Compelling Disclosure and Discovery

Rule 26(g) tests a paper someone has signed, and it supplies a sanction when the signature certified more than the signer's inquiry could support. A party that withholds a required disclosure, or answers a request with silence, hands the court no such paper. The requester is left with a gap where information should be, and Rule 37(a) gives it the tool to close that gap: on notice to the other parties and all affected persons, a party may move for an order compelling disclosure or discovery, and 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 court action.¹

Most refusals never reach a judge. A refusal puts the next move in the requesting party's hands: if the information matters little, the requester may drop the matter or press informally and go no further, while information that matters usually draws a motion under Rule 37(a).² Going to court absorbs the parties' resources, irritates the judge, and tends to yield compromises that satisfy no one, so the vast bulk of discovery disputes are resolved, or left unresolved, by the parties themselves.³

A dispute that does reach a judge passes through three stages. The requester first tries to settle it informally, because the motion cannot be filed without a certified effort to do so. If that fails, the requester moves to compel, and the court rules on whether the responding party's objections are valid. Only when the objecting party defies the resulting order does the requester return to court for sanctions under Rule 37(b).⁴ The sequence is deliberate. A ruling stands between every objection and every sanction, so a party faces Rule 37(b) only after a judge has decided that its objections fail and the party has then defied that decision.

Chudasama v. Mazda Motor Corp. illustrates what happens when objections go unadjudicated. Mazda met discovery with objections "on almost every imaginable ground," many of them "clearly boilerplate and bordered on the frivolous," and then withheld "a substantial amount of information that it later conceded was properly discoverable." Those responses seemingly violated its Rule 26(g) certification that its objections had a basis in law and were not unreasonable, and the Rules never authorize such self-help.⁵ The trial court, for its part, ruled on nothing, so no ruling existed from which anyone could seek even an interlocutory appeal, and interlocutory appeals of discovery rulings are rare in any event.⁶

The subsections below follow the path in order. They begin with the conferral certification that every motion must carry, then take up the two kinds of motion to compel, one for required disclosures and one for discovery responses. They next consider what the court may order when it grants a motion, and they close with the party whose total silence lets the requester skip the motion to compel and seek sanctions directly.

Meet-and-Confer Certification

Every motion to compel passes through the same gate. Rule 37(a)(1) sets two conditions: the motion must be made on notice to the other parties and all affected persons, and it 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 court action.⁷ Notice keeps the court from deciding anything behind a party's back, since each party, and any nonparty the order would burden, learns of the request before the court acts. The certification does the screening: it requires the movant to tell the court, in a filing the judge will read, that a real effort to settle the dispute came first.

The gate exists because lawyers can settle most discovery disputes more cheaply than a judge can. A conversation costs far less than a motion and often reaches the same middle ground, while a motion absorbs the parties' resources and the judge's patience and tends to produce a compromise that satisfies no one.⁸ Conferral also shrinks the dispute in a way a motion cannot. A lawyer can answer an objection that a request is overbroad by narrowing the request, and one telephone call may repair a production that was merely overlooked. By the time a motion is filed, only the true disagreements remain, and the movant has decided which of them needs a ruling. Making the certification a condition of filing builds that sequence into the procedure: the lawyers confer first, and the court sees only what is left.

The rule's alternative wording, conferred or attempted to confer, fixes how much the movant must show. Conferred covers the ordinary case, in which the lawyers speak and fail to agree. Attempted to confer covers the lawyer whose calls go unreturned, whose letters are ignored, or whose opponent refuses to discuss the dispute at all. Without those words, an uncooperative opponent could block any motion to compel simply by declining to talk, because the movant could never truthfully certify a conference the other side refused to hold. The rule therefore measures effort: a good-faith attempt that meets silence or refusal suffices, and success at the conference is never required. A movant who files without trying has nothing true to certify.

An exam question on this topic asks whether the motion may go forward, and the answer turns on what the movant did before filing.

