Checklist · Litigation

Moving to Compel Discovery and Seeking Rule 37 Sanctions: A Practical Checklist

Type
Checklist
Jurisdiction
National
Date
2024-08-07
Topic
Litigation

Discovery only works because it is enforceable, and Rule 37 is the enforcement engine. This checklist walks the full escalation ladder: diagnosing a genuinely deficient response as opposed to a merely annoying one, conducting and documenting a meet-and-confer that will satisfy the Rule 37(a)(1) certification, navigating the local rules and pre-motion conference requirements that trip up out-of-district counsel, drafting a motion to compel with the request-by-request specificity judges demand, and invoking the fee-shifting default in Rule 37(a)(5) that most lawyers forget to ask for. It then covers escalation: Rule 37(b) sanctions for violating a discovery order, the self-executing exclusion remedy of Rule 37(c)(1), and the 2015 framework of Rule 37(e) for spoliated electronically stored information, including the intent-to-deprive finding that unlocks an adverse-inference instruction. It closes with the severe sanctions, the proportionality and culpability findings courts require before imposing them, and a section on defending against a motion to compel from the receiving end. The focus throughout is federal practice; state discovery-sanction regimes are broadly similar in structure but differ materially in detail, and practitioners must confirm the rule and case law of their own forum.

Moving to Compel Discovery and Seeking Rule 37 Sanctions: A Practical Checklist

Litigation > Discovery | Published 7 August 2024 - Updated 19 September 2025 | UpLaw - uplaw.us

Discovery is a system of self-executing obligations backed by a threat. Rule 37 is the threat. Lawyers who never learn to use it spend their careers writing angry letters that opposing counsel files in a drawer.

Keywords: motion to compel, Rule 37 sanctions, meet and confer, boilerplate objections, fee shifting, Rule 37(b), Rule 37(c)(1) exclusion, Rule 37(e) spoliation, ESI, adverse inference, proportionality, Rule 26(g), discovery order, default judgment, preclusion

How to use this checklist, and a scope note

This is a federal checklist. It is built on the Federal Rules of Civil Procedure and the federal case law construing them, and every phase below assumes you are in a United States district court. Most states have discovery-sanction rules that are structurally analogous — a motion to compel, a conferral prerequisite, a fee-shifting provision, an escalating menu of sanctions — but the details diverge sharply. Some states have no rule corresponding to Rule 37(e) and continue to apply common-law spoliation doctrine, including negligence-based adverse inferences that federal law abandoned in 2015. Others impose separate certification, timing, or informal-conference requirements. Treat what follows as the framework and the federal answer; confirm the rule number, the standard, and the local practice in your own forum before you file. Where a phase turns on something a state court is likely to handle differently, we say so.

The document is organized as ten phases, each with check items, a short "Why it matters, and the traps" discussion, and a running worked example. There is a consolidated one-glance checklist near the end.

Our running example

Saltmarsh Robotics, Inc. sued Delacourt Instruments, LLC in federal court for trade secret misappropriation, alleging that Delacourt's former engineer, Priya Vance, walked out with Saltmarsh's servo-calibration source code and that Delacourt shipped it in a competing product ninety days later. Saltmarsh served interrogatories and document requests. Sixty-two days later, Delacourt served responses consisting almost entirely of the phrase "Defendant objects to this Request as vague, ambiguous, overly broad, unduly burdensome, and not proportional to the needs of the case," followed by "subject to and without waiving the foregoing objections, Defendant will produce responsive, non-privileged documents to the extent they exist." Nothing was produced. Meanwhile, Saltmarsh has learned that Vance's company laptop was "reimaged and returned to inventory" three weeks after Delacourt received Saltmarsh's demand letter.

That is two different problems — a deficiency problem and a spoliation problem — and Rule 37 handles them through two very different doors. We will walk both.

Phase 1 — Diagnose the deficiency: boilerplate objections, non-answers, and the 2015 specificity requirement

