The Federal Rules of Civil Procedure (FRCP) established in 1937 provides a structure to govern civil proceedings fairly. Rule 37 is contained within the pretrial disclosure and discovery rules and last year some changes were made to account for the preservation of electronically stored information (“ESI”). We will look at the procedures relating to failures in compliance with orders and potential sanctions (penalties).
If a court order exists requiring a party to submit to a sworn deposition and the party does not comply, this action may be considered contempt of court. If a party or their counsel demonstrates a failure to abide by an order, the court may take the following"Rule 37(b)(2)(A)” actions:
- The facts involved be taken “as established”, as the prevailing party claims
- The party is prohibited from taking a position of support or opposition to a claim or defense
- Pleadings may be stricken
- Placing a stay on other proceedings until compliance is made
- Dismissal of a proceeding or action
- A default judgment against the party
Parties may be ordered to produce someone for examination. If a party fails to comply they are also subject to just orders, unless they can prove a true inability to present the person. The disobedient party may be responsible for payment of reasonable costs that resulting from the failure in compliance. This penalty, which covers expenses such as attorney fees, may be ordered either in place of, or in addition to the other orders available to the court.
Failing to Disclose
If a party fails to disclose, share or identify relevant information or a witness in the action; this evidence or information may be disallowed from use in the matter. For example, if an injured plaintiff located a party that witnessed the accident and has information to use in support of the claim, this person's identity must be disclosed. In addition to barring evidence associated with this witness, further sanctions (penalties) may include:
- Reimbursement for expenses incurred resulting from the failure
- Have the party's failure disclosed to the jury
- Other orders from Rule 37(b)(2)(A)
Failures: Deposition, Interrogatory, or Inspection
Courts may order sanctions in instances where an individual fails to appear for a deposition, fails to reply to an interrogatory, or fails to produce information requested for inspection. This assumes that the process of serving suitable notice had been completed.
Failure to Preserve Electronically Stored Information
If relevant information in electronic format (ESI) which should have been retained in preparation for litigation is lost due to a party's failure to preserve it, the court may:
- Order measures as they see fit to cure the prejudice created from the failing to preserve
- When it is determined that a party intentionally took action to deny the other party access to ESI the court may:
- Assume that the lost information was detrimental to the party
- Notify the jury that the lost information was detrimental to the party
- Consider a dismissal or default judgment in the matter