Do “Evasive and Incomplete” Discovery Responses Support Draconian FRCP 37(d) Sanctions?

Do “Evasive and Incomplete” Discovery Responses Support Draconian FRCP 37(d) Sanctions? by Michael Berman
Image: Kaylee Walstad, EDRM.

[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

In Ogunsula v. Warrenfeltz, 2024 WL 298984 (D. Md. Jan. 25, 2024), the Court recognized a split of authority and addressed the interplay between Rule 37(a)’s maxim that “evasive and incomplete” discovery responses are deemed a failure to respond under Subsection (a), on the one hand, and Rule 37(d)’s authorization of game ending sanctions for failures to respond to discovery, on the other.  In my opinion, the District Court resolved the split with a common-sense, middle-of-the-road approach.


In general, Fed.R.Civ.P. 37 addresses failure to make disclosure or to cooperate in discovery, and sanctions.

Rule 37(a)(4) states that: “For purposes of this subdivision (a), an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” [emphasis added].  Rule 37(a)(1) authorizes motions to compel discovery.1

Rule 37(b) applies to a failure to comply with a court order.  Rule 37(c) applies to certain specific failures, such as failures to make initial disclosures, supplement, or admit.

In my view, before imposing the sanction of dismissal, it is appropriate to issue an Order that requires the self-represented plaintiff to provide adequate discovery.

Ogunsula v. Warrenfeltz, 2024 WL 298984 (D. Md. Jan. 25, 2024).

Rule 37(d) addresses a party’s failure to attend its own deposition, serve answers to interrogatories, or respond to a request for inspection.  A wide range of sanctions, including dismissal and a default judgment, is permitted under Subsection (d).2

Thus, if an “evasive and incomplete” discovery response is deemed a failure to respond under Subsection (d), as well as under Subsection (a), draconian sanctions may be imposed for evasive and incomplete responses.

In Ogunsula, where the pro se plaintiff’s responses were evasive and incomplete, but where no order compelling complete responses had been entered, the District Court held that lesser sanctions should be imposed.


Ms. Ogunsula filed a pro se civil rights suit against Trooper Warenfeltz alleging that he conducted a traffic stop without reasonable suspicion of a violation.  After five extensions of the discovery deadline, defendant moved for sanctions alleging substantial failure to respond to discovery.  The Magistrate Judge recommended dismissal.  

Upon objection, the District Judge disagreed, imposed a monetary sanction, overruled the plaintiff’s objections, and ordered plaintiff to respond to the discovery, writing:

As explained below, plaintiff’s discovery responses are inadequate, and her continued evasion of discovery responsibilities is unacceptable. Nonetheless, mindful that plaintiff is self-represented and has to this point not been subject to a discovery order entered by the Court, I shall afford her a final opportunity to provide adequate responses to defendant’s written discovery requests. [emphasis added].

Ogunsula v. Warrenfeltz, 2024 WL 298984 (D. Md. Jan. 25, 2024).

While the Court provided multiple examples of the inadequacies, one will suffice here.  The Court explained:  “Interrogatory 21 asks plaintiff whether she has applied for any federal benefits in relation to her claimed injury. Plaintiff wrote: ‘??????’”  Id. at *13.

Plaintiff offered a series of reasons why her discovery responses were inadequate.  She blamed a “personal health matter,” “laptop damage,” and her “work schedule.”  She also claimed that “she was ‘not… aware of the Defendant’s ‘document requests’….”  Id. at *8.  Further, she claimed privilege as to information about her health history.  Id

Defendant argued that the plaintiff’s untimely “responses provided almost no information to Defendant. The majority of responses referred to attached documents, but no additional documents were attached. Plaintiff is claiming medical issues as a result of this case and refused to provide any medical providers or records to Defendant. Additionally, Plaintiff provided no response at all to Defendant’s Request for Production of Documents.”  Id. at *6.  Further, the answers to interrogatories were not affirmed under oath.  

