proceed as they would at trial under
the Federal Rules of Evidence, except Rules 103
and 615. After putting the deponent under oath
or affirmation, the officer must record the
testimony by the method designated under Rule
30(b)(3)(A). The testimony must be recorded by
the officer personally or by a person acting in the
presence and under the direction of the officer.
(2) Objections. An objection at the time of the
examination — whether to evidence, to a party's
conduct, to the officer's qualifications, to the
manner of taking the deposition, or to any other
aspect of the deposition — must be noted on the
record, but the examination still proceeds; the
testimony is taken subject to any objection. An
objection must be stated concisely in a
nonargumentative and nonsuggestive manner.
A person may instruct a deponent not to answer
only when necessary to preserve a privilege, to
enforce a limitation ordered by the court, or to
present a motion under Rule 30(d)(3).
(3) Participating Through Written Questions.
Instead of participating in the oral examination,
a party may serve written questions in a sealed
envelope on the party noticing the deposition,
who must deliver them to the officer. The officer
must ask the deponent those questions and
record the answers verbatim.
(d) Duration; Sanction; Motion to Terminate or
Limit.
(1) Duration.
Unless otherwise stipulated or
ordered by the court, a deposition is limited to 1
day of 7 hours. The court must allow additional
time consistent with Rule 26(b)(2) if needed to
fairly examine the deponent or if the deponent,
another person, or any other circumstance
impedes or delays the examination.
(2) Sanction. The court may impose an
appropriate sanction — including the reasonable
expenses and attorney's fees incurred by any
party — on a person who impedes, delays, or
frustrates the fair examination of the deponent.
(3) Motion to Terminate or Limit.
(A) Grounds. At any time during a deposition,
the deponent or a party may move to
terminate or limit it on the ground that it is
being conducted in bad faith or in a manner
that unreasonably annoys, embarrasses, or
oppresses the deponent or party. The
motion may be filed in the court where the
action is pending or the deposition is being
taken. If the objecting deponent or party so
demands, the deposition must be suspended
for the time necessary to obtain an order.
(B) Order. The court may order that the
deposition be terminated or may limit its
scope and manner as provided in Rule 26(c).
If terminated, the deposition may be
resumed only by order of the court where
the action is pending.
(C) Award of Expenses. Rule 37(a)(5) applies to
the award of expenses.
(e) Review by the Witness; Changes.
(1) Review; Statement of Changes.
On request by
the deponent or a party before the deposition is
completed, the deponent must be allowed 30
days after being notified by the officer that the
transcript or recording is available in which:
(A) to review the transcript or recording; and
(B) if there are changes in form or substance, to
sign a statement listing the changes and the
reasons for making them.
(2) Changes Indicated in the Officer's
Certificate. The officer must note in the
certificate prescribed by Rule 30(f)(1) whether a
review was requested and, if so, must attach any
changes the deponent makes during the 30-day
period.
(f) Certification and Delivery; Exhibits; Copies of
the Transcript or Recording; Filing.
(1) Certification and Delivery.
The officer must
certify in writing that the witness was duly
sworn and that the deposition accurately records
the witness's testimony. The certificate must
accompany the record of the deposition. Unless
the court orders otherwise, the officer must seal
the deposition in an envelope or package bearing
the title of the action and marked "Deposition of
[witness's name]" and must promptly send it to
the attorney who arranged for the transcript or
recording. The attorney must store it under
conditions that will protect it against loss,
destruction, tampering, or deterioration.
(2) Documents and Tangible Things.
(A) Originals and Copies. Documents and
tangible things produced for inspection
during a deposition must, on a party's
request, be marked for identification and
attached to the deposition. Any party may
inspect and copy them. But if the person
who produced them wants to keep the
originals, the person may:
(i) offer copies to be marked, attached to
the deposition, and then used as
originals — after giving all parties a
fair opportunity to verify the copies by
comparing them with the originals; or
(ii) give all parties a fair opportunity to
inspect and copy the originals after they
are marked — in which event the
originals may be used as if attached to
the deposition.
(B) Order Regarding the Originals. Any party
may move for an order that the originals be
attached to the deposition pending final
disposition of the case.
(3) Copies of the Transcript or Recording.
Unless otherwise stipulated or ordered by the
court, the officer must retain the stenographic
notes of a deposition taken stenographically or a
copy of the recording of a deposition taken by
another method. When paid reasonable charges,
the officer must furnish a copy of the transcript
or recording to any party or the deponent.
