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Strategies for Learning from Failure

Amy C. Edmondson

We are programmed at an early age to think that failure is bad. That belief prevents organizations from effectively learning from their missteps.

Reprint: R1104B

Many executives believe that all failure is bad (although it usually provides lessons) and that learning from it is pretty straightforward. The author, a professor at Harvard Business School, thinks both beliefs are misguided. In organizational life, she says, some failures are inevitable and some are even good. And successful learning from failure is not simple: It requires context-specific strategies. But first leaders must understand how the blame game gets in the way and work to create an organizational culture in which employees feel safe admitting or reporting on failure.

Failures fall into three categories: preventable ones in predictable operations, which usually involve deviations from spec; unavoidable ones in complex systems, which may arise from unique combinations of needs, people, and problems; and intelligent ones at the frontier, where “good” failures occur quickly and on a small scale, providing the most valuable information.

Strong leadership can build a learning culture—one in which failures large and small are consistently reported and deeply analyzed, and opportunities to experiment are proactively sought. Executives commonly and understandably worry that taking a sympathetic stance toward failure will create an “anything goes” work environment. They should instead recognize that failure is inevitable in today’s complex work organizations.

The wisdom of learning from failure is incontrovertible. Yet organizations that do it well are extraordinarily rare. This gap is not due to a lack of commitment to learning. Managers in the vast majority of enterprises that I have studied over the past 20 years—pharmaceutical, financial services, product design, telecommunications, and construction companies; hospitals; and NASA’s space shuttle program, among others—genuinely wanted to help their organizations learn from failures to improve future performance. In some cases they and their teams had devoted many hours to after-action reviews, postmortems, and the like. But time after time I saw that these painstaking efforts led to no real change. The reason: Those managers were thinking about failure the wrong way.

Most executives I’ve talked to believe that failure is bad (of course!). They also believe that learning from it is pretty straightforward: Ask people to reflect on what they did wrong and exhort them to avoid similar mistakes in the future—or, better yet, assign a team to review and write a report on what happened and then distribute it throughout the organization.

These widely held beliefs are misguided. First, failure is not always bad. In organizational life it is sometimes bad, sometimes inevitable, and sometimes even good. Second, learning from organizational failures is anything but straightforward. The attitudes and activities required to effectively detect and analyze failures are in short supply in most companies, and the need for context-specific learning strategies is underappreciated. Organizations need new and better ways to go beyond lessons that are superficial (“Procedures weren’t followed”) or self-serving (“The market just wasn’t ready for our great new product”). That means jettisoning old cultural beliefs and stereotypical notions of success and embracing failure’s lessons. Leaders can begin by understanding how the blame game gets in the way.

The Blame Game

Failure and fault are virtually inseparable in most households, organizations, and cultures. Every child learns at some point that admitting failure means taking the blame. That is why so few organizations have shifted to a culture of psychological safety in which the rewards of learning from failure can be fully realized.

Executives I’ve interviewed in organizations as different as hospitals and investment banks admit to being torn: How can they respond constructively to failures without giving rise to an anything-goes attitude? If people aren’t blamed for failures, what will ensure that they try as hard as possible to do their best work?

This concern is based on a false dichotomy. In actuality, a culture that makes it safe to admit and report on failure can—and in some organizational contexts must—coexist with high standards for performance. To understand why, look at the exhibit “A Spectrum of Reasons for Failure,” which lists causes ranging from deliberate deviation to thoughtful experimentation.

Which of these causes involve blameworthy actions? Deliberate deviance, first on the list, obviously warrants blame. But inattention might not. If it results from a lack of effort, perhaps it’s blameworthy. But if it results from fatigue near the end of an overly long shift, the manager who assigned the shift is more at fault than the employee. As we go down the list, it gets more and more difficult to find blameworthy acts. In fact, a failure resulting from thoughtful experimentation that generates valuable information may actually be praiseworthy.

When I ask executives to consider this spectrum and then to estimate how many of the failures in their organizations are truly blameworthy, their answers are usually in single digits—perhaps 2% to 5%. But when I ask how many are treated as blameworthy, they say (after a pause or a laugh) 70% to 90%. The unfortunate consequence is that many failures go unreported and their lessons are lost.

Not All Failures Are Created Equal

A sophisticated understanding of failure’s causes and contexts will help to avoid the blame game and institute an effective strategy for learning from failure. Although an infinite number of things can go wrong in organizations, mistakes fall into three broad categories: preventable, complexity-related, and intelligent.

Preventable failures in predictable operations.

Most failures in this category can indeed be considered “bad.” They usually involve deviations from spec in the closely defined processes of high-volume or routine operations in manufacturing and services. With proper training and support, employees can follow those processes consistently. When they don’t, deviance, inattention, or lack of ability is usually the reason. But in such cases, the causes can be readily identified and solutions developed. Checklists (as in the Harvard surgeon Atul Gawande’s recent best seller The Checklist Manifesto ) are one solution. Another is the vaunted Toyota Production System , which builds continual learning from tiny failures (small process deviations) into its approach to improvement. As most students of operations know well, a team member on a Toyota assembly line who spots a problem or even a potential problem is encouraged to pull a rope called the andon cord, which immediately initiates a diagnostic and problem-solving process. Production continues unimpeded if the problem can be remedied in less than a minute. Otherwise, production is halted—despite the loss of revenue entailed—until the failure is understood and resolved.

Unavoidable failures in complex systems.

A large number of organizational failures are due to the inherent uncertainty of work: A particular combination of needs, people, and problems may have never occurred before. Triaging patients in a hospital emergency room, responding to enemy actions on the battlefield, and running a fast-growing start-up all occur in unpredictable situations. And in complex organizations like aircraft carriers and nuclear power plants, system failure is a perpetual risk.

Although serious failures can be averted by following best practices for safety and risk management, including a thorough analysis of any such events that do occur, small process failures are inevitable. To consider them bad is not just a misunderstanding of how complex systems work; it is counterproductive. Avoiding consequential failures means rapidly identifying and correcting small failures. Most accidents in hospitals result from a series of small failures that went unnoticed and unfortunately lined up in just the wrong way.

Intelligent failures at the frontier.

Failures in this category can rightly be considered “good,” because they provide valuable new knowledge that can help an organization leap ahead of the competition and ensure its future growth—which is why the Duke University professor of management Sim Sitkin calls them intelligent failures. They occur when experimentation is necessary: when answers are not knowable in advance because this exact situation hasn’t been encountered before and perhaps never will be again. Discovering new drugs, creating a radically new business, designing an innovative product, and testing customer reactions in a brand-new market are tasks that require intelligent failures. “Trial and error” is a common term for the kind of experimentation needed in these settings, but it is a misnomer, because “error” implies that there was a “right” outcome in the first place. At the frontier, the right kind of experimentation produces good failures quickly. Managers who practice it can avoid the unintelligent failure of conducting experiments at a larger scale than necessary.

Leaders of the product design firm IDEO understood this when they launched a new innovation-strategy service. Rather than help clients design new products within their existing lines—a process IDEO had all but perfected—the service would help them create new lines that would take them in novel strategic directions. Knowing that it hadn’t yet figured out how to deliver the service effectively, the company started a small project with a mattress company and didn’t publicly announce the launch of a new business.

Although the project failed—the client did not change its product strategy—IDEO learned from it and figured out what had to be done differently. For instance, it hired team members with MBAs who could better help clients create new businesses and made some of the clients’ managers part of the team. Today strategic innovation services account for more than a third of IDEO’s revenues.

Tolerating unavoidable process failures in complex systems and intelligent failures at the frontiers of knowledge won’t promote mediocrity. Indeed, tolerance is essential for any organization that wishes to extract the knowledge such failures provide. But failure is still inherently emotionally charged; getting an organization to accept it takes leadership.

Building a Learning Culture

Only leaders can create and reinforce a culture that counteracts the blame game and makes people feel both comfortable with and responsible for surfacing and learning from failures. (See the sidebar “How Leaders Can Build a Psychologically Safe Environment.”) They should insist that their organizations develop a clear understanding of what happened—not of “who did it”—when things go wrong. This requires consistently reporting failures, small and large; systematically analyzing them; and proactively searching for opportunities to experiment.

How Leaders Can Build a Psychologically Safe Environment

If an organization’s employees are to help spot existing and pending failures and to learn from them, their leaders must make it safe to speak up. Julie Morath, the chief operating officer of Children’s Hospital and Clinics of Minnesota from 1999 to 2009, did just that when she led a highly successful effort to reduce medical errors. Here are five practices I’ve identified in my research, with examples of how Morath employed them to build a psychologically safe environment.

Frame the Work Accurately

People need a shared understanding of the kinds of failures that can be expected to occur in a given work context (routine production, complex operations, or innovation) and why openness and collaboration are important for surfacing and learning from them. Accurate framing detoxifies failure.

In a complex operation like a hospital, many consequential failures are the result of a series of small events. To heighten awareness of this system complexity, Morath presented data on U.S. medical error rates, organized discussion groups, and built a team of key influencers from throughout the organization to help spread knowledge and understanding of the challenge.

Embrace Messengers

Those who come forward with bad news, questions, concerns, or mistakes should be rewarded rather than shot. Celebrate the value of the news first and then figure out how to fix the failure and learn from it.

Morath implemented “blameless reporting”—an approach that encouraged employees to reveal medical errors and near misses anonymously. Her team created a new patient safety report, which expanded on the previous version by asking employees to describe incidents in their own words and to comment on the possible causes. Soon after the new system was implemented, the rate of reported failures shot up. Morath encouraged her people to view the data as good news, because the hospital could learn from failures—and made sure that teams were assigned to analyze every incident.

Acknowledge Limits

Being open about what you don’t know, mistakes you’ve made, and what you can’t get done alone will encourage others to do the same.

As soon as she joined the hospital, Morath explained her passion for patient safety and acknowledged that as a newcomer, she had only limited knowledge of how things worked at Children’s. In group presentations and one-on-one discussions, she made clear that she would need everyone’s help to reduce errors.

Invite Participation

Ask for observations and ideas and create opportunities for people to detect and analyze failures and promote intelligent experiments. Inviting participation helps defuse resistance and defensiveness.

Morath set up cross-disciplinary teams to analyze failures and personally asked thoughtful questions of employees at all levels. Early on, she invited people to reflect on their recent experiences in caring for patients: Was everything as safe as they would have wanted it to be? This helped them recognize that the hospital had room for improvement. Suddenly, people were lining up to help.

Set Boundaries and Hold People Accountable

Paradoxically, people feel psychologically safer when leaders are clear about what acts are blameworthy. And there must be consequences. But if someone is punished or fired, tell those directly and indirectly affected what happened and why it warranted blame.

When she instituted blameless reporting, Morath explained to employees that although reporting would not be punished, specific behaviors (such as reckless conduct, conscious violation of standards, failing to ask for help when over one’s head) would. If someone makes the same mistake three times and is then laid off, coworkers usually express relief, along with sadness and concern—they understand that patients were at risk and that extra vigilance was required from others to counterbalance the person’s shortcomings.

Leaders should also send the right message about the nature of the work, such as reminding people in R&D, “We’re in the discovery business, and the faster we fail, the faster we’ll succeed.” I have found that managers often don’t understand or appreciate this subtle but crucial point. They also may approach failure in a way that is inappropriate for the context. For example, statistical process control, which uses data analysis to assess unwarranted variances, is not good for catching and correcting random invisible glitches such as software bugs. Nor does it help in the development of creative new products. Conversely, though great scientists intuitively adhere to IDEO’s slogan, “Fail often in order to succeed sooner,” it would hardly promote success in a manufacturing plant.

