Rule 37.Failure to Make Discovery: Sanctions

Part V. Depositions and Discovery · Last verified September 4, 2026

In one sentenceRule 37 is the discovery enforcement rule — motions to compel, expense-shifting on the motion itself, and a graduated list of sanctions for wilfully disobeying a discovery order.

Full Text of Rule 37

Text sizeJump to: (a) (b) (c) (d) (e)

(a) Motion for Order Compelling Discovery. Upon reasonable notice to other parties and all persons affected thereby, a party 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 relating to a deposition, to the court in the county where the deposition is being taken. An application for an order to a deponent who is not a party shall be made to the court in the county where the deposition is being 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. 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).

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

(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 an opportunity for a 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.

(b) Failure to Comply With Order.

(1) Sanctions by Court in County Where Deposition Is Taken. If a deponent wilfully fails to be sworn or to answer a question after being directed to do so by the court in the county 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) to testify on behalf of a party or a person interrogated under Rule 33 wilfully fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or Rule 35, 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 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;

(D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the wilful failure to obey any orders except an order to submit to a physical or mental examination;

(E) Where a party has wilfully failed to comply with an order under Rule 35(a) requiring him 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 he is unable to produce such person for examination. In lieu of any of the foregoing orders or in addition thereto, the court may require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney’s fees, caused by the failure.

(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. (Identical to Mass.R.Civ.P. 37(c).)

(d) Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request of 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 wilfully 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), (C) and (D) 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).

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

End

Plain-English Summary

Rule 37 tracks the civil rule closely. One difference is structural: the civil rule's subsection (f) has no counterpart here, and (e) does different work.

Compelling

An application about a party goes to the court where the action is pending, or on deposition matters to the court in the county where the deposition is being taken; an application about a non-party deponent goes to the county where the deposition is being taken. The motion lies where a deponent fails to answer, an organization fails to designate under Rule 30(b)(6) or 31(a), a party fails to answer an interrogatory, or a party fails to respond to or permit a Rule 34 inspection. On an oral examination the proponent may complete or adjourn before applying.

Subsection (a)(3) is short and load-bearing: an evasive or incomplete answer is treated as a failure to answer.

Who pays for the motion

Subsection (a)(4) runs in both directions, after opportunity for hearing. If the motion is granted, the court may require the party or deponent whose conduct necessitated it — or the attorney who advised that conduct, or both — to pay the movant's reasonable expenses including attorney's fees, unless the opposition was substantially justified or other circumstances make an award unjust. If the motion is denied, the same shifts the other way against the movant or the advising attorney. Granted in part and denied in part, the court may apportion.

Sanctions for disobeying an order

Subsection (b)(1) makes a deponent's wilful failure to be sworn or to answer, after being directed by the court in the deposition county, a contempt of that court.

Subsection (b)(2) covers a party, an officer, director or managing agent of a party, a Rule 30(b)(6) or 31(a) designee, or a person interrogated under Rule 33 who wilfully fails to obey an order to provide or permit discovery. The court may make such orders as are just, and the rule lists five:

(A) matters taken as established in accordance with the moving party's claim;
(B) refusing to allow the disobedient party to support or oppose designated claims or defenses, or barring designated matters from evidence;
(C) striking pleadings or parts of them, staying proceedings until the order is obeyed, or dismissing the action or any part;
(D) treating the wilful failure as a contempt — except an order to submit to a physical or mental examination;
(E) for failure to produce another for a Rule 35(a) examination, the orders in (A), (B) and (C), unless the party shows it is unable to produce that person.

Expenses and attorney's fees may be added to, or ordered in place of, any of these.

Failing to admit, and failing to show up at all

Subsection (c) shifts the cost of proof: where a party fails to admit under Rule 36 and the requesting party later proves the matter, the court shall order payment of the reasonable expenses of making that proof, including fees — unless the request was held objectionable, the admission was of no substantial importance, the party had reasonable grounds to believe it might prevail, or there was other good reason.

Subsection (d) covers a wilful failure to appear at one's own deposition, to serve interrogatory answers or objections, or to respond to a Rule 34 request. The (b)(2)(A)-(D) sanctions are available, plus expenses. The closing sentence is the one to note: the failure may not be excused on the ground that the discovery sought is objectionable unless the party has applied for a protective order under Rule 26(c).

Subsection (e) bars awarding expenses and fees against the Commonwealth except to the extent a statute permits.

Frequently Asked Questions

Is an incomplete answer treated as no answer?

Yes. Rule 37(a)(3) provides that for purposes of the motion-to-compel subdivision, an evasive or incomplete answer is to be treated as a failure to answer.

Who pays for a motion to compel?

Rule 37(a)(4) allows the court, after opportunity for hearing, to require the party or deponent whose conduct necessitated the motion, or the attorney advising that conduct, or both, to pay the moving party's reasonable expenses including attorney's fees — unless the opposition was substantially justified or other circumstances make an award unjust. If the motion is denied, expenses may be awarded against the moving party or the advising attorney on the same terms.

What sanctions can the court impose for disobeying a discovery order?

Rule 37(b)(2) lists taking matters as established, barring the disobedient party from supporting or opposing designated claims or defenses or introducing designated matters, striking pleadings or staying or dismissing the action, treating the failure as a contempt — except an order to submit to a physical or mental examination — and, where a party failed to produce another for a Rule 35(a) examination, the first three of those. Expenses and fees may be added or substituted.

Can I ignore discovery I think is objectionable?

Rule 37(d) says the failure to act 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).

What happens if I deny something that turns out to be true?

Rule 37(c) provides that where a party fails to admit under Rule 36 and the requesting party then proves the genuineness of the document or the truth of the matter, the court shall order payment of the reasonable expenses of making that proof, including reasonable attorney's fees, unless the request was held objectionable, the admission was of no substantial importance, the party had reasonable grounds to believe it might prevail, or there was other good reason for the failure to admit.

Can fees be awarded against the Commonwealth?

Rule 37(e) provides that except to the extent permitted by statute, expenses and fees may not be awarded against the Commonwealth under this rule.

Source & verification. Rule text reproduced verbatim from the Massachusetts Rules of Domestic Relations Procedure as published by the Massachusetts Trial Court Law Libraries, current through amendments effective May 1, 2010. Promulgated by the Supreme Judicial Court of Massachusetts. Last verified September 4, 2026. · Official text

Also known as: discovery sanctionsmotion to compelfailure to make discoveryexpenses on failure to admitcontempt for discoveryprotective order required