Part V: Depositions and Discovery · Last amended August 1, 2019 · Last verified July 28, 2026
In one sentenceRule 37 gives Delaware courts the tools to enforce discovery -- motions to compel answers or inspection, escalating sanctions up to dismissal or default judgment for disobeying a discovery order, expense-shifting when a party wrongly refuses to admit a fact, and a strict page limit and briefing schedule for discovery motions.
(a)Motion for order compelling discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:
(1)Appropriate court. An application for an order to a party may be made to the Court, or, alternatively, on matters relating to a deposition taken outside the State of Delaware, to a court in the state where the deposition is being taken. An application for an order to a deponent who is not a party shall be made to a court in the state where the deposition is being taken.
(2)Motion. If a deponent fails to answer a question propounded or submitted under Rule 30 or 31, or a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a), or a party fails to answer an interrogatory submitted under Rule 33, or if a party, in response to a request for inspection submitted under Rule 34, fails to produce documents or ESI, or fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order.
(3)Evasive or incomplete answer or response. For purposes of this subdivision an evasive or incomplete answer or response is to be treated as a failure to answer or respond.
(4)Expenses and sanctions.
(A)If the motion is granted or if the disclosure or requested discovery is provided after the motion was filed, the Court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the Court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.
(B)If the motion is denied, the Court may enter any protective order authorized under Rule 26(c) and shall, after affording an opportunity to be heard, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney’s fees, unless the Court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.
(C)If the motion is granted in part and denied in part, the Court may enter any protective order authorized under Rule 26(c) and may, after affording an opportunity to be heard, apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.
(2)Sanctions by Court. If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this Rule or Rule 35, the Court may make such orders in regard to the failure as are just, and among others the following:
(A)An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(B)An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence;
(C)An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
(D)In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;
(E)Where a party has failed to comply with an order under Rule 35(a) requiring that party to produce another for examination, such orders as are listed in paragraphs (A), (B), and (C) of this subdivision, unless the party failing to comply shows that that party is unable to produce such person for examination.
(F)Rule 37. Failure to preserve ESI. If ESI that should have been preserved in the reasonable anticipation of or actual notice of imminent 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 information, may order measures no greater than necessary to cure the prejudice; or
(2)only upon finding that the party acted recklessly or with the intent to deprive another party of the information’s use in the litigation, may, among other things: (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. In lieu of any of the foregoing orders or in addition thereto, the Court shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the Court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
(c)Expenses on failure to admit. If a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may apply to the Court for an order requiring the other party to pay the reasonable expenses incurred in making that proof, including reasonable attorney’s fees. The Court shall make the order unless it finds that (1) the request was held objectionable pursuant to Rule 36(a), or (2) the admission sought was of no substantial importance, or (3) the party failing to admit had reasonable ground to believe that the party might prevail on the matter, or (4) there was other good reason for the failure to admit.
(d)Failure of party to attend at own deposition or serve answers to interrogatories or respond to request for inspection. If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails (1) to appear before the officer who is to take the deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or (3) to serve a written response to a request for inspection submitted under Rule 34, after proper service of the request, the Court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this Rule. In lieu of any order or in addition thereto, the Court shall require the party failing to act or the attorney advising that party or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the Court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. The failure to act described in this paragraph may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by Rule 26(c).
(e)Presentation of motions. All motions which are filed pursuant to Rule 26(c), 26(d) or 37 of the Superior Court Civil Rules, with the exception of motions filed during the pendency of an oral deposition, shall be presented to the Court as follows:
(1)No motion shall be filed pursuant to Rule 26(c), 26(d) or 37 of the Superior Court Civil Rules, and no such motion shall be accepted by the Prothonotary, unless such motion shall include a certification by the moving party detailing the dates, time spent, and method of communication in attempting to reach agreement on the subject of the motion with the other party or parties and the results, if any, of such communication, provided that the certification shall not be required for motions filed pursuant to Rule 37(d) of the Superior Court Civil Rules.
(2)The motion shall be filed at least 10 days prior to the date noticed for presentation of the motion to the Court. The motion shall not exceed 4 pages of letter size paper (81/2″ x 11″) and shall contain all authorities and facts which the moving party desires to bring to the attention of the Court.
(3)At least 4 days prior to the date noticed for presentation of the motion, if any other party to the action desires to oppose or take any position with respect to the motion, such party shall file a responsive pleading which shall not exceed 4 pages of letter size paper (81/2″ x 11″). The responsive pleading shall contain all authorities and facts which the responding party desires to present to the Court. Failure to file a responsive pleading shall constitute a waiver of any opposition to the motion.
(4)There shall be no written reply to the responsive pleading to the motion.
(5)There shall be no further briefing on any motion filed pursuant to Rule 26(c), 26(d) or 37 of the Superior Court Civil Rules, except upon order of the Court for good cause shown at oral argument.
(6)Oral argument on any motion filed pursuant to Rule 26(c), 26(d) or 37 of the Superior Court Civil Rules shall be limited to no more than a total of 15 minutes which time shall be divided equally. At the argument any party may apply for further briefing and the Court shall rule on the application at that time.
(7)Whenever possible, the Court shall decide the motion at the oral argument. The Court hearing the oral argument may reserve decision or in the Court’s discretion may schedule such further proceedings as the Court shall deem necessary.