The slogan “Fail often in order to succeed sooner” would hardly promote success in a manufacturing plant.

Often one context or one kind of work dominates the culture of an enterprise and shapes how it treats failure. For instance, automotive companies, with their predictable, high-volume operations, understandably tend to view failure as something that can and should be prevented. But most organizations engage in all three kinds of work discussed above—routine, complex, and frontier. Leaders must ensure that the right approach to learning from failure is applied in each. All organizations learn from failure through three essential activities: detection, analysis, and experimentation.

Detecting Failure

Spotting big, painful, expensive failures is easy. But in many organizations any failure that can be hidden is hidden as long as it’s unlikely to cause immediate or obvious harm. The goal should be to surface it early, before it has mushroomed into disaster.

Shortly after arriving from Boeing to take the reins at Ford, in September 2006, Alan Mulally instituted a new system for detecting failures. He asked managers to color code their reports green for good, yellow for caution, or red for problems—a common management technique. According to a 2009 story in Fortune , at his first few meetings all the managers coded their operations green, to Mulally’s frustration. Reminding them that the company had lost several billion dollars the previous year, he asked straight out, “Isn’t anything not going well?” After one tentative yellow report was made about a serious product defect that would probably delay a launch, Mulally responded to the deathly silence that ensued with applause. After that, the weekly staff meetings were full of color.

That story illustrates a pervasive and fundamental problem: Although many methods of surfacing current and pending failures exist, they are grossly underutilized. Total Quality Management and soliciting feedback from customers are well-known techniques for bringing to light failures in routine operations. High-reliability-organization (HRO) practices help prevent catastrophic failures in complex systems like nuclear power plants through early detection. Electricité de France, which operates 58 nuclear power plants, has been an exemplar in this area: It goes beyond regulatory requirements and religiously tracks each plant for anything even slightly out of the ordinary, immediately investigates whatever turns up, and informs all its other plants of any anomalies.

Such methods are not more widely employed because all too many messengers—even the most senior executives—remain reluctant to convey bad news to bosses and colleagues. One senior executive I know in a large consumer products company had grave reservations about a takeover that was already in the works when he joined the management team. But, overly conscious of his newcomer status, he was silent during discussions in which all the other executives seemed enthusiastic about the plan. Many months later, when the takeover had clearly failed, the team gathered to review what had happened. Aided by a consultant, each executive considered what he or she might have done to contribute to the failure. The newcomer, openly apologetic about his past silence, explained that others’ enthusiasm had made him unwilling to be “the skunk at the picnic.”

In researching errors and other failures in hospitals, I discovered substantial differences across patient-care units in nurses’ willingness to speak up about them. It turned out that the behavior of midlevel managers—how they responded to failures and whether they encouraged open discussion of them, welcomed questions, and displayed humility and curiosity—was the cause. I have seen the same pattern in a wide range of organizations.

A horrific case in point, which I studied for more than two years, is the 2003 explosion of the Columbia space shuttle , which killed seven astronauts (see “ Facing Ambiguous Threats ,” by Michael A. Roberto, Richard M.J. Bohmer, and Amy C. Edmondson, HBR November 2006). NASA managers spent some two weeks downplaying the seriousness of a piece of foam’s having broken off the left side of the shuttle at launch. They rejected engineers’ requests to resolve the ambiguity (which could have been done by having a satellite photograph the shuttle or asking the astronauts to conduct a space walk to inspect the area in question), and the major failure went largely undetected until its fatal consequences 16 days later. Ironically, a shared but unsubstantiated belief among program managers that there was little they could do contributed to their inability to detect the failure. Postevent analyses suggested that they might indeed have taken fruitful action. But clearly leaders hadn’t established the necessary culture, systems, and procedures.

One challenge is teaching people in an organization when to declare defeat in an experimental course of action. The human tendency to hope for the best and try to avoid failure at all costs gets in the way, and organizational hierarchies exacerbate it. As a result, failing R&D projects are often kept going much longer than is scientifically rational or economically prudent. We throw good money after bad, praying that we’ll pull a rabbit out of a hat. Intuition may tell engineers or scientists that a project has fatal flaws, but the formal decision to call it a failure may be delayed for months.

Again, the remedy—which does not necessarily involve much time and expense—is to reduce the stigma of failure. Eli Lilly has done this since the early 1990s by holding “failure parties” to honor intelligent, high-quality scientific experiments that fail to achieve the desired results. The parties don’t cost much, and redeploying valuable resources—particularly scientists—to new projects earlier rather than later can save hundreds of thousands of dollars, not to mention kickstart potential new discoveries.

Analyzing Failure

Once a failure has been detected, it’s essential to go beyond the obvious and superficial reasons for it to understand the root causes. This requires the discipline—better yet, the enthusiasm—to use sophisticated analysis to ensure that the right lessons are learned and the right remedies are employed. The job of leaders is to see that their organizations don’t just move on after a failure but stop to dig in and discover the wisdom contained in it.

Why is failure analysis often shortchanged? Because examining our failures in depth is emotionally unpleasant and can chip away at our self-esteem. Left to our own devices, most of us will speed through or avoid failure analysis altogether. Another reason is that analyzing organizational failures requires inquiry and openness, patience, and a tolerance for causal ambiguity. Yet managers typically admire and are rewarded for decisiveness, efficiency, and action—not thoughtful reflection. That is why the right culture is so important.

The challenge is more than emotional; it’s cognitive, too. Even without meaning to, we all favor evidence that supports our existing beliefs rather than alternative explanations. We also tend to downplay our responsibility and place undue blame on external or situational factors when we fail, only to do the reverse when assessing the failures of others—a psychological trap known as fundamental attribution error .

My research has shown that failure analysis is often limited and ineffective—even in complex organizations like hospitals, where human lives are at stake. Few hospitals systematically analyze medical errors or process flaws in order to capture failure’s lessons. Recent research in North Carolina hospitals , published in November 2010 in the New England Journal of Medicine , found that despite a dozen years of heightened awareness that medical errors result in thousands of deaths each year, hospitals have not become safer.

Fortunately, there are shining exceptions to this pattern, which continue to provide hope that organizational learning is possible. At Intermountain Healthcare, a system of 23 hospitals that serves Utah and southeastern Idaho, physicians’ deviations from medical protocols are routinely analyzed for opportunities to improve the protocols. Allowing deviations and sharing the data on whether they actually produce a better outcome encourages physicians to buy into this program. (See “ Fixing Health Care on the Front Lines ,” by Richard M.J. Bohmer, HBR April 2010.)

Motivating people to go beyond first-order reasons (procedures weren’t followed) to understanding the second- and third-order reasons can be a major challenge. One way to do this is to use interdisciplinary teams with diverse skills and perspectives. Complex failures in particular are the result of multiple events that occurred in different departments or disciplines or at different levels of the organization. Understanding what happened and how to prevent it from happening again requires detailed, team-based discussion and analysis.

A team of leading physicists, engineers, aviation experts, naval leaders, and even astronauts devoted months to an analysis of the Columbia disaster. They conclusively established not only the first-order cause—a piece of foam had hit the shuttle’s leading edge during launch—but also second-order causes: A rigid hierarchy and schedule-obsessed culture at NASA made it especially difficult for engineers to speak up about anything but the most rock-solid concerns.

Promoting Experimentation

The third critical activity for effective learning is strategically producing failures—in the right places, at the right times—through systematic experimentation. Researchers in basic science know that although the experiments they conduct will occasionally result in a spectacular success, a large percentage of them (70% or higher in some fields) will fail. How do these people get out of bed in the morning? First, they know that failure is not optional in their work; it’s part of being at the leading edge of scientific discovery. Second, far more than most of us, they understand that every failure conveys valuable information, and they’re eager to get it before the competition does.

In contrast, managers in charge of piloting a new product or service—a classic example of experimentation in business—typically do whatever they can to make sure that the pilot is perfect right out of the starting gate. Ironically, this hunger to succeed can later inhibit the success of the official launch. Too often, managers in charge of pilots design optimal conditions rather than representative ones. Thus the pilot doesn’t produce knowledge about what won’t work.

Too often, pilots are conducted under optimal conditions rather than representative ones. Thus they can’t show what won’t work.

In the very early days of DSL, a major telecommunications company I’ll call Telco did a full-scale launch of that high-speed technology to consumer households in a major urban market. It was an unmitigated customer-service disaster. The company missed 75% of its commitments and found itself confronted with a staggering 12,000 late orders. Customers were frustrated and upset, and service reps couldn’t even begin to answer all their calls. Employee morale suffered. How could this happen to a leading company with high satisfaction ratings and a brand that had long stood for excellence?

A small and extremely successful suburban pilot had lulled Telco executives into a misguided confidence. The problem was that the pilot did not resemble real service conditions: It was staffed with unusually personable, expert service reps and took place in a community of educated, tech-savvy customers. But DSL was a brand-new technology and, unlike traditional telephony, had to interface with customers’ highly variable home computers and technical skills. This added complexity and unpredictability to the service-delivery challenge in ways that Telco had not fully appreciated before the launch.

A more useful pilot at Telco would have tested the technology with limited support, unsophisticated customers, and old computers. It would have been designed to discover everything that could go wrong—instead of proving that under the best of conditions everything would go right. (See the sidebar “Designing Successful Failures.”) Of course, the managers in charge would have to have understood that they were going to be rewarded not for success but, rather, for producing intelligent failures as quickly as possible.

Designing Successful Failures

Perhaps unsurprisingly, pilot projects are usually designed to succeed rather than to produce intelligent failures—those that generate valuable information. To know if you’ve designed a genuinely useful pilot, consider whether your managers can answer yes to the following questions:

Is the pilot being tested under typical circumstances (rather than optimal conditions)?

Do the employees, customers, and resources represent the firm’s real operating environment?

Is the goal of the pilot to learn as much as possible (rather than to demonstrate the value of the proposed offering)?

Is the goal of learning well understood by all employees and managers?

Is it clear that compensation and performance reviews are not based on a successful outcome for the pilot?

Were explicit changes made as a result of the pilot test?

In short, exceptional organizations are those that go beyond detecting and analyzing failures and try to generate intelligent ones for the express purpose of learning and innovating. It’s not that managers in these organizations enjoy failure. But they recognize it as a necessary by-product of experimentation. They also realize that they don’t have to do dramatic experiments with large budgets. Often a small pilot, a dry run of a new technique, or a simulation will suffice.

The courage to confront our own and others’ imperfections is crucial to solving the apparent contradiction of wanting neither to discourage the reporting of problems nor to create an environment in which anything goes. This means that managers must ask employees to be brave and speak up—and must not respond by expressing anger or strong disapproval of what may at first appear to be incompetence. More often than we realize, complex systems are at work behind organizational failures, and their lessons and improvement opportunities are lost when conversation is stifled.

Savvy managers understand the risks of unbridled toughness. They know that their ability to find out about and help resolve problems depends on their ability to learn about them. But most managers I’ve encountered in my research, teaching, and consulting work are far more sensitive to a different risk—that an understanding response to failures will simply create a lax work environment in which mistakes multiply.

This common worry should be replaced by a new paradigm—one that recognizes the inevitability of failure in today’s complex work organizations. Those that catch, correct, and learn from failure before others do will succeed. Those that wallow in the blame game will not.

Amy C. Edmondson is the Novartis Professor of Leadership and Management at Harvard Business School. Her most recent book is The Fearless Organization (Wiley, 2019).

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Failure sentence example

Each success has some failure along the way.

I realize now my venture was doomed to failure from the start as my target was far better protected than I sensed.

The feeling of failure settled into her bleak thoughts.

The penalty for failure was escalating.

