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Rule 37 – Failure to Make Discovery: Sanctions

May 14, 2021 | Civil Procedure, Ohio

(A) Motion for order compelling discovery.

(1) In general. On notice to other parties and all affected persons, a party may move for an order compelling discovery. The motion shall include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make discovery in an effort to obtain it without court action.
(2) Appropriate court. A motion for an order to a party or a deponent shall be made to the court where the action is pending.
(3) Specific motions.

(a)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 Civ.R. 30 or Civ.R. 31;
(ii) A corporation or other entity fails to make a designation under Civ.R. 30(B)(5) or Civ.R. 31(A);
(iii) A party fails to answer an interrogatory submitted under Civ.R. 33;
(iv) A party fails to respond that inspection will be permitted-or fails to permit inspection-as requested under Civ.R. 34.
(b)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 answer or response. For purposes of division (A) of this rule, an evasive or incomplete answer or response shall be treated as a failure to answer or respond.
(5)Payment of expenses; protective orders.

(a)If the motion is granted. If the motion is granted, the court shall, 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 shall not order this payment if:

(i) The movant filed the motion before attempting in good faith to obtain the discovery without court action;
(ii) The opposing party’s 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 Civ.R. 26(C) and shall, 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 shall 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 Civ.R. 26(C) and may, after giving an opportunity to be heard, apportion reasonable expenses for the motion.
(B)Failure to comply with order; sanctions.

(1)For not obeying a discovery order. If a party or a party’s officer, director, or managing agent or a witness designated under Civ.R. 30(B)(5) or Civ.R. 31(A) fails to obey an order to provide or permit discovery, including an order made under Civ.R. 35 or Civ.R. 37(A), the court may issue further just orders. They may include the following:

(a) Directing that the matters embraced in the order or other designated facts shall be taken as established for purposes of the action as the prevailing party claims;
(b) Prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
(c) Striking pleadings in whole or in part;
(d) Staying further proceedings until the order is obeyed dismissing;
(e) Dismissing the action or proceeding in whole or in part;
(f) Rendering a default judgment against the disobedient party; or
(g) Treating as contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;
(2)For not producing a person for examination. If a party fails to comply with an order under Civ.R. 35(A) requiring it to produce another person for examination, the court may issue any of the orders listed in Civ.R. 37(B)(1), unless the disobedient party shows that it cannot produce the other person.
(3)Payment of expenses. Instead of or in addition to the orders above, the court shall 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 supplement an earlier response or to admit.

(1)Failure to supplement. If a party fails to provide information or identify a witness as required by Civ.R. 26(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 Civ.R. 37(B)(1) through (f).
(2)Failure to admit. If a party fails to admit what is requested under Civ.R. 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 shall so order unless:

(a) The request was held objectionable under Civ.R. 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 may, on motion, order sanctions if:

(i) A party or a party’s officer, director, or a managing agent or a person designated under Civ.R. 30(B)(5) or Civ.R. 31(A) fails, after being served with a proper notice, to appear for that person’s deposition; or
(ii) A party, after being properly served with interrogatories under Civ.R. 33 or a request for inspection under Civ.R. 34, fails to serve its answers, objections, or written response.
(b) Certification. A motion for sanctions for failing to answer or respond shall 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 Civ.R. 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 Civ.R. 26(C) .
(3)Types of sanctions. Sanctions may include any of the orders listed in Civ.R. 37(B)(1)(a) through (f). Instead of or in addition to these sanctions, the court shall 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. The court may consider the following factors in determining whether to impose sanctions under this division:

(1) Whether and when any obligation to preserve the information was triggered;
(2) Whether the information was lost as a result of the routine alteration or deletion of information that attends the ordinary use of the system in issue;
(3) Whether the party intervened in a timely fashion to prevent the loss of information;
(4) Any steps taken to comply with any court order or party agreement requiring preservation of specific information;
(5) Any other facts relevant to its determination under this division.

Ohio. Civ.R. 37

Effective: July 1, 1970; amended effective July 1, 1994; amended effective July 1, 2008;July 1, 2016.

Staff Notes (July 1, 2016 Amendments)

The rule is amended to adopt the 2007 stylistic changes to Fed.R.Civ.P. 37. In adopting those federal stylistic changes, the amendments also add provisions of the Federal rule that make the following substantive changes to existing Civ.R. 37:

1. Including within the scope of amended Civ.R. 37(A)(3), “a corporation or other entity fails to make a designation under Civ.R. 30(B)(5) or Civ.R. 31(A)”;

2. Adding to the exceptions to amended Civ.R. 37(A)(5), “the movant filed the motion before attempting in good faith to obtain the discovery without court action”;

3. Adding to the remedies available under amended Civ.R. 37(A)(5)(b) and Civ.R. 37(A)(5)(c), “the court may issue any protective order authorized under Rule 26(C)”; and

4. Adding amended Civ.R. 37(C)(1) addressing failure to supplement an earlier response.

The 2016 amendments to the Ohio rule do not incorporate the 2015 changes made to Fed.R.Civ.P. 37.

Staff Notes (July 1, 2008 Amendments)

Civ. R. 37(F) provides factors for judges to consider when a party seeks sanctions against an opponent who has lost potentially relevant electronically stored information. This rule does not attempt to address the larger question of when the duty to preserve electronically stored information is triggered. That matter is addressed by case law and is generally left to the discretion of the trial judge.