§ 18.57 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 the judge's action.

(2) Specific motions —

(i) To compel disclosure. If a party fails to make a disclosure required by § 18.50(c), any other party may move to compel disclosure and for appropriate sanctions.

(ii) 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:

(A) A deponent fails to answer a question asked under §§ 18.64 and 18.65;

(B) A corporation or other entity fails to make a designation under §§ 18.64(b)(6) and 18.65(a)(4);

(C) A party fails to answer an interrogatory submitted under § 18.60; or

(D) A party fails to respond that inspection will be permitted—or fails to permit inspection—as requested under § 18.61.

(iii) 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.

(3) Evasive or incomplete disclosure, answer, or response. For purposes of paragraph (a) of this section, an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.

(b) Failure to comply with a judge's order —

(1) For not obeying a discovery order. If a party or a party's officer, director, or managing agent—or a witness designated under §§ 18.64(b)(6) and 18.65(a)(4)—fails to obey an order to provide or permit discovery, including an order under § 18.50(b) or paragraph (a) of this section, the judge 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 proceeding, 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 claims or defenses in whole or in part;

(iv) Staying further proceedings until the order is obeyed;

(v) Dismissing the proceeding in whole or in part; or

(vi) Rendering a default decision and order against the disobedient party;

(2) For not producing a person for examination. If a party fails to comply with an order under § 18.62 requiring it to produce another person for examination, the judge may issue any of the orders listed in paragraph (b)(1) of this section, unless the disobedient party shows that it cannot produce the other person.

(c) Failure to disclose, to supplement an earlier response, or to admit. If a party fails to provide information or identify a witness as required by §§ 18.50(c) and 18.53, or if a party fails to admit what is requested under § 18.63(a) and the requesting party later proves a document to be genuine or the matter true, the party is not allowed to use that information or witness to supply evidence on a motion or at a hearing, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the judge, on motion and after giving an opportunity to be heard may impose other appropriate sanctions, including any of the orders listed in paragraph (b)(1) of this section.

(d) Party's failure to attend its own deposition, serve answers to interrogatories, or respond to a request for inspection —

(1) In general —

(i) Motion; grounds for sanctions. The judge may, on motion, order sanctions if:

(A) A party or a party's officer, director, or managing agent—or a person designated under §§ 18.64(b)(6) and 18.65(a)(4)—fails, after being served with proper notice, to appear for that person's deposition; or

(B) A party, after being properly served with interrogatories under § 18.60 or a request for inspection under § 18.61, fails to serve its answers, objections, or written response.

(ii) 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 the judge's action.

(2) Unacceptable excuse for failing to act. A failure described in paragraph (d)(1)(i) of this section 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 § 18.52(a).

(3) Types of sanctions. Sanctions may include any of the orders listed in paragraph (b)(1) of this section.

(e) Failure to provide electronically stored information. Absent exceptional circumstances, a judge 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) Procedure. A judge may impose sanctions under this section upon:

(1) A separately filed motion; or

(2) Notice from the judge followed by a reasonable opportunity to be heard.