(4) Notice of Filing. A party who files the
deposition must promptly notify all other parties
of the filing.
(g) Failure to Attend a Deposition or Serve a
Subpoena; Expenses. A party who, expecting a
deposition to be taken, attends in person or by an
attorney may recover reasonable expenses for
attending, including attorney's fees, if the noticing
party failed to:
(1) attend and proceed with the deposition; or
(2) serve a subpoena on a nonparty deponent, who
consequently did not attend.
(1) Without Leave. A party may, by written
questions, depose any person, including a party,
without leave of court except as provided in Rule
31(a)(2). The deponent's attendance may be
compelled by subpoena under Rule 45.
(2) With Leave. A party must obtain leave of court,
and the court must grant leave to the extent
consistent with Rule 26(b)(2):
(A) if the parties have not stipulated to the
deposition and:
(i) the deposition would result in more
than 10 depositions being taken under
this rule or Rule 30 by the plaintiffs, or
by the defendants, or by the third-party
defendants;
(ii) the deponent has already been deposed
in the case; or
(iii) the party seeks to take a deposition
before the time specified in Rule 26(d);
or
(B) if the deponent is confined in prison.
(3) Service; Required Notice. A party who wants
to depose a person by written questions must
serve them on every other party, with a notice
stating, if known, the deponent's name and
address. If the name is unknown, the notice
must provide a general description sufficient to
identify the person or the particular class or
group to which the person belongs. The notice
must also state the name or descriptive title and
the address of the officer before whom the
deposition will be taken.
(4) Questions Directed to an Organization. A
public or private corporation, a partnership, an
association, or a governmental agency may be
deposed by written questions in accordance with
Rule 30(b)(6).
(5) Questions from Other Parties. Any questions
to the deponent from other parties must be
served on all parties as follows: cross-questions,
within 14 days after being served with the notice
and direct questions; redirect questions, within 7
days after being served with cross-questions; and
recross-questions, within 7 days after being
served with redirect questions. The court may,
for good cause, extend or shorten these times.
(b) Delivery to the Officer; Officer's Duties. The
party who noticed the deposition must deliver to the
officer a copy of all the questions served and of the
notice. The officer must promptly proceed in the
manner provided in Rule 30(c), (e), and (f) to:
(1) take the deponent's testimony in response to the
questions;
(2) prepare and certify the deposition; and
(3) send it to the party, attaching a copy of the
questions and of the notice.
(c) Notice of Completion or Filing.
(1) Completion.
The party who noticed the
deposition must notify all other parties when it
is completed.
(2) Filing. A party who files the deposition must
promptly notify all other parties of the filing.
(1) In General. At a hearing or trial, all or part of
a deposition may be used against a party on
these conditions:
(A) the party was present or represented at the
taking of the deposition or had reasonable
notice of it;
(B) it is used to the extent it would be
admissible under the Federal Rules of
Evidence if the deponent were present and
testifying; and
(C) the use is allowed by Rule 32(a)(2) through
(8).
(2) Impeachment and Other Uses. Any party
may use a deposition to contradict or impeach
the testimony given by the deponent as a
witness, or for any other purpose allowed by the
Federal Rules of Evidence.
(3) Deposition of Party, Agent, or Designee. An
adverse party may use for any purpose the
deposition of a party or anyone who, when
deposed, was the party's officer, director,
managing agent, or designee under Rule 30(b)(6)
or 31(a)(4).
(4) Unavailable Witness. A party may use for any
purpose the deposition of a witness, whether or
not a party, if the court finds:
(A) that the witness is dead;
(B) that the witness is more than 100 miles
from the place of hearing or trial or is
outside the United States, unless it appears
that the witness's absence was procured by
the party offering the deposition;
(C) that the witness cannot attend or testify
because of age, illness, infirmity, or
imprisonment;
(D) that the party offering the deposition could
not procure the witness's attendance by
subpoena; or
(E) on motion and notice, that exceptional
circumstances make it desirable — in the
interest of justice and with due regard to the
importance of live testimony in open court
— to permit the deposition to be used.
(5) Limitations on Use.
(A) Deposition Taken on Short Notice. A
deposition must not be used against a party
who, having received less than 11 days'
notice of the deposition, promptly moved for
a protective order under Rule 26(c)(1)(B)
requesting that it not be taken or be taken
at a different time or place — and this
motion was still pending when the
deposition was taken.