Excited and vexed by the failure and supposing that someone must be responsible for it, Toll galloped up to the commander of the corps and began upbraiding him severely, saying that he ought to be shot.

He wasn't used to failure , and he didn't know how to take it.

There's no room for failure , not when the souls of the dead depend on you.

While the last words, "sleeping, just sleeping," said prior to the interruption by Grasso seemed to denote failure , the earlier recorded observations suggest otherwise.

His reminder of her failure left a bitter taste to her mouth.

The failure of the crops was almost universal and large numbers of sheep and cattle perished for want of food.

But as she was not able to find her copy, and applications for the volume at bookstores in Boston, New York, Philadelphia, Albany, and other places resulted only in failure , search was instituted for the author herself.

One failure of the marketplace is the misattribution of the amount of utility an item will bring a person.

My failure to protect my people should not be something another should bear.

All health and success does me good, however far off and withdrawn it may appear; all disease and failure helps to make me sad and does me evil, however much sympathy it may have with me or I with it.

Anticipation that the failure of the Petersburg Berezina plan would be attributed to Kutuzov led to dissatisfaction, contempt, and ridicule, more and more strongly expressed.

He leaves no room for failure or my hope that certain things will change, she said.

Are you sure your failure to respond doesn't have something to do with his inability to talk?

She paused, then asked, Was there really a power failure or were you just saying that?

I desire to speak impartially on this point, and as one not interested in the success or failure of the present economical and social arrangements.

She couldn't let it stop her now, though this kind of fear was far different than that of losing her life or failure on a mission.

For the want of a nail the shoe was lost; For the want of a shoe the horse was lost; For the want of a horse the battle was lost; For the failure of battle the kingdom was lost;-- And all for the want of a horseshoe nail.

He hummed, a feeling of mild accomplishment sandwiched between the failure to contact Martha and the trepidation of potentially being made a fool by Seymour "Fitz" Fitzgerald, sheriff candidate.

Certainly their marriage was a failure , but it was hard to believe Josh would do something like that.

Although Lake Champlain could not be reached by;boat up the Piscataqua, and although the enterprise was ulti mately a failure , the company sent over colonists who occupied the house left standing by Thomson, and, not far away, built " Mason Hall " or the " Great House " in what is now Portsmouth, a name (for the entire settlement) that replaced " Strawberry Banke " in 1653.

The visitation was a failure .

He leaves no room for failure or my hope that certain things will change.

The mutual interest of the associates led to the failure of the plot.

No experience of the failure of his policy could shake his belief in its essential excellence.

Progress in these two lines is by no means uniform; while, for example, palaeontology enjoyed a sudden advance early in the 19th century through the discoveries and researches of Cuvier, guided by his genius as a comparative anatomist, it was checked by his failure as a natural philosopher.

This original connexion, if it may be accepted, would seem to belong to a long-past period, to judge from the failure of all attempts to discover an affinity between the languages of America and Asia.

The commission appointed by the king in 1664 to hear and determine complaints in New England decided that Mason's lands were not within the jurisdiction of Massachusetts, and made an attempt to set up a government under which his claims could be tried, but this was a failure .

Upon the failure of this attempt, a temporary nominal union with Massachusetts was formed, but in 1692 Samuel Allen, the assign of Mason, caused a royal government to be established with his son-in-law, John Usher, as lieutenant-governor, and during the remainder of the colonial era New Hampshire was separate from Massachusetts except that from 1699 to 1741 the two had the same governor.

Mahmud's failure at Ajmere, when the brave raja Bisal-deo, obliged him to raise the siege but was himself slain, was when the Moslem army was on its way to Somnath.

The reasons for Great Britain's failure appear in the progress of the war, which assumed two distinct stages, operations in the north followed by operations in the south.

Each committee has complete control of all bills referred to it, and nmn.eteen-twentieths of the bills introduced meet their death by the failure of the committee to take action on them.

The scope of Congressional legislation has been indicated in the list given of the powers of the national government - 1 This case was that of the impeachment of a senator, and the failure to convict arose from the fact that some of the senators at the time held the now generally accepted opinion that a member of Congress is not subject to impeachment.

The dishonesty of those who conducted the sales in France, the unbusinesslike methods of Barlow, and the failure of Duer and his associates to meet their contract with the Ohio Company, caused the collapse of the Scioto Company early in 1790, and two subsequent attempts to revive it failed.

This land, however, fell within the limits of the tract bought outright by the Ohio Company, which sold it to the Scioto Company, and to which it reverted on the failure of the Scioto Company to pay.

The precipitation in southern Saskatchewan and Alberta is much more variable than farther east and north, so that in some seasons crops have been a failure through drought, but large areas are now being brought under irrigation to avoid such losses.

But once more, in contrast with English experience, the great trading company proved a failure in French hands as a colonizing agent, and in 1674 its charter was summarily revoked by Louis XIV.

Huntingdon, formally charged certain members of the cabinet with having received large sums of money, for use in the election, from Sir Hugh Allan, on condition, as it was claimed, that the Canadian Pacific contract should be given to the new company, of which he became the head on the failure of the plan for amalgamation.

The native white people united, formed a Conservative party and elected a governor and a majority of the lower house of the legislature in 1870; but, as the new administration was largely a failure , in 1872 there was a reaction in favour of the Radicals, a local term applied to the Republican party, and affairs went from bad to worse.

As a bulwark against the Spanish, the colony was successful, but as an economic experiment it was a failure .

He was a typical Bourbon, unable either to learn or to forget; and the closing years of his life he spent in religious austerities, intended to expiate, not his failure to grasp a great opportunity, but the comparatively venial excesses of his youth.'

Turgot and Necker had attempted these reforms, and Calonne attributed their failure to the malevolent criticism of the parlements.

The papacy was weakened by its contest with these adverse elements, and it was through its failure to triumph over them that its dream of European dominion, both temporal and spiritual, entered but very incompletely into the field of realities.

Her father's failure in business led her to open a school in 1841.

The French columns that had advanced beyond the village went back; but as though in revenge for this failure , the enemy placed ten guns to the right of the village and began firing them at Tushin's battery.

He didn't feel up to the task, not when failure meant breaking the man he viewed as his brother.

He appeared, however, only once at its conferences, owing to his age and to disappointment at the comparative failure of his work.

The attack on Hispaniola, however, was a disastrous failure , and though a landing at Jamaica and the capture of the capital, Santiago de la Vega, was effected, the expedition was almost annihilated by disease; and Penn and Venables returned to England, when Cromwell threw them into the Tower.

The story goes that he died of shame at his failure .

The failure of Ayscue, who was not employed again in this war, induced the Council of State to send Blake, who had now returned from the north, into the Channel.

They did not fight well, and their failure was attributed in part to the discontent of their seamen with the removal of Tromp, and the unpopularity of de Witt.

Nor did the failure of King Charles's government to press the war with vigour end here.

Trajan's campaigns in the East ended in complete though brilliant failure .

Yet the breach made in Trajan's felicitas by the failure in the East was no greater than that made in the felicitas of Augustus by his retirement from the right bank of the Rhine.

That whatever he did was done for the service of God, that success or failure depended on the inscrutable will of the Almighty and not on himself, were his guiding convictions, which he transmitted to his successors.

As Clarence was King Edward's third son, while John of Gaunt was his fourth, in ordinary course on the failure of the elder line the issue of Clarence should have taken precedence of that of Lancaster in the succession.

His biographer attributes the comparative failure of the Clavis to its inferiority in point of style, but the crudeness of his thought had quite as much to do with his failure to gain a hearing.

The failure in the history of the Gur Khan to meet all points in the story of the bishop of Gabala led Professor Bruun of Odessa to bring forward another candidate for identity with the original Prester John, in the person of the Georgian prince John Orbelian, the "sbasalar," or generalissimo under several kings of Georgia in that age.

The latter's enormous numerical superiority was neutralized by Sulla's judicious choice of ground and the steadiness of his legionaries; the Asiatics after the failure of their attack were worn down and almost annihilated.

Later, on the recommendation of Mercy and Vermond, she supported the nomination of Lomenie de Brienne in 1787, an appointment which, though widely approved at the time, was laid to the queen's blame when it ended in failure .

Ultimately the whole city, which continued to harbour him, was laid under interdict; yet he went on preaching, and masses were celebrated as usual, so that at the date of Archbishop Sbynko's death in September 141r, it seemed as if the efforts of ecclesiastical authority had resulted in absolute failure .

Garrick practically ceased to act in 1766, but he continued the management of Drury Lane, and in 1769 organized the Shakespeare celebrations at Stratford-on-Avon, an undertaking which ended in dismal failure , though he composed an " Ode upon dedicating a building and erecting a Statue to Shakespeare " on the occasion.

He was an idealist; but in this very fact lay the seeds of his failure .

A mutiny broke out amongst the troops, disheartened by failure and exasperated by his severity, and Perdiccas was assassinated by some of his officers (321).

He had a hand in the pacific overtures which Bonaparte, early in the year 1800, sent to the court of London; and, whatever may have been the motives of the First Consul in sending them, it is certain that Talleyrand regretted their failure .

He maintained his ascendancy until about 515, when Oroetes, the Persian governor of Lydia, who had been reproached for his failure to reduce Samos by force, lured him to the mainland by false promises of gain and put him to death by crucifixion.

He still corresponded with the king, and returned again to London next year, but in May 1765, after the duke of Cumberland's failure to form an administration, Grenville exacted the promise from the king, which appears to have been kept faithfully, that Bute should have no share and should give no advice whatever in public business, and obtained the dismissal of Bute's brother from his post of lord privy seal in Scotland.

The Reformation was, fundamentally, then, but one phase, if the most conspicuous, in the gradual decline of the majestic medieval ecclesiastical State, for this decline has gone on in France, Austria, Spain and Italy, countries in which the Protestant revolt against the ancient Church ended in failure .

It is this failure that has led to the present revolt against a " block universe."

Phips, who had succeeded in an attack on Port Royal, had ignominiously failed when he led the Massachusetts fleet against Quebec in 1690; and the later expedition of 1711 was no less a failure .

In 1827 he was prime mover in the protest made by the French Academy against the minister Peyronnet's law on the press, which led to the failure of that measure, but this step cost him, as it did Villemain, his post as censeur royal.

The inland gods lost importance with the failure of the overland trade, and Judaism and Christianity seem for a time to have contended for the mastery in South Arabia.

He recognized the failure of the attempt to govern on the lines of the treaties with the Griquas and Basutos, and on the 3rd of February 1848 he issued a proclamation declaring British sovereignty over the country between the Orange and the Vaal eastward to the Drakensberg.

He denounced the repudiation of state debts or the failure to pay interest on them.

This was attributed by his opponents to personal motives, and a letter from Greeley to Seward, the publication of which he challenged, was produced, to show that in his struggling days he had been wounded at Seward's failure to offer him office.

His policy of gaining time had received a severe blow in the failure of his executive officer to realize it, and that officer, though his unpursued troops quickly regained their moral, had himself completely lost confidence.

Barton, Worcester and Tennant, considers this to be parallel to the story which may underlie the account of the failure of the beasts, and the success of the woman Eve, as a "help-meet" for Adam.

The Germans of the Alpine lands were less ready to carry out the same principle in Tirol and the regions leading down to the Adriatic. The divided policy of the Germans led on all sides to their failure .

Through his generals Ardoburius and Aspar he waged two fairly successful wars against the Persians (421 and 441), and after the failure of one expedition (431) by means of a gigantic fleet put an end to the piracies of the Vandal Genseric. A Hunnish invasion in 408 was skilfully repelled, but from 441 the Balkan country was repeatedly overrun by the armies of Attila, whose incursions Theodosius feebly attempted to buy off with everincreasing payments of tribute.

