Sanctions for Disobeying Orders

Rule 37(b)(2)(A) takes over once a court has ordered discovery and a party still has not provided it. When a party, or a party's officer, director, or managing agent, fails to obey an order to provide or permit discovery, the court where the action is pending may issue further just orders, and the rule lists examples that run from taking designated facts as established to treating the disobedience as contempt.¹ Atlas Resources, Inc. v. Liberty Mut. Ins. Co. reproduced that language when it described what Rule 37 provides after a court has granted a motion to compel.² The same passage includes the companion provision, Rule 37(b)(2)(C): the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award unjust.³ The first provision is permissive and the second is mandatory, and that contrast organizes the rest of this unit.

The order is what separates this stage from the ones before it. A party that withholds discovery in response to an ordinary request is resisting an adversary, and it may believe, sometimes correctly, that its objections are sound. A motion to compel brings that belief before a judge, who decides whether the objections hold and what the party must provide. After the order issues, a party that still withholds is defying the court. That change explains why Rule 37(b) authorizes sanctions against a party, and sometimes against the party's attorney, and why the court has broad discretion to choose among them.⁴

Four questions follow, in order. Which orders open the door to Rule 37(b)? Which sanctions work on the evidence and issues while leaving the case alive? Which sanctions end the case, and what limits surround them? What do contempt and fee shifting add? The range of sanctions exists so that the court can match its response to the seriousness of the disobedience, since a missed deadline and a prolonged refusal do not call for the same remedy.

Orders That Trigger Rule 37(b)

Rule 37(b)(2) enforces orders, so every analysis under it starts by asking whether a party disobeyed one. The rule permits sanctions for disobedience of “an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a).”⁵ The order most students picture is the one granting a motion to compel, a motion that must certify the movant's good-faith effort to confer before seeking court action.⁶ That order puts the court's own command behind a duty that until then rested on the rules and an adversary's request. The rule does not define “provide or permit” discovery, but the advisory committee notes show that subsection (b) was amended in 1970 to broaden a court's ability to sanction a violation of discovery.⁷

The three orders the text names show the range. A Rule 37(a) order compels disclosure or discovery, a Rule 35 order concerns examinations, and a Rule 26(f) order follows the parties' discovery conference; the 1980 note says Rule 26(f) calls for “an order respecting the subsequent conduct of discovery.”⁸ Because the rule keys the sanction to the existence of an order and not to the device that produced it, one enforcement provision reaches orders issued under different discovery rules.

The phrase also reaches orders that direct no one to produce anything. A preservation order tells a party to keep information, including electronically stored information, from being lost or destroyed. In Victor Stanley, Inc. v. Creative Pipe, Inc., the court held that a preservation order the court issued on its own initiative is an order to “permit discovery,” so violating it exposes a party to Rule 37(b)(2) sanctions.⁹ Two links in the reasoning carry the result. Rule 26(f), as amended in 2006, requires the parties to discuss preserving discoverable information, so court orders enforcing discovery plans that include preservation obligations fall within the rule. A preservation order also has as its core purpose that the information can later be provided, and refusing to sanction its violation because the order did not also direct production would put form ahead of substance.¹⁰ The duty to preserve itself comes from the common law and not from a rule, which is why the text of Rule 37(b)(2) never uses the word “preserve.”¹¹

Two mistakes follow from misreading the trigger. An exam stem that moves straight from an ignored request to a demand for default under Rule 37(b) has skipped the order, and the answer is that the analysis has not yet reached this rule. The opposite mistake treats the rule's list as closed: a preservation order appears nowhere in the text, yet it counts, because the list is introduced by “including” and “provide or permit discovery” is read by its purpose.

A sanction under Rule 37(b) also borrows its legitimacy from the order it enforces. In Chudasama v. Mazda Motor Corp., the court of appeals reviewed a default entered for violating an order compelling discovery and held that, to the extent the sanctions order rested on Rule 37(b), its propriety depended in large part on the propriety of the earlier compel order.¹² The court found an abuse of discretion in the district court's mismanagement of two key parts of the case, Mazda's motion to dismiss the plaintiffs' fraud claim and Mazda's resistance to their discovery requests, and it relied on an earlier decision that reversed a default imposed for violating an erroneously entered order.¹³ The court of appeals described those requests as models of overbreadth, although they had gone out over a lawyer's Rule 26(g) certification that they were not unreasonable or unduly burdensome or expensive, a certification that is hard to square with the description.¹⁴

The reason follows from what the sanction punishes. A party that defies a clear and properly entered order has chosen to disregard the court. A party that cannot tell what an order requires has made no comparable choice, and sanctioning that party turns the court's lapse into the party's fault. The stakes rise with severity. A default amounts to judgment without a hearing on the merits, so the court of appeals said its review of such an order would be “particularly scrupulous.”¹⁵ The two decisions answer different questions about the same trigger. Victor Stanley asks whether an order of a given kind counts at all and answers generously. Chudasama asks whether the order was a sound one to enforce and answers that a severe sanction cannot rest on a flawed one.

