Commercial Litigation and Arbitration

Rule 37 Discovery Sanctions — Necessity of a Motion or ‛Order“ — Informal Appeals to the Court

In the 1970 amendments to Fed.R.Civ.P. 37, the scope of Rule 37(b)(2) (discovery sanctions) was substantially broadened. Among other things, the Rule was extended to cover disobedience to any order ‛to provide or permit discovery,'' including orders issued under Rules 37(a) (motions to compel discovery), 35 (requiring a physical or mental examination) or 26(c) (protective orders). See generally Joseph, Sanctions: The Federal Law of Litigation Abuse § 48(A) (3d ed. 2000).

The defendant in Texas Instruments Inc. v. PowerChip Semiconductor Corp., 2007 U.S. Dist. LEXIS 38312 (S.D.N.Y. May 24, 2007), objected to a series of sanctions motions filed by the plaintiff on the ground, among others, that the plaintiff ‛never filed a formal motion to compel any of the documents they now seek to preclude.“ The plaintiff had, however, ‛appealed to the Court on numerous instances to review [defendant’s] failures of production.“ Magistrate Judge Ronald L. Ellis ruled that ‛a formal motion is not required; a request for judicial intervention is sufficient“ (citing JSC Foreign Econ. Assoc. Technostroyexport v. Int'l Dev. and Trade Servs., Inc., 2005 WL 1958361, at *14 n. 7 (S.D.N.Y. Aug. 16, 2005)), and that ‛[t]hese requests and the resulting Court involvement are equivalent to a formal motion to compel.“

Share this article:


Recent Posts