The failure of his other son, Charles Louis Napoleon (afterwards Napoleon III.), to wrest the French crown from Louis Philippe by the attempts at Strassburg and Boulogne also caused him much disappointment.

After the failure of the attempts at reform by the councils, the guidance of the Church was left undisturbed in the hands of the popes, and they were determined that it should remain so.

This circumstance, as well as the failure to make other desired reductions, caused the ardent tariff reformers to be greatly disappointed with the act of 1894 as finally passed, and led President Cleveland to permit it to become law without its endorsement by his signature.

But though he met with sufficient success to encourage him to issue a charter in 858, dated "the first year of the reign in West Francia," treachery and desertion in his army, and the loyalty to Charles of the Aquitanian bishops brought about the failure of the enterprise, which Louis renounced by a treaty signed at Coblenz on the 7th of June 860.

Despite his brilliant military achievements (see John King Of Poland), his reign of twenty-two years was a failure .

Augustus attempted to indemnify himself for his failure to obtain Livonia, his covenanted share of the Swedish plunder, by offering Frederick William of Prussia Courland, Polish Prussia and even part of Great Poland, provided that he were allowed a free hand in the disposal of the rest of the country.

On the other hand, the Poles were also to blame for the failure of constitutional government.

The failure of Nicholas was in good part due to mistaken measures of what he hoped would be conciliation.

After this failure Tresckow once more resorted to the regular method of siege approaches, and on the 2nd of February the second parallel was thrown up. La Justice was now bombarded by two new batteries near Perouse, the Perches were of course subjected to an "artillery attack," and henceforward the besiegers fired 1500 shells a day into the works of the French.

The percentage of failure is greatest when fresh-caught adults are hurried to Europe or America.

He intended to follow it up with similar treatises on Mars, Jupiter, sun, moon, comets and meteors, stars, and nebulae, and had in fact commenced a monograph on Mars, when the failure of a New Zealand bank deprived him of an independence which would have enabled him to carry out his scheme without anxiety as to its commercial success or failure .

His fervent faith in the doctrines of Islam was unquestioned, and his ultimate failure was due in considerable measure to the refusal of the Kabyles, Berber mountain tribes whose Mahommedanism is somewhat loosely held, to make common cause with the Arabs against the French.

After this failure he departed once more to the wars to the siege of Metz (1552), and "trailed a pike" in the emperor's army, until he joined the forces under William, Lord Grey of Wilton, with whom he says he served eight years.

These measures proving insufficient, a decree was promulgated on the 30th of April 1793 for the despatch of regular troops; but, in spite of their failure to capture Nantes (where Cathelineau was mortally wounded), the successes of the Vendeans continued.

It proved a disastrous failure .

This failure was used as an argument in favour of imposing the famous Stamp Act.

In the War of 1812 Frederick, Havre de Grace, and Frenchtown were burned by the British; but particularly noteworthy were the unsuccessful movements of the enemy by land and by sea against Baltimore, in which General Robert Ross (c. 1766-1814), the British commander of the land force, was killed before anything had been accomplished and the failure of the fleet to take Fort McHenry after a siege of a day and a night inspired the song The Star-spangled Banner, composed by Francis Scott Key who had gone under a flag of truce to secure from General Ross the release of a friend held as a prisoner by the British and during the attack was detained on his vessel within the British lines.

But the second advance on Richmond was clearly a strategical failure .

Buell's failure to appreciate political considerations as a part of strategy justified his recall, but the value of his work, like that of McClellan, can hardly be measured by marches and victories.

The new commander displayed great energy in reorganizing the Army of the Potomac, the discipline of which had not come unscathed through a career of failure .

But the attempt ended in failure - the first defeat of the Army of the Potomac which could fairly be called discreditable.

Rendel Harris argued for the influence of Latin, and Chase for that of Syriac. While both threw valuable light on obscure points, it seems probable that they exaggerated the extent to which retranslation can be traced; that they ranked Codex Bezae somewhat too highly as the best witness to the " Western " text; and that some of their work was rendered defective by their failure to recognize quite clearly that the " Western " text is not a unity.

The operations resulted in re-establishing the confidence of the Confederates in their army which Johnston's retreat from Yorktown had shaken, in adding prestige to President Davis and his government, and in rectifying the popular view of General Lee as a commander which had been based upon his failure to recover West Virginia in the autumn of 1861.

She thus escaped shipwreck in his crazy vessel, and rode by Mary's side in triumph into London on the failure of the plot.

She alone could have given the Spanish Armada any real chance of success; and as the prospect of invasion loomed larger on the horizon, fiercer grew the popular determination to remove the only possible centre of a domestic rising, without which the external attack was bound to be a failure .

Important and instructive, therefore, as are the attempts made from time to time by the state and by individual philosophers to unite Neoplatonism and the universal monarchy, their failure was a foregone conclusion.

The "red room" was the meeting-place in a small cafe in Stockholm of a society of needy journalists and artists, whose failure and despair are shown off against the prosperity of a typical bourgeois couple.

He was recalled in April 1573, but the queen recognized that the failure had been due to no fault of his, and eight months later he was admitted to the privy council and made joint secretary of state with Sir Thomas Smith.

The misguided animus of the impeachment as a piece of partisan politics was soon very generally admitted; and the importance of its failure , in securing the continued power and independence of the presidential element in the constitutional system, can hardly be over-estimated.

Some of the enthusiasts sank into a sceptical, reactionary frame of mind; while others, with deeper convictions or capable of more lasting excitement, attributed the failure to the fact that only halfmeasures and compromises had been adopted by the government.

A large academy, founded by the monks of Vatopedi in 1 749, for a time attracted students from all parts of the East, but eventually proved a failure , and is now in ruins.

In 1849, after the failure of the German parliament at Frankfort, the king had joined with the sovereigns of Prussia and Saxony to form the "three kings' alliance"; but this union with Prussia was unreal, and with the king of Saxony he soon transferred his support to Austria and became a member of the "four kings' alliance."

Troublesome insects, vampire bats, and the failure to introduce new blood into the degenerated herds, are responsible for its decline.

In 1825 a public company was formed and incorporated under the name of the British, Irish and Colonial Silk Company, with a capital of 1,000,000, principally with the view of introducing sericulture into Ireland, but it was a complete failure , and the rearing of the silkworm cannot be said ever to have become a branch of British industry.

The first conspiracy was easily suppressed, and in 974 an attempt on the part of Harold III., king of the Danes, to throw off the German yoke was also successfully resisted; but an expedition against the Bohemians led by the king in person in 975 was a partial failure owing to the outbreak of further trouble in Bavaria.

In tropical countries drought is the commonest cause of a failure in the harvest, and where great droughts are not uncommon - as in parts of India and Australia - the hydraulic engineer comes to the rescue by devising systems of water-storage and irrigation.

Legislative interference with agricultural operations or with the distribution of food-supplies, currency restrictions and failure of transport, which have all caused famines in the past, are unlikely thus to operate again; nor is it probable that the modern speculators who attempt to make "corners" in wheat could produce the evil effects contemplated in the old statutes against forestallers and regrators.

It is impossible to regulate the rainfall of any district, or wholly to supply its failure by any system of water-storage.

Irrigation is better able to bring fertility to a naturally arid district than to avert the failure of crops in one which is naturally fertile.

Famine in Ireland, due to the failure of the potatocrop. Grants were made by, parliament amounting to £10,000,000.

The people depend so entirely upon agriculture, and the harvest is so entirely destroyed by a single monsoon failure , that wherever a total failure occurs the landless labourer is immediately thrown out of work and remains out of work for the whole year.

The experience gained in the great famines of 1898 and 1901 has been garnered by these commissions, and stored up in the "famine codes" of each separate province, where rules are provided for the treatment of famine directly a crop failure is seen to be probable.

As five-sixths of the whole population of India are dependent upon the land, any failure of agriculture becomes a national calamity.

Both sources of supply are precarious, and instances are not infrequent of the almost entire failure of either the winter or the summer rainfall.

But the result could not be gainsaid; it was for the French a complete and costly failure .

His failure only made Pope Boniface VIII.

It is more probable that Pappus's commentary was written long before Theon's, but was largely assimilated by the latter, and that Suidas, through failure to disconnect the two commentaries, assigned a like date to both.

Being thus radically at variance with the main current of the thought of his time, the failure of the commission he had undertaken was sooner or later inevitable; and shortly after the opening of his new church in Regent Square in 1827, he found that "fashion had taken its departure," and the church, "though always well filled," was "no longer crowded."

Failure on the part of a parliamentary candidate or his election agent to comply with the requirements of the law in any particular is sufficient to invalidate the return.

The cause Of this anachronism has been the failure of intuitive realism and the domination of idealism, which makes short-sighted men suppose that at all events they must begin with the psychology and the psychological idealism of the day, in the false hope that on the sands of psychological idealism they may build a house of metaphysical realism.

The failure of legitimate male issue of the later Carolingians gave Arnulf a more important position than otherwise he would have occupied; but he did homage to the emperor Charles the Fat in 882, and spent the next few years in constant warfare with the Sla y s and the Northmen.

The kingless state may therefore have arisen out of kingship through divisions of the royal power or through failure on the part of the leading men to agree on a head acceptable to all.

It was Captain Hood who conducted the negotiations which relieved the squadron from the consequences of its failure .

In order to give a clear idea of the vicissitudes through which the papal institution passed between the years 1087 and 1305 and to show the measure of its success or failure at different stages in its course, it is convenient to divide this section into four periods.

From the moment that Arnold of Brescia, absorbed in his chimerical project of reviving the ancient Roman republic, disregarded the imperial power and neglected to shelter himself behind the German in his conflict with the priesthood, his failure was certain and his fate foredoomed.

He succeeded in imposing his will on the nobles and communes in the patrimony of St Peter, and, as guardian of Henry VI.'s son Frederick, was for some time able to conduct the government of the kingdom of the Two Sicilies, but in his claims on the rest of Italy the failure of the temporal power was manifest.

Nor was his failure due to lack of activity or energy, but rather to the insuperable obstacles in his path - the physical configuration of Italy, and, above all, the invincible repugnance of the Italian municipalities to submit to the mastery of a religious power.

Both popes attempted to foil the disaffected cardinals by convening councils of their own; but their efforts were doomed to failure .

His attempt to reunite Bohemia with the Church was destined to failure ; but the one great aim of the pope during his whole reign was the organization of a gigantic crusade - a project which showed a correct appreciation of the danger with which the Church and the West in general were menaced by the Crescent.

The Holy Empire was dead, in spite of the pope's protest at Vienna against the failure to restore " the centre of political unity "; Joseph de Maistre's idea was to set up the Holy See in its place.

Harassed by severe bodily ailments, encompassed by a raging tumult of religious conflict and persecution, and aware that the faint hopes of better times which seemed to gild the horizon of the future might be utterly darkened by a failure either in the constancy of his courage or in his discernment and discretion, he exerted his eloquence with unabating energy in the furtherance of the cause he had at heart.

Clackmannan Tower is now a picturesque ruin, but at one time played an important part in Scottish history, and was the seat of a lineal descendant of the Bruce family after the failure of the male line.

The failure of his candidature for the Academy in 1830 is said to have been a shock to his enfeebled health.

Before the Seven Years' War the Quakers dominated the government, but from that time until the failure of the Whisky Insurrection (17g4) the more belligerent Scotch-Irish (mostly Presbyterians) were usually in the ascendancy, the reasons being the growing numerical strength of the Scotch-Irish and the increasing dissatisfaction with Quaker neglect of means of defending the province.

