Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
Arizona Revised Statutes AnnotatedRules of Civil Procedure for the Superior Courts of ArizonaEffective: September 1, 2019
Effective: September 1, 2019
16 A.R.S. Rules of Civil Procedure, Rule 37
Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
<For applicability of amending Order No. R-17-0010, effective July 1, 2018, see the Application Provisions note at the beginning of the Arizona Rules of Civil Procedure.>
(A) If the Motion or Rule 26(d) Relief Is Granted (or Disclosure or Discovery Is Provided After Filing). In this situation, the court may, after giving an opportunity to be heard, require the party or person whose conduct necessitated the motion or Rule 26(d) request, the party or attorney advising that conduct, or both, to pay the movant's or requestor's reasonable expenses incurred in making the motion or request, including attorney's fees. But the court may not order this payment if:
(B) If the Motion or Rule 26(d) Relief Is Denied. In this situation, the court may issue any protective order authorized under Rule 26(c) and may, after giving an opportunity to be heard, require the movant, the attorney filing the motion or Rule 26(d) request, or both, to pay the party or person who opposed the motion or request its reasonable expenses incurred in opposing the motion or request, including attorney's fees. But the court may not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.
(C) If the Motion or Rule 26(d) Relief Is Granted in Part and Denied in Part. In this situation, the court may issue any protective order authorized under Rule 26(c) and may--after giving an opportunity to be heard--apportion the reasonable expenses, including attorney's fees, for the motion or Rule 26(d) request.
(A) For Not Obeying a Discovery Order. If a party or a party's officer, director, or managing agent--or a witness designated under Rule 30(b)(6) or 31(b)(4)--fails to obey an order to provide or permit discovery, including an order under Rules 35 or 37(a), the court where the action is pending may enter further just orders, including without limitation the following:
(B) For Not Producing a Person for Examination. If a party fails to comply with an order under Rule 35(a) requiring it to produce another person for examination, the court may issue any of the orders listed in Rule 37(b)(2)(A)(i) through (vi), unless the disobedient party shows that it cannot produce the other person.
(C) Payment of Expenses. Instead of or in addition to the orders above, the court may 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.
(1) Failure to Timely Disclose. Unless the court specifically finds that such failure caused no prejudice or orders otherwise for good cause, a party who fails to timely disclose information, a witness, or a document required by Rule 26.1 may not use the information, witness, or document as evidence at trial, at a hearing, or with respect to a motion. In appropriate circumstances, the court may also order any of the sanctions set forth in Rule 37(g)(2)(B) for the failure to disclose.
(2) Inaccurate or Incomplete Disclosure. On motion, the court may order a party or attorney who makes a disclosure under Rule 26.1 that the party or attorney knew or should have known was inaccurate or incomplete to reimburse the opposing party for the reasonable cost, including attorney's fees, of any investigation or discovery caused by the inaccurate or incomplete disclosure.
(4) Use of Information, Witness, or Document Disclosed After Scheduling Order or Case Management Order Deadline or Later Than 60 Days Before Trial. A party seeking to use information, a witness, or a document that it first disclosed later than the deadline set in a Scheduling Order or a Case Management Order, or--in the absence of such a deadline--60 days before trial, must obtain leave of court by motion. The motion must be supported by affidavit and must show that:
(d) Failure to Timely Disclose Unfavorable Information. If a party or attorney knowingly fails to make a timely disclosure of damaging or unfavorable information required under Rule 26.1, the court may in its discretion impose any sanctions the court deems appropriate in the circumstances. The court's discretion extends to imposing serious sanctions, up to and including dismissal of the action in whole or in part, or rendering a default judgment.
(e) Expenses on Failure to Admit. If a party fails to admit what is requested under Rule 36 and if the requesting party later proves the matter true--including the genuineness of a document--the requesting party may move that the non-admitting party pay the reasonable expenses, including attorney's fees, incurred in making that proof. The court must so order unless:
(3) Types of Sanctions. Sanctions may include any of the orders listed in Rule 37(b)(2)(A)(i) through (vii). Instead of or in addition to these sanctions, the court may 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.
(A) Generally. A party or person has a duty to take reasonable steps to preserve electronically stored information relevant to an action once it commences the action, once it learns that it is a party to the action, or once it reasonably anticipates the action's commencement, whichever occurs first. A court order or statute also may impose a duty to preserve certain information.
(ii) Factors that a court should consider in determining whether a party took reasonable steps to preserve relevant electronically stored information include the nature of the issues raised in the action or anticipated action, the information's probative value, the accessibility of the information, the difficulty in preserving the information, whether the information was lost as a result of the good-faith routine operation of an electronic information system or the good-faith and consistent application of a document retention policy, the timeliness of the party's actions, and the relative burdens and costs of a preservation effort in light of the importance of the issues at stake, the parties' resources and technical sophistication, and the amount in controversy.
(2) Remedies and Sanctions. If electronically stored information that should have been preserved is lost because a party--either before or after an action's commencement--failed to take reasonable steps to preserve it, a court may order additional discovery to restore or replace it, including, if appropriate, an order under Rule 26(b)(2)(B)(i). If the information cannot be restored or replaced through additional discovery, the court:
(h) Orders to Achieve Proportionality. Timely and full compliance with Rules 26, 26.1, and 26.2 being essential to the discovery process, achieving proportionality, and trial preparation, the court may make any order to require or prohibit disclosure or discovery to achieve proportionality under Rule 26(b)(1), including without limitation:
Added Sept. 2, 2016, effective Jan. 1, 2017. Amended Aug. 31, 2017, effective July 1, 2018.
16 A. R. S. Rules Civ. Proc., Rule 37, AZ ST RCP Rule 37
Current with amendments received through 08/15/2020.
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