Chapter 11: Enforcing Discovery Right

When cooperative discovery breaks down, Federal Rule 37 and similar state rules provide judicial remedies — meet-and-confer obligations, motions to compel, fee-shifting, and sanctions — that turn discovery rights into enforceable obligations when an opponent answers with silence, objections, or worse.

Chapter 11

■ ■ ■

I can’t get no satisfaction.

I can’t get no satisfaction!

Cause I try and I try and I try . . .

I can’t get no, I can’t get no . . . no satisfaction.

Mick Jagger and Keith Richards

§ 11.1 Introduction

Discovery is designed to take place primarily with satisfaction and without judge or arbitrator involvement. Interrogatories, depositions, document production, and requests for admissions are all normally used without a court ever ordering or barring them. Discovery does not, however, always follow this design.

Parties may have real disagreements about what is discoverable, leading to unresolved disputes. Legitimate attempts to discover information may be met not with satisfactory responses, but rather with silence, objections, insults, threats, or worse. Parties sometimes also initiate discovery for improper purposes or serve overly broad or unduly burdensome discovery requests.

Federal Rule 37 and similar state rules provide judicial remedies. You can increase your chances of judicial discovery success by exhausting cooperative methods of enforcing your discovery rights. The rules or practice very likely require you to employ these methods before seeking judicial relief.

§ 11.2 Informal Enforcement

If your initial discovery request is ignored, receives inadequate response, or is met by objection, a Rule 37 motion is frequently not the best first step. An email or phone call reminding opposing counsel of the discovery obligation and asking for a prompt response will occasionally bring an adequate response, especially if noncompliance is due to simple inadvertence by opposing counsel. An email or letter is probably preferable to a phone call since it documents the request for voluntary compliance if a motion to compel discovery becomes necessary. If these efforts do not result in a satisfactory response, your motion for a court order compelling discovery or penalizing your opponent for noncompliance is strengthened.

Negotiation is another important tool for enforcing discovery rights. Documenting the negotiation offers also bolsters your position if you should have to seek an order. If you can demonstrate that, despite your willingness to accommodate the reasonable objections of your opponent, discovery has still not been forthcoming, you will be more likely to obtain an order for discovery and for an award of expenses.

An attempt to resolve discovery disputes between counsel may be required by rule. The federal rules and many state rules require counsel to meet and confer in person, through teleconference, or over the phone in an attempt to resolve a discovery dispute without the necessity of court involvement, as described in previous chapters.^[1]^ These “meet and confer” rules generally require an attorney to discuss the discovery dispute with opposing counsel and to certify that such a conference has been held prior to the filing of a motion to compel.^[2]^

LLMs can expedite informal discovery enforcement by generating clear, persuasive communications seeking (or, if you prefer, demanding) discovery-obligation compliance. Lawyers can use GenAI to draft emails or letters that maintain a professional tone while aligning with procedural rules and legal strategy. When opposing parties raise objections, LLMs can analyze their responses, extract key arguments, and suggest tailored counterarguments, especially if the LLM has access to the rules and case law. GenAI can also assist with meet-and-confer requirements by generating structured talking points, drafting summaries of discussions, and recommending negotiation strategies.

§ 11.3 The Discovery Plan

Litigants may have to meet early in a case, before discovery disputes arise, to develop a discovery plan. Fed. R. Civ. P. 26(f) directs that lawyers must confer and create a discovery plan. The attorneys may meet in person, which is the preferred way, or may develop a plan through video, phone, and email communications.^[3]^ Following this conference, the litigants must submit their discovery plan to the court and can then begin discovery.

Federal Rule 16 allows the court to issue a scheduling order that includes a discovery plan. This order may be necessary in situations where the parties are unable to agree on a plan pursuant to Rule 26(f), or if the court wanted to impose restrictions different than the provisions of the discovery plan agreed on by the parties. Federal district courts by local rule or standing order may or will schedule a discovery conference and provide for the issuance of an order regarding discovery schedules.

An important provision of a discovery plan covers the location, format, condition, and preservation of electronically stored information and also establishes a “litigation hold” protocol for preserving records for possible discovery. See §§ 1.4 & 5.3.12. A conference to deal with these issues may be more successful if the parties’ technical personnel are available to participate on crafting reasonable, workable preservation provisions. Federal Rule 26(f)(3)(C) and similar state rules have adopted this requirement.

A primary purpose of the initial discovery conference is to encourage parties to mutually agree on discovery issues. The thinking is that the lawyers will agree to discovery matters reducing the likelihood of disputes and eliminating the need for Rule 37 motions. This may well be the result among thinking lawyers. Sections 5.3 and 5.11 explain the timing and related aspects of discovery plans.

LLMs can assist with discovery planning by drafting structured plans that comply with applicable civil or criminal rules, local rules, and judicial standing orders. GenAI tools can summarize key issues, identify potential disputes, and recommend proportional discovery strategies before conflicts arise. LLM-backed tools can also generate first-draft litigation hold notices. During conference preparation, LLMs can create discovery checklists, draft proposed agendas, and summarize relevant case law to guide discussions. Additionally, LLM-backed tools can adhere to court-specific requirements, analyze past judicial rulings, and suggest realistic deadlines—all to better anticipate likely scheduling order outcomes.

§ 11.4 Formal Enforcement

Federal Rule 37 and similar state rules provide methods for obtaining judicial assistance in enforcing discovery rights. They are also the best and often the exclusive source of authority for the imposition of discovery sanctions. The federal rule foresees a two-step process: first, an order compelling discovery must be obtained, if needed, under Rule 37(a); then sanctions may be imposed if the order is not obeyed. This two-step process is not required in every case, but it is the usual procedure. Similar state rules provide the same process. The inherent authority of a court to impose sanctions may or may not be a sufficient authoritative basis.^[4]^ As discussed throughout this chapter (and book), LLM-backed tools can help analysis and drafting—both to draft appropriate responses and to enforce discovery requests. See § 1.2.7.

§ 11.4.1 Seeking Disclosure or Discovery

The federal rules of civil procedure provide for both disclosure and discovery. The sanctions available for the failure to comply with these rules include sanctions covering both disclosure and discovery violations. Some sanctions apply exclusively to disclosure violations; others apply only to discovery violations; and some sanctions apply to both.

