Arizona

Civil Procedure

Civil Procedure

Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

(a) Motion for Order Compelling Disclosure or Discovery

(1)Generally. Subject to Rule 26(d), a party may move for an order compelling disclosure or discovery. The party must serve the motion on all other parties and affected persons and must attach a good faith consultation certificate complying with Rule 7.1(h).
(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 in the county 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 26.1, 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 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(b)(4);
(iii) a party fails to answer an interrogatory served under Rule 33;
(iv) a party fails to respond that inspection will be permitted-or fails to permit inspection-as requested under Rule 34; or
(v) a person fails to produce materials requested in a subpoena served under Rule 45.
(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 to compel an answer.
(4)Evasive or Incomplete Disclosure, Answer, or Response. For purposes of this rule, the court may treat an evasive or incomplete disclosure, answer, or response as a failure to disclose, answer, or respond.
(5)Payment of Expenses; Protective Orders.

(A)If the Motion Is or Rule 26(d) Relief Is Granted (or Disclosure or Discovery Is Provided After Filing). In this situation, the court may, after giving an opportunity to be heard, require the party or person whose conduct necessitated the motion or Rule 26(d) request, the party or attorney advising that conduct, or both, to pay the movant’s or requestor’s reasonable expenses incurred in making the motion or request, including attorney’s fees. But the court may not order this payment if:

(i) the movant or requestor sought relief 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 or Rule 26(d) Relief Is Denied. In this situation, the court may issue any protective order authorized under Rule 26(c) and may, after giving an opportunity to be heard, require the movant, the attorney filing the motion or Rule 26(d) request, or both, to pay the party or person who opposed the motion or request its reasonable expenses incurred in opposing the motion or request, including attorney’s fees. But the court may not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.
(C)If the Motion or Rule 26(d) Relief Is Granted in Part and Denied in Part. In this situation, 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, including attorney’s fees, for the motion or Rule 26(d) request.
(b) Failure to Comply with a Court Order.

(1)Sanctions by the Court in the County Where the Deposition Is Taken. If the court in the county where the deposition 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 by the Court 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(b)(4) -fails to obey an order to provide or permit discovery, including an order under or Rule 26(d) request. 35 or 37(a), the court where the action is pending may enter further just orders. including without limitation the following:

(i) directing that the matters described 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, in whole or in part, 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) through (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 may 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 Timely Disclose; Inaccurate or Incomplete Disclosure; Disclosure After Deadline or During Trial.

(1)Failure to Timely Disclose. Unless the court specifically finds that such failure caused no prejudice or orders otherwise for good cause, a party who fails to timely disclose information, a witness, or a document required by Rule 26.1 may not, use the information, witness, or document as evidence at trial, at a hearing, or with respect to a motion.
(2)Inaccurate or Incomplete Disclosure. On motion, the court may order a party or attorney who makes a disclosure under Rule 26.1 that the party or attorney knew or should have known was inaccurate or incomplete to reimburse the opposing party for the reasonable cost, including attorney’s fees, of any investigation or discovery caused by the inaccurate or incomplete disclosure. In appropriate circumstances, the court may also order any of the sanctions set forth in Rule 37(g)(2)(B) for the failure to disclose.
(3)Other Available Sanctions. In addition to or instead of the sanctions under Rule 37(c)(1) and (2), 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) through (vii) and Rule 37(g)(2)(B)..
(4)Use of Information, Witness, or Document Disclosed After Scheduling Order or Case Management Order Deadline or Later Than 60 Days Before Trial. A party seeking to use information, a witness, or a document that it first disclosed later than the deadline set in a Scheduling Order or a Case Management Order, or-in the absence of such a deadline-60 days before trial, must obtain leave of court by motion. The motion must be supported by affidavit and must show that:

(A) the information, witness, or document would be allowed under the standards of Rule 37(c)(1); and
(B) the party disclosed the information, witness, or document as soon as practicable after its discovery.
(5)Use of Information, Witness, or Document Disclosed During Trial. A party seeking to use information, a witness, or a document that it first disclosed during trial must obtain leave of court by motion. The motion must be supported by affidavit and must show that:

(A) the party, acting with due diligence, could not have earlier discovered and disclosed the information, witness, or document; and
(B) the party disclosed the information, witness, or document immediately upon its discovery.
(d) Failure to Timely Disclose Unfavorable Information. If a party or attorney knowingly fails to make a timely disclosure of damaging or unfavorable information required under Rule 26.1, the court may in its discretion impose any sanctions the court deems appropriate in the circumstances. The court’s discretion extends to imposing impose serious sanctions, up to and including dismissal of the action in whole or in part, or rendering a default judgment.
(e) Expenses on Failure to Admit. If a party fails to admit what is requested under Rule 36 and if the requesting party later proves the matter true-including the genuineness of a document-the requesting party may move that the non-admitting party pay the reasonable expenses, including attorney’s fees, incurred in making that proof. The court must so order unless:

(1) the request was held objectionable under Rule 36(a);
(2) the admission sought was of no substantial importance;
(3) the party failing to admit had a reasonable ground to believe that it might prevail on the matter; or
(4) there was other good reason for the failure to admit.
(f) Party’s Failure to Attend Its Own Deposition or to Respond to Interrogatories or Requests for Production.

