A Motion for an order compelling discovery
1 In general
On notice to other parties and all affected persons, a party may move for an order compelling discovery. The motion shall 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.
2 Appropriate court
A motion for an order to a party or a deponent shall be made to the court where the action is pending.
3 Specific motions
a To compel a discovery response
A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if:
ii A corporation or other entity fails to make a designation under Civ.R. 30(B)(5) or Civ.R. 31(A);
iii A party fails to answer an interrogatory submitted under Civ.R. 33;
iv A party fails to respond that inspection will be permitted— or fails to permit inspection—as requested under Civ.R. 34.
b Related to a deposition
When taking an oral deposition, the party asking a question may complete or adjourn the examination before moving for an order.
4 Evasive or incomplete answer or response
For purposes of division (A) of this rule, an evasive or incomplete answer or response shall be treated as a failure to answer or respond.
5 Payment of expenses; protective orders
a If the motion is granted
If the motion is granted, the court shall, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. But the court shall 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.
b If the motion is denied
If the motion is denied, the court may issue any protective order authorized under Civ.R. 26(C) and shall, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees. But the court shall not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.
c If the motion is granted in part and denied in part
If the motion is granted in part and denied in part, the court may issue any protective order authorized under Civ.R. 26(C) and may, after giving an opportunity to be heard, apportion reasonable expenses for the motion.
B Failure to comply with order; sanctions
1 For not obeying a discovery order
If a party or a party's officer, director, or managing agent or a witness designated under Civ.R. 30(B)(5) or Civ.R. 31(A) fails to obey an order to provide or permit discovery, including an order made under Civ.R. 35 or Civ.R. 37(A), the court may issue further just orders. They may include the following:
a Directing that the matters embraced in the order or other designated facts shall be taken as established for purposes of the action as the prevailing party claims;
b Prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
c Striking pleadings in whole or in part;
d Staying further proceedings until the order is obeyed dismissing;
e Dismissing the action or proceeding in whole or in part;
f Rendering a default judgment against the disobedient party; or
g Treating as contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;
2 For not producing a person for examination
If a party fails to comply with an order under Civ.R. 35(A) requiring it to produce another person for examination, the court may issue any of the orders listed in Civ.R. 37(B)(1), unless the disobedient party shows that it cannot produce the other person.
3 Payment of expenses
Instead of or in addition to the orders above, the court shall order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.
C Sanctions for failure to disclose, to participate in a Civ.R. 26(F) or Civ.R. 30(B)(5) conference, to supplement an earlier response, or to admit
1 Failure to disclose or supplement
If a party fails to provide information or identify a witness in a timely manner as required by Civ.R. 26(A) or (E), 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, may do any of the following:
a Order payment of the reasonable expenses, including attorney's fees, caused by the failure;
b Inform the jury of the party's failure;
c Impose other appropriate sanctions, including any of the orders listed in Civ.R. 37(B)(1)(a) through (g).
2 Failure to participate
If a party fails to participate in a conference or in drafting a discovery plan required by Civ.R. 26(F), or a party fails to confer in good faith as required by Civ.R. 30(B)(5), the court, on motion and after giving an opportunity to be heard, may do either of the following:
a Order payment of the reasonable expenses, including attorney’s fees, caused by the failure;
b Impose other appropriate sanctions on a party or the party’s counsel including any of the orders listed in Civ.R. 37(B)(1)(a) through (g).
3 Failure to admit
If a party fails to admit what is requested under Civ.R. 36, and if the requesting party later proves a document to be genuine or the matter true, the requesting party may move that the party who failed to admit pay the reasonable expenses, including attorney's fees, incurred in making that proof. The court shall so order unless any of the following circumstances apply:
a The request was held objectionable under Civ.R. 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;
d There was other good reason for the failure to admit.
D Party's failure to attend its own deposition, serve answers to interrogatories, or respond to a request for inspection
1 In general
a Motion; grounds for sanctions
The court may, on motion, order sanctions if:
i A party or a party's officer, director, or a managing agent or a person designated under Civ.R. 30(B)(5) or Civ.R. 31(A) fails, after being served with a proper notice, to appear for that person's deposition; or
ii A party, after being properly served with interrogatories under Civ.R. 33 or a request for inspection under Civ.R. 34, fails to serve its answers, objections, or written response.
b Certification
A motion for sanctions for failing to answer or respond shall include a certification that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action.
2 Unacceptable excuse for failing to act
A failure described in Civ.R. 37(D)(1)(a) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Civ.R. 26(C).
3 Types of sanctions
Sanctions may include any of the orders listed in Civ.R. 37(B)(1)(a) through (f). Instead of or in addition to these sanctions, the court shall require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.
E Failure to preserve electronically stored information
If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:
1 Upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or
2 Only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:
a Presume that the lost information was unfavorable to the party;
b Instruct the jury that it may or must presume the information was unfavorable to the party; or
c Dismiss the action or enter a default judgment.
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.
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, or there was a reasonable ground to contest it. 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.