Rules of procedure for state courts generally provide for discovery between parties, but may not require affirmative disclosures by parties. Sanctions available under these state rules will be limited to discovery sanctions. Some state rules require disclosures and, in these situations, sanctions will be available both for violations of disclosure and discovery rules.

§ 11.4.2 Order Compelling

Disclosure or Discovery

An order is a condition precedent to imposing sanctions. An order compelling disclosure or discovery is required only in those types of discovery normally made without any order.^[5]^ For example, an order compelling discovery is not needed under Rule 37(d) for the complete failure to appear for a deposition, to serve answers or objections to interrogatories, or to provide a response to a Rule 34 production request. In order for this subdivision to be applicable, there must be a total failure to engage in discovery. Rule 37(d) does not provide relief for partial responses or arguably inadequate responses.^[6]^ Willfulness may be of importance in determining which, if any, sanction should be imposed for failure to comply with the order, but intentionality is not intended to be of significance in determining whether the order itself should be granted.^[7]^

If a motion to compel disclosure or discovery is granted, the rules encourage the award of attorney fees and other expenses to the party seeking the order.^[8]^ The intent of the rule is to make the award of costs presumptively appropriate without limiting the discretion of the decision maker. The award of attorney fees is sometimes, by terms of the order, expressly made the obligation of the attorney and not of the client. This approach reflects the reluctance of courts to allow a case to suffer on the merits at the expense of improper practice by a party’s attorneys.

A request for an order compelling disclosure or discovery is made by motion, with notice to all parties and to other affected persons (e.g., a non-party deponent).^[9]^ The motion may be brought in either of two courts: the court where the action is pending or the court where a deposition is being taken depending on the circumstances A motion to compel discovery other than for failure to answer deposition questions may be brought only in the pending action court. Even if there is a choice, one court may determine the other is more appropriate, and have the motion heard there.

LLMs can help draft motions to compel by analyzing discovery responses for deficiencies, and assessing total or partial failure under Rule 37. These tools can generate structured motions that cite relevant procedural rules, tailor arguments to case-specific facts, and ensure compliance with notice and filing requirements. GenAI connected with legal databases (e.g., cases, motions, briefs, orders) can also strengthen reasoning by identifying supporting case law and summarizing judicial trends. Finally, GenAI can help by analyzing venue rules, as well as judicial preferences (e.g., standing orders).

§ 11.4.3 Imposition of Disclosure Sanctions

Federal Rule 37(a) provides that parties may bring a motion seeking an order compelling disclosure. Rule 37(a)(3) states that evasive or incomplete disclosures, answers, or responses are to be treated as a failure to disclose. Further, Rule 37(c) authorizes a specific sanction applicable for failures to disclose. This rule states that a party who without substantial justification fails to disclose information required by Rule 26 shall not be permitted to use as evidence any information not disclosed, unless the failure is harmless.

This sanction recognizes that a party who fails to properly disclose information may not benefit from this non-disclosure by subsequently relying on this information at trial or at a hearing or in support of or opposition to a motion, unless a party has a substantial reason for such failure to disclose or unless the failure does not prejudice any other party. See § 11.5.4. In addition to this sanction, other sanctions of Rule 37 are available for failing to disclose information.

§ 11.4.4 Imposition of Discovery Sanctions

Federal Rule 37(b) and parallel state rules offer a wide range of sanctions that may be imposed for failure to comply with a discovery order. The rule allows the imposition of contempt only for violation of an order in the court where a deposition is being taken. In all other cases, the court is granted authority to enter “such orders in regard to the failure as are just.” Rule 37(b)(2) lists the major sanctions that are authorized:

  • Facts may be deemed established.
  • Evidence may be precluded or barred.
  • Pleadings may be stricken.
  • A dismissal or default judgment entered.
  • A party may be found in contempt.

An order compelling discovery results in immediate compliance in the vast majority of cases. The objecting party may initially believe that the information sought is not discoverable, or that producing it will be unduly burdensome, or may have some other good-faith objection, but will decide to comply as ordered. A decision on the merits of the objection ordinarily ends the dispute.

If the order does not result in compliance, a second motion for an order imposing sanctions may need to be made, with notice and hearing. The moving party may seek alternative sanctions, ranging from mild to severe, depending on the nature of the non-compliance. The more severe sanctions of contempt, default, and dismissal will be available to punish a party who willfully abuses the discovery process or who flagrantly flouts the court’s authority.^[10]^ The United States Supreme Court gave its clear approval to the use of discovery sanctions to deter abuse of the discovery process in National Hockey League v. Metropolitan Hockey Club:

[T]he most severe in the spectrum of sanctions provided by statute or rule must be available to the district court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent.^[11]^

The more drastic sanctions may still not be imposed by most courts unless the noncompliance with the order is flagrant and the prejudice to a party is substantial.^[12]^ Less severe sanctions are more common in most cases.

§ 11.4.5 Sanctions for Failure

to Preserve ESI

Federal Rule 37 identifies the sanctions that can be awarded for failure to preserve electronically stored information (ESI). Rule 37(e) specifies the conditions necessary for the imposition of sanctions for failure to preserve ESI and the sanctions that might be appropriate. The three prerequisites for the imposition of any sanction are: (1) a determination that ESI should have been preserved, either before or during litigation, (2) the loss of the ESI because of the failure to take reasonable steps to preserve it, and (3) the inability to restore or replace the ESI through additional discovery.

If a sanction is warranted, then the rule permits the imposition of a sanction. Rule 37(e)(1) applies if there is a finding of prejudice to the other side, in which case the sanction is expressly limited to a measure no greater than necessary to cure the prejudice. This provision prevents the imposition of punitive sanctions for merely negligent failure to preserve evidence and focuses on leveling the playing field if a negligent failure to preserve occurs.

Where a party acts with intent to deprive another party of the use of ESI, Rule 37(e)(2) allows the imposition of more severe sanctions—appropriate for intentional misconduct. These include drawing an adverse inference that the missing ESI would have been helpful to the other side, allowing either permissive or mandatory adverse inferences, and ultimately default or dismissal.^[13]^ Section 8.24.2 discussed ESI spoliation sanctions.

§ 11.5 Selection of a Sanction

§ 11.5.1 Introduction

The following subsections analyze available sanctions. Federal and state jurisdictions commonly have these measures available as remedies.

