During discovery in a federal civil action, the plaintiff asks the defendant to produce specific electronically stored information (ESI). The information was also required to be identified in the defendant's initial disclosures under Federal Rule of Civil Procedure 26(a)(1). The defendant neither listed the ESI in its initial disclosures nor produced it in response to the plaintiff's Rule 34 request, and it offers no justification. The plaintiff moves for sanctions. Under the Federal Rules of Civil Procedure, what sanction is imposed by default-unless the failure was substantially justified or harmless?
Awarding the plaintiff attorney's fees incurred because of the non-compliance, without further sanction.
Precluding the defendant from using the undisclosed electronically stored information at trial.
Ordering the parties to attend a settlement conference.
Dismissing the defendant's pleadings with prejudice.
Federal Rule of Civil Procedure 37(c)(1) applies when a party fails to provide information or identify a witness as required by Rule 26(a) or (e). Unless the failure was substantially justified or harmless, the default sanction is that the party "is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial." The court may, in addition or instead, award expenses or impose other orders, but evidence-preclusion is the automatic consequence. Therefore, the defendant will be barred from using the undisclosed ESI at trial.
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