In both the Castiles the central plateau has a naturally fertile soil, for after rain a luxuriant vegetation appears; but drought is common, owing to the insufficient volume of the rivers, and the failure of the Spaniards to extend the fine system of irrigation which the Moors originated.

His most ambitious effort was his attempt to effect a conversion of consols in 1884, but the scheme proved a failure , though it paved the way for the subsequent conversion in 1888.

The town and lands were purchased in 1720 by a fishing company in England and, on their failure , by the Merchant Maidens' Hospital of Edinburgh for £3000, who are still the overlords.

Considerable alarm was created about the year 1887 by the failure of two or three large structures of Portland cement concrete exposed to seawater, both in England and other countries.

But it is difficult and expensive to work up into various forms. Concrete has been avoided for making beams, slabs and thin walls, just because its deficiency in tensile strength doomed it to failure in such structures.

Failure to do so within seven days involves a penalty not exceeding ten pounds.

This explains the failure of boats built of commercially pure aluminium which have been put together with iron or copper rivets, and the decay of other boats built of a light alloy, in which the alloying metal (copper) has been injudiciously chosen.

The reports on these subjects in eight volumes, together with a ninth volume giving the proceedings of the conference itself, and a statistical atlas, will for some time be the vade mecum of information on Christian missions, and precludes the need of any attempt at a bibliography here, an attempt which would indeed be doomed to failure .

Both successions were doomed to failure ; and the result 7 In likening the earth to a cylinder Anaximander recognized its circular figure in one direction.

It behooves the judicious gardener, then, not to be too slavish in his attempts to imitate natural conditions, and to bear in mind that such attempts sometimes end in failure .

The assault was made, but it proved an utter failure .

The failure of Jaureguy did not deter a young Catholic zealot, by name Balthazar Gerard, from attempting to assassinate the man whom he looked upon as the arch-enemy of God and the king.

Deeply mortified by his failure to relieve Breda, which was blockaded by Spinola, Maurice fell seriously ill, and died on the 23rd of April 1625.

His failure to relieve Breda had hastened the death of Maurice.

On the death of their father in 211 they were proclaimed joint emperors; and after the failure of a proposed arrangement for the division of the empire, Caracalla pretended a desire for reconciliation.

But the failure in business and death of his father, in 1819, compelled him once more to turn to music, and to make that which had been his pastime the serious employment of his life.

Notwithstanding the cruelty and indignity amid which it terminated, that life was not a failure .

His project of re-establishing Richard in close dependence upon the army met with failure , and he was obliged to recall the Long Parliament on the 6th of May 1659.

But this has little foundation beyond the irritation of an author at his own failure to attract such attention as he deems his due.

Nor is there anything in Hume's correspondence to show that the failure of the book was so complete as he declared.

These efforts to coerce the Dutch, though marred by partial failure , were, however, calculated to win for Joseph II.

On his failure to appear before the court he was condemned to death, and remained in Belgium until 1879, when he was included in the amnesty proclaimed by Grevy.

Some general idea of the resources of the Kandahar district may be gathered from the fact that it supplied the British troops with everything except luxuries during the entire period of occupation in 1879-81; and that, in spite of the great strain thrown on those resources by the presence of the two armies of Ayub Khan and of General Roberts, and after the total failure of the autumn crops and only a partial harvest the previous spring, the army was fed without great difficulty until the final evacuation, at one-third of the prices paid in Quetta for supplies drawn from India.

But his plans were traversed again and again by unforeseen complications, the failure of the most promising presumptions, the perpetual shifting of apparently stable alliances; and again and again he had to modify his means to attain his ends.

Considering his want of experience of such rivers as the Nile, and the great difficulties he had to contend with under a succession of ignorant Turkish rulers, it would be unfair to blame him because, until it fell into the hands of British engineers in 1884, the work was condemned as a hopeless failure .

Thus the whole system broke down, the barrage was pronounced a failure , and attention was turned to watering Lower Egypt by a system of gigantic pumps, to raise the water from the river and discharge it into a system of shallow surface-canals, at an annual cost of about £250,000, while the cost of the pumps was estimated at £700,000.

The result has been, as already stated, that with a complete failure of the Nile flood the loss to the country has been trifling compared with that of 1877.

But his Taxation no Tyranny was a pitiable failure .

Happily, Johnson soon had an opportunity of proving most signally that his failure was not to be ascribed to intellectual decay.

Macaulay, it must be noted, exaggerated persistently the poverty of Johnson's pedigree, the squalor of his early married life, the grotesqueness of his entourage in Fleet Street, the decline and fall from complete virtue of Mrs Thrale, the novelty and success of the Dictionary, the complete failure of the Shakespeare and the political tracts.

A partisan coterie which surrounded M'Clellan loudly charged the failure of his Richmond campaign to official interference in his plans.

The Democratic National Convention adopted (August 29, 1864) a resolution (drafted by Vallandigham) declaring the war a failure , and demanding a cessation of hostilities; it nominated M'Clellan for president, and instead of adjourning sine die as usual, remained organized, and subject to be convened at any time and place by the executive national committee.

At the election held on the 8th of November 1864, Lincoln received 2,216,076 of the popular votes, and M'Clellan (who had openly disapproved of the resolution declaring the war a failure ) but 1,808,725; while of the presidential electors 212 voted for Lincoln and 21 for M'Clellan.

As for war, the total fighting strength of the German nation (including the navy) has been placed at as high a figure as 11000,000, Of these 7,000,000 have received little or no training, owing to medical unfitness, residence abroad, failure to appear, surplus of annual contingents, &c., as already explained, and not more than 3,000,000 of these would be available in war.

The immediate cause of Henrys downfall, however, was not his failure to appear in Italy, but his refusal to restore some lands to the bishop of Halberstadt, and it was on this charge that he was summoned before the diet.

Ulrichs attempt, which was made early in 1525, was, however, a failure , and about the same time the peasants drew up twelve articles embodying their demands.

With regard to the religious question efforts were made to compose the differences among the Protestants; but while these ended in failure the Roman Catholics were gaining ground.

It was only, in fact, the failure of Saxony and Sweden to come to terms which prevented a general peace in Germany.

He had long been dissatisfied with his position; He was much embarrassed by the failure of his ecclesiastical policy.

From the beginning the negotiations were indeed doomed to failure , for what Bismarck appears to have aimed at was to detach Bennigsen from the rest of his party and win his support for an anti-Liberal policy.

The failure of the great Hamburg house of Godefroy in 1879 threatened to ruin the growing German industries in the South Seas, which it had helped to build up. Bismarck therefore consented to apply to the Reichstag for a state guarantee to a company which would take over its great plantations in Samoa.

But very slight results attended these elaborate schemes, although their failure did not deter Leibnitz from pursuing the same end.

Mixed farming and the raising of live stock is becoming more and more the rule, so that the failure of any one crop becomes of less vital importance.

The investiture was bestowed upon Duke Henry but upon his second wife, Theodora; in case of a failure of male heirs the duchy was to descend to females; and if the duke had no children he could nominate his successor.

The peace of Augsburg, 1555, which recognized a dualism within the Empire in religion as in politics, marked the failure of his plan of union (see Charles V.; Germany; Maurice Of Saxony); and meanwhile he had been able to accomplish nothing to rescue Hungary from the Turkish yoke.

His failure , followed by the arrival of Gustavus Adolphus in Germany in 1630, proved the death blow of Austrian hopes.

The efforts of Turkey to regain her ascendancy in eastern Europe at the expense of the Habsburgs had ended p p g in failure , and henceforward Turkish efforts were confined to resisting the steady development of Austria in the direction of Constantinople.

This treatment of the " Fakirs and Ulemas " (as he called them in his letters), who formed the most powerful element in the monarchy, would alone have ensured the failure of his plans, but failure was made certain by the introduction of the conscription, which turned even the peasants, whom he had done much to emancipate, against him.

The first campaign, however, which he conducted in person was a dismal failure ; the Turks followed the Austrian army, disorganized by disease, across the Danube, and though the transference of the command to the veteran marshal Loudon somewhat retrieved the initial disasters, his successes were more than counterbalanced by the alliance, concluded on the 3 1st of January 1790, between Prussia and Turkey.

The failure of the Habsburg emperor to perpetuate this despotic regime was due (1) to the Crimean War, (2) to the establishment of Italian unity, and (3) to the successful assertion by Prussia of its claim to the leadership in Germany.

Externally, she lost all her Italian possessions except Venice; internally, her failure led to the necessity of conciliating public opinion by constitutional concessions.

In March 1908 Mr Hallo laid before the Hungarian parliament a formal proposal that the charter of the Austro-Hungarian Bank, which was to expire at the end of 1910, should not be renewed; and that, in the event of failure to negotiate a convention between the banks of Austria and Hungary, a separate Hungarian Bank should be established.

On the failure of his plans he retired to the country and awaited events.

Dean knew he was only prolonging the chore of relating their failure .

Darian watched his little brother, at once proud of the White God that Damian had grown into and crushed by the sense of his own failure .

Clive's plan of governing through the agency of the native court had proved a failure .

They began to make alkali by the ammonia-soda process, under licence from the Belgian chemist, Ernest Solvay, but at first the venture threatened to prove a failure .

But his efforts were already doomed to certain failure .

In 1510 a second expedition against Malacca was sent out from Portugal under the command of Diogo Mendez de Vasconcellos, but d'Alboquerque retained it at Cochin to aid him in the retaking of Goa, and it was not until 1511 that the great viceroy could spare time to turn his attention to the scene of Siqueira's failure .

He was out-voted by his council on the question of commutation of tithes, and his enlightened zeal for reforming the "wicked and abominable" sentences of the criminal law met with complete failure .

The weakness of the government in dealing with the strike riots caused a feeling of profound dissatisfaction, and the so-called experiment of liberty, conducted with the object of conciliating the extreme parties, proved a dismal failure .

The proposed rising was a dismal failure , but the Habeas Corpus Act was suspended and Thistlewood and Watson were seized, although upon being tried they were acquitted.

In 1686 Thokoly was released from his dungeon and sent with a small army into Transylvania, but both this expedition and a similar one in 1688 ended in failure .

Difficulty may be found in carrying out this empiricist programme; but at the outset no one dreams of failure .

Every plant is constrained to carry Out its functions of germination, growth, nutrition, reproduction, &c., between certain limits of temperature, and somewhere between the extremes of these limits each function finds ao optimum temperature at which the working of the living machinery is at its best, and, other things being equal, any great departure from this may induce pathological conditions; and many disasters are due to the failure to provide such suitable temperaturese.g.

His military genius was displayed in the Social War and the campaigns against Mithradates; while his constitutional reforms, although doomed to failure from the lack of successors to carry them out, were a triumph of organization.

His adroitness in intrigue and his fascinating manners were exceptional even in an age when such qualities formed part of every statesman's education; but the characteristics which ensured him success in the House of Lords and in the royal closet led to failure in his attempts to understand the feelings of the mass of his countrymen.

This resulted in a failure .

But in other parts of his works he suggests that mind and matter are two different aspects of that which is the basis of all things - a monism which is not necessarily materialistic, and which, in the absence of further explanation, constitutes a confession of failure .

It was only then, too, that a reform was started in secondary education, with the object of revising the so-called " classical " system favoured in the lyceums since the 'seventies, the complete failure of which has been demonstrated after nearly thirty years of experiment.

As king the loss and failure of friends made him cautious, suspicious and cruel.

Failure to comply with any of the rules renders a company " liable for each offence, on conviction under the Summary Jurisdiction Acts, to a fine not exceeding fifty pounds, or in the case of a continuing offence to a fine not exceeding ten pounds for every day during which the offence continues after conviction."

