Two sentences decide most Minnesota discovery motions before anybody gets to the merits. The first is in Minn. R. Civ. P. 37.01(b):
The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action.
The second is in Minn. Gen. R. Prac. 115.10: “No motion will be heard unless the parties have conferred in an attempt to resolve their differences prior to the hearing. The moving party shall initiate the conference.”
Neither one is a professional courtesy. The Rule 37.01 certification is a required part of the motion document, and Rule 115.10 puts a condition on the hearing itself. Skip the conferral and the motion doesn’t just fail. The fee award may run against you. Rule 37.01(d)(1) makes a fee award to the movant mandatory when the motion is granted, but carves out the case where “the motion was filed without the movant’s first making a good faith effort to obtain the discovery without court action.” Rule 37.01(d)(2) then makes a fee award to the opponent the default when a motion to compel is denied. File a motion to compel without a real meet-and-confer, and you’ve got a motion that can lose and cost you money.
What must a Minnesota motion to compel contain?
Three things, and they come from two different sets of rules.
The Rule 37.01 certification. The certification sentence quoted above sits in Rule 37.01(b), right after the list in 37.01(b)(2) of the four specific failures that support a motion to compel a discovery response. Rule 37.01(b)(1), which covers a motion to compel a Rule 26.01 disclosure, doesn’t carry its own certification sentence. Certify on every Rule 37.01 motion anyway. It costs you a paragraph, and Rule 115.10 independently requires a certification of conferral on any motion, so there’s no version of this where leaving it out saves you anything.
The Rule 115.10 certification. “The moving party shall certify to the court, before the time of the hearing, compliance with this rule or any reasons for not complying, including lack of availability or cooperation of opposing counsel.” That’s a separate certification on a separate timeline (before the hearing, not inside the motion), and it expressly contemplates that you may certify non-compliance and explain why. If opposing counsel won’t engage, document the attempts and certify the attempts.
A memorandum limited to what’s actually in dispute. Minn. Gen. R. Prac. 115.05, after setting a 35-page ceiling for memoranda on dispositive and nondispositive motions alike, adds a requirement aimed at this motion:
For motions involving discovery requests, the moving party’s memorandum shall set forth only the particular discovery requests and the response or objection thereto which are the subject of the motion, and a concise recitation of why the response or objection is improper.
Read the word “only.” A discovery memorandum that opens with eight pages of case narrative isn’t what the rule asks for. Set out the request, set out the response, say why the response is improper, and stop.
The motion also runs on the nondispositive track in Minn. Gen. R. Prac. 115.04: the moving party serves and files the notice of motion and motion, proposed order, any affidavits and exhibits, and any memorandum at least 21 days before the hearing; the responding party serves and files any memorandum and relevant affidavits and exhibits at least 14 days before the hearing; and a reply “limited to new legal or factual matters raised by an opposing party’s response” is served and filed at least 7 days before the hearing. Rule 115.06 supplies the consequence for missing those dates: if the moving documents are not properly served and filed the hearing may be canceled, and if responsive documents are not properly served and filed on a nondispositive motion “the court may deem the motion unopposed and may grant the relief requested without a hearing.”
Before you go to formal motion practice, look at Rule 115.04(d). It encourages the moving party to consider whether the dispute can be resolved informally through a remote technology conference with the judge or judicial officer, invoked by written notice to the court and all opposing counsel, with short letters and no briefs or affidavits. A lot of discovery fights belong there.
Which court do I file the motion in?
Depends on who’s refusing. Rule 37.01(a): “An application for an order to a party shall be made to the court in which the action is pending. An application for an order to a person who is not a party shall be made to the court in the county where the discovery is being, or is to be, taken.”
For a remote deposition, Rule 30.02(g) settles where that is: for purposes of Rules 28.01, 37.01(a), 37.02(a), and 45.03, “a deposition taken by remote technology is taken in the district and at the place where the deponent is to answer questions.”
What failures support a motion to compel?
Rule 37.01(b) lists them. A party may move to compel disclosure and for appropriate sanctions if another party fails to make a Rule 26.01 disclosure. 37.01(b)(1). And a party seeking discovery may move to compel an answer, designation, production, or inspection on any of four grounds, 37.01(b)(2)(A)–(D):
- a deponent fails to answer a question propounded or submitted under Rules 30 or 31;
- a corporation or other entity fails to make a designation under Rule 30.02(f) or 31.01(c);
- a party fails to answer an interrogatory submitted under Rule 33; or
- a party fails to produce documents or fails to respond that inspection will be permitted — or fails to permit inspection — as requested under Rule 34.
