Discovery - Control and Abuse Flashcards
District Court’s Role
Chudasama v. Mazda Motor Corp.
A district court is required to intervene in discovery disputes between the parties.
Steps Leading to a Motion to Compel
- The party requesting discovery must try to resolve the dispute informally.
- If that fails, the requesting party files a motion to compel under Rule 37(a).
- If the other party refuses the order, the requesting party can file for sanctions under Rule 37(b).
If the non-complying party fails to respond to discovery requests or doesn’t show up for depositions instead of filing objections, the requesting party can skip filing a motion to compel and just file for sanctions.
Rule 37(a)(1) Order to Compel
On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. 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.
Rule 37(a)(2)
Appropriate Court
A motion for an order to a party must be made in the court where the action is pending. A motion for an order to a nonparty must be made in the court where the discovery is or will be taken.
Rule 37(3)(A)
To Compel Disclosure
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.
Rule 37(a)(3)(B)
To Compel a Discovery Response
A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if:
- a deponent fails to answer a question asked under Rule 30 or 31;
- a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a)(4);
- a party fails to answer an interrogatory submitted under Rule 33; or
- a party fails to produce documents or fails to respond that inspection will be permitted—or fails to permit inspection—as requested under Rule 34.
Rule 37(a)(3)(C)
Related to a Deposition
When taking an oral deposition, the party asking a question may complete or adjourn the examination before moving for an order.
Rule 37(a)(4)
Evasive or Incomplete Disclosure, Answer, or Response
For purposes of this subdivision (a), an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.
Rule 37(a)(5)(A)
If the Motion Is Granted (or Disclosure or Discovery Is Provided After Filing)
If the motion is granted—or if the disclosure or requested discovery is provided after the motion was filed—the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees. But the court must not order this payment if:
- The movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action;
- The opposing party’s nondisclosure, response, or objection was substantially justified; or
- Other circumstances make an award of expenses unjust.
Rule 37(a)(5)(B)
If the Motion Is Denied
If the motion is denied, the court may issue any protective order authorized under Rule 26(c) and must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney’s fees. But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.
Rule 37(a)(5)(C)
If the Motion Is Granted in Part and Denied in Part
If the motion is granted in part and denied in part, the court may issue any protective order authorized under Rule 26(c) and may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.
Rule 37(b)(1)
Sanctions Sought in the District Where the Deposition Is Taken
If the court where the discovery is taken orders a deponent to be sworn or to answer a question and the deponent fails to obey, the failure may be treated as contempt of court. If a deposition-related motion is transferred to the court where the action is pending, and that court orders a deponent to be sworn or to answer a question and the deponent fails to obey, the failure may be treated as contempt of either the court where the discovery is taken or the court where the action is pending.
Rule 37(b)(2)(A)
For Not Obeying a Discovery Order
If a party or a party’s officer, director, or managing agent—or a witness designated under Rule 30(b)(6) or 31(a)(4)—fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. Lists possible orders.
Rule 37(b)(2)(B)
For Not Producing a Person for Examination
If a party fails to comply with an order under Rule 35(a) requiring it to produce another person for examination, the court may issue any of the orders listed in Rule 37(b)(2)(A)(i)—(vi), unless the disobedient party shows that it cannot produce the other person.
Rule 37(b)(2)(C)
Payment of Expenses
Instead of or in addition to the orders above, 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 of expenses unjust.