(B) Unavailable Deponent; Party Could Not
Obtain an Attorney. A deposition taken
without leave of court under the
unavailability provision of Rule
30(a)(2)(A)(iii) must not be used against a
party who shows that, when served with the
notice, it could not, despite diligent efforts,
obtain an attorney to represent it at the
deposition.
(6) Using Part of a Deposition. If a party offers
in evidence only part of a deposition, an adverse
party may require the offeror to introduce other
parts that in fairness should be considered with
the part introduced, and any party may itself
introduce any other parts.
(7) Substituting a Party. Substituting a party
under Rule 25 does not affect the right to use a
deposition previously taken.
(8) Deposition Taken in an Earlier Action. A
deposition lawfully taken and, if required, filed
in any federal- or state-court action may be used
in a later action involving the same subject
matter between the same parties, or their
representatives or successors in interest, to the
same extent as if taken in the later action. A
deposition previously taken may also be used as
allowed by the Federal Rules of Evidence.
(b) Objections to Admissibility. Subject to Rules
28(b) and 32(d)(3), an objection may be made at a
hearing or trial to the admission of any deposition
testimony that would be inadmissible if the witness
were present and testifying.
(c) Form of Presentation. Unless the court orders
otherwise, a party must provide a transcript of any
deposition testimony the party offers, but may
provide the court with the testimony in nontranscript
form as well. On any party's request, deposition
testimony offered in a jury trial for any purpose other
than impeachment must be presented in
nontranscript form, if available, unless the court for
good cause orders otherwise.
(d) Waiver of Objections.
(1) To the Notice.
An objection to an error or
irregularity in a deposition notice is waived
unless promptly served in writing on the party
giving the notice.
(2) To the Officer's Qualification. An objection
based on disqualification of the officer before
whom a deposition is to be taken is waived if not
made:
(A) before the deposition begins; or
(B) promptly after the basis for disqualification
becomes known or, with reasonable
diligence, could have been known.
(3) To the Taking of the Deposition.
(A) Objection to Competence, Relevance, or
Materiality. An objection to a deponent's
competence — or to the competence,
relevance, or materiality of testimony — is
not waived by a failure to make the
objection before or during the deposition,
unless the ground for it might have been
corrected at that time.
(B) Objection to an Error or Irregularity. An
objection to an error or irregularity at an
oral examination is waived if:
(i) it relates to the manner of taking the
deposition, the form of a question or
answer, the oath or affirmation, a
party's conduct, or other matters that
might have been corrected at that time;
and
(ii) it is not timely made during the
deposition.
(C) Objection to a Written Question. An
objection to the form of a written question
under Rule 31 is waived if not served in
writing on the party submitting the question
within the time for serving responsive
questions or, if the question is a recross
question, within 5 days after being served
with it.
(4) To Completing and Returning the
Deposition. An objection to how the officer
transcribed the testimony — or prepared, signed,
certified, sealed, endorsed, sent, or otherwise
dealt with the deposition — is waived unless a
motion to suppress is made promptly after the
error or irregularity becomes known or, with
reasonable diligence, could have been known.
(1) Number. Unless otherwise stipulated or
ordered by the court, a party may serve on any
other party no more than 25 written
interrogatories, including all discrete subparts.
Leave to serve additional interrogatories may be
granted to the extent consistent with Rule
26(b)(2).
(2) Scope. An interrogatory may relate to any
matter that may be inquired into under Rule
26(b). An interrogatory is not objectionable
merely because it asks for an opinion or
contention that relates to fact or the application
of law to fact, but the court may order that the
interrogatory need not be answered until
designated discovery is complete, or until a
pretrial conference or some other time.
(b) Answers and Objections.
(1) Responding Party.
The interrogatories must
be answered:
(A) by the party to whom they are directed; or
(B) if that party is a public or private
corporation, a partnership, an association,
or a governmental agency, by any officer or
agent, who must furnish the information
available to the party.
(2) Time to Respond. The responding party must
serve its answers and any objections within 30
days after being served with the interrogatories.
A shorter or longer time may be stipulated to
under Rule 29 or be ordered by the court.
(3) Answering Each Interrogatory. Each
interrogatory must, to the extent it is not
objected to, be answered separately and fully in
writing under oath.
(4) Objections. The grounds for objecting to an
interrogatory must be stated with specificity.
Any ground not stated in a timely objection is
waived unless the court, for good cause, excuses
the failure.
(5) Signature. The person who makes the answers
must sign them, and the attorney who objects
must sign any objections.