Hypothetical Illustration

A buyer sues a supplier over defective parts and serves document requests, and the supplier answers with objections on the afternoon the responses are due. By evening the buyer's lawyer has filed a motion to compel, with no call and no letter to the supplier's lawyer in between. The motion carries no conferral to certify, so it fails its own entry requirement before the court ever reaches the question whether the objections have merit.

Contrast a tenant's lawyer who receives objections to three requests, telephones the landlord's lawyer, and agrees to narrow two of them to the last two years. The landlord's lawyer will not move on the third, so the tenant files a motion limited to that request, with a certification describing the call and what it resolved. Had the landlord's lawyer instead left two calls and an email unanswered, the certification would describe those attempts and satisfy the rule for the same reason.

The conferral condition is not limited to motions to compel. A motion for a protective order, which a responding party may file to put its objections before the court, carries the same requirement of a prior good-faith effort to resolve the dispute without court action, so the gate binds the party resisting discovery as well as the party seeking it.⁹ The federal text also sets a floor, because local rules may demand more. Kinetic Concepts, Inc. v. Convatec, Inc. quotes the Rule 37(a)(1) certification alongside a local rule of the Middle District of North Carolina, under which the court will not consider discovery motions unless moving counsel files a certificate that, after personal consultation and diligent attempts to resolve differences, the parties could not reach an accord, and under which the conference may be held by telephone at any party's request.¹⁰ Personal consultation calls for a live exchange, so a lawyer who has only traded letters may find that a local rule of this kind demands more than the correspondence supplied. The practical course is to read the court's local rules before filing and to confer in a way that leaves a record the certification can describe.

Two mistakes recur in answers on this topic. The first treats the certification as paperwork a court will overlook, when its absence is a defect in the motion itself. The second reads the rule to require a successful conference, which ignores the words attempted to confer. The gate tests the movant's effort, and the merits of the objections come up only after the movant passes through it.

Compelling Required Disclosures

Once the movant has passed the conferral gate, the first kind of motion reaches information a party owes without being asked. Rule 37(a)(3)(A) provides that if a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions.¹² The motion remains subject to notice and to the conferral certification.¹³ What distinguishes it is its trigger: the rule asks for a missed disclosure and nothing more, with no request, deficiency letter, or other prompt from the movant. The motion also asks for two things at once, the disclosure and appropriate sanctions, and the section on granting the motion takes up what the court may order in response.

No request is needed because disclosures work differently from discovery. A party must give the other parties the information Rule 26(a)(1) lists without awaiting a discovery request.¹⁴ A discovery request creates an obligation to respond, so a failure to respond is measured from the request; a disclosure obligation exists from the start, so the failure is the missing disclosure itself. If a prior request were required, a party that sat on its disclosures would force its opponent to serve a request for what the Rules already demanded and then wait out the response time, and the party in default would keep that time as a reward. The words any other party work the same way: the right to move belongs to every party on the receiving end of the disclosure, so in a multiparty case each may press for what is owed without waiting for another to act.

A party facing the motion cannot lean on the excuses that come most naturally in the middle of a case. Initial disclosures must rest on the information then reasonably available to the party, and a party is not excused because it has not fully investigated the case, because it challenges the sufficiency of another party's disclosures, or because another party has not made its disclosures.¹⁵ Each excuse fails for its own reason. The investigation excuse fails because the measure is what is reasonably available now, and a party could otherwise postpone disclosure for as long as it kept investigating. The sufficiency excuse fails because a dispute over someone else's disclosure belongs in the conference and motion process, and withholding one's own disclosure bypasses that process. The reciprocity excuse fails because it is circular: if each side may wait for the other, neither goes first, and a mechanism built to run without anyone's prompting stops running.

The usual exam error is to demand a prior request before a motion to compel disclosure, which imports a requirement that belongs to discovery responses. A party that was asked for documents or answers and did not provide them is in the situation the next section addresses, where the dispute begins with the request. A missing disclosure needs no such beginning, because the Rules supplied the demand themselves.