Defendant also asserted that plaintiff failed to make herself available for deposition and failed to respond to written discovery.  He claimed that, over a five-month period, the plaintiff repeatedly cancelled depositions on short notice.  Defendant was eventually able to depose the plaintiff, but without receiving requested documents.  

In my words, the plaintiff’s responses were evasive and incomplete, as well as entirely missing.  But, there was no order compelling responses.


While there were a number of issues presented, the one I found most interesting was “whether an incomplete or evasive response to written discovery—as distinguished from a total failure to respond—may provide a basis for sanctions under Fed. R. Civ. P. 37(d) or, instead, must first be addressed by a motion to compel under Fed. R. Civ. P. 37(a)(3)(B).”  Id. at *9.  Rule 37(a)(3)(B) authorizes a motion to compel if there is a failure to answer deposition questions, interrogatories, or respond to document requests.

In short, where a litigant’s discovery responses are evasive and incomplete, and therefore deemed a failure to answer under Subsection (a), can game-ending sanctions be entered under Subsection (d)’s failure to respond provision, or must there first be a Rule 37(a) motion to compel, and violation of an order compelling a response?

The Ogunsula Court noted a split of authority.  According to the Court: the Eighth Circuit requires a motion to compel before Rule 37(d) sanctions may be imposed;  the Seventh Circuit does not; and, the Fourth Circuit authority is inconclusive.  Id. at *9.

The Eighth Circuit requires a “total failure” to respond before Rule 37(d) is triggered: “The provisions of Rule 37(d) with regard to interrogatories do not apply when the failure to comply is anything less than a total failure to respond.…  Instead, if a response is made, but some questions are not answered or are evasive or incomplete, a motion under Rule 37(a) to compel answers is the proper remedy.” Id. (cleaned up; citation omitted).3  

That makes sense because Rule 37(a)(4) is limited to “this subdivision (a)….”  And, while the evasion and incompleteness in Ogunsula was clear, not every evasive or incomplete response should justify leaping over the motion to compel process.

However, per Ogunsula, in the Seventh Circuit: “A district court was well within its discretion in awarding expenses pursuant to Fed. R. Civ. P. 37(d) when the sanctioned party provided answers that were evasive and incomplete and were framed to impede discovery rather than to facilitate it.…  It is true that Rule 37(d) does not specifically cover giving answers that are evasive and incomplete, as distinguished from failing to answer at all. Compare Fed. R. Civ. P. 37(a)(3). We believe, however, that when, as here, the fact that answers to interrogatories are evasive or incomplete cannot be determined until further proceedings have been conducted to obtain the information later determined to have been withheld, the evasive or incomplete answers are tantamount to no answer at all, and Rule 37(d) is applicable.”  [cleaned up; citation omitted]. 

That analysis also makes sense because Rule 37(b) applies to a “failure to comply with a court order” and Rule 37(d) does not by its express terms require a predicate court order.  Where a litigant responds to an interrogatory with “??????,” the litigant is abusing the discovery process.

There seems to be a middle road, although the Ogunsula decision described it as inconclusive.  According to the Ogunsula Court, the Fourth Circuit found “support for the proposition that Rule 37(d) authorizes sanctions for something less egregious than total non-responsiveness.… Nonetheless, the Court acknowledged competing authority suggesting that Rule 37(d) is inapplicable in the absence of a serious or total failure to respond to interrogatories.” Id. at * 10 (emphasis added; cleaned up; citation omitted).


The Ogunsula Court appeared to recognize a middle-of-the-road approach that makes a lot of sense.  It wrote that Rule 37(d) was triggered by a total failure to respond or by responses that “are so inadequate that they are equivalent to a complete failure to respond.” 

In exercising its discretion, it applied a four-part test: “(1) whether the noncomplying acted in bad faith; (2) the amount of prejudice his noncompliance caused his adversary, which necessarily includes an inquiry into the materiality of the evidence he [or she] failed to produce; (3) the need for deterrence of the particular sort of noncompliance; and (4) the effectiveness of less drastic sanctions.”

