October 18, 2017 view from the bench

Sanctions Not Unlimited for Bad-Faith Failure to Disclose

By Hon. Karen L. Stevenson


Discovery in virtually every type of civil litigation is often hard-fought and contentious. Even so, it is rare to see a party engage in tactics that rise to the level of sanctionable misconduct. But it happens. And when it does, Federal Rule of Civil Procedure 37 provides a panoply of possible sanctions to remedy a party’s failure to make the necessary disclosures.

If a motion to compel disclosure is granted, for example, the court may require the failing party, or its counsel, to pay the moving party’s “reasonable expenses” in bringing the motion. If, in another circumstance, the court orders a deponent to be sworn and answer deposition questions and the deponent fails to obey, the court may treat the failure as a contempt of court. When a party fails to obey an order to provide discovery, the court may also address the misconduct by issuing “further just orders” that include taking certain facts as established for purposes of the action, prohibiting the disobeying party from supporting or opposing certain claims or defenses, striking all or part of pleadings, dismissing all or part of the action, or entering default judgment against the disobeying party.

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