  • [ ] Build a deficiency chart: one row per request, with the request text, the response verbatim, what is missing, and the rule the response violates.
  • [ ] Check timeliness. Interrogatory objections not timely served are waived absent good cause under Fed. R. Civ. P. 33(b)(4); many courts apply comparable reasoning to untimely Rule 34 objections, though the rule text is less explicit and the case law is not uniform.
  • [ ] Flag every boilerplate objection. Fed. R. Civ. P. 34(b)(2)(B) requires objections to state with specificity the grounds for objecting, and Rule 33(b)(4) does the same for interrogatories.
  • [ ] Flag every response that fails Fed. R. Civ. P. 34(b)(2)(C): an objection must state whether any responsive materials are being withheld on the basis of that objection.
  • [ ] Flag every "subject to and without waiving" response — the 2015 amendments were aimed squarely at this construction.
  • [ ] Flag every response that promises production "to the extent they exist" without a date certain. Rule 34(b)(2)(B) requires the response to state a completion time.
  • [ ] Identify evasive or incomplete answers. Under Fed. R. Civ. P. 37(a)(4), an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.
  • [ ] Check the privilege log. A withholding party must describe withheld materials under Fed. R. Civ. P. 26(b)(5)(A); no log, or a log of one-line entries, is itself a compellable deficiency.
  • [ ] Separate genuine disputes (scope, proportionality, privilege) from process failures (nothing produced, no log, no date). Move first on the process failures — they are the ones you cannot lose.
  • [ ] Consider whether the response violates Fed. R. Civ. P. 26(g), which requires counsel to certify that objections are consistent with the rules and not interposed for an improper purpose, and which carries its own mandatory sanction under Rule 26(g)(3).
  • [ ] Ask the unglamorous threshold question: were your own requests any good? A deficiency chart built on vague requests is a chart of arguments you will lose.

Why it matters, and the traps

The 2015 amendments changed the terrain and a startling number of lawyers still litigate as though they did not. Before 2015, a general objection followed by a partial production was widely tolerated; after 2015, the text of Rule 34(b)(2)(B)–(C) makes it a rule violation on its face. Judge Andrew Peck's much-quoted opinion in Fischer v. Forrest (S.D.N.Y. 2017) declared boilerplate objections obsolete and warned that using them may waive the objection entirely. Courts across the country have echoed that. Wright & Miller, Federal Practice and Procedure, collects the post-2015 decisions in its Rule 34 and Rule 37 sections and is the fastest way to find the district-by-district variations.

The trap is moving too early and too broadly. A motion that attacks forty requests, half of which are genuinely overbroad, invites the court to split the baby — and under Rule 37(a)(5)(C) a court that grants a motion in part may apportion expenses, which in practice usually means nobody gets fees and everybody gets a lecture. A motion that attacks twelve requests where the response is facially non-compliant is a motion you win cleanly, with fees, and it recalibrates the entire case.

In our example, Saltmarsh's deficiency chart shows that Delacourt's responses violate Rule 34(b)(2)(B) (no specificity, no production date) and Rule 34(b)(2)(C) (no statement of withholding) across the board, and that not a single document has been produced. That is a process failure, not a scope fight. For the mechanics of what a compliant response should have looked like, see Responding to Rule 34 Document Requests: A Practical Checklist and Answering Rule 33 Interrogatories: A Practical Checklist. For the doctrinal background on objections and responses, see Interrogatories in Civil Litigation: A Comprehensive Guide to Objecting and Responding.

Phase 2 — The meet-and-confer: do it properly, and document it

  • [ ] Send a deficiency letter that is request-specific, cites the rule violated for each item, and proposes a concrete cure and deadline. Attach the deficiency chart.
  • [ ] Offer narrowing where you can afford it. A demonstrated willingness to compromise is the single best predictor of a fee award later.
  • [ ] Actually confer, live. Fed. R. Civ. P. 37(a)(1) requires a certification that the movant has in good faith conferred or attempted to confer. Many districts read that to require a real-time conversation — telephone or video, not an exchange of letters. Check your local rule, which often defines "confer" expressly.
  • [ ] Send a confirming memorandum within 24 hours: who attended, when, how long, what was agreed, what remains disputed, and what the other side committed to do by when.
  • [ ] Give a reasonable but finite deadline, and hold it. Serial extensions destroy the urgency your motion depends on.
  • [ ] Note the impasse in writing: "We appear to be at an impasse on Requests 4, 7, 9–14, and 22. Absent production by [date], we will move to compel."
  • [ ] Preserve every communication for the certification exhibit.
  • [ ] Calendar backward from the fact discovery cutoff, allowing time for briefing, a conference, and a ruling.

Why it matters, and the traps

The meet-and-confer is not a formality; it is a prerequisite with teeth. A motion filed without a good-faith conferral is routinely denied on that ground alone, and under Fed. R. Civ. P. 37(a)(5)(A)(i) the court must not award the movant expenses if the movant filed before attempting in good faith to obtain the discovery without court action. You can win the merits and still pay for the privilege.

The trap runs the other way too. Some lawyers meet and confer forever, mistaking politeness for advocacy. Discovery deadlines do not pause for your patience, and a motion to compel filed after the discovery cutoff is frequently denied as untimely regardless of how meritorious it is. The Federal Rules set no deadline for a motion to compel; the deadline comes from the scheduling order, the local rule, or the judge's individual practices, and courts enforce it.