(c) Use. An answer to an interrogatory may be used to
the extent allowed by the Federal Rules of Evidence.
(d) Option to Produce Business Records. If the
answer to an interrogatory may be determined by
examining, auditing, compiling, abstracting, or
summarizing a party's business records (including
electronically stored information), and if the burden
of deriving or ascertaining the answer will be
substantially the same for either party, the
responding party may answer by:
(1) specifying the records that must be reviewed, in
sufficient detail to enable the interrogating party
to locate and identify them as readily as the
responding party could; and
(2) giving the interrogating party a reasonable
opportunity to examine and audit the records
and to make copies, compilations, abstracts, or
summaries.
Rule 34. Producing Documents, Electronically
Stored Information, and Tangible
Things, or Entering onto Land, for
Inspection and Other Purposes
(a) In General. A party may serve on any other party a
request within the scope of Rule 26(b):
(1) to produce and permit the requesting party or its
representative to inspect, copy, test, or sample
the following items in the responding party's
possession, custody, or control:
(A) any designated documents or electronically
stored information — including writings,
drawings, graphs, charts, photographs,
sound recordings, images, and other data or
data compilations — stored in any medium
from which information can be obtained
either directly or, if necessary, after
translation by the responding party into a
reasonably usable form; or
(B) any designated tangible things; or
(2) to permit entry onto designated land or other
property possessed or controlled by the
responding party, so that the requesting party
may inspect, measure, survey, photograph, test,
or sample the property or any designated object
or operation on it.
(b) Procedure.
(1) Contents of the Request.
The request:
(A) must describe with reasonable particularity
each item or category of items to be
inspected;
(B) must specify a reasonable time, place, and
manner for the inspection and for
performing the related acts; and
(C) may specify the form or forms in which
electronically stored information is to be
produced.
(2) Responses and Objections.
(A) Time to Respond. The party to whom the
request is directed must respond in writing
within 30 days after being served. A shorter
or longer time may be stipulated to under
Rule 29 or be ordered by the court.
(B) Responding to Each Item. For each item or
category, the response must either state
that inspection and related activities will be
permitted as requested or state an objection
to the request, including the reasons.
(C) Objections. An objection to part of a request
must specify the part and permit inspection
of the rest.
(D) Responding to a Request for Production of
Electronically Stored Information. The
response may state an objection to a
requested form for producing electronically
stored information. If the responding party
objects to a requested form — or if no form
was specified in the request — the party
must state the form or forms it intends to
use.
(E) Producing the Documents or Electronically
Stored Information. Unless otherwise
stipulated or ordered by the court, these
procedures apply to producing documents or
electronically stored information:
(i) A party must produce documents as
they are kept in the usual course of
business or must organize and label
them to correspond to the categories in
the request;
(ii) If a request does not specify a form for
producing electronically stored
information, a party must produce it in
a form or forms in which it is ordinarily
maintained or in a reasonably usable
form or forms; and
(iii) A party need not produce the same
electronically stored information in
more than one form.
(c) Nonparties. As provided in Rule 45, a nonparty
may be compelled to produce documents and tangible
things or to permit an inspection.
(1) In General. The court where the action is
pending may order a party whose mental or
physical condition — including blood group — is
in controversy to submit to a physical or mental
examination by a suitably licensed or certified
examiner. The court has the same authority to
order a party to produce for examination a
person who is in its custody or under its legal
control.
(2) Motion and Notice; Contents of the Order.
The order:
(A) may be made only on motion for good cause
and on notice to all parties and the person to
be examined; and
(B) must specify the time, place, manner,
conditions, and scope of the examination, as
well as the person or persons who will
perform it.
(b) Examiner's Report.
(1) Request by the Party or Person Examined.
The party who moved for the examination must,
on request, deliver to the requester a copy of the
examiner's report, together with like reports of
all earlier examinations of the same condition.
The request may be made by the party against
whom the examination order was issued or by
the person examined.
(2) Contents. The examiner's report must be in
writing and must set out in detail the examiner's
findings, including diagnoses, conclusions, and
the results of any tests.
(3) Request by the Moving Party. After delivering
the reports, the party who moved for the
examination may request — and is entitled to
receive — from the party against whom the
examination order was issued like reports of all
earlier or later examinations of the same
condition. But those reports need not be
delivered by the party with custody or control of
the person examined if the party shows that it
could not obtain them.
