Massachusetts Civil Procedure Rule 37: Failure to Make Discovery: Sanctions
(1) Appropriate Court. An application for an order to a party may be made to the court in which the action is pending, or on matters relating to a deposition, to the court in the county or judicial district, as the case may be, where the deposition is being taken. An application for an order to a deponent who is not a party shall be made to the court in the county or judicial district, as the case may be, where the deposition is being taken.
(2) Motion. If a deponent fails to answer a question propounded or submitted under Rules 30 or 31, or a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a), or a party fails to answer an interrogatory submitted under Rule 33, or if a party, in response to a request for inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer or a designation or an order compelling inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before he applies for an order. If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to Rule 26(c).
(3) Evasive or Incomplete Answer. For purposes of this subdivision an evasive or incomplete answer is to be treated as a failure to answer.
(4) Award of Expenses of Motion. If the motion is granted, the court may, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.
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.
(1) Sanctions by Court in County or District Where Deposition is Taken. If a deponent fails to be sworn or to answer a question after being directed to do so by the court in the county or judicial district, as the case may be, in which the deposition is being taken the failure may be considered a contempt of that court.
(2) Sanctions by Court in Which Action Is Pending. If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or Rule 35, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;
(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
(D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;
(E) Where a party has failed to comply with an order under Rule 35(a) requiring him to produce another for examination, such orders as are listed in paragraphs (A), (B), and (C) of this subdivision, unless the party failing to comply shows that he is unable to produce such person for examination.
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).
(f) Failure to Provide Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions on a party for failing to produce electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.
Amended June 27, 1974, effective July 1, 1974; December 2, 1983, effective January 1, 1984; amended effective May 1, 1994; July 1, 1996; amended September 24, 2013, effective January 1, 2014.
(2014) The 2014 amendments to Rule 37 were part of a series of amendments concerning discovery of electronically stored information. For background, see the 2014 Reporter's Notes to Rule 26.
These amendments added section (f) to Rule 37. This section establishes a "safe harbor" provision that will preclude imposition of sanctions where electronically stored information "is lost as a result of the routine, good-faith operation of an electronic information system." It is taken from Rule 37(e) of the Federal Rules of Civil Procedure and Rule 5 of the Uniform Rules Relating to the Discovery of Electronically Stored Information.
The 2014 amendment to Rule 37, as well as the other amendments to the discovery rules regarding electronically stored information, was not intended to change any existing law in Massachusetts on the obligation to preserve evidence when litigation is reasonably anticipated or has commenced. A duty to preserve may exist as a matter of common law, statutory law, or by reason of a court order.
The following comment from the 2006 Advisory Committee Notes to Federal Rule 37 is equally applicable in Massachusetts:
The good faith requirement of Rule 37(f) means that a party is not permitted to exploit the routine operation of an information system to thwart discovery obligations by allowing that operation to continue in order to destroy specific stored information that it is required to preserve. When a party is under a duty to preserve information because of pending or reasonably anticipated litigation, intervention in the routine operation of an information system is one aspect of what is often called a "litigation hold."
(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.