Practical note: the certification is a document, not a sentence. Attach the letters and the confirming memoranda. Judges who see a clean paper trail of a reasonable movant and a stonewalling respondent decide the motion before they reach the argument section.

Phase 3 — Local rules, discovery-dispute letters, and pre-motion conferences

  • [ ] Read the local civil rules on discovery motions before drafting anything.
  • [ ] Read the assigned judge's individual practices, and the magistrate judge's, if the case is referred.
  • [ ] Determine whether your district requires a pre-motion conference or informal letter before any discovery motion. S.D.N.Y. Local Civil Rule 37.2, for example, bars a discovery motion absent a request for an informal conference with the court.
  • [ ] Determine whether the district requires the motion to quote verbatim each request and response at issue (S.D.N.Y. Local Civil Rule 37.1 does).
  • [ ] Check for joint letter requirements — many judges, including in the Northern District of California, require a short joint statement rather than competing briefs.
  • [ ] Check page limits, which are often brutally short for discovery motions.
  • [ ] Confirm whether the dispute is referred to a magistrate judge and whether objections to a discovery ruling run under Fed. R. Civ. P. 72(a) (14 days; clearly-erroneous or contrary-to-law standard).
  • [ ] If the target is a nonparty subpoena, remember Fed. R. Civ. P. 37(a)(2): a motion to compel a nonparty is made in the court where the discovery is or will be taken, and Fed. R. Civ. P. 45(d)(2)(B)(i) governs.
  • [ ] Note the filing mechanics: whether the deficiency chart is an exhibit or an appendix, whether courtesy copies are required, and whether the proposed order must be a separate document.

Why it matters, and the traps

Nothing marks you as an outsider faster than filing a fully briefed motion to compel in a district that wanted a three-page letter. It wastes the client's money, irritates the court, and — because you filed a "motion" the local rules did not authorize — can leave you without a fee award even when you were right.

The upside is real: informal conferences are extraordinarily efficient. A twenty-minute call with a magistrate judge, who says out loud that boilerplate objections are not going to fly in her courtroom, produces the production you wanted in a week, at a tenth of the cost of full briefing. Use the informal channel first not because the rules make you, but because it usually works. The broader map of how discovery disputes fit into a federal case is laid out in The Federal Discovery Toolkit: A Roadmap From Rule 26(f) to Sanctions, and the surrounding pretrial architecture in The Civil Pretrial Toolkit: From Pleadings to Summary Judgment.

Phase 4 — Drafting the Rule 37(a) motion to compel

  • [ ] Open with the relief requested, in an ordered list, request by request. Do not make the judge reverse-engineer what you want.
  • [ ] Include the Rule 37(a)(1) certification — a separate declaration with the meet-and-confer chronology and exhibits.
  • [ ] Structure the argument request by request, or in tight thematic groups. Quote the request, quote the response, state the deficiency, state the rule.
  • [ ] Anchor relevance in Fed. R. Civ. P. 26(b)(1) and tie each request to a specific claim or defense and to the proportionality factors: the importance of the issues at stake, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense outweighs the likely benefit.
  • [ ] Attack boilerplate as a rule violation, not merely as bad manners: cite Rule 34(b)(2)(B)–(C) and Rule 33(b)(4).
  • [ ] Where the respondent claims burden, note that the burden of showing burden is theirs, with evidence — an affidavit quantifying hours, custodians, and cost, not adjectives.
  • [ ] Ask for a date certain for compliance and a specific format for ESI production.
  • [ ] Ask for expenses under Rule 37(a)(5)(A) — expressly, with a declaration of fees or a request for leave to submit one after the ruling.
  • [ ] Propose an order the court can sign. Judges sign proposed orders. They rarely draft your relief for you.
  • [ ] Make the proposed order specific enough to be violated. This is the single most important drafting decision in the entire sequence, and Phase 6 explains why.

Why it matters, and the traps

The winning motion to compel is boring, granular, and short. The losing one is indignant, global, and long. Judges deciding discovery motions are triaging; the motion that hands them a chart of twelve requests with the deficiency identified in one line each is the motion that gets granted.

Two traps deserve naming. First, do not over-ask. If you demand every custodian's entire mailbox for a six-year period in a case worth $400,000, you have handed your opponent the proportionality argument and converted a compliance motion into a scope fight you might lose. Second, specificity is reciprocal. If your underlying requests were themselves vague — "all documents relating to the product" — the court will be far more receptive to a vagueness objection. Motions to compel are won when the requests are served, not when the motion is filed; see Serving Written Discovery Requests: A Practical Checklist for how to draft requests that are compel-proof, and Federal Civil Discovery: Mastering the Tools, Rules, and Pitfalls for the doctrinal overview.

