Rule 65.Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

Part VII. Disclosure and Discovery · Last amended January 1, 2019 · Last verified September 4, 2026

In one sentenceRule 65 is the enforcement rule for Part VII: it governs motions to compel, the sanctions available for disobeying a discovery order, the leave required to use late-disclosed evidence, and the consequences of destroying electronic information.

Full Text of Rule 65

Text sizeJump to: (a) (b) (c) (d)

(a) Motion for Order Compelling Disclosure or Discovery.

(1) Generally. A party may move for an order compelling disclosure or discovery. The party must serve the motion on all other parties and affected persons and must attach a good faith consultation certificate complying with Rule 9(c).

(2) Specific Motions.

(A) To Compel Disclosure. If a party fails to disclose information required by Rule 49, the 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, if any person or entity has not complied with a discovery rule.

(C) Related to a Deposition. When taking an oral deposition, the party asking a question may complete, continue with, or adjourn the examination before moving for an order to compel an answer.

(3) Evasive or Incomplete Disclosure, Answer, or Response. For purposes of this rule, the court may treat an evasive or incomplete disclosure, answer, or response as a failure to disclose, answer, or respond.

(4) Payment of Expenses.

(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 may, after giving an opportunity to be heard, require the party or person whose conduct necessitated the motion, to pay the movant's reasonable expenses incurred in making the motion, including attorney fees. The court may 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 in good faith; or

(iii) other circumstances make an award of expenses unjust.

(B) If the Motion Is Denied. If the motion is denied, the court may, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both, to pay the party or person who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney fees. The court may not order this payment if the motion was filed in good faith 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, after giving an opportunity to be heard, may apportion the reasonable expenses, including attorney fees, for the motion.

(b) Failure to Comply with Court Order or Discovery or Disclosure Rule; Sanctions.

(1) For Not Obeying a Discovery Order or Rule. If a person fails to obey an order to provide or permit discovery, or fails to comply with a disclosure or discovery rule, the court may enter sanctions including, but not limited to, the following:

(A) directing that designated facts be taken as established for purposes of the action;

(B) prohibiting the disobedient party from supporting or opposing designated arguments, or from introducing designated matters in evidence;

(D) staying further proceedings until the order is obeyed;

(E) dismissing the action or proceeding in whole or in part, unless dismissal would be contrary to the best interests of a child;

(F) rendering a default judgment, in whole or in part, against the disobedient party; or

(G) scheduling a proceeding to treat the violation as contempt of court.

(2) Payment of Expenses. Instead of or in addition to the orders above, the court may order the disobedient person or the person's attorney, or both, to pay the reasonable expenses, including attorney fees, caused by the failure, unless the failure was in good faith or other circumstances make an award of expenses unjust.

(c) Use of Information, Witness, or Document Disclosed After Scheduling Order or Case Management Order Deadline or Less Than 30 Days Before Trial. A party seeking to use information, a witness, or a document that it first disclosed later than the deadline set in a scheduling order or a case management order, or--in the absence of such a deadline--less than 30 days before trial, must obtain leave of court by motion. The motion must be supported by affidavit and must show that:

(A) the party, acting with due diligence, could not have earlier discovered and disclosed the information, witness, or document; and

(B) the party disclosed the information, witness, or document as soon as practicable after its discovery.

(d) Failure to Preserve Electronically Stored Information.

(1) Duty to Preserve.

(A) Generally. A party or person has a duty to take reasonable steps to preserve electronically stored information relevant to an action once it commences the action, once it learns that it is a party to the litigation, or once it reasonably anticipates the litigation's commencement, whichever occurs first. A court order or statute also may impose a duty to preserve certain information.

(B) Reasonable Anticipation. A person reasonably anticipates an action's commencement if:

(i) it knows or reasonably should know that it is likely to be a party in a specific action; or

(ii) it seriously contemplates commencing an action or takes specific steps to do so.

(i) A party must take reasonable steps to prevent the routine operation of an electronic information system or policy from destroying information that should be preserved.

(ii) Factors that a court should consider in determining whether a party took reasonable steps to preserve relevant electronically stored information include the nature of the issues raised in the action or anticipated action, the information's probative value, the accessibility of the information, the difficulty in preserving the information, whether the information was lost as a result of the good-faith routine operation of an electronic information system, the timeliness of the party's actions, and the relative burdens and costs of a preservation effort in light of the importance of the issues at stake, the parties' resources and technical sophistication, and the amount in controversy.

(2) Remedies and Sanctions. If electronically stored information that should have been preserved is lost because a party, either before or after an action's commencement, failed to take reasonable steps to preserve it, a court may order additional discovery to restore or replace it, including, if appropriate, an order under Rule 51(b)(2). If the information cannot be restored or replaced through additional discovery, the court:

(A) upon finding prejudice to another party from the loss of the information, may order measures no greater than necessary to cure the prejudice; or

(B) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation, may:

(i) presume that the lost information was unfavorable to the party; or

(ii) upon also finding prejudice to another party, dismiss the action or enter a default judgment.

