Discovery is one of those Civil Procedure topics that students skim past — until they get burned by an MBE question about what happens when someone ignores a discovery order. That’s where Rule 37 comes in, and the bar examiners love it.

Why Discovery Sanctions Under Rule 37 Show Up on the MBE

The NCBE tests Civil Procedure in a way that rewards understanding consequences, not just procedures. It’s not enough to know that a party must respond to interrogatories. You need to know what happens when they don’t. That’s the Rule 37 universe — and it’s more nuanced than most bar takers realize.

Rule 37 of the Federal Rules of Civil Procedure governs the enforcement of discovery obligations. It creates a tiered system of sanctions, and the MBE tests whether you can identify which tier applies in a given situation. Get the tier wrong, and you’ll pick the wrong answer every time.

The Two-Track Structure of Rule 37

Here’s the framework you need to internalize: Rule 37 operates on two tracks depending on whether a court order has already been violated.

Track One covers situations where a party simply fails to respond to discovery — no court order has been issued yet. Think interrogatories that go unanswered, or a deposition where the witness just doesn’t show. In these situations, the requesting party must first move the court for an order compelling discovery under Rule 37(a). The court can then order the non-responding party to comply.

Track Two kicks in after a court order compelling discovery has been issued and the party still doesn’t comply. This is where the serious sanctions live. Once you’re in Track Two territory, the court has broad authority to impose consequences — and some of them are severe enough to end the case.

The MBE will often test whether you recognize which track applies. A question might describe a scenario where a party never got a court order and jump straight to asking whether default judgment is appropriate. The answer is no — you have to go through the compel-first process before most of the harshest sanctions are available.

The Discovery Sanctions Under Rule 37 Elements You Need to Know

When a party violates a court order compelling discovery under Rule 37(b), the court may impose any of the following sanctions:

That last carve-out is exactly the kind of detail the MBE will test. Contempt is available for most discovery violations, but not for failure to submit to a physical or mental examination, and the rules differ for deposition non-appearances.

One more critical element: attorney’s fees. Under Rule 37(b)(2)(C), the court must order the disobedient party — or their attorney, or both — to pay the reasonable expenses, including attorney’s fees, caused by the failure. The exception is if the failure was substantially justified or if an award would be unjust.

Hypothetical: Spotting the Issue on an MBE Question

Here’s the kind of fact pattern you might see:

Plaintiff sues defendant for breach of contract. During discovery, plaintiff serves interrogatories on defendant. Defendant fails to respond. Plaintiff moves for and obtains a court order compelling defendant to respond within 30 days. Defendant still does not respond. Plaintiff moves for default judgment as a discovery sanction.

Is default judgment available here?

Yes — this is Track Two. A court order was issued, defendant violated it, and default judgment is explicitly listed as an available sanction under Rule 37(b)(2)(A)(vi). The court has discretion to impose it, though courts will typically consider whether lesser sanctions would suffice before going nuclear.

Now change the facts slightly: defendant never responded to the interrogatories, plaintiff never moved to compel, and plaintiff immediately asks for default judgment. That’s not available yet. Plaintiff skipped the compel step.

The bar examiners know you’ll confuse these two scenarios. They’re counting on it.

Initial Disclosure Failures and Rule 37(c)

There’s a third piece of Rule 37 that gets tested separately: Rule 37(c), which deals with failures to disclose or supplement under Rule 26. If a party fails to disclose information required by Rule 26(a) — including initial disclosures and expert witness information — or fails to supplement a prior response, that party generally may not use the undisclosed information at trial, at a hearing, or on a motion.

This is sometimes called the automatic exclusion rule, and it doesn’t require a prior court order. That’s what makes it different from the Track Two sanctions. The sanction is built into the rule itself.

The court may also impose additional sanctions under Rule 37(c)(1), including payment of reasonable expenses and informing the jury of the failure. These are discretionary add-ons — the exclusion is the default consequence.

What About Failure to Preserve Evidence?

You may also encounter questions touching on spoliation — the destruction or failure to preserve evidence. Under Rule 37(e), if electronically stored information that should have been preserved is lost because a party failed to take reasonable steps to preserve it, and the information cannot be restored, the court may take curative measures or — if the party acted with intent to deprive the other side of the information — impose the harshest sanctions, including an adverse inference instruction, dismissal, or default judgment.

Spoliation is a growing area on the MBE. The key distinction is intent: curative measures are available for negligent loss, but the severe sanctions require a finding of intentional deprivation.

FlashTables on Rule 37

FlashTables is a set of professionally formatted two-column PDF rule tables covering all seven MBE subjects — 704 rules total, organized by the official NCBE Subject Matter Outline. The discovery sanctions rules, including the Track One and Track Two framework, the automatic exclusion rule, and the spoliation provisions under Rule 37(e), are laid out side-by-side in the Civil Procedure table so you can see exactly how they connect. Whether you’re a law student locking in black-letter Civil Procedure for your outline or a bar taker drilling active recall in the final weeks before the MBE, the tables give you the rule and its elements in a format built for retention. You can find the full Civil Procedure table and all seven subjects at getflashtables.com.

Key Takeaways: Discovery Sanctions Under Rule 37 for the Bar Exam

Before you move on, make sure you have these locked in:

Rule 37 is one of those topics where knowing the structure pays off more than memorizing isolated rules. Once you understand the two-track framework and where each sanction lives within it, the MBE questions become much more manageable.