Saltmarsh's motion targets fourteen requests, quotes each, and closes with a one-page table: Request → Response → Rule Violated → Relief Sought. It asks for production within fourteen days, a Rule 26(b)(5)(A) privilege log within seven days after that, and fees. The proposed order names the source-code repository, the custodians, the date range, and the production format — not "responsive documents."

Phase 5 — The fee-shifting default under Rule 37(a)(5) — the part opponents forget

  • [ ] Understand the default: if the motion is granted — or if the discovery is provided after the motion was filed — the court must require the responding party, its attorney, or both, to pay the movant's reasonable expenses, including attorney's fees. Fed. R. Civ. P. 37(a)(5)(A). It is mandatory, subject only to the three exceptions.
  • [ ] Know the three exceptions: (i) the movant filed before attempting in good faith to confer; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award unjust.
  • [ ] Note the mootness trap for your opponent: producing after the motion is filed does not defeat fees. Rule 37(a)(5)(A) expressly reaches the party who produces after the motion is served.
  • [ ] Know the reverse risk: if the motion is denied, Fed. R. Civ. P. 37(a)(5)(B) requires the court to make the movant pay the respondent's expenses, subject to the same substantial-justification and injustice exceptions.
  • [ ] If the motion is granted in part and denied in part, Fed. R. Civ. P. 37(a)(5)(C) permits apportionment.
  • [ ] Ask. Courts frequently decline to award expenses simply because nobody requested them and the record on reasonableness is empty.
  • [ ] Preserve the fee record from day one: contemporaneous time entries, reasonable rates, and a supporting declaration.
  • [ ] Remember Fed. R. Civ. P. 26(g)(3): an improper certification triggers an appropriate sanction, which may include fees — a second, independent hook that does not depend on Rule 37 at all.
  • [ ] Note that a party may be liable, its counsel may be liable, or both — Rule 37(a)(5)(A) says so expressly, and courts do impose fees on counsel where the objections were counsel's work.

Why it matters, and the traps

This is the most under-used provision in the Federal Rules. Rule 37(a)(5)(A) is written in the mandatory voice — the court "must" award expenses — and yet in practice most motions to compel are granted with no fee award because the movant never asked and never built a record. A fee award changes behavior in a way that an order compelling production does not: it converts stonewalling from a free tactic into a priced one.

"Substantially justified" is the battleground. The standard familiar from fee-shifting jurisprudence generally asks whether there was a genuine dispute on which reasonable people could differ. A good-faith proportionality objection, even a losing one, is often substantially justified. Boilerplate is not — there is nothing reasonable to differ about when the response violates the text of Rule 34 on its face.

And take the reverse risk seriously. Rule 37(a)(5)(B) is the mirror image, and a movant who files an aggressive, poorly-supported motion can end up writing the check. Do not file a motion to compel you would not want your opponent to file against you.

Phase 6 — Escalating: Rule 37(b) sanctions for violating a discovery order

  • [ ] Confirm there is a court order to violate. Fed. R. Civ. P. 37(b)(2)(A) is triggered by a failure to obey an order to provide or permit discovery — including an order granting a motion to compel. A violation of a scheduling or pretrial order is separately sanctionable under Fed. R. Civ. P. 16(f).
  • [ ] Make the order specific: what, to whom, in what format, by what date. A vague order is an unenforceable one.
  • [ ] Document the violation with precision — a declaration with dates and a side-by-side comparison of what was ordered against what arrived.
  • [ ] Identify the sanction sought from the Rule 37(b)(2)(A) menu, in ascending severity:
    • [ ] (i) directing that designated facts be taken as established for purposes of the action;
    • [ ] (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
    • [ ] (iii) striking pleadings in whole or in part;
    • [ ] (iv) staying further proceedings until the order is obeyed;
    • [ ] (v) dismissing the action or proceeding in whole or in part;
    • [ ] (vi) rendering a default judgment against the disobedient party;
    • [ ] (vii) treating the failure as contempt of court (except for a failure to submit to a physical or mental examination).
  • [ ] Ask for expenses: under Fed. R. Civ. P. 37(b)(2)(C) the court must order the disobedient party, its attorney, 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.
  • [ ] Where there was no order but a party wholly failed to appear for its own deposition, or served no response at all to interrogatories or requests for inspection, use Fed. R. Civ. P. 37(d) — sanctions are available with no prior order, and a conferral certification is still required.
  • [ ] Build the culpability record: willfulness, bad faith, or fault, plus prejudice to the moving party.
  • [ ] Ask for an express warning in the order that continued noncompliance will result in a specified, more severe sanction.

Why it matters, and the traps

The single most common structural mistake in discovery enforcement is asking for terminating sanctions when there is no prior order. Rule 37(b) is a contempt-flavored provision: its severe remedies are available because the party defied a judicial command, not merely because it behaved badly. Get the order first. That is why Phase 4 exists — the motion to compel is not just about documents, it is about manufacturing the predicate for everything that follows.

