Rule 37.Failure to Make Discovery, Disclosures, or Participate in Discovery-Related Obligations; Sanctions
Last amended July 1, 2023 · Last verified July 1, 2026
Full Text of Rule 37
Amendment History
Effective Date: July 1, 1970
Amended: July 1, 1994; July 1, 2008; July 1, 2016; July 1, 2021; July 1, 2023
Staff Note (July 1, 2008 Amendment)
Civ.R. 37(F) provides factors for judges to consider when a party seeks sanctions against an opponent who has lost potentially relevant electronically stored information. This rule does not attempt to address the larger question of when the duty to preserve electronically stored information is triggered. That matter is addressed by case law and is generally left to the discretion of the trial judge.
Staff Note (July 1, 2016 Amendment)
The rule is amended to adopt the 2007 stylistic changes to Fed.R.Civ.P. 37. In adopting those federal stylistic changes, the amendments also add provisions of the Federal rule that make the following substantive changes to existing Civ.R. 37:
1. Including within the scope of amended Civ.R. 37(A)(3), "a corporation or other entity fails to make a designation under Civ.R. 30(B)(5) or Civ.R. 31(A)";
2. Adding to the exceptions to amended Civ.R. 37(A)(5), "the movant filed the motion before attempting in good faith to obtain the discovery without court action";
3. Adding to the remedies available under amended Civ.R. 37(A)(5)(b) and Civ.R. 37(A)(5)(c), "the court may issue any protective order authorized under Rule 26(C)"; and
4. Adding amended Civ.R. 37(C)(1) addressing failure to supplement an earlier response.
The 2016 amendments to the Ohio rule do not incorporate the 2015 changes made to Fed.R.Civ.P. 37.
Plain-English Summary
Division (A) lets a party move to compel discovery after certifying a good-faith effort to resolve the dispute without court action, covering a deponent's refusal to answer, an organization's failure to designate a witness, a party's failure to answer an interrogatory, or a failure to permit inspection under Rule 34; an evasive or incomplete answer counts as no answer at all. If the motion is granted, the court must generally make the losing side pay the reasonable expenses, including attorney's fees, of bringing it, unless the motion was filed before a good-faith attempt to resolve things informally, the resistance was substantially justified, or other circumstances make an award unjust; the same fee-shifting runs the other way if the motion is denied, and the court can apportion expenses when a motion is granted in part and denied in part.
Division (B) addresses what happens when a party disobeys a court order compelling discovery or an order for a physical or mental examination: the court may order that disputed facts be treated as established, bar the disobedient party from supporting or opposing designated claims or defenses or introducing certain evidence, strike pleadings, stay the case, dismiss it, enter default judgment, or treat the failure as contempt of court -- contempt is unavailable for refusing a physical or mental examination -- and on top of any other sanction, the court must generally order payment of the reasonable expenses the failure caused.
Division (C) covers three narrower failures: not disclosing a witness or information as Rule 26 requires (which bars using that evidence unless the lapse was substantially justified or harmless), not participating in good faith in a required discovery conference, and not admitting a matter later proven true, which can require the non-admitting party to pay the cost of proving it unless the request was objectionable, of no real importance, there was a reasonable ground to contest it, or there was some other good reason not to admit. Division (D) creates a faster, one-step sanctions process -- without first needing a separate order compelling discovery -- for a party who fails to appear for its own properly noticed deposition or fails entirely to answer interrogatories or respond to a document request; objecting to the discovery doesn't excuse the failure unless a protective order motion is already pending. Division (E) addresses lost electronically stored information that should have been preserved: if a party's failure to take reasonable steps causes prejudice, the court may order measures no greater than necessary to fix it, and only on a finding that the party intended to deprive another party of the information may the court presume it was unfavorable, instruct the jury accordingly, or dismiss the action or enter default judgment.
Frequently Asked Questions
What must a party do before moving to compel discovery?
Certify that it has, in good faith, conferred or tried to confer with the party withholding discovery in an effort to obtain it without involving the court.
Does a party need a court order before facing sanctions for skipping its own deposition?
No. Rule 37(D) allows a one-step sanctions process for a party who fails to appear for its own properly noticed deposition or who entirely ignores interrogatories or a document request, without first obtaining a separate order compelling discovery.
Can a court dismiss a case or enter default judgment as a discovery sanction?
Yes, under Rule 37(B) for disobeying a discovery order, and, in the electronically stored information context under Rule 37(E), only upon finding that the party intended to deprive another party of the lost information.