Rule 37(a)(2) settles where the motion is filed: a motion for an order to a party must be made in the court where the action is pending, and a motion for an order to a nonparty must be made in the court where the discovery is or will be taken.¹⁶ A motion to compel disclosure takes the first branch, because disclosure runs from one party to the other parties and the motion is therefore always aimed at a party.¹⁷ The court that manages the case and knows what each side has produced is the natural court to hear it. The second branch serves discovery directed outward, such as a deposition of a witness in another city or a request to a records custodian who is not a party. An answer that sends a motion over a party's missing disclosure to the district where some witness or record happens to sit has applied the nonparty branch to a party's obligation.

Compelling Discovery Responses

The second kind of motion enforces a demand that someone actually made. Rule 37(a)(3)(B) provides that a party seeking discovery may move for an order compelling an answer, designation, production, or inspection, and it lists the failures that support the motion.¹⁹ A required disclosure is owed without anyone asking, so a motion to compel it needs no request. A discovery response is owed only because someone made a demand, so this motion needs two facts on the record: a request, and a failure to respond to it as the rule describes. The movant is the party that sought the discovery, and the motion is made on notice and carries the same good-faith conferral certification as every motion to compel.²⁰

Rule 37(a)(3)(B) names four failures, each pairing a discovery device with the way a response to it can break down:

A deponent fails to answer a question asked under Rule 30 or 31.²¹
A corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a)(4).²²
A party fails to answer an interrogatory submitted under Rule 33.²³
A party fails to respond that inspection will be permitted as requested under Rule 34.²⁴

The pairing explains the shape of the list. A deposition produces answers one question at a time, so the failure is a refusal to answer a particular question. An organization speaks only through people, so a Rule 30(b)(6) or 31(a)(4) notice requires it to designate who will testify for it, and the failure is the absence of a designation. Interrogatories and document requests are written devices, so the failure appears as silence or refusal in the written response. Kinetic Concepts quotes the Rule 34 ground as reaching a party that "fails to respond that inspection will be permitted … as requested under Rule 34."²⁵

Behind all four grounds sits the recognition that discovery cannot always police itself. Kinetic Concepts quotes the advisory committee's acknowledgment that the process "cannot always operate on a self-regulating basis" and presents Rule 37(a)(3)(B) as one of the mechanisms through which litigants obtain judicial intervention.²⁶ A mechanism is needed because a refusal does not reach a judge by itself. An objection sits in a written response until the requester acts, so the court sees only the disputes someone brings to it. The motion brings them. The requester first tries to resolve the matter informally; if that fails, it moves, and the court determines the validity of the responding party's objections and issues an order compelling discovery if it finds them invalid.²⁷ Rule 37(b) sanctions attach only to a party that defies such an order, so a ruling on the motion stands between an objection and any penalty.²⁸

Because the court rules on the objections instead of simply ordering production, the motion tests a response and does not merely demand obedience. A sound objection survives it; a stock refusal does not. Mazda's boilerplate in Chudasama is the kind of response the motion exists to test.²⁹

An exam stem that asks whether a motion to compel is proper turns first on whether a request was served and went unanswered.

Hypothetical Illustration

A plaintiff in a products case believes the manufacturer holds internal testing reports and files a motion asking the court to compel production of all testing documents. The plaintiff has served no request for production. The motion fails at the threshold, because each ground in the rule describes a failure to respond to a request that was made, and here there was no request to fail.

In a separate case, a plaintiff serves interrogatories under Rule 33, and the manufacturer returns a page of general objections with no answers. The plaintiff's lawyer writes and then telephones, and the manufacturer's lawyer will not move. The plaintiff moves to compel under Rule 37(a)(3)(B)(iii), certifying the letter and the call. The motion states a ground the rule recognizes, and the court can now rule on whether the objections hold.

