If the motion is denied, the court may, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney’s fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.
If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.
In lieu of any of the foregoing orders or in addition thereto, the court may require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney’s fees, caused by the failure.
If a party fails to admit the genuineness of any documents or the truth of any matters as requested under Rule 36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney’s fees. The court shall make the order unless it finds that (1) the request was held objectionable pursuant to Rule 36(a), or (2) the admission sought was of no substantial importance, or (3) the party failing to admit had reasonable grounds to believe that he might prevail on the matter, or (4) there was other good reason for the failure to admit.
If a party or an officer, director, or a managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party willfully fails (1) to appear before the officer who is to take his deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or (3) to serve a written response to a request for inspection submitted under Rule 34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this rule. In lieu of any order or in addition thereto, the court may require the party failing to act or the attorney advising him or both to pay the reasonable expenses, including attorney’s fees, caused by the failure.
The failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by Rule 26(c).
Mass. R. Civ. P. 37
Reporter’s Notes:
(1996): The 1996 amendments to paragraphs (a)(1) and (b)(1) merely add appropriate references to “judicial district” to take into account the applicability of the Rules to the District Court and Boston Municipal Court as result of the merger.
(1994): Prior to this amendment, there was an anomaly in Mass. R. Civ. P. 37(a)(4). The first paragraph, relating to motions for orders to compel discovery which are granted, says “the court may, after opportunity for hearing, require” the payment of reasonable expenses, including attorney’s fees, “incurred in obtaining the order.” The second paragraph, concerning such motions that are denied, used the verb “shall” instead of “may”. Although the companion Federal Rule uses “shall” in both paragraphs, the Standing Advisory Committee believes that “may” makes more sense. First, as was pointed out in Smith and Zobel, Massachusetts Practice, Rules Practice, Vol. 7 (1975), at Sec. 37.3, “[e]ach paragraph contains explicit language allowing the court not to order the payment if it finds either that the opposition or pressing of the motion, as the case may be, were substantially justified, or that ‘other circumstances make an award of expenses unjust.’ ” Therefore both paragraphs should “be taken in the permissive rather than the mandatory sense.” Second, hearings are time-consuming, and it does not make sense to require hearings in all cases when the net result will usually be either the imposition of no sanction or a modest sanction. After the amendment, whether the motion to compel discovery has been won or lost, the judge may (but does not have to) order the payment of reasonable expenses, but such an order for payment cannot be made without first providing the opportunity for a hearing.
(1983): This amendment permits the court to apply sanctions against those who fail to comply with a discovery order, without the necessity of finding that the noncompliance was wilful. The amendment makes the rule consistent with Fed. R. Civ. P. 37(b), upon which it was patterned. The amendment’s purpose is to increase compliance with discovery orders, by making it easier for parties to achieve, and judges to award, sanctions for the failure to comply with a discovery order.
(1973): Rule 37 substantially follows Federal Rule 37. The penalties imposed are those listed in SJC Rule 3:15, with the addition of penalties for willful disobedience of a physical-examination order under Rule 35. Rule 37, like Rule 3:15, but unlike Federal Rule 37, makes clear that an order of contempt may issue only if the refusal to obey a discovery order is willful; similarly, only a willful failure to produce another person for a physical examination justifies the imposition of any sanctions at all.