§ 11.5.2 Default and Dismissal

Courts will impose the severe sanctions of default or dismissal when the misconduct giving rise to the sanction is repeated and clearly taken with knowledge of the court’s order compelling discovery. Judges have granted significant default judgments when defendants have failed to respond to interrogatories and to produce documents after repeated requests and court orders.^[14]^ Judges have also issued sizeable default judgments for the willful failure to appear for depositions and to produce documents pursuant to requests.^[15]^ The courts have held that attempts to comply with discovery orders after a history of noncompliance do not necessarily exonerate a party and severe sanctions will still be imposed.^[16]^

Making inaccurate or misleading statements to an opponent or the court regarding discovery may also be the basis for the imposition of severe sanctions. If a party acts pursuant to a plan to deceive counsel and the court regarding discovery matters, a court will dismiss a pleading or order other sanctions.^[17]^ Default and dismissal are available for the loss of ESI where the duty to preserve exists and a party intentionally acts to deprive another party of access to the electronic information. See § 11.4.5.

§ 11.5.3 Contempt

Contempt is a severe sanction available against both a party and an attorney,^[18]^ but it is not favored by judges. If the factual circumstances surrounding the discovery conduct justify the finding of contempt, the dismissal or default sanction would probably also be available. Since a contempt sanction may require an additional evidentiary hearing, while default or dismissal requires no further hearing and actually removes a case from the court’s calendar, these latter sanctions tend to be preferred in situations involving a party’s noncompliance.^[19]^

There are two types of contempt: civil and criminal. Generally, civil contempt is imposed to compel compliance with a court order, while criminal contempt is imposed to punish an affront to the court’s authority.^[20]^ Civil contempt is resorted to when other sanctions would be either less effective or more difficult for the court to impose or administer. Civil contempt is the appropriate sanction to compel a non-party’s compliance with a discovery order since other sanctions may have little, if any, impact on the non-party.

Parties have taken the position that contempt is inappropriate when the party acted upon the advice of counsel. But it is generally held that reliance upon counsel’s advice is not a defense to the contempt sanction, although it may properly be considered by a court in determining whether or not to find contempt.^[21]^ Raising such a defense usually waives any privilege relating to the advice given.

§ 11.5.4 Preclusion Orders

A court may issue a preclusion order prohibiting a party from introducing evidence at a trial or hearing or in support of a motion if a party violates a disclosure requirement. Federal Rule 37(c) explicitly provides the court with this authority. A party who without substantial justification fails to disclose information required by Rule 26 is not able to use that evidence at trial or hearing, or with a motion, unless the failure to do so is harmless.^[22]^ Further, a court can impose additional sanctions for an unjustified and harmful failure to disclose. It makes sense that a party who fails to disclose information may not benefit from its non-disclosure.

There are two restrictions placed upon the imposition of this sanction. First, if a party has “substantial justification” for failing to disclose, the sanction may not be imposed. A reason for failing to disclose may include a justifiable interpretation of Rule 26 that a party believed did not require disclosure, or a party’s inadvertent negligent failure to provide complete information. The other limitation to the imposition of a preclusion order is if the failure to disclose is harmless. A harmful result occurs if an opposing party is unfairly prejudiced by the failure to receive the information. Prejudice occurs when a party is placed at a significant disadvantage because of the lack of information.

§ 11.5.5 Preclusion Orders for

Discovery Violations

A preclusion order prohibiting a party from introducing evidence is generally considered a less severe sanction than dismissal or default, especially since it is often focused on the prejudice to the innocent party rather than the conduct of the party failing to comply with discovery obligations. Courts have been willing to enter preclusion orders for the failure to identify documents or witnesses, regardless of whether that conduct constitutes flagrant or repeated violation of court orders.^[23]^ If the evidence or witness precluded (or issue determined) is of crucial importance, and if no other evidence exists on that issue, the preclusion order may be determinative. Consequently, some judges may be disinclined to impose it; while others will grant summary judgment after the entry of such an order.^[24]^

§ 11.5.6 Restriction of Further Discovery

Another sanction that may be imposed by courts, whether explicitly or not, is the restriction of the recalcitrant party’s discovery rights. Experienced litigation attorneys have long known that failure of a litigant to comply with valid discovery requests essentially negates any rights that litigant may have to enforce that litigant’s discovery requests. During the period of a party’s noncompliance, discovery may be delayed or unavailable. Rule 37(d) specifically permits the court to stay further proceedings. This is a sanction that, though not frequently used in the form of an absolute stay, is occasionally relied upon by courts to enforce discovery.

Another related sanction to preclusion is the adverse instruction sanction, in which the court instructs the jurors regarding the absence of evidence brought about by improper conduct of a party. A party seeking an adverse instruction sanction based on the opposing party’s failure to timely produce discovery must show that: (1) the party had control over the evidence and had an obligation to disclose it, (2) the party had a “culpable state of mind,” and (3) the missing evidence is relevant to support a claim or defense.^[25]^ Where either bad faith or gross negligence is present, an adverse inference instruction is commonly warranted.

§ 11.5.7 Imposition of Costs

Rule 37 and similar state rules favor the award of expenses, including attorney fees, to the party bringing a meritorious motion for sanctions, and courts have been willing to enter appropriate orders compelling payment of substantial costs.^[26]^ Attorneys frequently forget that the award of expenses is primarily compensatory and not punitive and that eleventh-hour compliance with the motion or prior order does not erase the liability for expenses of bringing the motion. Courts are increasingly willing to award expenses, even if the underlying motion has been “mooted” by last minute disgorging of information. The seeking of such an award may be wise tactically, since it may prompt a timelier response to future discovery requests. This holds true for both motions for orders to compel discovery and to impose sanctions.

§ 11.5.8 Failure to Make Admissions

Failure to make Rule 36 admissions may result in an order requiring the party failing to admit to bear the cost of proving matters not admitted. Rule 37(c)(2) mandates this order be issued unless the court finds:

(A) The request was held objectionable under Rule 36(a),

(B) The admission sought was of no substantial importance,

(C) The party failing to admit had a reasonable ground to believe that request need not be admitted, or

(D) There was other good reason for the failure to admit.