Evidence and Issue Sanctions

The first two orders on Rule 37(b)(2)(A)'s list act on the evidence and the issues in the case. Subparagraph (i) directs that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims, and subparagraph (ii) prohibits the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence.¹⁷ Atlas Resources, Inc. v. Liberty Mut. Ins. Co. quoted both when it described what Rule 37 offers after a motion to compel is granted.¹⁸ These orders leave the case alive, which separates them from the harsher items (striking pleadings, dismissal, and default judgment) taken up next. The choice among the listed orders rests in the court's broad discretion, and the listed options are examples; the court in Coca-Cola Bottling Co. v. Coca-Cola Co. observed that the specific options in the rule are not exclusive.¹⁹

Each order answers a specific loss. A party that refuses a court order to produce has kept from the other side the information that would let it prove, or test, some point in the case. If the court merely repeated the command, the refusing party could still go to trial and contest that point while the evidence stayed hidden, and the refusal would work as a litigation tool. The evidence and issue sanctions remove that advantage by operating on the subject that was withheld, so the party gains nothing from having withheld it.

The facts-established sanction settles a point in the requester's favor, and the words as the prevailing party claims fix the direction. The version of the rule that the court applied in Coca-Cola Bottling said the facts are taken as established “in accordance with the claim of the party obtaining the order,” which states the same direction in older words.²⁰ The direction follows from what the withholding took away. The withheld material is what would have confirmed or refuted the requester's account of the point, and a party that holds back the means of testing that account cannot fairly insist that it be tested. The sanction therefore runs toward the party that obtained the order.

The preclusion sanction attacks the same problem from the other side. Instead of deciding a point for the requester, it denies the disobedient party the use of evidence on that point. A party that refused to produce its records on a subject and then arrived at trial with testimony about that subject would put the other side in front of evidence it never had a chance to examine. Preclusion closes that route by barring the party from supporting or opposing the designated claims or defenses, or from offering the designated matters in evidence.²¹

Both orders must stay tied to the subject of the order that was disobeyed, and Coca-Cola Bottling shows how a court keeps them tied. The court began from two limits: a sanction must be just and specifically related to the particular claim at issue in the order to provide discovery, and default is a sanction of last resort.²² Before ruling on the plaintiffs' Rule 37(b) motion, it asked the parties to try to agree on a preclusion order, under a governing principle that the order must in no way prejudice the plaintiffs and in no way benefit the defendant. The parties failed to agree and submitted competing proposals.²³ That principle is the working test for tailoring a sanction. A remedy that satisfies it keeps the refusal from buying an advantage, and the requesting side ends up no worse off than production would have left it.

Hypothetical Illustration

A homeowner sues a contractor over a retaining wall that collapsed, and the court orders the contractor to produce its soil-testing reports for the site. The contractor refuses without justification. An order barring the contractor from offering evidence about soil conditions, or an order taking as established the soil conditions the homeowner alleges, answers the missing reports directly, because each reaches the subject the reports would have covered and nothing beyond it.

Suppose the court instead took as established the contractor's liability on a separate warranty claim about a different job. That order has no connection to the withheld reports. It punishes the refusal, gives the homeowner nothing in place of the missing evidence, and falls outside the requirement that a sanction be just and specifically related to the claim at issue in the discovery order.

An exam answer that reaches for a sanction on matters the order never touched has lost the connection that makes these remedies fit. The same connection explains where the evidence and issue sanctions sit among the tools in the rule. They are the usual lesser alternative to a case-ending sanction, because they remove the advantage the party tried to gain, stay confined to the matters in dispute, and leave the rest of the case to be tried. A court that skips them for default must face the question the Third Circuit's framework asks, which is how effective alternative sanctions would be.²⁴

Case-Ending Sanctions

Rule 37(b)(2)(A) places its heaviest orders at the end of its list. Beyond the orders that take facts as established or bar evidence, the court may strike pleadings in whole or in part, stay further proceedings until its order is obeyed, dismiss the action or proceeding in whole or in part, and render a default judgment against the disobedient party.²⁶ The four orders differ in how much of the case they remove. A stay is the mildest, because it freezes the case without deciding anything and ends when the party obeys. Striking a pleading removes a claim or defense, and when the pleading struck is a defendant's answer, the court may enter a default, the combination reviewed in Chudasama v. Mazda Motor Corp.²⁷ Dismissal works the same way against a disobedient claimant. Because striking and dismissal may be ordered in part, the court can end a single claim without ending the lawsuit.