The first movant skipped the request, and the second had a request and a failure, which is why only the second states a ground. The contrast marks the line with the disclosure motion: a missing Rule 26(a) disclosure supports a motion with no request at all, while a missing answer, designation, or inspection response supports one only after a request has gone unmet. A student who blurs the line will demand a request where the rules require none, or will move to compel discovery nobody has asked for. The next sections take up what the court may order when it grants the motion, and then the party that ignored a request entirely, which lets the requester skip the motion and seek sanctions directly.³⁰

Orders and Expenses on Granting

A motion to compel asks for an order compelling disclosure or discovery,³² but a granted motion can yield more than a command to comply. The court may order the noncomplying party to provide what it withheld, may order that party to pay the movant's expenses and fees for the motion under Rule 37(a)(5), and may enter protective orders defining the scope of the required discovery.³³ The second and third remedies fill gaps the first leaves open. A command to comply gives the requester the discovery but does nothing about the money spent to obtain it, and it leaves the court choosing between ordering a request in full and refusing it in full.

The expense award changes who bears the cost of the dispute. A motion to compel is expensive: the movant must confer, prepare and file the motion, and argue it. A party entitled to discovery would pay all of that merely to receive what the rules already gave it. If the cost stayed where it fell, a party with no good reason to refuse could stall at no price, because the only party out of pocket would be the one that did nothing wrong. Shifting the movant's expenses to the party that forced the motion makes unjustified resistance costly for the resisting party. The award covers the expense of the motion itself and does not depend on defiance of a court order, which is why it arrives at this early stage. It also differs from the sanction in Rule 26(g)(3), which reaches a signer whose certification violated the rule without substantial justification and so requires a finding about the paper and the inquiry behind it.³⁴ The conditions under which Rule 37(a)(5) requires or withholds an award sit in its text, and an answer to a close fee question should be built from that text.

The power to define scope exists because the dispute behind a motion to compel is often divided. A request may seek some material the requester is plainly entitled to and some material that reaches too far. A court limited to granting or denying the motion would have to order the overbroad parts along with the proper ones, or withhold the proper parts along with the overbroad ones. A protective order defining the scope of required discovery lets the court grant the motion as to what the rules require and shape the rest, so the order fits the dispute and not either side's opening position.

Hypothetical Illustration

In a contract suit, a plaintiff serves requests for production, and the defendant answers with stock objections that state no facts about burden. The plaintiff's lawyer confers by letter and by telephone, then moves to compel. The court finds the objections without merit, orders the defendant to produce the documents by a set date, and orders the defendant to pay the plaintiff's reasonable expenses and fees for bringing the motion. The defendant's resistance cost the plaintiff the price of the motion, and the order puts that price on the defendant.

In another suit, a plaintiff demands ten years of purchasing records, and the defendant objects with a specific explanation of how its older records are stored and what retrieving them would cost. After conferral the plaintiff moves to compel. The court sustains the objection as to the older records, defines the scope of required discovery as the most recent three years, and orders production of those records. Because the court accepted part of the defendant's resistance, it may well decline to charge the defendant with the full cost of the motion.

The finding behind each order explains the difference between the two outcomes. The first court found the resistance meritless, so the order compelling production carries the expense award with it. The second court found part of the objection sound and wrote that conclusion into the scope of the order, so the fee question looks different. A requester that receives less than it demanded has not won outright, and the expense question follows the result of the motion.

A granted motion also stands at the beginning of the escalation described earlier. If the court grants a motion to compel and the party still does not respond adequately, Rule 37(b) authorizes a range of sanctions, including striking claims, taking disputed facts as established or barring the party from establishing them, excluding evidence, dismissing the action, and ordering payment of the fees and expenses caused by the refusal.³⁵ The usual exam error is to move from a first refusal straight to default judgment or dismissal. The order granting the motion and the expense award come first, and the heavier sanctions answer defiance of that order.

The same remedial logic runs from the responding party's side. A responding party may bring its objections to the court first by moving for a protective order, and if that motion is wholly or partly denied, the court may, on just terms, order that any party or person provide or permit discovery.³⁶ A denial leaves a gap, since the court has rejected the grounds for relief while the requester still holds no order directing the discovery. Rule 26(c)(2) lets the court close that gap in the same ruling, so the requester need not file a motion to compel to obtain what the court has just held the other side must give. The coverage of a denial in whole or in part handles the split result, so the court orders discovery only as to the portion where protection was refused. The direction that the order rest on just terms lets the court attach conditions, such as a schedule, so the order is more than a flat command. The reach to any party or person covers a nonparty that sought protection, such as the recipient of a subpoena, as well as the parties.