The courts have generally given a narrow interpretation to the four exceptions to imposition of costs under Rule 37(c). Having reasonable grounds to believe that a party might prevail is the most likely basis for defeating a claim for costs. A party generally has a difficult time establishing that the admission sought was of no substantial importance or that there was other good reason for failure to admit.^[27]^

§ 11.5.9 Sanctions Against Attorneys

Federal Rule 37(b) and common state rules provide that sanctions may be imposed against parties and also against their attorneys. Now do we have your full attention? Courts have been willing to impose sanctions directly against the attorney if the record clearly establishes that the attorney’s conduct is responsible for the discovery violation.^[28]^ For example, a repeated failure to follow the proper procedures for conducting discovery cannot logically be attributed to a party; accordingly, sanctions for this form of discovery abuse will be assessed against the lawyer. Similarly, the lawyer’s refusal to comply with a court order directed to the lawyer is likely to result in sanctions directed to the lawyer alone. The imposition of costs against the attorney, and not against the client, is more likely if the circumstances make it appear that the client was reasonably diligent in responding to discovery requests.^[29]^

§ 11.5.10 Sanctions Against Pro Se Parties

Courts have been willing to establish more lenient standards for the imposition of sanctions against parties appearing without lawyers. Although the pro se party is not excused from compliance with the discovery rules, the party is generally not subjected to severe sanctions unless it appears that the party was aware of the obligations imposed by the rules and willfully disregarded them. It is prudent for counsel involved in litigation with unrepresented parties to ensure that the parties are specifically aware of their obligations under the rules.

§ 11.6 Streamlining the Two-Step Process

Rather than holding two hearings on two separate motions, as discussed previously, courts frequently indicate in the order compelling discovery what sanction will be imposed for failure to comply with the order. The court may specifically order that no further hearing will be necessary or available in the event of noncompliance.^[30]^ The sanction may then be imposed upon motion and affidavits demonstrating noncompliance with the order, eliminating the need for a second hearing.

There are tactical advantages to including a sanction within the order to compel discovery. In addition to saving time and expense, an order that specifically outlines what occurs if it is not followed may result in a stronger likelihood of compliance. Judges may be more inclined to impose harsh sanctions conditionally, in the hope of obtaining compliance.

In a different situation the two-step process does not function meaningfully. If a party provides answers that appear to be complete, but that do not disclose claims, defenses, witnesses, or documents upon which the answering party plans to rely at trial or hearing, there is potential prejudice. But a motion compelling discovery is of no use: the party seeking discovery has no means either of knowing that the answers are incomplete or of convincing a court to enter an order compelling discovery. Rule 37(d) allows the imposition of certain Rule 37(b) sanctions without any preceding order compelling discovery. It provides the strongest tool to combat the undisclosed claim, defense, witness, or exhibit.

§ 11.7 Narrower Enforcement Provisions

Federal Rule 37(d) applies to three types of failure to make discovery: failure to appear for a properly noticed deposition, failure to serve any answers or objections to interrogatories, and failure to serve a written response to a request for a Rule 34 inspection. This rule, like Rule 37(b), authorizes the court to impose sanctions it deems appropriate and lists specific sanctions. The only sanction not repeated from Rule 37(b) is the contempt sanction. Since no court order is in force in a situation calling for Rule 37(d) sanctions, contempt is considered to be an inappropriate sanction.^[31]^ States commonly have an identical or similar rule.

This rule removes any tactical advantage gained by playing a fast and loose game of discovery and allows this conduct to be penalized. Striking pleadings, entering judgment by default or dismissal, barring evidence, and deeming facts established are all available. The most frequently imposed sanctions are to bar testimony from the undisclosed witness, to bar receipt in evidence of the unproduced document, or to deem facts established when the recalcitrant party has control of the proof. Monetary sanctions including attorney fees may apply in addition to or in lieu of other sanctions.

§ 11.8 Motion Practice

The most obvious reason for bringing a motion is to compel specific relief. To have an order compelling discovery entered, you must serve a motion on all opposing or other interested parties; and, in federal and most state courts, you will also have to meet and confer to discuss the discovery dispute with the opposing party in an effort to avoid court intervention. A formal motion can be an expensive way to achieve what a meeting or phone call with the opposing attorney can often accomplish. See § 12.2.

But if your opponent is being particularly stubborn, you may feel it simpler to convince a judge, rather than your obstinate opponent, of your right to discovery. There may be an advantage to bringing a motion: it will reveal to the court, and establish in the record, your opponent’s recalcitrant attitude. Further, a discovery motion can also give you an opportunity to see and evaluate your opponent. Depending on what is said in open court, it may also make the motion docket more interesting grist.

Discovery motions have disadvantages as well. If you are also asserting objections to your opponent’s discovery requests, a court is quite likely to treat both parties the same way, by granting discovery to both or denying it to both. A motion taken under advisement, even if followed by a favorable order, may not yield discovery for months, while less favorable terms arrived at by agreement may result in immediate discovery. Although the rules clearly favor the award of expenses, including attorney fees, to the prevailing party in a discovery motion, judges do not always show the same enthusiasm in awarding them. Except in flagrant cases of obstreperousness, some courts prefer to follow the general American rule and require the parties to bear their own costs.

LLMs can help attorneys navigate motion practice by analyzing case facts to recommend the most-effective enforcement option, whether default judgment, contempt, preclusion, restricted discovery, or cost imposition. These tools can generate persuasive arguments tailored to judicial preferences, and if connected to a legal database, will cite to relevant procedural rules and case law while strategically framing the opponent’s noncompliance. GenAI can also assess likely judicial responses by analyzing past rulings, identifying a judge’s tendencies in discovery disputes, and evaluating the likelihood of obtaining sanctions or costs. Additionally, LLMs can reveal cases with similar discovery violations, summarizing judicial reasoning behind imposed sanctions, and suggesting penalties aligned with case law. These are particularly helpful if the orders happen to come from your judge: “Your honor, this is just like the order you issued two weeks ago in the Rainwater case.”

§ 11.9 Enforcing Subpoenas and

Non-Party Discovery

Motions to compel discovery most frequently relate to discovery disputes between parties. Occasionally, non-parties are drawn into discovery disputes through the use of subpoenas. When this occurs, special discovery considerations come into play.

