Neb. Sup. Ct. R. 6-337

As amended through November 11, 2024

Section 6-337 - [Effective 1/1/2025] Failure to make disclosures or to cooperate in discovery; sanctions

(a) Motion for 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 compelling disclosure or discovery must be made in the court in which the action is pending.

(3) Specific Motions.

(A) To Compel Disclosure. If a party fails to make a disclosure required by Rule 26(dc), 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. The motion may be made if:

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

(ii) a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a)(45);

(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 the question may complete or adjourn the examination before moving for an order.

(4) Evasive or Incomplete Disclosure, Answer, or Response. For purposes of this subpart (a), an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.

(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, the attorney's law firm or employer, or some or all of them 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(d) and must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, the attorney's law firm or employer, or some or all of them to pay to 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(d) and may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.

(b) Failure to Comply with a Court Order.

(1) Sanctions. If a party or a party's officer, director, or managing agent - or a witness designated under Rule 30(b)(6) or Rule 31(a)(45) - fails to obey an order to provide or permit discovery, including an order made under Rule 35 or Rule 37(a), the court in which the action is pending may issue further just orders. They may include the following:

(A) directing that the matters embraced in the order or other designated facts be taken as established for the 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 for examination, the court may issue any of the orders listed in Rule 37(b)(1)(A)-(F), 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, the attorney's law firm or employer, or some or all of them 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 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, within 30 days of so proving, that the party who failed to admit be ordered to pay the reasonable expenses, including attorney fees, incurred in making that proof. The court must so order unless:

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

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

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

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

(d) Party's Failure to Attend Its Own Deposition, Serve Answers to Interrogatories, Respond to a Request for Inspection, Disclose, or Supplement an Earlier Response.

(1) In General.

(A) Motion; Grounds for Sanctions. The court in which the action is pending 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 Rule 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.

(iii) a party fails to provide information or identify a witness as required by Rule 26(c) or (e).

(B) Certification. A motion for sanctions under subpart (ii) 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(d).

(3) Types of Sanctions. Sanctions may include any of the orders listed in Rule 37(b)(1)(A)-(F). Instead of or in addition to these sanctions, the court must require the party failing to act, the attorney advising that party, the attorney's law firm or employer, or some or all of them 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.

Neb. Sup. Ct. R. 6-337

Rule 37(c) amended July 23, 1997. Renumbered and codified as § 6-337, effective 7/18/2008; amended November 13, 2024, effective 1/1/2025.

COMMENTS TO § 6-337

[1] Some discovery disputes can be resolved informally by the parties working together. To encourage parties to work together, subpart (a)(1) requires a party to attempt to resolve a discovery dispute informally before filing a motion to compel. Subpart (d)(1)(B) imposes the same requirement on a party seeking sanctions for the failure to appear at a deposition or to respond to discovery requests.

[2] The judge presiding over a case is in the best position to rule on discovery motions. Therefore, all motions to compel - including those related to a deposition - must be filed in the court in which the action is pending.

[3] The original version of the rule did not allow a court to impose sanctions on a party that provided the requested discovery after a motion to compel was filed but before the motion was heard. Subpart (a)(5)(B) now allows a court to do so. The possibility of sanctions may discourage parties from engaging in brinkmanship by refusing to provide the requested discovery until the requesting party incurs the expense of preparing and filing a motion to compel.

[4] The original version of the rule did not expressly give courts the discretion to impose sanctions on an attorney's law firm or legal employer. The 2024 Amendments added provisions in Subparts (a), (b), and (d) to give courts the discretion to do so. Giving courts that discretion is appropriate because law firms and legal employers have an obligation to ensure that their attorneys conduct themselves in a professional and ethical manner. Furthermore, it is sometimes difficult to identify which attorneys are responsible for the conduct at issue. The attorney who signed a motion or objection may not be the attorney who decided that the motion should be filed or that the objection should be made. The term "legal employer" was included to make it clear that the rule covers in-house and government attorneys.

[5] Section 6-326(e) originally addressed when parties were required to supplement their discovery responses. The 2024 Amendments extended the requirement to cover expert witness disclosures. Sanctions for failing to supplement discovery responses and expert witness disclosures may now be imposed pursuant to subpart (d)(1)(A)(iii).

[6] The original version of § 6-337 did not expressly identify the types of sanctions that could be imposed for breaching the duty to supplement. The Supreme Court filled the gap by holding that sanctions could be imposed pursuant to § 6-337(d). See Paulk v. Central Laboratory Associates, P.C., 262 Neb. 838, 848 (2001). Many of the reported cases on sanctions involved the failure to supplement discovery requests for information about expert witnesses and their testimony. As a result, there is a substantial body of case law that identifies the factors that courts should consider in deciding the appropriate sanction to impose for failing to provide information about expert witnesses and their testimony. That case law is relevant in determining the appropriate sanctions under subpart (d)(1)(A)(iii).

[7] The 2024 Amendments added subpart (e), which addresses sanctions for failing to preserve electronically stored information. The wording of the subpart is identical to the wording of Rule 37(e) of the Federal Rules of Civil Procedure. Therefore, federal cases interpreting Rule 37(e) are relevant in resolving issues that may arise under § 6-337(e). For the same reason, the Advisory Committee Notes on Federal Rule 37(e) - which are detailed and extensive - are also relevant.

[8] The rule specifies three requirements for imposing sanctions:

(1) electronically stored information should have been preserved

(2) but was lost because the party failed to take reasonable steps to preserve it, and

(3) the information cannot be restored or replaced through additional discovery.

[9] The rule does not require parties to preserve every piece of electronically stored information. It instead requires parties to preserve electronically stored information that is relevant to anticipated or ongoing litigation. Litigation is anticipated when a reasonable person in the same circumstances would reasonably foresee litigation. Examples of events that may trigger the duty to preserve include, among others, sending or receiving a demand or a preservation letter or making or receiving threats of litigation.

[10] Whether a party took reasonable steps to preserve the information is a function of the circumstances, which include the party's sophistication and resources. The party's attorney (if the party is represented by an attorney) should educate the party about its preservation obligations. The attorney may also help the party comply with those obligations by issuing written instructions (often called "litigation holds") and overseeing the party's preservation efforts.

[11] Sanctions should not be imposed if the lost information can be restored or replaced through additional discovery. The question of whether the information can be restored or replaced turns on whether the same electronic information can be obtained from a different source, not on whether substitute information can be obtained through a different method of discovery such as a deposition.

[12] If the requirements for sanctions are met and the other party was prejudiced by the failure to preserve the information, the court may impose sanctions pursuant to subpart (e)(1). Those sanctions must be no greater than necessary to cure the prejudice. For example, if the party failed to preserve electronic records that were relevant to a particular issue, an appropriate sanction might be to preclude the party from offering evidence about that issue or to preclude the party from testifying about the contents of those records.

[13] Prejudice is presumed if the party acted with the intent to deprive the other party of the information. If the party acted with the requisite intent, the court may impose sanctions pursuant to subpart (e)(2). Circumstantial evidence is often important because direct evidence of intent is often absent. In determining the appropriate sanction to impose, the court may consider all the circumstances, including the importance of the information lost and the level of the party's culpability.