The Massachusetts motion to compel: fees are discretionary, but a wrongful denial is not

Massachusetts Rule 37 is noticeably gentler than most states' versions in three places, and stricter in one.

Fee awards on a motion to compel are discretionary — "may", not "shall", in both directions. Sanctions for failing to respond at all require a willful failure. And no expenses may be awarded against the Commonwealth.

The exception is the one people overlook: expenses for a wrongful refusal to admit are mandatory unless the refusing party fits an exception.

Fees are discretionary both ways

Mass. R. Civ. P. 37(a)(4):

Award of Expenses of Motion. If the motion is granted, the court may, after opportunity for hearing, 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. If the motion is denied, the court may, after opportunity for hearing, 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. If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.

Compare Georgia and Ohio, where both directions are written as "shall". Massachusetts leaves the whole question to the judge, which lowers the stakes of filing — and lowers the leverage of winning.

What can be compelled

Rule 37(a)(2):

Motion. If a deponent fails to answer a question propounded or submitted under Rules 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 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 he applies for an order. If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to Rule 26(c).

Rule 37(a)(3):

Evasive or Incomplete Answer. For purposes of this subdivision an evasive or incomplete answer is to be treated as a failure to answer.

The familiar and essential provision: a bad answer is no answer.

Rule 37(a)(1) fixes the forum — an order against a non-party deponent "shall be made to the court in the county or judicial district, as the case may be, where the deposition is being taken."

The willfulness requirement

This is the provision that most distinguishes Massachusetts. Rule 37(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 a managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party willfully fails (1) to appear before the officer who is to take his 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 may require the party failing to act or the attorney advising him or both to pay the reasonable expenses, including attorney's fees, caused by the failure. The failure to act described in this subdivision 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).

The word is "willfully fails." Georgia's equivalent provision has no such qualifier, and neither does the federal rule. In Massachusetts, a movant seeking the severe sanctions — striking pleadings, dismissal, default — for an outright non-response has to establish that the failure was willful.

Inadvertence, calendaring error and disorganisation are therefore real answers to a Rule 37(d) motion here, in a way they are not elsewhere. The right response to those is usually a motion to compel under subsection (a) first, building the record for a later willfulness finding.

But the last sentence still bites, exactly as in Georgia:

The failure to act described in this subdivision 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).

Thinking the requests were improper is not a defense unless you sought a protective order. Serve objections or move under Rule 26(c) — do not stay silent.

Sanctions for disobeying an order

Rule 37(b)(2) lists what follows a violated order:

(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 him 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;

Once an order has been disobeyed, the willfulness requirement of subsection (d) no longer applies — (b)(2) has no such qualifier. That is the strategic reason to get an order first.

The expenses provision at the end of (E) is again discretionary: the court "may require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses."

Rule 37(b)(1) makes a deponent's refusal to be sworn or answer, after being directed by the court in the deposition county, potentially "a contempt of that court."

The one mandatory award

Rule 37(c):

Expenses on Failure to Admit. If a party fails to admit the genuineness of any documents or the truth of any matters 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, he may apply to the court for an order requiring the other party to pay him 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 grounds to believe that he might prevail on the matter, or (4) there was other good reason for the failure to admit.

"The court shall make the order unless" — the only mandatory fee provision in the Massachusetts rule, with four exceptions.

Given how discretionary everything else is, this is the sharpest cost lever in Massachusetts discovery practice. Well-drafted requests for admission early in the case create real exposure for a party that denies something it later cannot contest.

Two limits worth knowing

Rule 37(e):

Expenses Against Commonwealth. Except to the extent permitted by statute, expenses and fees may not be awarded against the Commonwealth under this rule.

Rule 37(f):

Failure to Provide Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions on a party for failing to produce electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

The ESI safe harbor protects routine, good-faith operation of a system — automatic deletion cycles and the like. It does not protect deletion once preservation was owed.

Before you file

1. Confirm proper service and that the response period has run — see Massachusetts discovery deadlines.
2. Read the responses for evasion or incompleteness.
3. Decide which subsection fits. A motion to compel under (a) needs no willfulness; sanctions under (d) do.
4. If you are the one objecting, file something — objections or a Rule 26(c) motion.
5. Ask for fees, but do not count on them. They are discretionary here.

How Massachusetts compares

A short checklist

1. Move to compel first where the failure may not be willful — it builds the record and removes the (d) threshold for later.
2. Quote Rule 37(a)(3) where answers were evasive or incomplete.
3. If you object, put it on file. Silence is not excused without a Rule 26(c) application.
4. File in the deposition county for an order against a non-party.
5. Do not rely on a fee award on the motion itself — it is discretionary in both directions.
6. Use Rule 37(c) after proving something the other side wrongly refused to admit. That award is mandatory unless an exception applies.
7. Remember the Commonwealth is exempt from expenses under this rule.
8. Do not seek ESI sanctions for routine, good-faith system operation absent exceptional circumstances.

Where these rules live

• Mass. R. Civ. P. 26 — General Provisions Governing Discovery
• Mass. R. Civ. P. 33 — Interrogatories to Parties
• Mass. R. Civ. P. 34 — Producing Documents and Things
• Mass. R. Civ. P. 37 — Failure to Make Discovery: Sanctions

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