End

Rule History

Added Aug. 30, 2018, effective Jan. 1, 2019.

Plain-English Summary

Everything in Part VII points here. Rule 65 supplies the remedy when disclosure or discovery fails.

Motions to compel

A party may move to compel disclosure or discovery, serving the motion on all other parties and affected persons and attaching a Rule 9(c) certificate. An evasive or incomplete disclosure, answer or response may be treated as a failure to respond at all.

Who pays for the motion

If the motion is granted -- or if the material is provided after the motion was filed -- the court may require the party whose conduct necessitated the motion to pay the movant's reasonable expenses including attorney fees. Three exceptions: the movant filed without first attempting in good faith to obtain the material; the opposing party's position was in good faith; or other circumstances make the award unjust. If the motion is denied, the same shifting runs the other way against the movant or the filing attorney. A split result may be apportioned.

Sanctions for disobedience

For failing to obey a discovery order or comply with a disclosure or discovery rule, the court may direct that designated facts be taken as established; prohibit the disobedient party from supporting or opposing designated arguments or introducing designated matters; strike pleadings; stay proceedings; dismiss the action in whole or in part, unless dismissal would be contrary to the best interests of a child; render a default judgment; or schedule a contempt proceeding. Expenses may be ordered instead of or in addition, against the person or the attorney or both, unless the failure was in good faith or an award would be unjust.

The child's-best-interests carve-out on dismissal is the family law addition, and it matters: procedural default by a parent does not automatically end a case about a child.

Late disclosure requires permission

A party seeking to use information, a witness or a document first disclosed after a scheduling or case management order deadline -- or, absent such a deadline, less than 30 days before trial -- must obtain leave of court by motion supported by affidavit. The showing is two-part: that the party, acting with due diligence, could not have discovered and disclosed it earlier, and that it was disclosed as soon as practicable after discovery. Diligence alone is not enough; promptness alone is not either.

Electronically stored information

The duty to take reasonable steps to preserve relevant electronic information attaches at the earliest of commencing the action, learning one is a party, or reasonably anticipating litigation -- which happens when a person knows or reasonably should know they are likely to be a party, or seriously contemplates commencing an action or takes specific steps to do so. A party must prevent routine system operation from destroying what should be preserved.

If such information is lost, the court may order additional discovery to restore or replace it. If it cannot be restored, the court may order measures no greater than necessary to cure prejudice -- but may presume the lost information was unfavorable, or dismiss or enter default, only on finding that the party acted with the intent to deprive another party of its use. Negligent loss and deliberate destruction are treated differently, and the line is intent.

Frequently Asked Questions

What do I file if the other side will not produce documents?

Rule 65(a)(1) allows a motion for an order compelling disclosure or discovery, served on all other parties and affected persons and accompanied by a good faith consultation certificate complying with Rule 9(c).

They produced the documents only after I filed. Can I still recover fees?

Yes. Rule 65(a)(4)(A) allows the court to require payment of the movant's reasonable expenses including attorney fees if the motion is granted or if the disclosure or discovery is provided after the motion was filed, subject to three stated exceptions.

Can a case be dismissed as a discovery sanction?

Rule 65(b)(1)(E) allows dismissal in whole or in part, unless dismissal would be contrary to the best interests of a child.

Can I use a document I disclosed two weeks before trial?

Only with leave. Rule 65(c) requires a motion supported by affidavit showing that the party, acting with due diligence, could not have earlier discovered and disclosed it, and that it was disclosed as soon as practicable after its discovery.

When does the duty to preserve electronic information start?

Rule 65(d)(1)(A) attaches the duty at the earliest of commencing the action, learning you are a party, or reasonably anticipating the litigation's commencement, which Rule 65(d)(1)(B) defines as knowing or reasonably being expected to know you are likely to be a party, or seriously contemplating commencing an action or taking specific steps to do so.

What happens if electronic evidence is deleted?

Rule 65(d)(2) allows the court to order additional discovery to restore or replace it. If it cannot be restored, the court may order measures no greater than necessary to cure prejudice, and may presume the information was unfavorable or dismiss or enter default only upon finding the party acted with the intent to deprive another party of its use.

Source & verification. Rule text and Rule History reproduced verbatim from the Arizona Rules of Family Law Procedure as published by the Arizona Supreme Court, current through amendments effective January 1, 2026. Promulgated by the Supreme Court of Arizona (Ariz. Const. art. 6, § 5). Last verified September 4, 2026. · Official text

Also known as: motion to compeldiscovery sanctionsspoliationpreservationlate disclosurefailure to discloseexpensesattorney feeselectronically stored informationintent to deprive