The escalation ladder is also a rhetorical ladder. Courts are far more comfortable imposing a severe sanction on a party with a track record: order, violation, lesser sanction, warning, violation, severe sanction. Build that record deliberately. Ask for the lesser sanction and an express warning — that warning is often precisely the finding an appellate court looks for when it reviews a terminating sanction.

Delacourt is ordered to produce by 15 October. On 15 October it produces 400 pages of press releases and marketing decks. Saltmarsh's Rule 37(b) motion attaches the order, the production log, and a declaration, and asks for: an order compelling production of the source-code repository within seven days; an order establishing that Vance had access to the Saltmarsh code, under Rule 37(b)(2)(A)(i); fees under Rule 37(b)(2)(C); and an express warning that further noncompliance will result in preclusion of Delacourt's independent-development defense.

Phase 7 — Rule 37(c)(1): automatic exclusion of undisclosed witnesses and evidence

  • [ ] Audit the opponent's Fed. R. Civ. P. 26(a) disclosures and Rule 26(e) supplements against what they are actually trying to use.
  • [ ] Where a witness, document, or damages computation was never disclosed, invoke Fed. R. Civ. P. 37(c)(1): 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.
  • [ ] Note that the exclusion is self-executing — no prior order is required, and no motion to compel is required.
  • [ ] Anticipate the multi-factor harmlessness inquiry most circuits apply: surprise to the opposing party, the ability to cure the surprise, the extent of disruption to the trial, the importance of the evidence, and the offering party's explanation for the failure. The formulations vary by circuit; check yours.
  • [ ] Note the alternative sanctions Rule 37(c)(1) permits in addition to or instead of exclusion: payment of reasonable expenses caused by the failure, informing the jury of the party's failure, and any of the sanctions listed in Rule 37(b)(2)(A)(i)–(vi).
  • [ ] Raise exclusion at the right time — often in a motion in limine or in opposition to summary judgment, not necessarily during the discovery period.
  • [ ] Run the same audit against yourself. Supplement now; it is far cheaper than litigating harmlessness later.

Why it matters, and the traps

Rule 37(c)(1) is in one sense the most powerful provision in the rule, precisely because it requires no motion, no order, and no finding of bad faith. It is the reason initial disclosures and supplementation are not clerical tasks. A damages expert who is disclosed late, a key custodian who never made it onto the Rule 26(a)(1)(A)(i) list, a damages computation that was "to be provided" and never was — each is a candidate for exclusion, and exclusion of the damages case is functionally dispositive.

The trap is symmetric and it usually bites the party that thinks it is winning. Late-disclosed evidence of your own gets excluded on the same standard. Audit your own disclosures at the close of fact discovery, and again thirty days before the pretrial order. The doctrine, the circuit variations, and the harmlessness factors are treated at length in Rule 37(c)(1) and the Preclusion of Undisclosed Evidence: A Practical Guide, and the disclosure obligations themselves in Rule 26 Initial Disclosures and the Discovery Plan: A Practical Checklist. Because exclusion is so often litigated on the papers, it also shapes summary judgment; see Moving for Summary Judgment Under Rule 56: A Practical Checklist.

Phase 8 — Rule 37(e): spoliation of ESI, prejudice, and the intent-to-deprive finding

  • [ ] Establish the four threshold elements of Fed. R. Civ. P. 37(e). The electronically stored information (1) should have been preserved in the anticipation or conduct of litigation; (2) is lost; (3) because the party failed to take reasonable steps to preserve it; and (4) cannot be restored or replaced through additional discovery.
  • [ ] Fix the trigger date for the duty to preserve — when litigation was reasonably anticipated, not when the complaint was filed. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003), remains the canonical statement of the duty and of the litigation-hold obligation.
  • [ ] Get the hold documents in discovery: when the hold issued, to whom, what it said, whether it was reiterated, and whether auto-delete was suspended.
  • [ ] Show the failure to take reasonable steps: no hold; a hold that never reached the custodian; backup tapes recycled; a laptop reimaged; a messaging platform left on a 30-day retention default.
  • [ ] Prove non-replaceability. If the emails exist on the recipient's side, or the files are on a server backup, the ESI is not "lost" for Rule 37(e) purposes and the rule never engages.
  • [ ] Under Rule 37(e)(1), upon a finding of prejudice to another party from the loss, the court may order measures no greater than necessary to cure the prejudice — additional discovery at the spoliator's expense, cost-shifting, or permitting evidence and argument about the loss.
  • [ ] Under Rule 37(e)(2), only upon a finding that the party acted with the intent to deprive another party of the information's use in the litigation, the court may (A) presume the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable; or (C) dismiss the action or enter a default judgment.
  • [ ] Understand what the 2015 amendment displaced: negligence-based adverse inferences for lost ESI. The Advisory Committee Note to the 2015 amendment expressly rejects the line of authority — Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99 (2d Cir. 2002), among others — that permitted an adverse-inference instruction on a showing of negligence.
  • [ ] Build the intent case circumstantially: timing relative to the demand letter, selectivity of the deletion, use of wiping software, contradictory testimony, and destruction after a hold issued.
  • [ ] Remember that this is federal law. Many state courts still apply common-law spoliation doctrine and will give an adverse-inference instruction on a lesser showing. Do not import the federal answer into a state case without checking.