Fed. R. Civ. P. 45(a)(1)(B) permits the issuance of a subpoena to compel a non-party’s attendance at a deposition. A subpoena may also compel the witness to produce and permit inspection and copying of documents. Rule 45(c)(2)(A) permits the issuance of a subpoena to obtain documents from a non-party without requiring a deposition. [Fed. R. Civ. P. 37(a)(2)](https://www.westlaw.com/Document/NA31111F0B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NA31111F0B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) requires that a motion to compel discovery from a non-party be made in the court where the deposition is being taken.

Motions relating to non-party discovery fall into two classes: motions by parties and motions by the non-party. If a party seeks to object to discovery directed to a non-party, the motion will be handled as any other motion for a protective order or as a motion to quash the subpoena. If a non-party objects to the discovery, or the party requesting discovery needs to compel discovery, different considerations are involved.^[32]^

A non-party’s objections to complying with a subpoena are usually asserted in a motion to quash the subpoena. Courts routinely apply a liberal standard in considering motions of non-party witnesses for protection from the burdens of litigation. This judicial approach is frequently justified by the relative lack of interest the non-parties have in the litigation.

Although “quashing” a subpoena relieves a non-party from any obligation to comply with it, the relief available to non-parties should not be considered so limited. Courts have essentially granted non-parties the right to seek, and obtain in appropriate cases, any relief a party could obtain in a motion for a protective order under Fed. R. Civ. P. 26(c).^[33]^ Most frequently courts will limit the scope of discovery from the non-party, place conditions on the use of the information discovered, limit further dissemination of the information, or require the non-party to be financially compensated for the burdens placed on it by the subpoena.

Courts are quite receptive to claims of burdensomeness from non-parties who are drawn into a discovery morass. Judges may grant substantial awards to reimburse the non-party the expenses in complying with a subpoena.^[34]^ Judges will also be inclined to require a party to exhaust the possibilities of obtaining the requested information from a party to the litigation before seeking to impose the production requirement on a non-party. In addition to the burdens of litigation, courts are willing to seriously consider privacy rights and interests of non-parties.^[35]^

A party seeking to enforce discovery from a non-party usually brings a motion for imposition of sanctions, ordinarily contempt. Fed. R. Civ. P. 45(e) authorizes the court issuing a subpoena to treat as contempt any failure to obey it. In addition, the entire range of sanctions permitted under Fed. R. Civ. P. 37 are permitted against non-parties to the extent they are logically applicable.

In considering the special consideration or deference non-parties may receive in discovery matters, non-parties should be considered in two separate classes: non-parties who have had no contact with the litigation or non-parties who have some personal, business, or professional relationship with a party. Courts are much less deferential to the objections of a non-party who has some connection with one of the parties, and much more protective of a non-party who has no connection. Similarly, non-parties who are experts but who have not been retained by any party will not likely be compelled to provide testimony since they have not voluntarily submitted to being brought into the litigation.^[36]^

LLMs can help attorneys craft persuasive subpoena communications that encourage cooperation rather than resistance. By framing requests in a cooperative tone, emphasizing legal obligations while offering reasonable accommodations, and addressing potential concerns upfront, GenAI can reduce the likelihood of objections and delays. LLMs can also identify supporting case law, including district-specific rulings and a judge’s prior orders (e.g., subpoena enforcement), to strengthen persuasiveness. Additionally, GenAI can help strategically craft requests to avoid provoking burdensomeness claims, suggesting confidentiality protections, and tailoring sanctions arguments under Rule 37 and contempt rules. By leveraging these tools, attorneys can enforce non-party discovery more efficiently while maintaining a cooperative approach that minimizes disputes, increasing the likelihood of subpoena compliance.

§ 11.10 Discovery Malpractice

The increased willingness of courts to impose severe discovery sanctions may give rise to increased claims of malpractice against attorneys. The orders entered by courts, directing attorneys and not their clients to bear the costs of discovery motions, clearly impose a penalty upon counsel who abuse the discovery process. The findings of the court may be pertinent in subsequent claims brought by a party against the attorney.

Courts frequently impose monetary sanctions directly against the attorneys when they perceive the attorney to be at fault in obstructing discovery, although they are increasingly willing to visit the attorney’s negligence or willfulness upon the client. It is clear, then, that the possibility of imposition of severe sanctions exists and should cause attorneys to be especially careful to ensure compliance by their client, as well as by themselves, with any court orders regarding discovery.

A more novel claim of malpractice might be grounded upon a client’s complaint that the client’s attorney conducted inadequate discovery. Economic factors impinge upon every decision either to conduct or refrain from additional discovery. If the attorney and client consider financial factors and together decide not to pursue further discovery, it appears unlikely that a malpractice claim could be perfected.

§ 11.11 Conclusion

The disclosure and discovery rules are not self-enforcing. Although attorneys frequently modify disclosure and discovery rights and attempt to resolve disputes without court involvement, it is important that sanctions be utilized when necessary. It is also important to recognize the fundamental purpose of discovery, because courts impose sanctions in order to secure that very purpose: the just, speedy, and inexpensive determination of litigation.^[37]^ Courts exercise wide discretion in determining how this end may best be achieved.

Practice Problems and Assignments

Follow the directions from your professor in completing an assignment.

  1. Prepare to discuss in class or online sanctions available under Federal Rule 37.

  2. Prepare to discuss in class or online the procedures required by Federal Rule 37 for seeking sanctions.

  3. Prepare to discuss in class or online the required documents and their contents required by Federal Rule 37 in support of a motion for sanctions.

  4. Prepare to discuss in class or online the possible responses to a motion for sanctions under Federal Rule 37.

  5. Prepare to discuss in class or online how best attorneys can resolve discovery disputes and avoid sanctions in meet and confer conferences.

  6. Prepare to discuss in class or online how a discovery mediator can assist parties in discovery disputes and reduce or prevent the need for sanctions.

  7. Prepare to discuss in class or online the options available to a judge when determining whether and what sanctions ought to be levied against a recalcitrant party under Federal Rule 37.

  8. Prepare to discuss in class or online the federal court sanctions specifically available for the failure to preserve or for the spoliation of documents and electronically stored information

  9. Research the federal case law in the district and circuit where your law school is located relating to sanctions for the failure to preserve or for the spoliation of documents and ESI and concisely summarize the controlling case law. Prepare to discuss in class or online.