These orders decide the case instead of shaping its proof, so the law surrounds them with limits the milder sanctions never needed. A court that bars evidence on one subject leaves the party free to win or lose on everything else, while a court that strikes an answer or dismisses a claim ends the party's case without examining the merits. The Third Circuit treats default as a sanction of last resort.²⁸ The court of appeals in Chudasama voiced the same concern as a rule of review: district courts enjoy substantial discretion, but an order striking a defendant's pleadings receives particularly scrupulous review, lest the court too lightly resort to a sanction amounting to judgment without a hearing on the merits.²⁹ Two further limits follow. Every sanction under the rule must be just and specifically related to the claim at issue in the order that was disobeyed,³⁰ and severe sanctions are appropriate only as a last resort.³¹

The limits are easier to apply when they are organized, and the Third Circuit's decision in Poulis supplies one organization. The court in Coca-Cola Bottling reproduced it, and it illustrates how courts structure the inquiry; other circuits conduct a similar inquiry in their own terms.

Exam Analysis Steps

Because default is a last resort, the Third Circuit asks a court to weigh six considerations drawn from Poulis v. State Farm Fire & Casualty Co. before it enters a default under Rule 37(b), and the court in Coca-Cola Bottling quoted them in that form.³² The steps are these:

Ask how far the party itself, as opposed to its lawyer, bears personal responsibility for the failure.
Ask how much prejudice the failure to meet scheduling orders and respond to discovery caused the adversary.
Ask whether the record shows a history of dilatoriness, meaning a pattern of delay rather than a single lapse.
Ask whether the conduct of the party or the attorney was willful or in bad faith.
Ask how effective sanctions other than dismissal would be, which requires a real analysis of alternative sanctions.
Ask whether the claim or defense is meritorious.

The six questions sort by what they measure. Personal responsibility, history of dilatoriness, and willfulness or bad faith measure culpability, which matters because a case-ending sanction should answer a party's own choices and not a lawyer's slip or a court's confusion. Prejudice measures the harm to the other side. The alternative-sanctions question turns the last-resort principle into a concrete inquiry: would anything short of ending the case work? Meritoriousness looks to the cost of error, since a default or dismissal destroys whatever the claim or defense was worth.

Coca-Cola Bottling shows the factors pointing toward default. The court found that two of them pointed forcefully that way, because the Company was fully responsible for the decision to disobey the order and its failure to comply was willful.³³ Both findings rest on who made the choice: the decision to disobey was the Company's own, and nobody else could carry the blame. The court's singling out of two factors shows that they are weighed and not merely counted. Its earlier request that the parties try to agree on a preclusion order, which would leave the plaintiffs no worse off and give the defendant no advantage, shows that a lesser sanction stayed in view.³⁴

Chudasama supplies the other pole. The court of appeals held that the severe sanctions order entered against Mazda was a clear abuse of discretion and could not stand under Rule 37(b)(2).³⁵ Its reasons connect. The patent ambiguity of the discovery requests that the district court compelled Mazda to satisfy, together with the court's utter failure to clarify Mazda's obligations, were largely to blame for the noncompliance. Imposing such severe sanctions is appropriate only as a last resort. Less onerous sanctions were available, and vacating the protective order in particular was entirely unnecessary.³⁶ The court of appeals also believed that if the district court had examined Mazda's motion to dismiss and its discovery objections and issued a meaningful ruling, Mazda's compliance would have been satisfactory.³⁷ A footnote adds a separate limit: the district court never determined whether the fraud claim stated a valid cause of action, and a default judgment cannot stand on a complaint that fails to state a claim, however willful the discovery violation.³⁸

The difference between the two decisions lies in why the order went unobeyed. The Company chose to disobey, so responsibility and willfulness were beyond dispute. Mazda faced requests whose ambiguity, and a court that never clarified them, were largely to blame, so the same questions pointed the other way, and the availability of lesser sanctions reinforced that result. Poulis is one circuit's framework, but Chudasama's concerns, who was responsible for the noncompliance and whether lesser sanctions would do, also appear among its factors. An exam stem that moves from a missed deadline straight to default has skipped the questions that decide the issue: whether an order was disobeyed, who is responsible, whether the conduct was willful, and whether a lesser sanction would work.