(8)If the attorney for the moving party or an attorney for a party opposing the motion filed pursuant to Rule 26(c), 26(d) or 37 of the Superior Court Civil Rules shall fail to appear at the oral argument on said motion, the motion shall be summarily denied or granted as the case may be and an attorney’s fee in an amount not less than $100 shall be assessed against the nonappearing attorney. The sum shall be paid to the Prothonotary and the Prothonotary shall promptly forward it to the appearing party. The Prothonotary shall not accept further filings of any type in the action from the attorney who did not appear until the attorney’s fee is paid.
(f)Failure to participate in the framing of a discovery plan. If a party or a party’s attorney fails to participate in good faith in the framing of a discovery plan by agreement as required by Rule 26(f), the Court may, after opportunity for hearing, require such party or attorney to pay to any other party the reasonable expenses, including attorney’s fees, caused by the failure.
Amendment History
Amended, effective July 1, 1970; May 1, 1982; Mar. 1, 1983; July 1, 1984; Jan. 1, 1991; Jan. 1, 1995; Feb. 1, 2002; June 27, 2019, effective Aug. 1, 2019.
Plain-English Summary
Rule 37(a) lets a party move to compel when a deponent won't answer a question, an entity won't make a designation under Rule 30(b)(6) or 31(a), a party won't answer an interrogatory, or a party won't produce documents or electronically stored information or permit an inspection under Rule 34; an evasive or incomplete answer counts as no answer at all. If the motion is granted, or the discovery gets provided only after the motion is filed, the court generally shifts the moving party's expenses, including attorney's fees, onto whoever's conduct made the motion necessary -- unless the opposition was substantially justified or an award would otherwise be unjust. The same expense-shifting runs the other way if the motion is denied, and the court can apportion expenses when a motion is granted in part and denied in part.
Rule 37(b)(2) covers what happens when a party disobeys a discovery order: the court can deem designated facts established, bar the disobedient party from supporting or opposing designated claims or introducing designated evidence, strike pleadings, stay the case, dismiss it, or enter a default judgment, or treat the disobedience as contempt (except for refusing a physical or mental examination). Failing to produce someone for a Rule 35(a) examination draws the same menu of sanctions unless the party shows it can't produce that person. Rule 37(b)(2)(F) addresses lost electronically stored information: if it should have been preserved once litigation was reasonably anticipated, and it's gone because a party didn't take reasonable steps to preserve it and can't be replaced through more discovery, the court can order measures no greater than necessary to cure any prejudice, or, on a finding of recklessness or intent to deprive the other side of its use, presume the information was unfavorable, tell the jury it may or must presume that, or dismiss the case or enter a default judgment.
Rule 37(c) lets a party recover the expense of proving a fact the other side wrongly refused to admit under Rule 36, unless the denial was objectionable, involved something unimportant, rested on a reasonable belief the denying party might prevail, or had some other good reason behind it. Rule 37(d) applies the same sanctions and fee-shifting to a party's own failure to show up for its deposition, answer interrogatories, or respond to a document request, and that failure can't be excused by calling the discovery objectionable unless the party sought a protective order under Rule 26(c).
Rule 37(e) sets tight mechanics for motions under Rules 26(c), 26(d), and 37: a required certification describing the parties' efforts to work things out (skipped only for Rule 37(d) motions), filing at least 10 days before the noticed presentation date, a 4-page limit on both the motion and any response, no reply and no further briefing without a good-cause order at argument, a combined 15-minute oral argument split evenly between the sides, and a minimum $100 fee assessed against any attorney who skips the argument, paid to the Prothonotary and blocking that attorney's further filings until it's paid. Rule 37(f) applies the same fee-shifting to a party or attorney who fails to participate in good faith in framing a discovery plan under Rule 26(f).
Frequently Asked Questions
What can I do if the other side won't answer my interrogatories or produce documents?
Rule 37(a) lets you move to compel an answer, a Rule 30(b)(6) designation, or an inspection. If the motion succeeds, the court generally shifts your reasonable expenses, including attorney's fees, onto the party or attorney whose conduct made the motion necessary.
What happens if a party disobeys a court order to provide discovery?
Rule 37(b)(2) allows escalating sanctions: deeming facts established, barring evidence or claims, striking pleadings, staying the case, dismissal, default judgment, or treating the disobedience as contempt, except for refusing a physical or mental examination.
What if we lose text messages or emails that should have been kept for the case?
Rule 37(b)(2)(F) lets the court order measures no greater than necessary to cure prejudice if lost electronically stored information should have been preserved. If the court finds the party acted recklessly or intended to deprive the other side of its use, it may presume the information was unfavorable or even dismiss the case or enter a default judgment.
What if I deny something in a request for admission and the other side later proves it true?
Rule 37(c) lets the requesting party recover the reasonable expenses of proving it, unless the denial was objectionable, involved something unimportant, rested on a reasonable belief you might prevail, or had some other good reason behind it.
Are there page limits or deadlines for discovery motions in Delaware Superior Court?
Yes. Rule 37(e) requires filing at least 10 days before the noticed argument date, limits the motion and any response to 4 pages each, bars replies and further briefing without a good-cause order, caps oral argument at 15 minutes combined, and assesses a minimum $100 fee against any attorney who misses the argument.
Source & verification. Rule text is reproduced verbatim from the
Delaware Rules of Civil Procedure for the Superior Court, adopted by the
Superior Court of the State of Delaware. Last verified July 28, 2026.
· Official source
Also known as:delaware motion to compel discoverydiscovery sanctions delaware civil rulesesi spoliation delawarefailure to admit expenses delawarediscovery motion page limit delaware