  10. Research the state case law in the state where your law school is located relating to sanctions for the failure to preserve or for the spoliation of documents and ESI and concisely summarize the controlling case law. Prepare to discuss in class or online.

  11. Research the differences and similarities between Federal Rule 37 and the state court rules applicable in the state of your law school regarding the imposition of sanctions. Be prepared to discuss in class or online these differences and similarities.

  12. You represent the defendant in Hot Dog Enterprises v. Tri-Chem (Case A). The plaintiff has submitted interrogatories and requests for production and has asked questions during depositions of managing agents from Tri-Chem seeking the disclosure of information and discovery of documents relating to trade secret data concerning Bond-Mor. Your client is concerned, obviously, that the public disclosure of this information would provide competitors with extremely valuable data.

(a) Prepare to discuss in class or online what you could do and why to protect this information.

(b) What would you say to opposing counsel when you meet and confer in an effort to resolve related discovery disputes without court intervention?

(c) Draft a stipulated protective order to be agreed on by the parties.

(d) Consider whether a court appointed neutral could assist in resolving the problems. How?

(e) Draft a motion seeking a protective order to protect this data.

(f) What arguments would you advance in support of this motion?

(g) Draft a proposed protective order for submission to the court.

  1. You represent the plaintiff in Hot Dog Enterprises v. Tri-Chem (Case A). You seek the disclosure of essential information regarding the chemical composition of Bond-Mor. You have submitted interrogatories, requests for production, and deposition questions to Tri-Chem seeking the disclosure of this information, all of which requests have been denied.

(a) Prepare to discuss in class or online what you could do and why to seek the disclosure of this information.

(b) What would you say to opposing counsel when you meet and confer in an effort to resolve the discovery disputes without court intervention?

(c) Consider whether a court appointed neutral could assist in resolving this problem. How?

(d) Draft a [Rule 37](https://www.westlaw.com/Document/NA31111F0B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NA31111F0B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) motion seeking the disclosure of this data.

(e) What arguments would you advance that this information be disclosed to specific representatives of your party, experts retained in the case, and yourself?

(f) Draft a proposed Rule 37 order compelling production of this information.

  1. You represent the defendant in Hot Dog Enterprises v. Tri-Chem (Case A). Presume the trial judge has ordered the disclosure of information you deem to be protected by a trade secret and by an attorney-client privilege. What options do you have in response to this order? What would you do?

  2. You represent the plaintiff in Hot Dog Enterprises v. Tri-Chem. (Case A). You obtain pursuant to a proper protective order information from Tri-Chem relating to the chemical composition of Bond-Mor. In addition to Hot Dog Enterprises, other clients retain you to represent them in prospective litigation against Tri-Chem. How, if at all, may you use the protective information obtained in your lawsuit representing Hot Dog Enterprises on behalf of your other clients? What if attorneys representing other plaintiffs in litigation with Tri-Chem regarding Bond-Mor or prospective plaintiffs who may have claims against Bond-Mor contact you requesting information about Bond-Mor? How may you respond to them?

  3. You represent the defendants in Northern Motor Homes v. Danforth (Case J). In October, Joan Danforth developed respiratory problems. A medical expert who examined her has advised you that inhalation of fumes from the propane stove (the June 29 camper fire caused the fumes) may have caused serious damage to her lungs. The court has allowed you to amend the counterclaim by adding a product liability claim.

You have submitted a request for production, Number 17, for documents that contain the names and addresses of all customers of the plaintiff who have purchased Voyageur Motor Homes with propane stoves. You intend to contact these individuals and discover whether they have had any problems with that stove model. The plaintiff has refused to disclose these names, contending that: (1) the information is confidential; (2) the documents that contain the names also contain private business data irrelevant to the case; and (3) the privacy of these customers will be breached by the defendants.

Your investigation has revealed that the plaintiff designed and manufactured the propane stove installed in the Voyageur. You have submitted a request for production, Number 18, seeking documents and electronically stored information detailing the design and manufacturing processes involved in the production of the propane stove. The plaintiff has refused to comply with this request, explaining that: (1) Northern Motor Homes has a patent on the Saf-T-Lok valve on the stove; (2) the documents contain trade secrets; and (3) the disclosure of the information would put Northern Motor Homes at a significant disadvantage with its competitors.

(a) Prepare to discuss in class or online what you could do and why to obtain this information.

(b) What would you say to opposing counsel when you meet and confer in an effort to resolve discovery disputes without court intervention?

(c) Consider whether a court appointed neutral could assist in resolving this problem. How?

(d) Draft a motion seeking a protective order to obtain the information sought in Production Request Numbers 17 and 18.

(e) Draft a protective order that provides you with the information you need and which meets the legitimate concerns of the plaintiff.

  1. You represent the plaintiff in Northern Motor Homes v. Danforth (Case J). The defendants have failed to respond within 30 days to the interrogatories you drafted. Subsequently, you sent an email to the defendants’ attorney demanding answers. You never received a reply to that email, and you then sent a letter to the defendants’ attorney who also did not respond to your letter.

(a) Plan a Rule 37 motion and proposed order seeking appropriate sanctions for the defendants’ failure to respond.

(b) Consider what you would discuss with opposing counsel in a meet-and-confer conference regarding this problem.

(c) Draft a Rule 37 motion and proposed order seeking appropriate sanctions for the defendants’ failure to respond.

  1. You represent the defendants in Northern Motor Homes v. Danforth (Case J). The plaintiff has failed to respond within 30 days to the interrogatories that you drafted. You subsequently sent an email to the plaintiff’s attorney demanding answers. You never received a reply to that email, and you then sent a letter to the plaintiff’s attorney who also did not respond to your letter.

(a) Plan a Rule 37 motion and proposed order seeking appropriate sanctions for the plaintiff’s failure to respond.

(b) Consider what you would discuss with opposing counsel in a meet-and-confer conference regarding this problem.

(c) Draft a Rule 37 motion and proposed order seeking appropriate sanctions for the plaintiff’s failure to respond.

  1. You represent the plaintiff in Northern Motor Homes v. Danforth (Case J). The defendants have responded to your interrogatories (see Ch. 7, Problem 30) by completely and satisfactorily responding to interrogatories (a) and (c) and by answering the remaining questions as follows:

(b) The plaintiff was present and knows this information.

