Arizona

Family Law

Rule 65 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

(a)Motion for Order Compelling Disclosure or Discovery.

(1)Generally. 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 9(c).

(2)Specific Motions.

(A)To Compel Disclosure. If a party fails to disclose information required by Rule 49, the 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 any person or entity has not complied with a discovery rule.

(C)Related to a Deposition. When taking an oral deposition, the party asking a question may complete, continue with, or adjourn the examination before moving for an order to compel an answer.

(3)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.

(4)Payment of Expenses.

(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 may, after giving an opportunity to be heard, require the party or person whose conduct necessitated the motion, to pay the movant’s reasonable expenses incurred in making the motion, including attorney fees. The court may 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 in good faith; or

(iii) other circumstances make an award of expenses unjust.

(B)If the Motion Is Denied. If the motion is denied, the court may, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both, to pay the party or person who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney fees. The court may not order this payment if the motion was filed in good faith 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, after giving an opportunity to be heard, may apportion the reasonable expenses, including attorney fees, for the motion.

(b)Failure to Comply with Court Order or Discovery or Disclosure Rule; Sanctions.

(1)For Not Obeying a Discovery Order or Rule. If a person fails to obey an order to provide or permit discovery, or fails to comply with a disclosure or discovery rule, the court may enter sanctions including, but not limited to, the following:

(A) directing that designated facts be taken as established for purposes of the action;

(B) prohibiting the disobedient party from supporting or opposing designated arguments, or from introducing designated matters in evidence;

(C) striking pleadings in whole or in part;

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

(E) dismissing the action or proceeding in whole or in part, unless dismissal would be contrary to the best interests of a child;

(F) rendering a default judgment, in whole or in part, against the disobedient party; or

(G) scheduling a proceeding to treat the violation as contempt of court.

(2)Payment of Expenses. Instead of or in addition to the orders above, the court may order the disobedient person or the person’s attorney, or both, to pay the reasonable expenses, including attorney fees, caused by the failure, unless the failure was in good faith or other circumstances make an award of expenses unjust.

(c)Use of Information, Witness, or Document Disclosed After Scheduling Order or Case Management Order Deadline or Less Than 30 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-less than 30 days before 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 as soon as practicable after its discovery.

(d)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 litigation, or once it reasonably anticipates the litigation’s commencement, whichever occurs first. A court order or statute also may impose a duty to preserve certain information.

(B)Reasonable Anticipation. A person reasonably anticipates an action’s commencement if:

(i) it knows or reasonably should know that it is likely to be a party 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) A party must take reasonable steps to prevent the routine operation of an electronic information system or policy from destroying information that should be preserved.

(ii) Factors that a court should consider in determining whether a party 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, the timeliness of the party’s actions, and the relative burdens and costs of a preservation effort in light of the importance of the issues at stake, the parties’ resources and technical sophistication, 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 51(b)(2). 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; or

(ii) upon also finding prejudice to another party, dismiss the action or enter a default judgment.

Ariz. R. Fam. Law. proc. 65

Added Oct. 19, 2005, effective Jan. 1, 2006. Amended Sept. 5, 2007, effective Jan. 1, 2008;Sept. 16, 2008, effective Jan. 1, 2009; amended effectiveJan. 1, 2019.

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