Rule 37.Failure to Make or Cooperate in Discovery; Sanctions.
Last amended January 1, 2026 · Last verified July 3, 2026
In one sentenceRule 37 gives the court tools to compel discovery and to punish a party or witness who won't cooperate, ranging from paying the other side's costs to dismissal or default judgment.
(a)Motion for Order Compelling Discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:
(1)APPROPRIATE COURT. An application for an order to a party may be made to the court in which the action is pending or, on matters related to a deposition, to the court in the circuit where the deposition is being taken. An application for an order to a person who is not a party shall be made to the court in the circuit where the deposition is being, or is to be, taken.
(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. 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 the discovery in an effort to secure the information or material without court action. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order.
(3)EVASIVE OR INCOMPLETE ANSWER OR RESPONSE. For purposes of this subdivision an evasive or incomplete answer or response is to be treated as a failure to answer or respond. (4)EXPENSES AND SANCTIONS.
(A)If the motion is granted or if the disclosure or requested discovery is provided after the motion was filed, the court shall, after affording an opportunity to be heard, 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 making the motion, including attorney's fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party's nondisclosure, response, or objection was substantially justified, or that other circumstances make an award of expenses unjust.
(B)If the motion is denied, the court may enter any protective order authorized under Rule 26(c) and shall, after affording an opportunity to be heard, require the moving party or the attorney filing 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.
(C)If the motion is granted in part and denied in part, the court may enter any protective order authorized under Rule 26(c) and may, after affording an opportunity to be heard, apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.
(1)SANCTIONS BY COURT IN CIRCUIT WHERE DEPOSITION IS TAKEN. If a deponent fails to be sworn or to answer a question after being directed to do so by the court in the circuit in which the deposition is being taken, the failure may be considered a contempt of that court.
(2)SANCTIONS BY COURT IN WHICH ACTION IS PENDING. If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) of these Rules to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this Rule or Rule 35 of these Rules, or if a party fails to obey an order entered under Rule 26(f) of these Rules, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
(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 the disobedient party 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;
(E)Where a party has failed to comply with an order under Rule 35(a) requiring that party to produce another for examination, such orders as are listed in paragraphs (A), (B), and (C) of this subdivision, unless the party failing to comply shows that that party is unable to produce such person for examination. In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
(c)Failure to Disclose; False or Misleading Disclosure; Refusal to Admit.
(1)A party that without substantial justification fails to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed. In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses, including attorney's fees, caused by the failure, these sanctions may include any of the actions authorized under Rule 37(b)(2)(A), (B), and (C) and may include informing the jury of the failure to make the disclosure.
(2)If a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 36 of these Rules, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may apply to the court for an order requiring the other party to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees. The court shall make the order unless it finds that (A) the request was held objectionable pursuant to Rule 36(a) of these Rules, or (B) the admission sought was of no substantial importance, or (C) the party failing to admit had reasonable ground to believe that they might prevail on the matter, or (D) there was other good reason for the failure to admit.
(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 managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails (1) to appear before the officer who is to take the 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 subparagraphs (A), (B), and (C) of subdivision (b)(2) of this rule. Any motion specifying a failure under clause (2) or (3) of this subdivision shall include a certification that the movant has in good faith conferred or attempted to confer with the party failing to answer or respond in an effort to obtain such answer or response without court action. In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. 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 a pending motion for a protective order as provided by Rule 26(c).
(e)Expenses Against the State. Except to the extent permitted by statute, expenses and fees may not be awarded against the State or a county under this rule.
(f)Failure to Preserve Electronically Stored Information. 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.
Amendment History
Amended May 15, 1972, effective July 1, 1972
further amended May 7, 2004, effective July 1, 2004
further amended August 29, 2014, effective January 1, 2015
further amended July 9, 2025, effective January 1, 2026
Plain-English Summary
A party may move to compel discovery when a deponent won't answer a question, a corporation won't designate someone to testify, a party won't answer an interrogatory, or a party won't permit an inspection it was asked to allow; the motion must certify the moving party first tried in good faith to work out the dispute without the court's help. An evasive or incomplete answer counts as no answer at all. If the motion is granted, or the requested discovery is provided only after the motion was filed, the court generally must make the resisting party or attorney pay the moving party's reasonable expenses, including attorney's fees, unless the resistance was substantially justified or other circumstances make an award unjust; a denied motion shifts those same expenses the other way, and a motion granted in part can split the expenses.
Disobeying a court order compelling discovery carries real consequences. Where the deposition itself is being taken, refusing to answer can be treated as contempt of that court. Where the underlying action is pending, the court can deem disputed facts established against the disobedient party, bar that party from supporting or opposing designated claims or defenses, strike pleadings, stay the case, or enter a default judgment or dismissal, on top of ordering the disobedient party or attorney to pay the resulting expenses unless the failure was substantially justified. Separate sanctions apply to a party who fails to timely supplement a discovery disclosure, or who wrongly refuses to admit a fact later proven true, including barring the use of undisclosed evidence and shifting the costs of proving what should have been admitted. The rule caps expenses that can be awarded against the State, and protects a party from sanctions for losing electronically stored information through the routine, good-faith operation of an ordinary computer system.
Frequently Asked Questions
What can happen if a party refuses to cooperate with discovery?
A range of consequences under Rule 37, from paying the other side's expenses for bringing a motion to compel, to having facts deemed established, to losing the ability to support claims or defenses, to dismissal or default judgment for disobeying a court order.
Do I have to try to resolve a discovery dispute before asking the court to step in?
Yes. A motion to compel discovery under Rule 37(a) must certify that the moving party made a good-faith effort to resolve the dispute with the other side before involving the court.
Can I be sanctioned for losing electronic data?
Not under Rule 37(f) if the data was lost as a result of the routine, good-faith operation of an ordinary electronic information system, absent exceptional circumstances.
Source & verification. The rule text and History are reproduced verbatim from the
official Hawaii Rules of Civil Procedure (Haw. R. Civ. P. 37). Prescribed by the Supreme Court of Hawaii (Haw. Rev. Stat. § 602-11; Haw. Const. art. VI, § 7). The plain-English summary is original and written by us. Last verified July 3, 2026. ·
Official source
Also known as:motion to compel discoverydiscovery sanctionsfailure to cooperate in discoverydefault judgment discovery violation