The Ogunsula Court found that the plaintiff’s deficiencies were “manifold,” gave detailed examples, and wrote that defendant has been “left truly in the dark,” adding:

Generally, a party who is dissatisfied with an adversary’s discovery responses files a motion to compel, seeking a court order, and then moves for sanctions only if that order has been disobeyed. See Fed. R. Civ. P. 37(b)(2)(A). No motion to compel was filed, however, and therefore the Court had no occasion to issue an Order mandating that plaintiff must respond. Given that plaintiff is pro se, such an Order would have been useful. In my view, before imposing the sanction of dismissal, it is appropriate to issue an Order that requires the self-represented plaintiff to provide adequate discovery.

To be sure, as discussed, a party may move immediately for sanctions under Fed. R. Civ. P. 37(d) if the opposing party has failed entirely to respond to discovery requests, or has provided requests that are so inadequate that they are equivalent to a complete failure to respond. See Hathcock, 53 F.3d at 40; Basch, 777 F.2d at 174; Eller, 2020 WL 7336730, at *13.…  Nonetheless, in an effort to afford this self-represented plaintiff every reasonable opportunity to prosecute her case, I choose to exercise my discretion by allowing her an opportunity to comply with a discovery Order that I shall enter.

However, I shall award the defendant costs for plaintiff’s untimely cancelation of a deposition…. [emphasis added].

Ogunsula v. Warrenfeltz, 2024 WL 298984 (D. Md. Jan. 25, 2024).

Additionally, complete answers were compelled, the privilege objection to health care records overruled, and a second deposition of plaintiff was ordered.


So, what is the upshot?  In Ogunsula, the fact that plaintiff was pro se was significant and perhaps dispositive.  In some circuits, an evasive and incomplete answer may support a motion for sanctions under Rule 37(d) that go beyond an order compelling responses (and awarding fees and costs).  In others, it may not.

It appears that the resolution is fact-sensitive and that the Ogunsula Court would support Rule 37(d) sanctions without a prior order to compel if “the opposing party has failed entirely to respond to discovery requests, or has provided requests that are so inadequate that they are equivalent to a complete failure to respond.” [emphasis added].  However, in evaluating a request for those sanctions, it would apply a four-factor test and it seems likely that a run-of-the-mine evasive or incomplete discovery response would not trigger Rule 37(d)’s remedies.  

In the event of “seriously” evasive and incomplete discovery responses, after good faith efforts to resolve the dispute, it may be prudent, given the uncertainty, to consider a belt and suspenders approach of seeking both game-ending sanctions under Rule 37(d) and an order to compel under Rule 37(a).


1 Maryland Rule 2-432(b)(2) is similar.

2 Maryland Rule 2-433(a) is similar.

3 Quotations, brackets, citations, etc., were removed for readability.

4 Id.


  • Michael D. Berman

    Mike is the owner of E-Discovery, LLC, and of counsel at Rifkin Weiner Livingston LLC, in Baltimore. He concentrates on commercial litigation and offers mediation services. He was the primary editor of Electronically Stored Information in Maryland Courts (Md. State Bar Ass’n. 2020), and he co-edited M. Berman, C. Barton, and P. Grimm, eds., Managing E-Discovery and ESI: From Pre-Litigation Through Trial (ABA 2011), and J. Baron, R. Losey, and M. Berman, eds., Perspectives on Predictive Coding (ABA 2016). Mike has litigated a number of cases in the trial and appellate courts in Maryland. He is an Adjunct Professor at the University of Baltimore School of Law where he co-teaches a three-credit discovery workshop that focuses on e-discovery. He has lectured at the Maryland Judicial College and he chaired the Bar committee that drafted the proposed ESI Principles for the District of Maryland. He is a past: co-chair of the Federal District Court Committee of the Maryland State and Federal Bar Associations; chair of the Litigation Section Council, Maryland State Bar Association; and, co-chair of the American Bar Association Litigation Section Book Publishing Board. He graduated from the University of Maryland School of Law and is also an Army veteran. He is admitted to the Maryland bar. The opinions expressed in this blog are not necessarily those of Rifkin Weiner Livingston LLC.