Ohio Civ.R. 37

As amended through March 13, 2024

Rule 37 - Failure to Make Discovery, Disclosures, or Participate in Discovery-Related Obligations; Sanctions

(A)Motion for an order compelling discovery

(1) In general

On notice to other parties and all affected persons, a party may move for an order compelling discovery. The motion shall include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make discovery in an effort to obtain it without court action.

(2) Appropriate court

A motion for an order to a party or a deponent shall be made to the court where the action is pending.

(3) Specific motions

(a) 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 Civ.R. 30 or Civ.R. 31;

(ii) A corporation or other entity fails to make a designation under Civ.R. 30(B)(5) or Civ.R. 31(A);

(iii) A party fails to answer an interrogatory submitted under Civ.R. 33;

(iv) A party fails to respond that inspection will be permitted- or fails to permit inspection-as requested under Civ.R. 34.

(b) 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 answer or response

For purposes of division (A) of this rule, an evasive or incomplete answer or response shall be treated as a failure to answer or respond.

(5) Payment of expenses; protective orders

(a) If the motion is granted

If the motion is granted, the court shall, 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's fees. But the court shall not order this payment if:

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

(ii) The opposing party's 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 Civ.R. 26(C) and shall, 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's fees. But the court shall 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 Civ.R. 26(C) and may, after giving an opportunity to be heard, apportion reasonable expenses for the motion.

(B)Failure to comply with order; sanctions

(1) For not obeying a discovery order

If a party or a party's officer, director, or managing agent or a witness designated under Civ.R. 30(B)(5) or Civ.R. 31(A) fails to obey an order to provide or permit discovery, including an order made under Civ.R. 35 or Civ.R. 37(A), the court may issue further just orders. They may include the following:

(a) Directing that the matters embraced in the order or other designated facts shall 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 dismissing;

(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 Civ.R. 35(A) requiring it to produce another person for examination, the court may issue any of the orders listed in Civ.R. 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 shall 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.

(C)Sanctions for failure to disclose, to participate in a Civ.R. 26(F) or Civ.R. 30(B)(5) conference, 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 in a timely manner as required by Civ.R. 26(A) or (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, may do any of the following:

(a) Order payment of the reasonable expenses, including attorney's fees, caused by the failure;

(b) Inform the jury of the party's failure;

(c) Impose other appropriate sanctions, including any of the orders listed in Civ.R. 37(B)(1)(a) through (g).

(2) Failure to participate

If a party fails to participate in a conference or in drafting a discovery plan required by Civ.R. 26(F), or a party fails to confer in good faith as required by Civ.R. 30(B)(5), the court, on motion and after giving an opportunity to be heard, may do either of the following:

(a) Order payment of the reasonable expenses, including attorney's fees, caused by the failure;

(b) Impose other appropriate sanctions on a party or the party's counsel including any of the orders listed in Civ.R. 37(B)(1)(a) through (g).

(3) Failure to admit

If a party fails to admit what is requested under Civ.R. 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's fees, incurred in making that proof. The court shall so order unless any of the following circumstances apply:

(a) The request was held objectionable under Civ.R. 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;

(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 a managing agent or a person designated under Civ.R. 30(B)(5) or Civ.R. 31(A) fails, after being served with a proper notice, to appear for that person's deposition; or

(ii) A party, after being properly served with interrogatories under Civ.R. 33 or a request for inspection under Civ.R. 34, fails to serve its answers, objections, or written response.

(b) Certification

A motion for sanctions for failing to answer or respond shall 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 Civ.R. 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 Civ.R. 26(C).

(3) Types of sanctions

Sanctions may include any of the orders listed in Civ.R. 37(B)(1)(a) through (f). Instead of or in addition to these sanctions, the court shall require the party failing to act, 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.

(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.

Ohio. Civ.R. 37

Effective: 7/1/1970; amended effective 7/1/1994; amended effective 7/1/2008;7/1/2016; amended effective 7/1/2021; amended effective 7/1/2023.

Staff Note (July 1, 2008 Amendment)

Civ.R. 37(F) provides factors for judges to consider when a party seeks sanctions against an opponent who has lost potentially relevant electronically stored information. This rule does not attempt to address the larger question of when the duty to preserve electronically stored information is triggered. That matter is addressed by case law and is generally left to the discretion of the trial judge.

Staff Note (July 1, 2016 Amendment)

The rule is amended to adopt the 2007 stylistic changes to Fed.R.Civ.P. 37. In adopting those federal stylistic changes, the amendments also add provisions of the Federal rule that make the following substantive changes to existing Civ.R. 37:

1. Including within the scope of amended Civ.R. 37(A)(3), "a corporation or other entity fails to make a designation under Civ.R. 30(B)(5) or Civ.R. 31(A)";

2. Adding to the exceptions to amended Civ.R. 37(A)(5), "the movant filed the motion before attempting in good faith to obtain the discovery without court action";

3. Adding to the remedies available under amended Civ.R. 37(A)(5)(b) and Civ.R. 37(A)(5)(c), "the court may issue any protective order authorized under Rule 26(C)"; and

4. Adding amended Civ.R. 37(C)(1) addressing failure to supplement an earlier response.

The 2016 amendments to the Ohio rule do not incorporate the 2015 changes made to Fed.R.Civ.P. 37.