The Alaska motion to compel: no case-ending sanction without a finding of willfulness

Most versions of Rule 37 hand the court a list of sanctions and stop. Alaska adds a paragraph telling the court how to choose among them — and one sentence putting the severest of them out of reach without a specific finding.

That paragraph is where an Alaska discovery-sanctions fight is actually decided, so it is where this page starts.

The standard the court has to apply

Rule 37(b)(3) is headed "Standard for Imposition of Sanctions":

Prior to making an order under sections (A), (B), or (C) of subparagraph (b)(2) the court shall consider (A) the nature of the violation, including the willfulness of the conduct and the materiality of the information that the party failed to disclose; (B) the prejudice to the opposing party; (C) the relationship between the information the party failed to disclose and the proposed sanction; (D) whether a lesser sanction would adequately protect the opposing party and deter other discovery violations; and (E) other factors deemed appropriate by the court or required by law.

Sections (A), (B) and (C) of Rule 37(b)(2) are the serious ones — facts taken as established, preclusion of claims or defenses, and striking pleadings or dismissing the action or entering default. So the five factors govern every sanction that changes the shape of the case.

Factor (C) is the one to build a motion around. The court is directed to look at the relationship between the information withheld and the sanction proposed — which means a request to strike an entire defense over a peripheral document has a structural problem, and a narrowly matched request has a structural advantage. Factor (D) reinforces it: a lesser sanction that would do the job defeats a greater one.

And the sentence that ends most of them

The court shall not make an order that has the effect of establishing or dismissing a claim or defense or determining a central issue in the litigation unless the court finds that the party acted willfully.

This is a gate, not a factor. Whatever the prejudice, whatever the delay, a sanction that decides the case requires a finding of willfulness — and note that it attaches to "the party," not to counsel.

Draft accordingly. A motion asking for a case-dispositive sanction has to give the court the material to make that finding, and a motion that only shows inconvenience will not get one no matter how well it reads.

Two certifications, in two places

Alaska requires a certificate in the motion, and the wording differs slightly depending on what is missing.

For a failure to make a required disclosure, Rule 37(a)(2)(A):

If a party fails to make a disclosure required by Rule 26 (a) or Rule 26.1 (b), any other party may move to compel disclosure and for appropriate sanctions. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the party not making the disclosure in an effort to secure the disclosure without court action.

Note the two sources. Alaska's disclosure obligations live in Rule 26 and in Rule 26.1, and a motion under this paragraph can rest on either.

For a failure to answer, the certificate reappears in Rule 37(a)(2)(B), phrased as a good-faith conferral "with the person or party failing to make the discovery." And it appears a third time in Rule 37(d), for the party who serves nothing at all.

"Conferred or attempted to confer" throughout. An opponent who will not engage cannot block the motion by refusing to talk.

The clocks

Alaska's disclosure regime sits alongside these and runs on its own schedule; the guide to Alaska discovery and disclosure sets it out, including the three-expert cap and the thirty-interrogatory limit.

Which court

Rule 37(a)(1) is more permissive than most for party discovery and stricter for nonparties:

An application for an order to a party may be made to the court in which the action is pending, or, on matters relating to a deposition, to the court in the judicial district where the deposition is being taken. An application for an order to a deponent who is not a party shall be made to the court in the judicial district where the deposition is being taken.

"May" for a party; "shall" for a nonparty deponent. In a state where a deposition may be several hundred miles and one air connection from the trial court, that distinction has practical consequences.

Expenses

Rule 37(a)(4)(A) makes the award mandatory when the motion is granted or when the discovery arrives after it was filed — the provision that stops an opponent buying off the motion by complying at the courthouse door. Three exceptions apply: that the movant did not first make a good-faith effort, that the opposing position was substantially justified, or that other circumstances make an award unjust.

Rule 37(a)(4)(B) mirrors it against a movant whose motion is denied, and adds a second consequence — the court "may enter any protective order authorized under Rule 26 (c)." Losing a motion to compel in Alaska can produce an order restricting the discovery you were trying to obtain.

Rule 37(a)(4)(C) allows apportionment on a split result.

Sanctions after an order

Rule 37(b)(2) lists them: facts taken as established, preclusion, striking pleadings, staying the case, dismissal, default judgment, and contempt for disobeying anything but a physical or mental examination order. Expenses follow "unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust."

All of that is subject to the (b)(3) standard above, which is the point worth carrying into the hearing.

Undisclosed evidence, and telling the jury

Rule 37(c)(1) is the preclusion provision:

A party that without substantial justification fails to disclose information required by Rules 26 (a), 26(e)(1), or 26.1(b) shall not, unless such failure is harmless, be permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed.

The additional remedies include one many states omit: the court may impose the (A), (B) and (C) sanctions "and may include informing the jury of the failure to make the disclosure." A jury instruction about a party's discovery conduct is a different kind of weapon from a fee award, and it is expressly available here.

Failing to answer at all

Rule 37(d) covers non-appearance at a properly noticed deposition and the complete failure to serve answers or a written response. Expenses are mandatory unless the failure was substantially justified, and the subdivision closes off the obvious excuse:

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 a pending motion for a protective order as provided by Rule 26 (c).

Note "pending." Intending to object does not help; the motion has to be on file.

Obstruction as a freestanding ground

Rule 37(g) is broader than the discovery-plan provisions other states carry, and it does not depend on any particular request going unanswered:

If a party or a party's attorney engages in unreasonable, groundless, abusive, or obstructionist conduct during the course of discovery or fails to participate in good faith in the development and submission of a proposed discovery plan 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 conduct.

Four adjectives — "unreasonable, groundless, abusive, or obstructionist" — reaching conduct "during the course of discovery" generally. It runs against the party or the attorney, and it covers overreaching by a requesting party as readily as stonewalling by a responding one.

Rule 37(f) supplies the counterweight for electronic evidence: "Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system."

A short checklist

1. Confer and certify — the certificate is required in Rule 37(a)(2)(A), (a)(2)(B) and (d).
2. Match the sanction to the information withheld. Factor (C) of Rule 37(b)(3) asks the court to compare them.
3. Say why a lesser sanction will not do, because factor (D) makes the court ask.
4. Plead willfulness, with facts, if you want anything case-dispositive — the rule forbids it otherwise.
5. Check Rule 26.1 as well as Rule 26 when the complaint is about disclosure.
6. File nonparty deposition motions in the judicial district where the deposition is taken.
7. File even if compliance looks imminent — late compliance still supports a fee award.
8. Expect a protective order if you lose; that risk is written into (a)(4)(B).
9. Ask about a jury instruction under Rule 37(c)(1) where evidence was withheld and then used.
10. Use Rule 37(g) against process abuse that is not tied to a single unanswered request.

Where these rules live

• Alaska R. Civ. P. 26 — General Provisions Governing Discovery
• Alaska R. Civ. P. 26.1 — Disclosures
• Alaska R. Civ. P. 33 — Interrogatories to Parties
• Alaska R. Civ. P. 34 — Production of Documents and Things
• Alaska R. Civ. P. 36 — Requests for Admission
• Alaska R. Civ. P. 37 — Failure to Make Disclosure or Cooperate in Discovery: Sanctions
• Alaska discovery and disclosure
• Alaska costs and attorney's fees

This page explains what the rules say. It isn't legal advice, and what amounts to willful conduct is developed in case law this site doesn't cover.