NRCP 37

Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

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Rule 37. Failure to Make Disclosures or to Cooperate in Discovery;
Sanctions

 (a) Motion for an Order Compelling Disclosure
or Discovery.

 (1) In General. 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.

 (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.

 (3) Specific Motions.

 (A) To Compel Disclosure. If
a party fails to make a disclosure required by Rule 16.1(a), 16.2(d), or
16.205(d), any other party may move to compel disclosure and for appropriate
sanctions.

 (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:

 (i) a deponent fails to
answer a question asked under Rule 30 or 31;

 (ii) a corporation or
other entity fails to make a designation under Rule 30(b)(6) or 31(a)(4);

 (iii) a party fails to
answer an interrogatory submitted under Rule 33; or

 (iv) 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.

 (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.

 (4) Evasive or Incomplete Disclosure,
Answer, or Response. For purposes of Rule 37(a), an evasive or
incomplete disclosure, answer, or response must be treated as a failure to
disclose, answer, or respond. A party’s production of documents that is not in
compliance with Rule 34(b)(2)(E)(i) may also be treated as a failure to produce
documents.

 (5) Payment of Expenses; Protective
Orders.

 (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 fees. But the court
must not order this payment if:

 (i) the movant filed
the motion before attempting in good faith to obtain the disclosure or
discovery without court action;

 (ii) the opposing
party’s nondisclosure, response, or objection was substantially justified; or

 (iii) other
circumstances make an award of expenses unjust.

 (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 fees. But the court must not order this payment if the
motion was substantially justified or other circumstances make an award of
expenses unjust.

 (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.

 (b) Sanctions for Failure to Comply With a
Court Order.

 (1) 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 35 or 37(a), the court may
issue further just orders that may include the following:

 (A) directing 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;

 (B) prohibiting the disobedient
party from supporting or opposing designated claims or defenses, or from
introducing designated matters in evidence;

 (C) striking pleadings in whole or
in part;

 (D) staying further proceedings
until the order is obeyed;

 (E) dismissing the action or
proceeding in whole or in part;

 (F) rendering a default judgment
against the disobedient party; or

 (G) treating as contempt of court
the failure to obey any order except an order to submit to a physical or mental
examination.

 (2) 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)(1), unless the disobedient
party shows that it cannot produce the other person.

 (3) 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 fees, caused by the failure, unless the failure
was substantially justified or other circumstances make an award of expenses
unjust.

 (c) Failure to Disclose, to Supplement an
Earlier Response, or to Admit.

 (1) Failure to Disclose or Supplement. If
a party fails to provide information or identify a witness as required by Rule
16.1(a)(1), 16.2(d) or (e), 16.205(d) or (e), or 26(e), the party is not
allowed to use that information or witness to supply evidence on a motion, at a
hearing, or at a trial, unless the failure was substantially justified or is
harmless. In addition to or instead of this sanction, the court, on motion and
after giving an opportunity to be heard:

 (A) may order payment of the
reasonable expenses, including attorney fees, caused by the failure;

 (B) may inform the jury of the
party’s failure; and

 (C) may impose other appropriate
sanctions, including any of the orders listed in Rule 37(b)(1).

 (2) Failure to Admit. If
a party fails to admit what is requested under Rule 36 and if the requesting
party later proves a document to be genuine or the matter true, the requesting
party may move that the party who failed to admit pay the reasonable expenses,
including attorney fees, incurred in making that proof. The court must so order
unless:

 (A) the request was held
objectionable under Rule 36(a);

 (B) the admission sought was of no
substantial importance;

 (C) the party failing to admit had a
reasonable ground to believe that it might prevail on the matter; or

 (D) there was other good reason for
the failure to admit.

 (d) Party’s Failure to Attend Its Own
Deposition, Serve Answers to Interrogatories, or Respond to a Request for
Inspection.

 (1) In General.

 (A) Motion; Grounds for
Sanctions. The court 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.

 (B) Certification. A
motion for sanctions for failing to answer or respond must include a
certification that the movant has in good faith conferred or attempted to
confer with the party failing to act in an effort to obtain the answer or
response without court action.

 (2) Unacceptable Excuse for Failing to
Act. A failure described in Rule 37(d)(1)(A) is not excused on
the ground that the discovery sought was objectionable, unless the party
failing to act has a pending motion for a protective order under Rule 26(c).

 (3) Types of Sanctions. Sanctions
may include any of the orders listed in Rule 37(b)(1). Instead of or in
addition to these sanctions, the court must require the party failing to act,
the attorney advising that party, or both to pay the reasonable expenses,
including attorney fees, caused by the failure, unless the failure was
substantially justified or other circumstances make an award of expenses
unjust.

 (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.

 (f) Failure to Participate in Framing a
Discovery Plan. If a party or its attorney fails to
participate in good faith in developing and submitting a proposed discovery
plan as required by Rule 16.1(b), the court may, after giving an opportunity to
be heard, require that party or attorney to pay to any other party the
reasonable expenses, including attorney fees, caused by the failure.

 [Amended; effective March 1, 2019.]

VI. TRIALS

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