Expenses follow the same rule in both directions. Rule 26(c)(3) provides that Rule 37(a)(5) applies to the award of expenses on a protective-order motion.³⁷ The cross-reference matters because a motion to compel and a motion for a protective order are two ways of presenting the same disagreement. If the allocation of cost depended on which side filed first, a party that expected to lose could improve its position by moving for protection before the requester moved to compel. Under the cross-reference, a party that moves for protection and loses ends up where one that resists a motion to compel and loses would: it must provide the discovery on the terms the court sets, and the same expense rule governs the cost of the motion.

Bypassing the Motion to Compel

The ordinary path from a discovery dispute to a sanction has three stages, and this section concerns the one that can be skipped. The requesting party first tries to resolve the dispute informally. If that fails, it moves under Rule 37(a) for an order compelling discovery, and the court decides whether the responding party's objections are valid. Only if the objecting party then defies the order does the requester return to court for sanctions under Rule 37(b).³⁹ The middle stage is excused when the recalcitrant party has stonewalled discovery, meaning that it failed to respond to discovery requests or to attend its own deposition instead of making particular objections, and the requester can then go straight to a sanctions motion under Rule 37(d).⁴⁰

The shortcut follows from what a motion to compel is for. That motion asks the judge to decide whether the responding party's objections hold, so it presupposes a position to evaluate, such as a written response calling a request overbroad or a deponent who declines a question and names a ground. A party that sends nothing and does not appear has taken no position. A court asked to compel in that setting would have no objection to rule on, and its order would only repeat a command the rules already impose. Insisting on that step would also reward silence, because the defaulting party would gain the time the requester spent filing and arguing a motion that settles nothing. What decides the route is the requester's complaint. When the requester charges that a response was incomplete or evasive, or that the objections are unsound, the dispute concerns the response and the motion to compel is the vehicle. When the complaint is that the other side has completely stonewalled, no ruling on objections is needed, because none were made.⁴¹

A defaulting party cannot rescue itself by objecting once the sanctions motion arrives. A failure of this kind "is not excused on the ground that the discovery sought is objectionable," unless a motion for a protective order is pending.⁴² The condition reflects how a timely objection works. A party with a genuine objection has two open routes: it can serve written objections, which turns the matter into a dispute that a motion to compel will resolve, or it can ask the court for a protective order under Rule 26(c) instead of waiting for the requester to move.⁴³ Either route puts the objection before the court in the open. A party that takes neither route and keeps its objections in reserve holds a free option, since silence costs it nothing if the requester gives up, and the objections remain available if the requester presses. Barring the late objection removes that option. A party that fails to respond at all to a production request, files no written objections, and first raises its objections in opposing the sanctions motion is therefore out of luck: the objections come too late, and the court can order sanctions even though the requester never filed a motion to compel.⁴⁴

Hypothetical Illustration

A supplier serves document requests on a buyer in a contract suit. Within the response period the buyer serves written objections that state specific grounds: the requests reach ten years of records, retrieving the older records would be costly, and some of the documents are privileged. The buyer also moves for a protective order. The supplier believes the objections are unsound and wants to press the matter.

The supplier cannot skip ahead to sanctions. The buyer made particular objections instead of stonewalling, so the validity of those objections is the live dispute, and the supplier must confer and then move to compel so that the court can rule on them. A buyer that had served nothing and filed nothing before the due date passed would have exposed itself to a sanctions motion at once.

The same line runs through depositions. A deponent who appears and declines a particular question on a stated ground has made an objection that a motion to compel will test, whereas a party that does not attend its deposition at all has stonewalled and faces a direct sanctions motion.⁴⁵ An exam stem that describes an unanswered request or a missed deposition is asking which route the requester takes, and the answer turns on whether anything was objected to. A requester facing silence who files a motion to compel first has added a step the rule excuses, and a defaulter who relies on late objections has misread the rule's timing.