Look hard at the second and fourth. An organization’s failure to designate a 30.02(f) witness is itself a failure you can compel. And the 2018 amendment added the “fails to respond that inspection will be permitted” language specifically to put teeth in the response requirements of Rule 34.02. The Advisory Committee Comment says the amendment “provides the means for enforcing the obligations under amended Rule 34.02.”
Rule 37.01(c) closes the obvious gap: “For purposes of this subdivision an evasive or incomplete disclosure, answer, or response is to be treated as a failure to disclose, answer, or respond.” You don’t need a flat refusal. A response that answers a different question is a failure.
And Rule 37.01(b) keeps the deposition option open: “When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order.” You don’t have to stop the deposition and run to court.
Who pays for the motion?
Fee shifting is the default both ways, and the rule says “shall.”
If the motion is granted, or if the requested discovery is provided after the motion was filed, the court “shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney fees.” Rule 37.01(d)(1). Three exceptions, and only three: the court finds the motion was filed without a good faith effort to obtain the discovery first; the nondisclosure, response, or objection was substantially justified; or other circumstances make an award unjust.
Go back to that first clause — “or if the requested discovery is provided after the motion was filed.” Fixing the problem after you’ve been served with a motion doesn’t make the fee exposure go away.
If the motion is denied, the court may enter a protective order under Rule 26.03 and “shall, after affording an opportunity to be heard, require the moving party or the attorney filing the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney fees,” unless the motion was substantially justified or other circumstances make an award unjust. Rule 37.01(d)(2). Two exceptions there, not three.
If the motion is granted in part and denied in part, the court may enter a protective order and “may, after affording an opportunity to be heard, apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.” Rule 37.01(d)(3). That one’s discretionary, not mandatory.
Rule 37.01(d) is also the fee-shifting engine several other rules borrow: protective-order motions under Rule 26.03(c), motions to suspend a deposition under Rule 30.04(d), motions to determine the sufficiency of admission answers under Rule 36.01, and the non-party statement provision in Rule 26.02(d) all route expenses through it.
What sanctions are available once there is an order?
Rule 37.02(b) is where it escalates. It’s available against a party, an officer, director, employee, or managing agent of a party, or a person designated under Rule 30.02(f) or 31.01 to testify on a party’s behalf, who “fails to obey an order to provide or permit discovery, including an order made pursuant to Rule 35 or 37.01.” The court may make such orders as are just, “and among others” five listed ones:
- an order that designated matters be taken as established in accordance with the claim of the party obtaining the order;
- an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting introduction of designated matters in evidence;
- an order striking pleadings or parts of them, staying further proceedings until the order is obeyed, dismissing the action or any part of it, or rendering a judgment by default against the disobedient party;
- in lieu of or in addition to the above, an order treating the failure as contempt of court — except an order to submit to a physical or mental examination; and
- where a party failed to comply with a Rule 35.01 order to produce another person for examination, the orders in (1), (2), and (3), unless the party shows it is unable to produce that person.
The list is illustrative, not exhaustive: “and among others the following.” And the fee provision is mandatory in form. In lieu of or in addition to those orders, “the court shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.”
Separately, Rule 37.02(a) provides that a deponent’s failure to be sworn or to answer after being directed to do so by the court in the county where the deposition is being taken “may be considered a contempt of that court.”
What happens if I simply fail to disclose or to supplement?
You lose the evidence, and nobody has to move first. Rule 37.03(a):
If a party fails to provide information or identify a witness as required by Rule 26.01 or 26.05, the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.
That’s self-executing exclusion, and it reaches both the initial and expert disclosures under Rule 26.01 and the ongoing duty to supplement under Rule 26.05. In addition to or instead of exclusion, on motion and after an opportunity to be heard, the court may order payment of the reasonable expenses caused by the failure, may inform the jury of the failure, and may impose other appropriate sanctions including any of the Rule 37.02 orders. Rule 37.03(a)(1)–(3). Telling the jury about the failure is an underused remedy, and a real one.
The disclosure obligations this provision enforces are in Rule 26 and the scope of discovery, including the 60-day initial-disclosure clock that runs off the answer date. That’s the deadline people miss most.
What is the cost of refusing to admit something that turns out to be true?