Why it matters, and the traps

Rule 37(e) was adopted to replace a decade of chaotic, circuit-specific ESI spoliation law, and it is stricter than most lawyers expect. Practitioners still reflexively ask for an adverse-inference instruction whenever data goes missing. Since 1 December 2015, that instruction is off the table in federal court without a finding of intent to deprive — a subjective standard that most courts hold is not satisfied by negligence or gross negligence. Ask for the wrong remedy and you may get nothing, even where the loss is real.

The disciplined move is to plead in the alternative: seek Rule 37(e)(1) curative measures based on prejudice, which you can usually establish, and seek Rule 37(e)(2) relief in the alternative on an intent theory, with the circumstantial record laid out. Note also that Rule 37(e) applies only to ESI. Destruction of paper, physical evidence, or a product exemplar is governed by the court's inherent authority and circuit spoliation law — see Silvestri v. General Motors Corp., 271 F.3d 583 (4th Cir. 2001).

Saltmarsh's record: Delacourt received a demand letter on 3 March. Vance's laptop was reimaged on 24 March. No litigation hold issued until 12 May. IT records show the reimage was manually initiated, not part of the scheduled refresh cycle, and Delacourt's Rule 30(b)(6) witness could not explain who ordered it. Saltmarsh moves under Rule 37(e)(1) for forensic imaging of Delacourt's remaining systems at Delacourt's cost and for leave to present evidence of the loss to the jury, and in the alternative under Rule 37(e)(2)(B) for a permissive adverse-inference instruction. The preservation obligations Delacourt breached are catalogued in Issuing a Litigation Hold and Preserving ESI: A Practical Checklist. The 30(b)(6) examination that built this record is treated in Preparing to Take a Deposition: A Practical Checklist and Taking Depositions in Federal Civil Litigation: A Comprehensive Guide.

Phase 9 — The severe sanctions: adverse inference, preclusion, default, dismissal

  • [ ] Match the sanction to the misconduct. Courts require that the sanction be proportionate and that lesser sanctions have been considered.
  • [ ] Establish culpability. Dismissal as a sanction requires more than an inability to comply: Societe Internationale pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197 (1958), holds that due process forbids dismissal under Rule 37 where the failure to comply was due to inability rather than willfulness, bad faith, or fault.
  • [ ] Establish flagrancy and deterrence. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639 (1976) (per curiam), upheld dismissal where the party's conduct amounted to flagrant bad faith and callous disregard of its discovery obligations, and emphasized that Rule 37 sanctions serve a general deterrent purpose — they are not only about the case at bar.
  • [ ] Establish prejudice to the moving party and to the court's management of its docket.
  • [ ] Show that lesser sanctions were tried or would be futile, and that the party was warned. Most circuits treat the absence of a prior warning as a strong argument against terminating sanctions.
  • [ ] For a preclusion sanction, define the preclusion precisely — which claim, which defense, which category of evidence.
  • [ ] For an adverse inference, draft the proposed instruction and specify whether it is permissive ("may presume") or mandatory ("must presume"). Under Rule 37(e)(2) both require the intent finding.
  • [ ] Consider the establishment-of-facts sanction under Rule 37(b)(2)(A)(i) — often the most surgical and most grantable severe remedy. The Supreme Court sustained such a sanction, as to jurisdictional facts, in Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982).
  • [ ] Consider parallel bases: the court's inherent authority (Chambers v. NASCO, Inc., 501 U.S. 32 (1991); see also Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980)) and 28 U.S.C. § 1927 for vexatious multiplication of proceedings — but note that a compensatory inherent-power fee award must be limited to the fees the misconduct actually caused, Goodyear Tire & Rubber Co. v. Haeger, 581 U.S. 101 (2017).
  • [ ] Anticipate the standard of review: discovery sanctions are reviewed for abuse of discretion, which cuts both ways.

