The Montana motion to compel: the sanction that lets the jury hear about it

Montana's Rule 37 follows the restyled federal form closely, and most of it will look familiar. Two provisions do not, and both sit in subdivision (c) rather than in the motion-to-compel machinery where people look for them.

The jury may be told

Rule 37(c)(1) starts with preclusion and then lists what else the court may do:

If a party fails to provide information requested in accordance with these rules or fails to disclose information regarding opinions of a witness as required by Rule 26 (b)(4), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard: (A) may order the payment of the reasonable expenses, including attorney fees, caused by the failure; (B) may inform the jury of the party's failure; and (C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).

Limb (B) is the one worth asking for. A fee award is paid after the case is over and the jury never hears of it. An instruction telling the jury that a party failed to disclose is evidence-adjacent, arrives while the trial is running, and does not require the case-ending findings that limb (C) sanctions attract.

Note also what the first sentence covers. It is not confined to formal disclosures: it reaches a failure "to provide information requested in accordance with these rules" and a failure to disclose "opinions of a witness as required by Rule 26 (b)(4)". Late or thin expert disclosure is squarely inside this provision, and the default consequence is that the opinion does not come in.

The certification

Rule 37(a)(1) requires it in the motion, and applies it to every motion under the subdivision:

On notice to other parties and all affected persons, a party may move for an order compelling discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make discovery in an effort to obtain it without court action.

Three requirements: notice to affected persons — which includes a nonparty whose material is at issue; a good-faith conferral or attempt; and the certification inside the motion. Conferring without saying so does not satisfy the rule, and the fee provision punishes the omission separately.

Rule 26(c) requires the same of a protective-order motion, so both sides of a Montana discovery dispute have to try first.

Which court

Rule 37(a)(2) gives no choice:

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 where the discovery is or will be taken.

"Must" in both limbs. Contrast North Dakota, whose version lets a nonparty motion go either way.

What you may move about

Rule 37(a)(3)(A) lists the triggers:

A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made 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(a)(4); (iii) a party fails to answer an interrogatory submitted under Rule 33 ; or (iv) a party fails to respond that inspection will be permitted — or fails to permit inspection — as requested under Rule 34 .

And Rule 37(a)(4) prevents a technically responsive non-answer from escaping: "For purposes of this subdivision (a), an evasive or incomplete answer or response must be treated as a failure to answer or respond."

Rule 37(a)(3)(B) preserves the deposition option — the questioner "may complete or adjourn the examination before moving for an order." Neither course forfeits the motion.

The clocks

Rule 33(a)(1) caps the count: "a party may serve on any other party no more than 50 written interrogatories, including all discrete subparts." Fifty, with the "discrete subparts" qualifier that makes the counting argument about substance rather than typography.

Expenses

Rule 37(a)(5)(A) makes the award mandatory when the motion is granted or when the discovery arrives after filing, subject to three exceptions:

But the court must not order this payment if: (i) the movant filed the motion before attempting in good faith to obtain the discovery without court action; (ii) the opposing party's response or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust.

Exception (i) is the certification requirement enforced through money. (B) runs the same way against a movant whose motion is denied, and (C) allows apportionment where the result is split.

Once an order is disobeyed

Rule 37(b)(2)(A) applies where a party or "a party's officer, director, or managing agent — or a witness designated under Rule 30 (b)(6) or 31(a)(4) — fails to obey an order to provide or permit discovery, including an order under Rule 26 (f), 35, or 37(a)"; the court where the action is pending "may issue further just orders." The list runs (i) through (vi): deeming facts established, preclusion, striking pleadings, staying proceedings, dismissal, and default judgment, with contempt available besides.

Note that an order under Rule 26(f) counts. Ignoring the discovery plan is disobedience of an order, not a lesser category of default.

Rule 37(b)(2) also carries the mandatory fee clause:

Instead of or in addition to these sanctions, the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless that failure was substantially justified or other circumstances make an award of expenses unjust.

"Must," and it reaches the attorney directly.

Failure to admit

Rule 37(c)(2) is the cheapest sanction to obtain, because it is measured by what the proof cost rather than by what the conduct deserved. Where a party refused to admit and the requesting party later proves the document genuine or the matter true, the court "must so order" payment unless:

(A) the request was held objectionable under Rule 36 (a); (B) the admission sought was of no substantial importance; (C) the party failing to admit had a reasonable ground to believe that it might prevail on the matter; or (D) there was other good reason for the failure to admit.

When nothing was served, and the excuse that does not work

Rule 37(d) covers the party who does not appear at a properly noticed deposition or serves no answers or response at all. Its second paragraph is headed "Unacceptable Excuse for Failing to Act," and the label says what it does: a party cannot justify silence on the ground that the discovery was objectionable unless a motion for a protective order is pending. Objecting is a response; ignoring is not.

Planning, and lost data

Rule 37(f) prices a refusal to plan:

If a party or its attorney fails to participate in good faith in the framing of a discovery plan by agreement as is required by Rule 26 (f), the court may, after opportunity for hearing, require that party or attorney to pay to any other party the reasonable expenses, including attorney fees, caused by the failure.

Obstruction at the planning stage is sanctionable on its own, and the order can run against the attorney.

Rule 37(e) is the counterweight, and Montana has kept the older federal safe harbor:

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 shield only. There is no second tier here authorising an adverse inference on a finding of intent to deprive, so a spoliation argument in Montana is built from Rule 37(b) and the terms of the order.

A short checklist

1. Confer, then certify it in the motion — Rule 37(a)(1) requires both.
2. Give notice to affected persons, not only to parties.
3. File nonparty motions where the discovery is or will be taken. Montana gives no choice.
4. Count 45 days where the responding party is a recently served defendant.
5. Check the interrogatory count against the fifty-question cap before complaining about answers.
6. Quote Rule 37(a)(4) where the answer was evasive rather than absent.
7. Use Rule 37(c)(1) for late expert opinions — Rule 26(b)(4) failures are inside it.
8. Ask for the jury instruction under (c)(1)(B) where withheld material is later relied on.
9. Use Rule 37(f) where the problem is a party who will not help frame the plan.
10. Do not quote a two-tier spoliation rule. Montana's Rule 37(e) is a safe harbor, nothing more.

Where these rules live

• Mont. R. Civ. P. 26 — Duty to Disclose; General Provisions Governing Discovery
• Mont. R. Civ. P. 33 — Interrogatories to Parties
• Mont. R. Civ. P. 34 — Producing Documents and Electronically Stored Information
• Mont. R. Civ. P. 36 — Requests for Admission
• Mont. R. Civ. P. 37 — Failure to Make Disclosures or to Cooperate in Discovery: Sanctions
• Responding to a Montana complaint
• Montana summary judgment

This page explains what the rules say. It isn't legal advice, and an individual court's scheduling order may set discovery deadlines this page does not cover.