Rule 37 is one of those rules you hope you never need to use aggressively, but when opposing counsel goes dark on discovery or your client’s ESI gets wiped, knowing how courts actually apply sanctions can be the difference between winning and watching your case collapse. The rule builds in a clear escalation ladder, and courts expect you to climb it in order.
Start with a Compel Order, Not a Sanctions Motion
Before you get to real sanctions, you almost always need a court order that’s been violated. That’s the critical threshold. Under Rule 37(b), the serious remedies like adverse inference instructions, striking pleadings, and dismissal all flow from a party’s failure to obey a discovery order. If you skip the compel motion and go straight to asking for dismissal, most courts will send you back to start. Build the record.
The exception is Rule 37(d), which lets you seek sanctions without a prior order when a party simply blows off their own deposition or doesn’t respond at all to interrogatories or inspection requests. If someone completely fails to show up or respond, you don’t need to first compel and then wait for violation. But note the certification requirement: your motion must include a statement that you conferred in good faith first.
(1) In General.
(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(a)(4), fails, after being served with proper notice, to appear for that person’s deposition; or
(ii) a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objections, or written response.
The Sanctions Menu and How Courts Actually Use It
Once you have a violation of a court order, Rule 37(b)(2)(A) gives the court a range of options: establishing facts against the disobedient party, prohibiting that party from supporting or opposing certain claims, striking pleadings, staying proceedings, dismissal, or default judgment. Contempt is also on the table for everything except orders to submit to a physical or mental examination.
Expense awards are the most common sanction at every level, and courts treat them almost as automatic when the moving party wins. Under Rule 37(b)(2)(C), the court must order payment of reasonable expenses including attorney’s fees unless the failure was substantially justified or some other circumstance makes it unjust. Same structure appears in Rule 37(a)(5)(A) for successful compel motions. Judges use fee awards freely. Get your time records in order.
The escalating sanctions (adverse inference, striking pleadings, dismissal, default) are reserved for serious misconduct, and courts are supposed to calibrate the sanction to the offense. For terminating sanctions like dismissal or default, courts applying multi-factor analyses consider willfulness, bad faith, and whether lesser sanctions would serve the goals of deterrence. The short version: a single missed deadline rarely gets there. Repeated noncompliance after warnings and lesser sanctions can.
The Part That Trips Up Litigators: Rule 37(c) Exclusion
Rule 37(c)(1) is the teeth behind the disclosure obligations in Rule 26(a). If you fail to identify a witness or disclose information as required, you cannot use that witness or information at trial, on a motion, or at a hearing, unless the failure was substantially justified or harmless.
The common mistake: lawyers assume that if they disclose something before the close of discovery, they’re fine. Not necessarily. If the disclosure obligation under Rule 26(e) required supplementation earlier and you sat on it, courts will consider the timing. In the Ninth Circuit and others, the burden shifts to the party facing exclusion to show the failure was harmless or justified. “We produced it eventually” is not a complete answer.
ESI Spoliation Under Rule 37(e): Intent Is Everything
Rule 37(e) is where electronic discovery collides with sanctions, and the structure is deliberate. Congress and the rulemakers rebuilt this provision in 2015 specifically to address circuits that were imposing adverse inference instructions based on mere negligence. The current framework has two distinct tiers.
(e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:
(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
Under Rule 37(e)(1), if ESI is lost and someone is prejudiced, the court can order curative measures. But notice the ceiling: “no greater than necessary to cure the prejudice.” Under Rule 37(e)(2), the adverse inference instruction and terminating sanctions require a finding of intent to deprive. Negligent or even grossly negligent loss of ESI does not get you to a mandatory adverse inference instruction post-2015. Courts have been fairly consistent about this. If you’re moving for terminating sanctions based on ESI loss, you need evidence that someone deliberately destroyed or withheld the data, not just that they failed to issue a litigation hold on time.
The Failure-to-Admit Penalty Nobody Uses Enough
Rule 37(c)(2) is underutilized. If a party refuses to admit something under Rule 36 and you later prove the matter at trial, you can move for the costs of making that proof, including attorney’s fees. The court must award those costs unless one of four narrow exceptions applies. If you’re preparing requests for admission on genuinely provable facts and opposing counsel blanket-denies them, document your proof costs carefully and circle back after trial. Courts take this seriously when the refusal was clearly unreasonable.
The bigger picture with Rule 37 is proportionality. Courts want discovery to happen, not to punish. But when parties abuse the process repeatedly or destroy evidence intentionally, the rule gives judges real power to respond. Use it methodically, build your record at each step, and save the big motions for when you actually have the facts to support them.