Why it matters, and the traps

Terminating sanctions are rare, and they are rare for a reason: the system prefers merits adjudication, and appellate courts reverse them where the district court failed to consider lesser alternatives or failed to find the requisite culpability. The lawyer who leads with a request for default judgment on the first violation looks unserious. The lawyer who builds order → violation → fee award → warning → violation → preclusion looks inevitable.

The best-value severe sanction is usually not dismissal but the Rule 37(b)(2)(A)(i) establishment of facts: it is surgical, it is proportionate, it survives appellate review, and it can be case-dispositive in substance without being dispositive in form. In Saltmarsh's case, an order establishing that Vance had access to and copied the servo-calibration code does not end the case — but it eliminates the fight Delacourt most needs to win.

Finally, keep in mind the principle applied by the Second Circuit in Klipsch Group, Inc. v. ePRO E-Commerce Ltd. (2d Cir. 2018): a monetary discovery sanction is calibrated to the cost the misconduct actually imposed, and is not necessarily capped by the merits value of the underlying claim. A defendant who says "the case is only worth $20,000, you cannot sanction me more than that" has misunderstood what the sanction is compensating.

Phase 10 — Defending against a motion to compel

  • [ ] Fix what is fixable, immediately. Produce anything you cannot defend withholding. Narrow the fight to your best ground.
  • [ ] Never rely on boilerplate. Re-serve amended responses with specific, particularized objections that comply with Rule 34(b)(2)(B)–(C) and Rule 33(b)(4).
  • [ ] Build the burden record with evidence: a declaration from IT or the e-discovery vendor quantifying custodians, gigabytes, review hours, and dollars.
  • [ ] Litigate proportionality under Rule 26(b)(1), factor by factor, and offer a concrete alternative — fewer custodians, a tighter date range, targeted search terms, sampling.
  • [ ] Consider a Fed. R. Civ. P. 26(c) protective order — the affirmative counterpart, particularly for trade secrets, third-party privacy, or annoyance and undue burden.
  • [ ] Preserve privilege properly: a compliant Rule 26(b)(5)(A) log and a Fed. R. Evid. 502(d) order to blunt the waiver risk of a large production.
  • [ ] Argue substantial justification under Rule 37(a)(5)(A)(ii) explicitly — and if the movant skipped the conferral, invoke Rule 37(a)(5)(A)(i), which bars a fee award outright.
  • [ ] If the motion should never have been filed, ask for your fees under Rule 37(a)(5)(B).
  • [ ] If compliance is genuinely impossible, say so early, in a declaration, with specifics. Societe Internationale protects the party who cannot comply — not the party who will not.

Why it matters, and the traps

The worst defensive posture is silent stonewalling followed by a scramble. Judges can tell the difference between a party litigating a real scope dispute and a party running out the clock, and the second one spends its credibility budget for the rest of the case.

The best defensive posture is aggressive reasonableness: produce fast on the eighty percent that is not worth fighting about, and fight hard, with evidence, on the twenty percent that matters. That posture makes your proportionality objection credible, makes a fee award against you unlikely, and often converts the motion into a negotiated stipulation before it is ever decided. On privilege in particular, see Building a Privilege Log: A Practical Checklist; on defending the testimony that follows the documents, Defending Depositions in Federal Court: A Comprehensive Guide and The Federal Deposition Toolkit: From Notice to Trial Testimony.

After the fight: carrying your rulings forward

Discovery sanctions are not self-executing at trial. An order establishing facts under Rule 37(b)(2)(A)(i), a preclusion order, or an adverse-inference ruling must be translated into the final pretrial order, the stipulated facts, the motions in limine, and the jury instructions — or it evaporates the moment the jury is empaneled. Put every sanctions ruling into the pretrial order expressly, and draft the instruction yourself; see Preparing for Trial: A Pretrial Order and Trial Readiness Checklist and Federal Civil Trial Practice: From Final Pretrial Conference to Verdict.

On the other side of the ledger: discovery sanctions are generally reviewed for abuse of discretion, and a terminating sanction is far more vulnerable on appeal than a surgical one. If you are on the receiving end of a case-ending sanction, preserve the "lesser sanctions were not considered" and "no willfulness" arguments in the district court — an appellate court cannot reverse on a record you never made. See Taking a Civil Appeal: A Practical Checklist, Federal Civil Appeals: A Comprehensive Guide, and, for the whole arc of the case, Federal Civil Litigation Filings: A Comprehensive Guide from Complaint to Appeal and Federal Civil Litigation: A Roadmap and Resource Guide.