(d) It would be difficult and burdensome to respond. Ask this question during the defendants’ depositions.

(e) Improperly drafted question.

(f) We object on the grounds that this question seeks legal information.

(1) How would you proceed to obtain complete and correct answers?

(2) Consider what you would discuss with opposing counsel in a meet-and-confer conference regarding these issues.

(3) Draft a Rule 37 motion and proposed order compelling answers and seeking appropriate sanctions.

  1. You represent the defendants in Northern Motor Homes v. Danforth (Case J). The plaintiff has responded to your interrogatories (see Ch. 7, Problem 29) by providing complete and satisfactory answers to interrogatories (c) and (d) and by answering the remaining questions as follows:

(a) This information is available from the defendants.

(b) Burdensome. A deposition is a more appropriate discovery device to use to obtain these facts.

(e) We wanted to maintain good customer relations even when the customer was wrong.

(f) Objection. Requires a legal conclusion.

(1) How would proceed to obtain complete and correct answers?

(2) Consider what you would discuss with opposing counsel in a meet-and-confer conference regarding these issues.

(3) Draft a Rule 37 motion and proposed order compelling answers and seeking appropriate sanctions.

  1. You represent Summit Insurance Company in Pozdak v. Summit Insurance Company (Case B). You know that Pozdak has severe financial problems and no longer has a home, workplace, or gallery. You figure that Pozdak’s lawyer is being paid an hourly rate. Melissa Tandy, a Vice President with Summit Insurance, suggests that because of Pozdak’s need for money that you as the lawyer engage in an appropriate discovery and motion program that will delay the case from going to trial for as long as possible. She also points out to you that it is in the best interests of Summit Insurance to prolong the litigation because the Company will earn interest by investing the money and delaying paying any money to Pozdak. Do you initiate a prolonged discovery and motion program? Why or why not? What factors influence your judgment?

  2. You represent the City of Mitchell in Giacone v. City of Mitchell (Case D). Kay Olsheski advises you that the City does not have the money or resources to provide notice or hearings to water customers who want to challenge the City’s right to terminate their services during this budget year and probably longer. Olsheski suggests that you defend the lawsuit to permit the City another 18 to 24 months to consider changing the termination procedures. Martha Giacone is represented by the Mitchell Legal Services Office, and you know that the limited resources of that office make it very difficult for them to prosecute the lawsuit. Would you plan a discovery and motion program to provide the City with the additional time and to take advantage of the problems of the Legal Services Office? Why or why not? What factors influence your judgment?

  3. You represent Rainbow Computer in Mitchell Computer Club v. Rainbow Computer (Case E). The attorney for the Computer Club is a recent law school graduate and began practice one month ago. Your initial conversations with this attorney lead you to conclude that this lawyer is woefully inexperienced to conduct a major class action lawsuit. You have a well-established reputation with the local judges in the Mitchell courts. You know that the practice of most Mitchell defense lawyers is to routinely delay providing discovery responses until the last possible moment, usually the day that the opposing lawyer has scheduled a hearing to enforce a discovery request. You also know that the judges when faced with a request for attorney fees from the moving lawyer seeking to enforce discovery requests will seldom grant such a request, and only if especially egregious circumstances exist. Would you take advantage of your opponent’s inexperience, your reputation, and the local practice that tolerates late discovery responses? Why or why not? What factors influence your judgment?

  4. You represent Juanita Vasquez in Vasquez v. Hot Dog Enterprises (Case F). You know that HDE is very sensitive to publicity surrounding the sexual harassment lawsuit. Would you plan a discovery program to take advantage of this sensitivity by disclosing information the media would publicly broadcast, print, or blog?

  5. You represent Hot Dog Enterprises in Vasquez v. Hot Dog Enterprises (Case F). You believe you could make things very difficult for Juanita Vasquez by probing during her deposition very sensitive areas of her life, including arguably or marginally relevant past and current sexual experiences, and by threatening to depose witnesses who could confirm or deny her testimony. This aggressive deposition approach could possibly make her more willing to settle the case for less money. What would you do? Why? What factors influence your judgment?

  6. You represent Razzle in Tymons v. Allgoods and Razzle (Case M). Razzle is concerned about possible severe sanctions for its refusal to answer discovery inquiries about the identity of the hacker and any breach in its cyber-security systems. It has never been ordered by a court to release identities of its users. If a judge ordered it to reveal that information, its plan would be to refuse and face a contempt charge. Razzle seeks your advice about what it can or should do, and how severe the sanction penalties could be if imposed by the court. Advise it regarding all issues.

  7. Jerzy has retained you in Tymons v. Allgoods and Razzle (Case M). If the Tymons sue him for legal malpractice, he is considering defaulting and not answering or responding to the complaint. He believes that is a better option than if he were to defend and be involved in discovery and possible sanctions for not complying with discovery requests, all of which he wants to avoid. And he would rather not inform his malpractice carrier about any lawsuit. He seeks your advice about his options. What do you advise regarding all issues?

  8. You have been requested by Summit Continuing Legal Education to make a presentation at its annual Discovery Sanction CLE Program. Prepare a concise outline of your presentation regarding the topic:

(A) As a Lawyer, What Would I Do About Discovery Sanctions to More Effectively Prevent Discovery Violations?

(B) How Can Meet-and-Confer Lawyer Conferences Best Avoid Discovery Disputes and the Imposition of Sanctions?

(C) As a Judge, What I Would Do About Discovery Sanctions to More Effectively Prevent Discovery Violations?

(D) If I Were in Charge of Discovery Reform: How Would I Revise the Rules to More Effectively Prevent Discovery Violations?

(E) How can AI with law based LLMs and GenAI systems improve discovery rules to reduce the need for sanctions and to predict when problems may arise to avoid sanctions?