(4) Waiver of Privilege. By requesting and
obtaining the examiner's report, or by deposing
the examiner, the party examined waives any
privilege it may have — in that action or any
other action involving the same controversy —
concerning testimony about all examinations of
the same condition.
(5) Failure to Deliver a Report. The court on
motion may order — on just terms — that a
party deliver the report of an examination. If
the report is not provided, the court may exclude
the examiner's testimony at trial.
(6) Scope. This subdivision (b) applies also to an
examination made by the parties' agreement,
unless the agreement states otherwise. This
subdivision does not preclude obtaining an
examiner's report or deposing an examiner
under other rules.
(1) Scope. A party may serve on any other party a
written request to admit, for purposes of the
pending action only, the truth of any matters
within the scope of Rule 26(b)(1) relating to:
(A) facts, the application of law to fact, or
opinions about either; and
(B) the genuineness of any described
documents.
(2) Form; Copy of a Document. Each matter must
be separately stated. A request to admit the
genuineness of a document must be accompanied
by a copy of the document unless it is, or has
been, otherwise furnished or made available for
inspection and copying.
(3) Time to Respond; Effect of Not Responding.
A matter is admitted unless, within 30 days
after being served, the party to whom the
request is directed serves on the requesting
party a written answer or objection addressed to
the matter and signed by the party or its
attorney. A shorter or longer time for
responding may be stipulated to under Rule 29
or be ordered by the court.
(4) Answer. If a matter is not admitted, the answer
must specifically deny it or state in detail why
the answering party cannot truthfully admit or
deny it. A denial must fairly respond to the
substance of the matter; and when good faith
requires that a party qualify an answer or deny
only a part of a matter, the answer must specify
the part admitted and qualify or deny the rest.
The answering party may assert lack of
knowledge or information as a reason for failing
to admit or deny only if the party states that it
has made reasonable inquiry and that the
information it knows or can readily obtain is
insufficient to enable it to admit or deny.
(5) Objections. The grounds for objecting to a
request must be stated. A party must not object
solely on the ground that the request presents a
genuine issue for trial.
(6) Motion Regarding the Sufficiency of an
Answer or Objection. The requesting party
may move to determine the sufficiency of an
answer or objection. Unless the court finds an
objection justified, it must order that an answer
be served. On finding that an answer does not
comply with this rule, the court may order either
that the matter is admitted or that an amended
answer be served. The court may defer its final
decision until a pretrial conference or a specified
time before trial. Rule 37(a)(5) applies to an
award of expenses.
(b) Effect of an Admission; Withdrawing or
Amending It. A matter admitted under this rule is
conclusively established unless the court, on motion,
permits the admission to be withdrawn or amended.
Subject to Rule 16(e), the court may permit
withdrawal or amendment if it would promote the
presentation of the merits of the action and if the
court is not persuaded that it would prejudice the
requesting party in maintaining or defending the
action on the merits. An admission under this rule is
not an admission for any other purpose and cannot be
used against the party in any other proceeding.
Rule 37. Failure to Make Disclosures or to
Cooperate in Discovery; Sanctions
(a) Motion for an Order Compelling Disclosure or
Discovery.
(1) In General. On notice to other parties and all
affected persons, a party may move for an order
compelling disclosure or discovery. The motion
must 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.
(2) Appropriate Court. A motion for an order to a
party must be made in the court where the
action is pending. A motion for an order to a
nonparty must be made in the court where the
discovery is or will be taken.
(3) Specific Motions.
(A) To Compel Disclosure. If a party fails to
make a disclosure required by Rule 26(a),
any other party may move to compel
disclosure and for appropriate sanctions.
(B) To Compel a Discovery Response. A party
seeking discovery may move for an order
compelling an answer, designation,
production, or inspection. This motion may
be made if:
(i) a deponent fails to answer a question
asked under Rule 30 or 31;
(ii) a corporation or other entity fails to
make a designation under Rule 30(b)(6)
or 31(a)(4);
(iii) a party fails to answer an interrogatory
submitted under Rule 33; or
(iv) a party fails to respond that inspection
will be permitted — or fails to permit
inspection — as requested under Rule
34.
(C) Related to a Deposition. When taking an
oral deposition, the party asking a question
may complete or adjourn the examination
before moving for an order.
(4) Evasive or Incomplete Disclosure, Answer,
or Response. For purposes of this subdivision
(a), an evasive or incomplete disclosure, answer,
or response must be treated as a failure to
disclose, answer, or respond.
(5) Payment of Expenses; Protective Orders.