(1)Generally.

(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(b)(4) -fails, after being served with proper notice, to appear for his or her deposition; or
(ii) a party-after being properly served with interrogatories under Rule 33 or requests for production 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 attach a good faith consultation certificate complying with Rule 7.1(h).
(2)Unacceptable Excuse for Failing to Act. A failure described in Rule 37(f)(1)(A) is not excused or mitigated 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) through (vii). Instead of or in addition to these sanctions, the court may 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.
(g) Failure to Preserve Electronically Stored Information.

(1)Duty to Preserve.

(A)Generally. A party or person has a duty to take reasonable steps to preserve electronically stored information relevant to an action once it commences the action, once it learns that it is a party to the action, or once it reasonably anticipates the action’s commencement, whichever occurs first. A court order or statute also may impose a duty to preserve certain information.
(B)Reasonable Anticipation. A party or person reasonably anticipates an action’s commencement if:

(i) it knows or reasonably should know that it is likely to be a defendant in a specific action; or
(ii) it seriously contemplates commencing an action or takes specific steps to do so.
(C)Reasonable Steps to Preserve.

(i) If Rule 37(g)(1)(A) applies, a party or person must take reasonable steps to prevent the routine operation of an electronic information system or application of a document retention policy from destroying information that should be preserved.
(ii) Factors that a court should consider in determining whether a party or person took reasonable steps to preserve relevant electronically stored information include the nature of the issues raised in the action or anticipated action, the information’s probative value, the accessibility of the information, the difficulty in preserving the information, whether the information was lost as a result of the good-faith routine operation of an electronic information system or the good-faith and consistent application of a document retention policy, the timeliness of the actions, taken, and the relative burdens and costs of a preservation effort in light of the importance of the issues at stake, the resources and technical sophistication of the party or person subject to a duty to preserve, and the amount in controversy.
(2)Remedies and Sanctions. If electronically stored information that should have been preserved is lost because a party-either before or after an action’s commencement-failed to take reasonable steps to preserve it, a court may order additional discovery to restore or replace it, including, if appropriate, an order under Rule 26(b)(2)(B)(i). If the information cannot be restored or replaced through additional discovery, the court:

(A) upon finding prejudice to another party from the loss of the information, may order measures no greater than necessary to cure the prejudice; or
(B) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation, may:

(i) presume that the lost information was unfavorable to the party;
(ii) instruct the jury that it may or must presume the information was unfavorable to the party; or
(iii) upon also finding prejudice to another party, dismiss the action or enter a default judgment.
(h)Orders to Achieve Proportionality. Timely and full compliance with Rules 26, 26.1, and 26.2 being essential to the discovery process, achieving proportionality, and trial preparation, the court may make any order to require or prohibit disclosure or discovery to achieve proportionality under Rule 26(b)(1), including without limitation:

(1) entry of any order permitted by Rule 26(c); and
(2) entry of any order allocating the costs, expenses, and attorney’s fees of discovery or disclosure among the parties as justice requires.

Ariz. R. Civ. P. 37

Amended effective January 1, 2017; amended August 31, 2017, effective July 1, 2018; amended August 26, 2020, effective January 1, 2021.

Comment

2018 Amendment to Rule 37 Rule 37

is amended in several ways, to increase the power of the court to promote full compliance with discovery and disclosure rules, and thus to help the parties and the court fulfill the important goals in Rule 1. First, Rule 37 adds a new provision, Rule 37(h), that empowers the court to allocate “the costs, expenses, and attorney fees of discovery or disclosure among the parties as justice requires.” This amendment is meant to encourage courts to make sure the parties are making prompt and compliant disclosures under Rule 26.1. Second, the authority of the court to sanction is reinforced and broadened by a set of revisions to various subparts of Rule 37. Rule 37(c)(1) now requires that a court specifically determine that an untimely disclosure caused no prejudice before permitting use of the untimely-disclosed information. Rule 37(d) now contains language underscoring the court’s discretion to impose any sanctions it deems appropriate in the circumstances, which in turn reinforces that the issuance of such sanctions is subject to review for abuse of discretion. Rule 37(f)(2) now explains that a failure to respond to discovery is neither mitigated nor excused by claims that the discovery sought was objectionable. The 2018 revisions to Rules 8, 26, 26.1, 26.2, and 37 work together to strengthen mandatory initial disclosure of relevant material as the bedrock of Arizona civil litigation. Rule 26.2 emphasizes keeping discovery proportional based on the understanding that discovery must be a follow-up to robust initial disclosure under Rule 26.1. These amendments seek to achieve robust initial disclosure through a stronger and clearer mandate to impose sanctions under Rule 37 where in the court’s discretion it is warranted, both for failures to disclose relevant material and for abuses of discovery.