  1. [New England Speed Factory, LLC v. Snap-On Equip., LLC](https://www.westlaw.com/Document/Ibad11380484c11ea959390ec898a3607/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ibad11380484c11ea959390ec898a3607/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 438 F. Supp. 3d 867 (N.D. Ill. 2020)](https://www.westlaw.com/Document/Ibad11380484c11ea959390ec898a3607/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ibad11380484c11ea959390ec898a3607/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
  2. See, e.g., **[Kemp v. Harris,](https://www.westlaw.com/Document/I7bce4828a93911dea82ab9f4ee295c21/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I7bce4828a93911dea82ab9f4ee295c21/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 263 F.R.D. 293 (D. Md. 2009)](https://www.westlaw.com/Document/I7bce4828a93911dea82ab9f4ee295c21/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I7bce4828a93911dea82ab9f4ee295c21/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0); [Hays v. Adam,](https://www.westlaw.com/Document/Ie4a13e65e8ec11dbafc6849dc347959a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ie4a13e65e8ec11dbafc6849dc347959a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 512 F. Supp. 2d 1330 (N.D. Ga. 2007)](https://www.westlaw.com/Document/Ie4a13e65e8ec11dbafc6849dc347959a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ie4a13e65e8ec11dbafc6849dc347959a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
  3. See, e.g., [O’Toole v. Sears, Roebuck & Co.](https://www.westlaw.com/Document/I57ce1a1ca4a911e3a659df62eba144e8/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I57ce1a1ca4a911e3a659df62eba144e8/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 302 F.R.D. 490 (N.D. Ill. 2014)](https://www.westlaw.com/Document/I57ce1a1ca4a911e3a659df62eba144e8/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I57ce1a1ca4a911e3a659df62eba144e8/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
  4. See **[Stetson v. Edmonds, ](https://www.westlaw.com/Document/I84795a1083ec11ee9242926fa9090bde/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I84795a1083ec11ee9242926fa9090bde/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[86 F4th 870 (10th Cir. 2023)](https://www.westlaw.com/Document/I84795a1083ec11ee9242926fa9090bde/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I84795a1083ec11ee9242926fa9090bde/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
  5. [McMullen v. Bay Ship Mgmt.,](https://www.westlaw.com/Document/I15cdf59189dc11d9b6ea9f5a173c4523/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I15cdf59189dc11d9b6ea9f5a173c4523/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 335 F.3d 215 (3d Cir. 2003)](https://www.westlaw.com/Document/I15cdf59189dc11d9b6ea9f5a173c4523/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I15cdf59189dc11d9b6ea9f5a173c4523/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
  7. [Fed. R. Civ. P. 37(a)(4)](https://www.westlaw.com/Document/NA31111F0B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NA31111F0B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0), Notes of Advisory Committee. ↑
  9. Notice is required to these parties and non-parties by Fed. R. Civ. P. 6(d). The procedural requirements of discovery motion practice are discussed in § 12.2.2 of this text. ↑
  11. [427 U.S. 639, 642 (1976)](https://www.westlaw.com/Document/I1d221d419c9711d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0&fragmentIdentifier=co_pp_sp_780_642" \o “https://www.westlaw.com/Document/I1d221d419c9711d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0&fragmentIdentifier=co_pp_sp_780_642). ↑
  13. *See *Gregory v. State of Montana, 118 F.4th 1069 (9th Cir. 2024). ↑
  19. An evidentiary hearing is required by the courts to determine if a factual issue exists. No such hearing is required if the party found in contempt objects merely on legal grounds. *See *I.B.M. Corp. v. United States, 493 F.2d 112 (2d Cir. 1973). ↑
  24. *See *State of Ohio v. Arthur Andersen & Co., 570 F.2d 1370 (10th Cir. 1978). ↑
  25. See, e.g., Herman v. City of New York, 334 F.R.D. 377 (E.D.N.Y. 2020); Compass Bank v. Morris Cerullo World Evangelism, 104 F. Supp. 3d 1040 (S.D. Cal. 2015). ↑
  26. [Scipione v. Advance Stores Co.,](https://www.westlaw.com/Document/I1c21c2e3313111e3b48bea39e86d4142/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I1c21c2e3313111e3b48bea39e86d4142/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 294 F.R.D. 659 (M.D. Fla. 2013)](https://www.westlaw.com/Document/I1c21c2e3313111e3b48bea39e86d4142/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I1c21c2e3313111e3b48bea39e86d4142/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0); *but see *Bolger v. District of Columbia, 248 F.R.D. 339 (D.D.C. 2008). ↑
  30. See, e.g., **[Sec. Nat’l Bank of Sioux City v. Abbott Labs](https://www.westlaw.com/Document/Ie32b762316b711e4b86bd602cb8781fa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ie32b762316b711e4b86bd602cb8781fa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 299 F.R.D. 595 (N.D. Iowa 2014)](https://www.westlaw.com/Document/Ie32b762316b711e4b86bd602cb8781fa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ie32b762316b711e4b86bd602cb8781fa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
  31. [Robles v. Green Bay Educ.,](https://www.westlaw.com/Document/I88cbc32539f611e380938e6f51729d80/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I88cbc32539f611e380938e6f51729d80/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 295 F.R.D. 301 (E.D. Wis. 2013)](https://www.westlaw.com/Document/I88cbc32539f611e380938e6f51729d80/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I88cbc32539f611e380938e6f51729d80/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
  32. See **[In re Domestic Drywall Antitrust Litig.](https://www.westlaw.com/Document/Idf0ca362dd2611e390d4edf60ce7d742/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Idf0ca362dd2611e390d4edf60ce7d742/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 300 F.R.D. 234 (E.D. Pa. 2014)](https://www.westlaw.com/Document/Idf0ca362dd2611e390d4edf60ce7d742/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Idf0ca362dd2611e390d4edf60ce7d742/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
  35. [Owens v. QVC, ](https://www.westlaw.com/Document/I9a1d6f86541f11d9a99c85a9e6023ffa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I9a1d6f86541f11d9a99c85a9e6023ffa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[221 F.R.D. 430 (E.D. Pa. 2004)](https://www.westlaw.com/Document/I9a1d6f86541f11d9a99c85a9e6023ffa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I9a1d6f86541f11d9a99c85a9e6023ffa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
  36. [Cabell v. Zorro Prods., Inc., ](https://www.westlaw.com/Document/I187fbf842ca811e3b48bea39e86d4142/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I187fbf842ca811e3b48bea39e86d4142/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[294 F.R.D. 604 (W.D. Wash. 2013)](https://www.westlaw.com/Document/I187fbf842ca811e3b48bea39e86d4142/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I187fbf842ca811e3b48bea39e86d4142/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