It enacted that published rates should not be changed except on thirty days' notice, whether the change involved an increase or a decrease, and it required annual reports to be made under oath, penalties being prescribed for failure to comply with the Commission's requests for information.

Xavier was seized with fever soon after his arrival, and was delayed by the failure of the interpreter he had engaged, as well as by the reluctance of the Portuguese to attempt the voyage to Canton for the purpose of landing him.

But he was 10th to execute judgments upon English Puritans, and modern high churchmen complain of his infirmity of purpose, his opportunism and his failure to give Parker adequate assistance in rebuilding the shattered fabric of the English Church.

By a series of delays he caused the failure of the naval expedition prepared at Sluys against England in 1386, and a second accusation of military negligence led to disgrace of the royal princes and the temporary triumph of the marmousets, as the advisers of the late king were nicknamed.

Lord Auckland had the double mortification of seeing his policy a complete failure and of being superseded before his errors could be rectified.

Such an attempt to bind together nations with such different aims and characters was doomed to failure .

After the failure of Contarini's attempt at reconciliation with the Protestants (1541) the papacy committed itself to the reaction advocated by Caraffa; the Inquisition and censorship were set up (1542, 1 543), and the extermination of heresy in Italy undertaken with vigour.

This failure seems to have convinced Bacchides that it would be well to recognize Jonathan and to secure a balance of parties.

The direct consequence of the failure was the annihilation of political nationality.

The failure of the hopes entertained of Sabbatai Zebi (q.v.) had plunged the Jewries of the world into despair.

The elections held under the new system proved a failure , the Christians refusing to go to the polls, and for the next five years Crete was governed absolutely by a succession of Mahommedan Valis.

In 1642 Henderson, whose policy was to keep Scotland neutral in the war which had now broken out between the king and the parliament, was engaged in corresponding with England on ecclesiastical topics; and, shortly afterwards, he was sent to Oxford to mediate between the king and his parliament; but his mission proved a failure .

Discouraged by his failure to effect this, he returned to his diocese of Cambrai at the beginning of 1408.

This land was sold in 1833 for $277,332.52, but the entire sum was lost in the failure of the Planters' Bank in 1840.

As the Union Bank was founded in the midst of a financial panic and was mismanaged, its failure was a foregone conclusion.

As this proved a failure , he had her put to death at her country house.

In 1757 he was associated with Sir John Mordaunt in command of an abortive expedition against Rochfort, the complete failure of which brought Conway into discredit and involved him in a pamphlet controversy.

His failure to control the theorizers showed Mirabeau, after the removal of the king and the Assembly to Paris, that his eloquence would not enable him to guide the Assembly by himself, and that he must therefore try to get some support.

In his absence the open violence and extortion of Agesilaus, combined with the popular disappointment at the failure of the agrarian scheme, brought about the restoration of Leonidas and the deposition of Cleombrotus, who took refuge at the temple of Apollo at Taenarum and escaped death only at the entreaty of his wife, Leonidas's daughter Chilonis.

This failure reacted upon Wolsey's position at home.

The Order, clinging to its rights with the conservatism of an ecclesiastical corporation, still maintained its claims to East Prussia, and pressed them tenaciously even against the electors of Brandenburg themselves, when they inherited the land on the failure of Albert's descendants in 1618.

He had become convinced that his comrades in the Utilitarian Society, never more than ten, had not the stuff in them for a world-shaking propaganda; the society itself was dissolved; the Parliamentary Review was a failure ; the Westminster did not pay its expenses; Bentham's Judicial Evidence produced little effect on the reviewers.

He ceased to attend the society in 1829, but he carried away from it the strengthening memory of failure overcome by persevering effort, and the important doctrinal conviction that a true system of political philosophy was "something much more complex and many-sided than he had previously had any idea of, and that its office was to supply, not a set of model institutions but principles from which the institutions suitable to any given circumstances might be deduced."

Viewed as a candidate for ministerial office, he might be regarded as a failure in parliament, but there can be no doubt that his career there greatly extended his influence.

His last time of furlough in Corsica is remarkable for the failure of the expedition in which he and his volunteers took part, against la Maddalena, a small island off the coast of Sardinia.

It was a complete failure , and for a time his prospects were overclouded.

The failure of Hoche led the three Directors to fix their hopes on Bonaparte.

In order to discount the chances of failure , Bonaparte warned the three Directors that Augereau was a turbulent politician, not to be trusted overmuch.

Finally, it should be noted that, amid the failure of the national aims which the Directory and Bonaparte set forth, his own desires received a startlingly complete fulfilment.

In order to understand the sharp swing of the political pendulum back from republicanism to autocracy which took place at Brumaire, it is needful to remember that the virtual failure of the Egyptian Expedition was then unknown.

It is, however, highly probable that he meant to strike at London if naval affairs went well, but that he was glad to have at hand an alternative which would shroud a maritime failure under military laurels.

To this scheme he turned with a zeal whetted by consciousness of his failure respecting the Danish fleet.

Austria was continuing to arm; and the emperor perceived that the diplomatic failure at Erfurt was now about to entail on him another and more serious struggle.

Upon the failure of this attempt of his opponents, Desmoulins published a pamphlet, Jean Pierre Brissot demasque, which abounded in the most violent personalities.

In 1860 he was compelled by the failure of the porcelain factory to leave Bruckberg, and he would have suffered the extremity of want but for the assistance of friends supplemented by a public subscription.

It proved a disastrous failure , and on the return of the shattered remnants (1171) a great constitutional reform seemed necessary.

Sagasta kept quiet until nearly the end of the struggle with the colonies, when the queen-regent had to dismiss the Conservative party, much shorn of its prestige by the failure of its efforts to pacify the colonies, and by the assassination of its chief, Canovas delCastillo.

But ten years afterwards, in the exhibition of 1872, which was specially devoted to cotton, a few only of the thirty-five countries which had sent their samples in 1862 again appeared, and these for the most part only to bear witness to disappointment and failure .

Though planters who confined their efforts to the lower lying grounds - of which there is a fairly large tract - succeeded, all the cotton planted on the highlands proved more or less a failure .

For Ranke the failure was not to be regretted; the rest of his life was to be wholly devoted to that in which he excelled.

The drilling of a well is commonly carried out under contract, the producer erecting the derrick and providing the engine and boiler while the drilling contractor finds the tools, and is Drill ing the responsible for accidents or failure to complete the well.

But the more favourable the auspices, the greater proved the failure .

Louis VII., who now appeared, was induced by this failure to take the long and circuitous route by the west coast of Asia Minor; but even so he had lost the majority of his troops when he reached the Holy Land in 1148.

Crusades appear to have been dignified by numbers when they followed some crushing disaster - the loss of Edessa in 1144, or the fall of Jerusalem in 1187 - and were led by kings and emperors; or when, like the Fourth and Fifth Crusades, they achieved some conspicuous success or failure .

The position of the Franks in the Holy Land was not improved by the attack on Damascus; while the ignominious failure of a Crusade led by two kings brought the whole crusading movement into discredit in western Europe, and it was utterly in vain that Suger and St Bernard attempted to gather a fresh Crusade in 1150.

The result of the failure of the Second Crusade was the renewal of Nureddin's attacks.

The lay basis of the Third Crusade made it, in one sense, the greatest of all Crusades, in which all the three great monarchs of western Europe participated; but it also made it a failure , for the kings of France and England, changing caelum, non animum, carried their political rivalries into the movement, in which it had been agreed that they should be sunk.

The enforced inactivity of a whole winter was the mother of disputes and bad blood; and when Philip sailed for the Holy Land, at the end of March 1191, the failure of the Crusade was already decided.

The history of the Fourth Crusade is a history of the predominance of the lay motive, of the attempt of the papacy to escape from that predominance, and to establish its old direction of the Crusade, and of the complete failure of its attempt.

But before St Louis sailed for Damietta there intervened the miserable failure of one Crusade, and the secular and diplomatic success of another.

It is difficult to decide whether to blame the legate or the emperor more for its failure .

The Sixth Crusade (1228-1229) succeeded as signally as the Fifth Crusade had failed; but the circumstances under which it took place and the means by which it was conducted made its success still more disastrous than the failure of 1221.

After the failure of the Fifth Crusade - for which these delays were in part responsibleHonorius III.

Several causes are recognized by these writers as accounting for the failure of the Crusades.

But one might enumerate ad infinitum the causes of the failure of the Crusades.

In 1344 a Crusade, in which Venice, the Cypriots, and the Hospitallers all joined, ended in the conquest of Smyrna; in 1345 another Crusade, led by Humbert, dauphin of Vienne, ended in failure .

While from this point of view the Crusades appear as a failure , it must not be forgotten that elsewhere than in the East Crusades did attain some success.

He commanded at Rochelle during the famous siege, and (if we may believe his brother) the failure of the defence and of the English attack on Rhe was mainly due to the alternate obstinacy of the townsfolk and the English commanders in refusing to listen to Soubise's advice.

After the failure of this expedition the Athenians apparently became absorbed in a prolonged struggle with Aegina.

Both in 1876 and 1884, after his failure to receive the nomination for the presidency, he was nominated by the Democratic National Convention for vice-president, his nomination in each of these conventions being made partly, it seems, with the hope of gaining "greenback" votes - Hendricks had opposed the immediate resumption of specie payments.

The bishop's second failure to obtain this dignity was due, doubtless, to his irregular and unclerical manner of life, a fact which also accounts, in part at least, for the hostility which existed between his victorious rival, Archbishop Peckham, and himself.

The complete failure of the rain in the autumn of 1896 caused scarcity to develop suddenly into famine, which lasted until the end of 1897.

The Central Provinces were stricken by another famine, yet more severe and widespread, caused by the complete failure of the rains in 1899.

Towards the end of the 16th century the failure of the alchemists to achieve their cherished purpose, and the general increase in medical knowledge, caused attention to be given to the utilization of chemical preparations as medicines.

Notwithstanding these errors, the value of the " ethyl theory " was perceived; other radicals - formyl, methyl, amyl, acetyl, &c. - were characterized; Dumas, in 1837, admitted the failure of the etherin theory; and, in company with Liebig, he defined organic chemistry as the " chemistry of compound radicals."

Thus the prominent school of criticism which appraised Wagner in the 10th century by his approximation to Darwin and Herbert Spencer, appraises him in the aoth by his approximation to Bernard Shaw; with the absurd result that Gatterdammerung is ruled out as a reactionary failure .

The vast myth of the Ring is related in full several times in each of the three main dramas, with ruthless disregard for the otherwise magnificent dramatic effect of the whole; hosts of original dramatic and ethical ideas, with which Wagner's brain was even more fertile than his voluminous prose works would indicate, assert themselves at all points, only to be thwarted by repeated attempts to allegorize the philosophy of Schopenhauer; all efforts to read a consistent scheme, ethical or philosophical, into the result are doomed to failure ; but all this matters little, so long as we have Wagner's unfailing later resources in those higher dramatic verities which present to us emotions and actions, human and divine, as things essentially complex and conflicting, inevitable as natural laws, incalculable as natural phenomena.

The reforms proved a failure , mainly owing to the tacit opposition of the Turkish authorities, the insufficient powers attributed to the European officials, the racial feuds and the deplorable financial situation.

The familiar name for toasted cheese, "Welsh rabbit," is merely a joke, and the alteration to "Welsh rare-bit" is due to a failure to see the joke, such as it is.

Murchison, but the exhibition, although a most interesting one, was a failure , and the guarantors had to face a heavy loss.

But his Red River expedition, March - May 1864, forced upon him by superior authority, was a complete failure .

