Rule 37 is the Federal Rules' central mechanism for addressing failures in discovery, ranging from a party's refusal to answer questions to the loss of relevant information. This article examines what the rule's text and the Advisory Committee Notes reveal about when and how courts impose sanctions, and it situates that framework within practical guidance on the preservation of electronically stored information (ESI). Because these questions turn on the specific record before a court, the discussion below is educational and general, not legal advice.
The Purpose and Reach of Rule 37 Sanctions
Rule 37 exists to give discovery obligations teeth. As the Advisory Committee explained, "Rule 37 provides generally for sanctions against parties or persons unjustifiably resisting discovery." The rule's authority to establish facts, exclude evidence, strike pleadings, or enter dismissal or default is not a novel invention; the drafters grounded it in Supreme Court precedent distinguishing legitimate compulsion of evidence from mere punishment.
The 1937 Advisory Committee Note situates these measures within a longstanding constitutional boundary. It describes the sanctions as being "in accord with Hammond Packing Co. v. Arkansas, 212 U.S. 322 (1909), which distinguishes between the justifiable use of such measures as a means of compelling the production of evidence, and their unjustifiable use, as in Hovey v. Elliott, 167 U.S. 409 (1897), for the mere purpose of punishing for contempt." That distinction — compulsion versus punishment — remains a touchstone for courts weighing severe sanctions.
Willfulness, State of Mind, and the Choice of Sanction
A recurring question in spoliation and discovery-failure disputes is whether a culpable state of mind is required before a court may act. The Advisory Committee addressed this directly when it resolved a long-running interpretive conflict in the rule's language. Courts had read a requirement of "wilfullness" into the word "refusal," but the Supreme Court took a different view.
As the 1970 Note recounts, in Societe Internationale v. Rogers, the Court "concluded that the rather random use of these two terms in Rule 37 showed no design to use them with consistently distinctive meanings, that 'refused' in Rule 37(b)(2) meant simply a failure to comply, and that wilfullness was relevant only to the selection of sanctions, if any, to be imposed." In practice, this means a party's degree of fault often bears less on whether a violation occurred than on how severe the court's response should be. The drafters substituted "failure" for "refusal" throughout the rule to "eliminate this confusion."
Expenses, the Substantial-Justification Standard, and Deterrence
Where a party fails to obey a discovery order, the rule makes fee-shifting the default rather than the exception. Under 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 of expenses unjust."
The Advisory Committee framed this as a deliberate deterrent. It observed that fee awards had been "little used" — the Columbia Survey found that "in only one instance out of about 50 motions decided under Rule 37(a) did the court award expenses" — and that "the courts do not utilize the most important available sanction to deter abusive resort to the judiciary." The revised standard "provides in effect that expenses should ordinarily be awarded unless a court finds that the losing party acted justifiably in carrying his point to court," while preserving flexibility because "the court retains the power to find that other circumstances make an award of expenses unjust."
Preservation of ESI: Where the Analysis Begins
Spoliation disputes over electronically stored information turn first on the scope and reasonableness of a party's preservation efforts. The District of Maryland's ESI Principles direct that "Parties should take measures to preserve ESI as required by law" and "should discuss preservation of ESI as early in the litigation as feasible," with those discussions continuing "periodically as the case and issues evolve."
Proportionality anchors the inquiry. The Principles instruct that "In determining what ESI to preserve, parties should apply the proportionality standard" drawn from Rule 26(b), and that parties "should discuss limiting the preservation, search, review, and production requirements imposed on each party by determining what ESI sources can be excluded from preservation and production because they are marginally relevant or not reasonably accessible." A court evaluating an alleged loss of ESI will examine whether preservation choices were reasonable and proportionate — not whether they were perfect.
Cooperation and Early Dispute Resolution
The most effective way to avoid a spoliation motion is to surface preservation questions before information is lost. The Maryland Principles emphasize cooperation, recognizing "the principles of The Sedona Conference® Cooperation Proclamation" and expecting "cooperation on issues relating to the preservation, collection, search, review, production, integrity, and authentication of ESI." The Court "particularly emphasizes the importance, of cooperative exchanges of information about ESI at the earliest stages of litigation."
When preservation scope is contested, the Principles counsel a structured path: parties should "fully discuss the reasonableness and proportionality of the preservation," and if they "are unable to resolve a preservation issue, then the issue should be promptly raised with the Court." For a neutral, this framework offers concrete leverage — an early, documented preservation dialogue narrows the record a court must later review and reduces the risk that avoidable losses ripen into sanctions litigation.
This article is provided for general informational purposes only and does not constitute legal advice. Engagement of Daniel Garrie as a neutral is administered exclusively through JAMS.