Contempt and Fee Shifting

Two remedies in Rule 37(b)(2) remain, and they leave the court very different amounts of freedom. The last item on the list of further orders lets the court treat as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.⁴⁰ Rule 37(b)(2)(C) separately requires the court, instead of or in addition to the other orders, to order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.⁴¹ Contempt belongs with the discretionary group, because the list of further orders is introduced by language saying the court may issue them. The expense award alone is stated as a command.

Contempt differs in kind from the other discretionary orders. Striking a pleading, taking facts as established, and barring evidence all rearrange the case to offset what the withheld discovery would have shown. A contempt finding works on the person who defied the court. The clause carries one exclusion: an order to submit to a physical or mental examination cannot be enforced by contempt, although a party who refuses one remains exposed to the rest of the list.⁴² The rule states the exclusion without explaining it, so it belongs in memory as part of the clause's wording.

Contempt matters in practice because of appellate review. In most situations a trial court's discovery orders are final and binding, and immediate review is hard to get, since interlocutory appeal of a discovery ruling is rare.⁴³ Only two routes lead to immediate review. Mandamus, an extraordinary writ, gives only limited relief, because it is restricted to a gross miscarriage of justice or an abuse of discretion in the trial court. The other route is to refuse to obey, be adjudged in contempt, and appeal from the final contempt judgment, challenging the bases on which it was entered.⁴⁴

The contempt route is risky, and each risk lowers what the party gains for the penalty it takes on. No immediate appeal lies from a finding of civil contempt. A finding of criminal contempt may land in a court where appellate review is so narrow that the objection to the underlying order is never considered. In either case, if the appellate court upholds the discovery order, the contempt penalty remains in effect.⁴⁵ A party that defies an order to test it thus risks a penalty for a chance at review that may never reach the question it cares about, which is why trial court discovery orders are final and binding in most situations. An exam answer that offers defiance as a cheap path to the court of appeals has skipped all three of these costs.

The expense award follows a different logic. Coca-Cola Bottling quoted an earlier version of the same provision, which said the court shall require the party failing to obey the order, the attorney advising that party, or both to pay the reasonable expenses caused by the failure, unless the failure was substantially justified or other circumstances made an award unjust, and which allowed the award in lieu of the other orders or in addition to them.⁴⁶ The verb has changed from shall to must, and the structure has stayed the same: a required award with two exceptions. Fee shifting is the floor of Rule 37(b), the minimum consequence whatever else the court does.⁴⁷ Rule 26(g)(3) puts its mandatory element in a different place. There the court must impose an appropriate sanction on the signer, the party on whose behalf the signer acted, or both, and payment of expenses is only something that sanction may include.⁴⁸

A mandatory fee award makes sense because it costs the disobedient party only what the disobedience cost the other side. The party that obeyed has usually spent money twice, first to confer and move for the order and then to deal with defiance of it. If that cost stayed where it fell, the disobedient party would pay nothing for delay and would have a reason to wait out the requester's patience. A money award also leaves the merits untouched, while striking a pleading or entering default decides part of the case without a hearing. The rule can therefore require fees whenever its conditions are met and reserve the judgment calls for orders that reshape the case. A court that decides default is too harsh for a particular disobedience must still deal with fees.

Each part of the provision has its own account. The list of targets, the party, the attorney advising the party, or both, lets the cost follow responsibility: a client who instructs a refusal and a lawyer who recommends one have each made a choice, and the court may charge whoever made it. The words caused by the failure limit the award to costs traceable to the disobedience, such as the effort of enforcing the order, which keeps the award compensatory and echoes the causal language of Rule 26(g)(3).⁴⁹ The two exceptions keep the rule from penalizing genuine disagreement. Substantial justification covers a failure that rested on a reasonable position, and the second exception, other circumstances making an award unjust, gives the court a safety valve for cases the first does not describe.⁵⁰

The usual exam error is to treat the fee award as an optional item reached only after the court chooses a heavy sanction. The text supports the opposite reading, because the award may replace the other orders or accompany them and depends only on the two exceptions. A short checklist keeps those exceptions from being forgotten.

Step three decides most close questions, because a party with no reasonable basis for its refusal has no way around the award, while one with a real basis may avoid it entirely.