Common Mistakes to Avoid

  1. Serving boilerplate objections. Since 2015 they violate the text of Rule 34(b)(2)(B)–(C), and some courts treat them as a waiver.
  2. Filing without a real meet-and-confer. Rule 37(a)(5)(A)(i) forces the court to refuse you fees even when you win the motion.
  3. Never asking for fees. Rule 37(a)(5)(A) is mandatory, but courts award what movants actually request and support.
  4. Moving for sanctions when there is no order. Rule 37(b) requires disobedience of an order; skipping to sanctions skips the predicate. Use Rule 37(d) only where it truly fits.
  5. Demanding an adverse inference for negligent ESI loss. Rule 37(e)(2) requires intent to deprive; negligence buys you Rule 37(e)(1) curative measures at most.
  6. Applying Rule 37(e) to non-ESI. Paper and physical evidence are governed by inherent authority and circuit law.
  7. Ignoring the local rules. A full brief where the judge wanted a joint letter is money burned and credibility spent.
  8. Missing the discovery cutoff. A meritorious motion filed too late is a denied motion.
  9. Over-asking. A global motion invites a split ruling under Rule 37(a)(5)(C) and no fees.
  10. Forgetting to audit your own disclosures. Rule 37(c)(1) excludes late evidence regardless of which side is late.
  11. Failing to make the order specific. An order that says "produce responsive documents" cannot be violated in any provable way.
  12. Assuming the federal rule is the rule. State discovery-sanction regimes differ, sometimes dramatically, especially on spoliation.
  13. Treating discovery misconduct as an interpersonal problem. It is a rule-enforcement problem. Chart it, brief it, and price it.

The Consolidated Checklist

Diagnose

  • [ ] Deficiency chart built: request → response → rule violated → relief sought.
  • [ ] Timeliness and waiver checked; boilerplate flagged; Rule 34(b)(2)(C) withholding statements flagged.
  • [ ] Evasive or incomplete responses identified under Rule 37(a)(4); privilege log audited under Rule 26(b)(5)(A).
  • [ ] Rule 26(g) certification violation considered.

Confer

  • [ ] Request-specific deficiency letter sent, with proposed cure and deadline.
  • [ ] Live conferral held; confirming memorandum sent; impasse declared in writing.
  • [ ] Certification exhibits assembled; timeline calendared backward from the discovery cutoff.

Comply with local practice

  • [ ] Local rules and individual practices read; pre-motion conference, joint letter, or verbatim-quotation requirement satisfied.

Compel

  • [ ] Motion drafted request-by-request; Rule 26(b)(1) proportionality addressed; date certain and ESI production format requested.
  • [ ] Rule 37(a)(1) certification filed; fees requested under Rule 37(a)(5)(A); a specific proposed order attached.

Enforce

  • [ ] Specific compelling order obtained.
  • [ ] Violation documented; Rule 37(b)(2)(A) sanction selected; mandatory fees requested under Rule 37(b)(2)(C); express warning sought.

Exclude

  • [ ] Opponent's Rule 26(a) and 26(e) disclosures audited; Rule 37(c)(1) exclusion raised at the right procedural moment.
  • [ ] Own disclosures audited and supplemented.

Spoliation

  • [ ] Trigger date fixed; hold documents obtained; failure to take reasonable steps shown; non-replaceability established.
  • [ ] Rule 37(e)(1) prejudice remedies sought; Rule 37(e)(2) intent-to-deprive relief pleaded in the alternative on a circumstantial record.

Escalate

  • [ ] Culpability, prejudice, lesser-sanctions-considered, and warning findings supported in the record.
  • [ ] Proportionate severe sanction requested — establishment of facts, preclusion, adverse inference, default, or dismissal.

Carry forward

  • [ ] Every sanctions ruling written into the final pretrial order, the stipulated facts, the in limine rulings, and the jury instructions.

Primary Authority

Federal Rules of Civil Procedure

Cases

Where a case is cited here without a reporter volume, confirm the current citation and subsequent history before relying on it in a filing.

Secondary Sources

  • Wright & Miller, Federal Practice and Procedure (Civil) — the Rule 34 and Rule 37 sections on motions to compel, fee shifting, and sanctions; the standard starting point for district-by-district variation.
  • Advisory Committee Notes to the 2015 Amendments to Rules 26, 34, and 37(e) — essential reading, and frequently quoted by courts.
  • The Sedona Conference, Commentary on Legal Holds and The Sedona Principles (Third Edition), on ESI preservation and reasonable steps.
  • Manual for Complex Litigation (Fourth), on discovery management and the resolution of discovery disputes.

Related UpLaw Resources

Related Guides & Articles

Related Checklists

Related Toolkits

This checklist is general legal information from UpLaw (uplaw.us), not legal advice, and does not create an attorney-client relationship. Laws vary by jurisdiction and change over time; state discovery rules differ from the Federal Rules, and local rules and individual judges' practices govern discovery motions in ways this document cannot capture. Verify current requirements and consult qualified counsel before acting.