The Arizona motion to compel: there is a faster route you are supposed to try first

Arizona's Rule 37 opens with three words that most people skip: "Subject to Rule 26(d)."

Rule 26(d) is an expedited procedure for resolving discovery and disclosure disputes, and Rule 37 defers to it. The fee provision then refers throughout to "the motion or Rule 26(d) relief" — so the expedited route is not a courtesy step, it is an alternative form of relief the rule expects you to have considered.

Add the good faith consultation certificate, which Arizona requires to be a conversation rather than an exchange of letters, and a Rule 37 motion here has two gates in front of it.

The certificate, and what counts

Ariz. R. Civ. P. 37(a)(1):

Generally. Subject to Rule 26(d), 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 7.1 (h).

And Rule 7.1(h) defines it:

When these rules require that a "good faith consultation certificate" accompany a motion or that the parties otherwise consult in good faith, the movant must attach to the motion a separate statement certifying and demonstrating that the movant has tried in good faith to resolve the issue by conferring with-or attempting to confer with-the party or person against whom the motion is directed. The consultation required by this rule must be in person or by telephone, and not merely by letter or email.

Three requirements, each of which trips someone:

An exchange of emails, however extensive, does not satisfy Rule 7.1(h). Pick up the phone, then say so in the certificate.

The same certificate is required on an Arizona motion to dismiss under Rule 12(b)(3), (b)(6), 12(c) and 12(f) — see the Arizona motion to dismiss.

What can be compelled

Rule 37(a)(3):

(A) To compel disclosure. If a party fails to make a disclosure required by Rule 26.1, any 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:

(i) a deponent fails to answer a question asked under Rule 30 or 31; (ii) a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(b)(4); (iii) a party fails to answer an interrogatory served under Rule 33; (iv) a party fails to produce documents or fails to respond that inspection will be permitted—or fails to permit inspection—as requested under Rule 34; or (v) a person fails to produce materials requested in a subpoena served under Rule 45.

Two things wider than the federal rule. (A) reaches a failure to make the Rule 26.1 disclosure, which matters because Arizona front-loads disclosure rather than waiting for requests — see Arizona's mandatory disclosure. And (v) brings a non-party subpoena under Rule 45 inside the same motion, where several states send it elsewhere.

Rule 37(a)(3)(C): "When taking an oral deposition, the party asking a question may complete or adjourn the examination before moving for an order to compel an answer."

Where to file

Rule 37(a)(2):

Appropriate court. A motion for an order to a party must be made in the court where the action is pending. A motion for an order to a nonparty must be made in the court in the county where the discovery is or will be taken.

Both limbs are mandatory, and note the phrasing for a non-party: the county where the discovery is or will be taken.

The evasive-answer rule is discretionary here

Rule 37(a)(4):

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.

Most states say an evasive answer "is to be treated" or "must be treated" as a failure. Arizona says the court "may treat" it that way.

That is a real difference. In Arizona the evasive-answer point is an argument, not an automatic equivalence — so show the court why the answer is evasive rather than simply asserting the label.

As with (A), the provision covers disclosures as well as answers and responses.

Fees are discretionary, and skipping the conference forfeits them

Rule 37(a)(5)(A):

If the motion or rule 26(d) relief is granted (or disclosure or discovery is provided after filing). In this situation, the court may, after giving an opportunity to be heard, require the party or person whose conduct necessitated the motion or Rule 26(d) request, the party or attorney advising that conduct, or both, to pay the movant's or requestor's reasonable expenses incurred in making the motion or request, including attorney's fees. But the court may not order this payment if:

(i) the movant or requestor sought relief before attempting in good faith to obtain the disclosure or discovery wit

Three points.

"May", not must. Arizona's award is discretionary in the movant's favor, which lowers the stakes compared with the mandatory regimes in Ohio, Georgia or Virginia.

Producing late does not avoid exposure. The provision applies equally where "disclosure or discovery is provided after filing".

The first exception is a bar, not a factor. The court "may not order this payment" if the movant sought relief before attempting in good faith to obtain the material without court action. The certificate is what proves you did.

Fees are available on Rule 26(d) relief as well as on a motion — using the expedited route does not give up the cost claim.

Before you file

1. Read Rule 26(d) first. Rule 37 is expressly subject to it, and the expedited procedure may resolve the dispute faster and still carry a fee claim.
2. Have the conversation. In person or by telephone — email does not count.
3. Attach the certificate as a separate statement that demonstrates the attempt.
4. Identify what you are compelling — a Rule 26.1 disclosure, a discovery response, or a Rule 45 subpoena. They are separate limbs.
5. File in the right court, especially for a non-party.
6. Argue the evasiveness, because in Arizona the court only may treat it as a failure.

How Arizona compares

A short checklist

1. Try Rule 26(d) before Rule 37. The motion rule says it is subject to it.
2. Confer by phone or in person, then certify it in a separate attached statement.
3. Serve the motion on all other parties and affected persons.
4. Use the right limb — disclosure, discovery response, or subpoena.
5. For a non-party, file in the county where the discovery is or will be taken.
6. Demonstrate why an answer is evasive; the court is not obliged to treat it as a failure.
7. Remember late production still exposes them to fees.
8. Do not skip the consultation. It is an absolute bar to recovering your expenses.

Where these rules live

• Ariz. R. Civ. P. 7.1 — Motions in General
• Ariz. R. Civ. P. 26 — General Provisions Governing Discovery
• Ariz. R. Civ. P. 26.1 — Prompt and Full Disclosure
• Ariz. R. Civ. P. 33 — Interrogatories to Parties
• Ariz. R. Civ. P. 34 — Producing Documents and Things
• Ariz. R. Civ. P. 37 — Failure to make disclosures or to cooperate in discovery; sanctions

This page explains what the rules say. It isn't legal advice, and what makes an opposition substantially justified is developed in case law this site doesn't cover.