The progress of heresy, the reported troubles in Germany, the war which had lately broken out between the dukes of Austria and Burgundy, and finally, the small number of fathers who had responded to the summons of Martin V., caused that pontiff's successor, Eugenius IV., to think that the synod of Basel was doomed to certain failure .

The Hussites, it was said, would think that the Church was afraid to face them; the laity would accuse the clergy of shirking reform; in short, this failure of the councils would produce disastrous effects.

A regiment of the Indian army was recruited among them, but the experiment proved a failure , and the Moplah Rifles were disbanded in April 1907.

The charge of pacifism was often brought against him, and his career generally as Secretary was widely condemned throughout the United States as lacking in energy, foresight and ability, and especially for his failure to prepare adequately in the months immediately preceding the American declaration of war.

This was met in a very large measure by deposits of natural nitre and the products of artificial nitrieres, whilst additional supplies are available in the ammoniacal liquors of the gas-manufacturer, &c. The possible failure of the nitre deposits led to attempts to convert atmospheric nitrogen into manures by processes permitting economic success.

Lovejoy at Niagara Falls, who passed atmospheric air, or air enriched with oxygen, about a high tension arc made as long as possible; but the company (the Atmospheric Products Company) was a failure .

She was famed for her running, and would only consent to marry a suitor who could outstrip her in a race, the consequence of failure being death.

The new emperor attacked Tokaj, which was in Turkish possession; the tribute had been allowed again to fall into arrears; and to all this was added that Mahommed Sokolli, the new grand vizier (1565), pressed for new war to wipe out the disgrace of the failure of the Ottoman attack on Malta (May-September 1565).

The capture of Veszprem and of Raab (1594) and the failure of the archduke Matthias to take Gran seemed to promise another rapid victory of the Ottoman arms; but Sinan was ill-supported from Constantinople, the situation was complicated by the revolt of Walachia and Moldavia, and the war was destined to last, with varying fortunes, for fourteen years.

In case of failure in the line of succession an administrator was appointed by the state.

At the same time Lefebvre was ordered to press the siege of Danzig with all vigour, and on the 5th of May, after a most gallant resistance, Kalckreuth, who redeemed here his failure of Auerstadt, surrendered.

In spite of the failure before Burgos, the successes of the campaign had been brilliant.

The declaration of war against the emperor Francis II., nephew of Marie Antoinette, was forced upon the king by those who wished to discredit him by failure , or to compel him to declare himself openly an enemy to the Revolution.

The failure of the war, which intensified popular hatred of the Austrian queen, involved the king; and the invasion of the Tuileries on the 10th of June 1792 was but the prelude to the conspiracy which resulted, on the 10th of August, in the capture of the palace and the "suspension" of royalty by the Legislative Assembly until the convocation of a national convention in September.

An explanation of the failure of the usual dilution law in these cases may be given if we remember that, while the electric forces between bodies like undissociated molecules, each associated with equal and opposite charges, will vary inversely as the fourth power of the distance, the forces between dissociated ions, each carrying one charge only, will be inversely proportional to the square of the distance.

The mission thus ended in complete failure ; but, except for Carpini's (q.v.), it was the earliest Catholic embassy which reached any Mongol court, and its information must have been valuable.

Papal influence had meanwhile succeeded in calling forth a new crusade against Bohemia, but it resulted in complete failure .

The failure of the campaign of 1760, so far as Russiaand France were concerned, induced the court of Versailles, on the evening of the 22nd of January 1761, to present to the court of St Petersburg a despatch to the effect that the king of France by reason of the condition of his dominions absolutely desired peace.

The philosophic endeavour to cognize the whole system of things by referring all events to their causes appears to him to be from the outset doomed to failure .

The failure of the method based on transits of Venus led to an international effort carried out on the initiative of Sir David Gill to measure the parallax by observations on those minor planets which approach nearest the earth.

Other prophets of the same age speak much of dearth and failure of crops, which in Palestine then as now were aggravated by bad government, and were far more serious to a small and isolated community than they could ever have been to the old kingdom.

Though the discord resulting between the states on account of this failure was subsequently allayed for a time by a treaty granting to Brazil the right to navigate the river, every obstacle was thrown in the way by the Paraguayan government, and indignities of all kinds were offered not only to Brazil but to the representatives of the Argentine and the United States.

His touch is heavy, and these novels show no dramatic power, which accounts for his failure as a playwright, but their influence was as great as their followers were many, and they still find readers.

He heartily approved of the peace conference, which attempted to draw up a plan of reconciliation between the two sections, but whose failure made war inevitable.

The tea plant was first introduced in Natal in 1850, but little attention was paid to it until the failure of the coffee plantations about 1875, since when only small quantities of coffee have been produced.

Moreover, in the event of the failure of a Habsburg heir, the diet reserved the right to revive the " ancient, approved and accepted custom and prerogative of the estates and orders in the matter of the election and coronation of their king."

On the other hand the Austrians pointed out that not only would failure to understand each other's language cause fatal confusion on a battlefield, but also tend to disintegrate the forces even in peace time.

His failure was consoled by elevation to the senate, of which body he became chancellor in September 1803.

He was imposed upon by speculators in whom he placed confidence, and was reduced to destitution by the failure of a scheme in which they engaged him.

During the summer America gave a lead to the Allies by accepting the Yugoslav programme, and after Austria's failure on the Piave there was a growing disposition on the part of the western Powers to fall into line with Mr. Lansing's very clear pronouncements.

The failure of the material carrying a positive character to divide so as to distribute itself among all the reproductive cells of a hybrid individual, and the limitation of its distribution to half only of those cells, must prevent the swamping " of a newly appearing character in the course of the inter-breeding of those individuals possessed of the character with those which do not possess it.

In 1896 he entered the second Di Rudini cabinet as minister of the treasury, and by timely legislation helped to save the bank of Naples from failure .

The expedition was an ignominious failure , and many burghers did not hesitate to assign their non-success to the fact that Burgers's views on religious questions were not sound.

This phase endured up to the failure of the Middelburg negotiations in March 1901.

Wauchope, and 750 men, and in the battle by day which followed the other brigades were unable to retrieve the failure , the total losses amounting to about 950.

Behind the Tugela at Colenso were Louis Botha's forces covering the siege of Ladysmith, and, imperfectly Buller's Failure .

The full nature of the failure was not realized by the British public, nor the spirit in which the general had received the finding of fortune.

In the south-eastern Transvaal Botha made a new effort to invade Natal, but, although he captured 300 men and three guns in an action on the 17th of September at Blood River Poort near Vryheid, his plans were rendered abortive by his failure to reduce the posts of Mount Prospect and Fort Itala in Zululand, which he attacked on the 26th, and he only escaped with difficulty from the converging columns sent against him.

Attempts at compromise made in 1908 ended in failure .

By the end of 1909 it was stated that 8000 Indians - most of whom claimed the right of domicile - had been compelled to leave the country, while 2500 had been imprisoned for failure to comply with the Registration Act.

He witnessed, in 1680, the total failure of his tragedy Aspar.

During the trying winter of 1854-55, the suffering he was compelled to witness, the censures, in great part unjust, which he had to endure and all the manifold anxieties of the siege seriously undermined his health, and although he found a friend and ardent supporter in his new French colleague, General Pelissier (q.v.), disappointment at the failure of the assault of the 18th of June 1855 finally broke his spirit, and very shortly afterwards, on the 28th of June 1855, he died of dysentery.

By its revelation and failure (February 10, 1696) the third and last serious attempt of James for his restoration failed.

It is just a question, however, whether, even in instances such as these, the nutritional failure may not be explained upon the assumption of withdrawal of the local vasomotor control.

Skelton's work carries with it the interest of attempt and failure .

The spread of syphilis, a disease equally unknown to the ancients, and the failure of Galen's remedies to cure it, had a similar effect.

But in spite of the fiasco of the Irish Councils Bill (1907), the struggles over education (Mr Birrell's bill of 1906 being dropped on account of the Lords' amendments), the rejection by the peers of the Plural Voting Abolition Bill (1906), and the failure (again due to the Lords) of the Scottish Small Holdings Bill and Valuation Bill (1907), which at the time made his premiership appear to be a period of bitter and unproductive debate, a good many reforming measures of some moment were carried.

The failure of the government in Ireland (where the only success was Mr Birrell's introduction of the Universities Bill in April 1908), their internal divisions as regards socialistic legislation, their variance from the views of the selfgoverning colonies on Imperial administration, the admission after the general election that the alleged "slavery" of the Chinese in the Transvaal was, in Mr Winston Churchill's phrase, a "terminological inexactitude," and the introduction of extreme measures such as the Licensing Bill of 1908, offered excellent opportunities of electioneering attack.

Other passages, where he describes himself as ever engaged, even in his dreams, on his task of inquiry and composition, produce the impression of an unrelieved strain of mind and feeling, which may have ended in some extreme reaction of spirit, or in some failure of intellectual power, that may have led him to commit suicide.

They are repelled by the dryness of much of the matter, the unsuitableness of many of the topics discussed for poetic treatment, the arbitrary assumption of premises, the entire failure to establish the connexion between the concrete phenomena which the author professes to explain and these assumptions, and the erroneousness of many of the doctrines which are stated with dogmatic confidence.

The king justified his failure to summon the estates on the ground of the expense incurred by provincial deputies.

On Sunday morning the iith of October, just after his return, whilst on a visit to Mr Gladstone, he died in Hawarden parish church of heart failure .

It was a failure , and though it was recast with some success Voltaire never published it as a whole, and used parts of it in other work.

High pier dues, moreover, contributed to the decline of the traffic, and attempts to overcome the disinclination of passengers to use the river (at any rate in winter) show a record of failure .

The risk of failure in mining enterprises is offset by the chances of more than ordinary profits.

There is a tradition that Timur attempted the passage of the Hindu Kush by one of the unmapped passes hereabouts, and that, having failed, he left a record of his failure engraved on a rock in the pass.

A small battalion of Karens enlisted as sappers and miners proved a failure and had to be disbanded.

For twelve years he successfully resisted the Assyrians; but the failure of his allies in the west to act in concert with him, and the overthrow of the Elamites, eventually compelled him to fly to his ancestral domains in the marshes of southern Babylonia.

His campaign against Hezekiah of Judah was as much a failure as his policy in Babylonia, and in his murder by his sons on the 10th of Tebet 681 B.C. both Babylonians and Jews saw the judgment of heaven.

Haggai and Zechariah explained the delay by the failure of Judah to rebuild II.

Wrathful at the failure of his protest and at the continuance of the republican government, Prynne attacked his adversaries fiercely in print.

In 1879 he opposed in the Reichstag the new protectionist tariff, and on the failure of his efforts retired definitely from public life.

The news of the failure of the French arms in Belgium gave rise in Paris to popular movements on the 9th and 10th of March 1793, and on the 10th of March, on the proposal of Danton, the Convention decreed that there should be established in Paris an extraordinary criminal tribunal, which received the official name of the Revolutionary Tribunal by a decree of the 29th of October 1793.

This is the great social fact - the failure of government to perform one of its most primary duties, the necessity of finding some substitute in private life - extending in greater or less degree through the whole formative period of feudalism, which explains the transformation of institutions that brought it into existence.

Even when asleep and snoring, gorillas are difficult to approach, since they awake at the slightest rustle, and an attempt to surround the one heard making his bed by the woman resulted in failure .

The invasion under Aelius Gallus was an absolute failure , the expedition being betrayed by the guides and lost in the sands of the desert.

The failure of the bureau system and its discontinuance in the midst of reconstruction without harm to the blacks, and the intense hostility of the Southern whites to the institution caused by the irritating conduct of bureau officials, are indications that the institution was not well conceived nor wisely administered.

