The Arkansas motion to compel: failing to supplement is its own sanctionable failure
Arkansas procedure · Last verified August 17, 2026
Arkansas keeps two provisions most states omit.
Rule 37(e) makes a failure to supplement responses sanctionable in its own right, on a motion made "before or at trial." And Rule 37(f) bars expenses against the state.
The rest follows the familiar pattern, with fees mandatory when the motion is granted and discretionary when it is denied.
The certification
Ark. R. Civ. P. 37(a) requires the motion to include a certification that the movant has in good faith conferred or attempted to confer with the party failing to make discovery, in an effort to obtain it without court action.
"Conferred or attempted to confer" — an opponent who will not engage cannot block the motion, but the attempt must be real and certified.
Failure to supplement
Rule 37(e):
Failure to Supplement Responses. If a party fails to supplement responses seasonably as required by Rule 26(e), and another party suffers prejudice, then upon motion of the prejudiced party made before or at trial, the court may make any order which justice requires to protect the moving party, including but not limited to imposing any sanction allowed by subdivision (b)(2)(A)-(C) of this rule.
| Element | Requirement |
|---|---|
| Failure to supplement seasonably | as Rule 26(e) requires |
| Prejudice to another party | must be shown |
| Timing of the motion | before or at trial |
| Available orders | any order justice requires, including the (b)(2)(A)–(C) sanctions |
Two features make this useful late in a case. The motion may be made at trial, not only during the discovery period. And the sanctions reach through to (b)(2)(A)–(C) — deemed-established facts, preclusion, and striking pleadings, dismissal or default.
The trade-off is that prejudice must be shown. This is not a technical-violation provision; it is aimed at a party ambushed by information that arrived too late.
Expenses against the state
Rule 37(f):
Expenses Against State. Except to the extent permitted by statute, expenses and fees may not be awarded against the state of Arkansas under this rule.
An absolute bar unless a statute permits it. Worth knowing before drafting a fee request in a case against a state agency.
Where to file
An order against a non-party deponent is made "to the court in the place where the deposition is being taken." Note Arkansas's phrasing — place, not county or district.
Fees
Arkansas is asymmetric in the movant's favor: the award is mandatory when the motion is granted and discretionary when it is denied, in each case subject to substantial justification or other circumstances making an award unjust.
That tilt lowers the cost of bringing a well-founded motion here compared with states like North Carolina or Virginia, where a denied motion carries a mandatory award against the movant.
Evasive answers
Arkansas carries the standard provision: an evasive or incomplete answer is to be treated as a failure to answer. That is what most disputes turn on, and it is worth quoting rather than arguing around.
Before you file
- Confirm proper service and that the response period has run — see responding to an Arkansas complaint for the case timetable.
- Confer and certify it.
- Ask whether the real problem is a missing supplement. If so, Rule 37(e) is the better provision, and you will need to show prejudice.
- Check whether the opposing party is the state before drafting a fee request.
If a default judgment has already been entered, note that Arkansas routes default judgments out of Rule 60 entirely — see setting aside an Arkansas default judgment.
How Arkansas compares
| Arkansas | Missouri | Oklahoma | Federal | |
|---|---|---|---|---|
| Conference certification required | yes | no | yes | yes |
| Fees when granted | shall | — | shall | must |
| Fees when denied | may | — | shall | must |
| Failure to supplement a named ground | yes, with prejudice | no | no | no |
| Motion available at trial | yes | no | no | no |
| Fees barred against the state | yes | no | no | limited |
| Non-party forum | the place where the deposition is taken | — | county where taken | where taken |
A short checklist
- Confer, and certify it in the motion.
- Consider Rule 37(e) where the failure is a missing supplement rather than a missing answer.
- Plead prejudice if you rely on (e) — it is an element, not a makeweight.
- Remember (e) survives to trial, which most compel provisions do not.
- Quote the evasive-answer provision where the response was thin.
- File a non-party motion in the place where the deposition is being taken.
- Do not seek fees against the State of Arkansas unless a statute allows it.
Where these rules live
- Ark. R. Civ. P. 26 — General Provisions Governing Discovery
- Ark. R. Civ. P. 33 — Interrogatories to Parties
- Ark. R. Civ. P. 34 — Production of Documents and Things
- Ark. R. Civ. P. 36 — Requests for Admission
- Ark. R. Civ. P. 37 — Failure to Make Discovery; Sanctions
This page explains what the rules say. It isn't legal advice, and what amounts to seasonable supplementation or substantial justification is developed in case law this site doesn't cover.