Rule 37.03(b) shifts the cost of proof. If a party fails to admit the genuineness of a document or the truth of a matter requested under Rule 36, and the requesting party then proves it, the requesting party “may apply to the court for an order requiring the other party to pay the reasonable expenses incurred in making that proof, including reasonable attorney fees.” The court “shall make the order” unless it finds one of four things: the request was held objectionable under Rule 36.01; the admission sought was of no substantial importance; the party failing to admit had reasonable ground to believe it might prevail on the matter; or there was other good reason for the failure to admit.
That’s what a bad denial costs. No response at all costs more, and that’s not in Rule 37. Rule 36.01 provides that the matter “is admitted” when the response deadline passes. Written discovery under Rules 33, 34, and 36 covers that mechanism and the motion you need to withdraw an admission.
What if a party never responds at all, or does not show up?
You don’t need a prior order. Rule 37.04 applies when a party, an officer, director, employee, or managing agent of a party, or a Rule 30.02(f) or 31.01 designee fails to (1) appear before the officer who is to take the deposition after being served with a proper notice, (2) serve answers or objections to interrogatories after proper service, or (3) serve a written response to a Rule 34 request after proper service. On motion, the court may make such orders as are just, “including any action authorized in Rule 37.02(b)(1), (2), and (3)” — the establishment, preclusion, and striking/dismissal/default orders — and shall require the party or the advising attorney or both to pay the reasonable expenses caused by the failure unless the failure was substantially justified or other circumstances make an award unjust.
Then comes the sentence that ends most excuses:
The failure to act described herein may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by Rule 26.03.
If the discovery is objectionable, object on time or move for a protective order. Silence isn’t an objection, and it forfeits the argument.
What about electronically stored information that was lost?
Rule 37.05 sets a two-tier standard keyed to intent. If ESI that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court “upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice.” Rule 37.05(a). The heavy remedies take more: “only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation” may the court presume the lost information was unfavorable, instruct the jury that it may or must so presume, or dismiss the action or enter a default judgment. Rule 37.05(b)(1)–(3).
Watch the scope. Rule 37.05 by its terms addresses electronically stored information. Loss of other kinds of evidence is governed by Minnesota’s judicially developed spoliation doctrine, which our client-facing article on discovery sanctions and spoliation discusses.
Is there a sanction for not participating in the discovery plan?
Yes, and it’s easy to miss. Rule 37.06: if a party or its attorney “fails to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26.06,” the court may, after giving an opportunity to be heard, require that party or attorney to pay another party’s reasonable expenses, including attorney’s fees, caused by the failure. Rule 26.06(b) makes attorneys of record and self-represented litigants who have appeared “jointly responsible for arranging the conference, and for attempting in good faith to agree on the proposed discovery plan.”
Before you file
Two practical points that aren’t in Rule 37. Discovery isn’t filed in Minnesota. Rule 5.04(b) excludes disclosures, expert reports, depositions, interrogatories, document requests, and requests for admission and the responses to them absent court order or rule, and Rule 5.04(c)(3) lets the administrator reject a discovery request or response tendered without the court’s express permission. Attach the disputed request and response as exhibits to an affidavit. Don’t file the discovery.
And the assigned judge’s standing orders and practice pointers can impose requirements the rules don’t, such as a required informal conference or a letter-brief procedure before any discovery motion may be noticed. Where they conflict with a lawyer’s assumptions, they control. They’re published on the district’s page at mncourts.gov. Read them before you notice the motion, not after. Motion practice under Rule 115 covers the mechanics of getting the motion in front of the court.
Madgett Law, LLC associates with lawyers on Minnesota matters. Send us a message.
Sources: Minn. R. Civ. P. 37.01(a), 37.01(b)(1)–(2) and the certification paragraph following 37.01(b)(2)(D), 37.01(c), 37.01(d)(1)–(3); 37.02(a), 37.02(b)(1)–(5) and its closing expense paragraph; 37.03(a) and (a)(1)–(3), 37.03(b); 37.04; 37.05(a), 37.05(b)(1)–(3); 37.06; and the Advisory Committee Comment to the 2018 amendments to Rule 37. Also Minn. R. Civ. P. 26.02(d), 26.03(c), 26.06(b); 30.02(g), 30.04(d); 36.01; 5.04(b), 5.04(c)(3). Minn. Gen. R. Prac. 115.04(a)–(d), 115.05, 115.06, 115.10. Rule text: Minnesota Revisor of Statutes’ publication of the Minnesota Rules of Civil Procedure and General Rules of Practice, August 10, 2026; Minn. Gen. R. Prac. 115.04 and 115.10 as amended effective July 1, 2026. This article is general legal information about Minnesota procedure, not legal advice; it creates no attorney–client relationship and promises no outcome.