(A) If the Motion Is Granted (or Disclosure or
Discovery Is Provided After Filing). If the
motion is granted — or if the disclosure or
requested discovery is provided after the
motion was filed — 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. But the court must not
order this payment if:
(i) the movant filed the motion before
attempting in good faith to obtain the
disclosure or discovery without court
action;
(ii) the opposing party's nondisclosure,
response, or objection was substantially
justified; or
(iii) other circumstances make an award of
expenses unjust.
(B) If the Motion Is Denied. If the motion is
denied, the court may issue any protective
order authorized under Rule 26(c) and must,
after giving an opportunity to be heard,
require the movant, the attorney filing the
motion, or both to pay the party or deponent
who opposed the motion its reasonable
expenses incurred in opposing the motion,
including attorney's fees. But the court
must not order this payment if the motion
was substantially justified or other
circumstances make an award of expenses
unjust.
(C) If the Motion Is Granted in Part and Denied
in Part. If the motion is granted in part and
denied in part, the court may issue any
protective order authorized under Rule 26(c)
and may, after giving an opportunity to be
heard, apportion the reasonable expenses
for the motion.
(b) Failure to Comply with a Court Order.
(1) Sanctions in the District Where the
Deposition Is Taken.
If the court where the
discovery is taken orders a deponent to be sworn
or to answer a question and the deponent fails to
obey, the failure may be treated as contempt of
court.
(2) Sanctions in the District Where the Action
Is Pending.
(A)
For Not Obeying a Discovery Order. If a
party or a party's officer, director, or
managing agent — or a witness designated
under Rule 30(b)(6) or 31(a)(4) — fails to
obey an order to provide or permit discovery,
including an order under Rule 26(f), 35, or
37(a), the court where the action is pending
may issue further just orders. They may
include the following:
(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.
(B) For Not Producing a Person for
Examination. If a party fails to comply with
an order under Rule 35(a) requiring it to
produce another person for examination, the
court may issue any of the orders listed in
Rule 37(b)(2)(A)(i)-(vi), unless the
disobedient party shows that it cannot
produce the other person.
(C) Payment of Expenses. Instead of or in
addition to the orders above, the court must
order the disobedient party, 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.
(c) Failure to Disclose, to Supplement an Earlier
Response, or to Admit.
(1) Failure to Disclose or Supplement.
If a party
fails to provide information or identify a witness
as required by Rule 26(a) or (e), the party 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. In addition to or instead
of this sanction, the court, on motion and after
giving an opportunity to be heard:
(A) may order payment of the reasonable
expenses, including attorney's fees, caused
by the failure;
(B) may inform the jury of the party's failure;
and
(C) may impose other appropriate sanctions,
including any of the orders listed in Rule
37(b)(2)(A)(i)-(vi).
(2) Failure to Admit. If a party fails to admit
what is requested under Rule 36 and if the
requesting party later proves a document to be
genuine or the matter true, the requesting party
may move that the party who failed to admit pay
the reasonable expenses, including attorney's
fees, incurred in making that proof. The court
must so order unless:
(A) the request was held objectionable under
Rule 36(a);
(B) the admission sought was of no substantial
importance;
(C) the party failing to admit had a reasonable
ground to believe that it might prevail on
the matter; or
(D) there was other good reason for the failure
to admit.
(d) Party's Failure to Attend Its Own Deposition,
Serve Answers to Interrogatories, or Respond
to a Request for Inspection.
(1) In General.
(A)
Motion; Grounds for Sanctions. The court
where the action is pending may, on motion,
order sanctions if:
(i) a party or a party's officer, director, or
managing agent — or a person
designated under Rule 30(b)(6) or
31(a)(4) — fails, after being served with
proper notice, to appear for that
person's deposition; or
(ii) a party, after being properly served
with interrogatories under Rule 33 or a
request for inspection under Rule 34,
fails to serve its answers, objections, or
written response.
(B) Certification. A motion for sanctions for
failing to answer or respond must include a
certification that the movant has in good
faith conferred or attempted to confer with
the party failing to act in an effort to obtain
the answer or response without court action.
(2) Unacceptable Excuse for Failing to Act. A
failure described in Rule 37(d)(1)(A) 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).
(3) Types of Sanctions. 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.
(e) Failure to Provide Electronically Stored
Information. 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.
(f) Failure to Participate in Framing a 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 to any other party the
reasonable expenses, including attorney's fees,
caused by the failure.