After the failure of the Italians, the Hanseatics remained the strongest group of alien merchants in England, and, as such, claimed the exclusive enjoyment of the privileges granted by the Carta Mercatoria of 1303.

In France not even the saintly King Louis IX., who made several vain attempts to mediate, approved the pope's attitude; and the failure of the crusade which, in 1248, he led against the Mussulmans in Egypt, was, with reason, ascribed to the deflection of money and arms from this purpose to the war against the emperor.

His eleventh-hour conversion could not avert the conflict of interests which led to the war of 1904-5, from which Russia emerged defeated, but enabled him to veil a serious diplomatic error by relinquishing the odium of failure to his successor, Rosen.

Some modifications were later made in the contract, owing to the government's failure to meet the annual subsidies and the corporation's failure to extend the railways agreed upon.

Although the double standard was in force, gold was practically demonetized by the monetary reform of 1872 because of the failure to fix a legal ratio between the two metals.

Here lies a great merit of Hermas's book, his insight into experimental religion and the secret of failure in Christians about him, to many of whom Christianity had come by birth rather than personal conviction.

As a mathematician, he was the only Englishman after Sir Isaac Newton and Roger Cotes capable of holding his own with the Bernoullis; but a great part of the effect of his demonstrations was lost through his failure to express his ideas fully and clearly.

The same may be said of the lineal descendant of savage medicine - the magical leech-craft of European folk-lore; cures for toothache, warts, &c., act in spite of the disbelief of the sufferer; how far incredulity on the part of the healer would result in failure is an open question.

Discouraged by this failure in the pulpit, Savonarola now devoted himself to teaching in the convent, but his zeal for the salvation of the apathetic townsfolk was soon to stir him to fresh efforts.

When distant vision remains unaltered, but, owing to gradual failure of the accommodative apparatus of the eye clear vision within 8 in.

On the failure of this confederation it opened its gates to the imperial general Buren on the 29th of December 1546, although he had passed by the city, which he considered too strong for the forces under his command.

At a school of art officially established in Tokyo in 1873 under the direction of Italian teachersa school which owed its signal failure partly to the incompetence and intemperate behaviour of some of its foreign professors, and partly to a strong renaissance of pure Japanese classicismone of the few accomplishments successfully taught was that of modelling in plaster and chiselling in marble after Occidental methods.

A failure to solve the problems of metaphysics must always remain a failure , in spite of all protestations that it was inevitable; and it in no wise justifies an advance to so selfcontradictory an asylum ignorantiae as the Unknowable.

On the death of Montgomery and the failure to take Quebec the army retreated to Crown Point, and its commander, General John Sullivan, was superseded by General Horatio Gates.

That he fought unpopular causes is a very insufficient explanation of his failure as a practical statesman.

When the king took the field again in 1756, Moritz was in command of one of the columns which hemmed in the Saxon army in the lines of Pirna, and he received the surrender of Rutowski's force after the failure of the Austrian attempts at relief.

Disappointed at his failure to obtain a post in the gymnasium of his native town, he left Germany for good.

In 1708 he quitted office with Harley on the failure of the latter's intrigue, and retired to the country till 1710, when he became a privy councillor and secretary of state in Harley's new ministry, representing Berkshire in parliament.

Brothers' Club, a society of Tory politicians and men of letters, and the same year witnessed the failure of the two expeditions to the West Indies and to Canada promoted by him.

Her failure was due partly to the commercial jealousy of Corinth working on the dull antipathy of Sparta, partly to the hatred of compromise and discipline which was fatally characteristic of Greece and especially of Ionian Greece, and partly also to the lack of tact and restraint shown by Athens and her representatives in her relations with the allies.

He suffered defeat at Chickasaw Bayou, but the capture of Fort Hindman, near Arkansas Post, compensated to some extent for the Vicksburg failure .

It was a Confederate failure , but not a Union victory, and, each side being weakened by about io,000 men, neither made any movements for the next three weeks.

In his zeal for orthodoxy, indeed, Frederick William outstripped his minister; he even blamed W6llner's "idleness and vanity" for the inevitable failure of the attempt to regulate opinion from above, and in 1794 deprived him of one of his secular offices in order that he might have more time "to devote himself to the things of God"; in edict after edict the king continued to the end of his reign to make regulations "in order to maintain in his states a true and active Christianity, as the path to genuine fear of God."

The superstitious associations of crystal-gazing, as of hypnotism, appear to bar the way to official scientific investigation, and the fluctuating proficiency of the seers, who cannot command success, or determine the causes and conditions of success and failure , tends in the same direction.

When war broke out afresh in 1757 he served as a staff officer in the unfortunate Rochefort expedition, but his prospects were not affected by the failure , for had his advice been taken the result might well have been different.

On the failure of the Gowrie conspiracy (1600) the castle was forfeited and given to Sir Thomas Erskine (1566-1639), who became Baron Dirleton in 1604, two years later Viscount Fenton, and in 1619 earl of Kellie.

This is the reason of their frequent failure to convey any sense of proportion in the expression of truth.

The failure of the latter was really inevitable.

Among other laws Bonaparte enacted that French should at once be the official language, that 30 young men should every year be sent to France for their education; that all foreign monks be expelled, that no new priests be ordained before employment could be found for those existing; that ecclesiastical jurisdiction should cease; that neither the bishop nor the priests could charge fees for sacramental ministrations, &c. Stoppage of trade, absence of work (in a population of which more than half had been living on foreign revenues of the knights), and famine, followed the defeat of Bonaparte at the Nile, and the failure of his plans to make Malta a centre of French trade.

It is not too much, then, to say that failure to find such a monument has caused deep disappointment to Bible scholars everywhere.

Despite the risks of failure and the probable consequences of such a failure , from the political and moral as well as the military point of view, it was considered essential both by Marshal Foch and Lord Haig that the attack on it should be carried out and that as soon as possible.

Despite the comparative failure of the Composite Corps the attack had on the whole been a brilliant success, seven Allied divisions having defeated nine enemy divisions ensconced in immensely powerful works, capturing from them 5,300 prisoners and ioo guns and effecting such a wide breach in the last German line of defence that its complete capture in a few days was assured.

An expedition was organized, and landed on the mainland in May 1816, but proved a failure .

Two expeditions against Egypt (3 8 5-3 8 3 and 374-372) ended in complete failure .

He still for a short time retained influence with the king, and intended to employ George Grenville (whom he recommended as his successor) as his agent; but the latter insisted on possessing the king's whole confidence, and on the failure of Bute in August 1763 to procure his dismissal and to substitute a ministry led by Pitt and the duke of Bedford, Grenville demanded and obtained Bute's withdrawal from the court.

After the failure of Ducetius to re-establish the Sicel nationality, Greek civilization triumphed over that of the Sicels entirely, and it has not yet been possible to trace the survivals of the latter.

He beat back a Rhegine expedition; but his advance was checked by a failure to take the new Sicel settlement of Tauromenium.

When Lord John Russell brought forward his Ecclesiastical Titles Bill, Bright opposed it as "a little, paltry, miserable measure," and foretold its failure .

Another negative cause may be found in the failure of an attempt or attempts to subdue the Thraceward towns.

This failure and the refusal of Lysander to fight again destroyed the confidence which Alcibiades had so recently regained.

In some cases a failure to understand his meaning led to curious results; for example, the medieval custom, not uncommon in England, of placing rows of earthenware jars under the floor of the stalls in church choirs, appears to have been an attempt to follow out suggestions raised by Vitruvius as to the advantages of placing bronze vases round the auditorium of theatres.

The normal rise of the Nile was sixteen cubits at the island of Roda, and two cubits more or less caused a failure of the harvest.

Malet reported that the Egyptian government could not supply the necessary funds, and that there was great risk of failure , Colonel Hicks, who had resigned his post on the 23rd of July, and had been appointed commander-in-chief, started from Khartum on.

The garrison had been reduced to starvation; and the arrival of twen.ty British soldiers, with orders to return at once, Failure of could not have affected the situation.

The failure of the operations in the Sudan had been absolute and complete, and the reason is to be sought in a total misconception of the situation, which caused vacillation and delay, and in the choice of a route by which, having regard to the date of the decision, the relief of General Gordon and Khartum was impossible.

His utter failure was due, partly to the vices of an undisciplined temperament, and partly to the extraordinary difficulties of the most inscrutable period of European history, when the shrewdest heads were at fault and irreparable blunders belonged to the order of the day.

The essential point here to be added is that death takes place from combined cardiac and respiratory failure .

There are various minor external causes for the failure and ultimate destruction of cement mortar and concrete, but their discussion is a matter for the specialist.

Failure from inherent vice in the cement has been already touched on; it can always be traced to want of skill and care in manufacture.

Misunderstandings among the leaders led to the total failure of the revolt, and Mackenzie was forced to fly to the United States with a price on his head.

After the failure of this attempt he was put to the most pitiful shifts to make a living.

The last two sections are intended to be independent of each other and the failure of essential purpose of one shall not affect the other.

The failure of Sartor Resartus to attract average readers is quite intelligible.

His fate, however, was sealed by his failure to obtain a divorce for Henry from the papal court.

Sheer grief and shame, and, it is said, sorrow for the failure in war of his favourite, Oliver Sinclair, were the apparent causes of his death.

In the following year (23rd of July 1593) Bothwell, much favoured by the preachers, made his capture of James, but had not the power to hold him long, and a later revolutionary attempt in the same year, by Atholl and the young earl of Gowrie, was a failure .

Spain backed him in 1719, but the death of Charles XII., and the utter failure of a Spanish expedition to Scotland in 1719, when the Jacobites were scattered, and the Spaniards taken, in a fight at Glensheil, ruined what had seemed a fair chance of success.

The marriage was unhappy; James was eternally occupied with the business of his cause and the feuds of his adherents; Clementina lost her gaiety and became causelessly jealous; and her retreat to a convent in 1725 was a greater blow to the cause than the failure of Atterbury's plot (1720), the alleged treason of Mar and the splits in the Jacobite party.

The failure of Charles had, in fact, the result of assimilating Scotland much more closely to England.

With the failure of the last armed attempt to " break the Union," Scottish history is merged in that of Great Britain; it was a British force that routed the Jacobites at Culloden.

He was Prime Minister at the time of the peace treaty, but his Cabinet fell June 20 1919, owing to his failure to secure a settlement in Paris.

The democratic Urbina now became practically dictator, and as the attempt of Flores to reinstate Noboa proved a total failure , he was quickly succeeded in 1856 by General Francisco Robles, who, among other progressive measures, secured the adoption of the French system of coinage, weights and measures.

He would therefore have risked the failure of his own mission in order to take part in a battle where his intervention was not, so far as he could tell, of vital importance.

Conviction for bribery, perjury or other infamous crime, or failure (in the case of a collector or holder of public moneys) to account for and pay over all moneys due from him are disqualifications; and before entering upon the duties of his office each member of the legislature must take a prescribed oath that he has neither given nor promised anything to influence voters at the election, and that he will not accept, directly or indirectly, "money or other valuable thing from any corporation, company or person" for his vote or influence upon proposed legislation.

His investigations show clearly that with candidates near the border-line of failure , which must necessarily be fixed at a given point (subject to certain allowances, where more than one subject is considered), the element of chance necessarily enters largely into the question of pass and failure .

It is necessary to allow for them in considering the failure of an individual candidate as an index of inefficiency..

The element of chance, which prevails in the region on either side of the border between pass and failure , obviously prevails equally on either side of the border between " classes," where candidates are classified; it has been suggested by Dr Schuster that numerical order should accompany classification so as to avoid the creation of an artificial gap between the last candidate in one class and the highest in the next.

He gives them a parable from nature - the sower's three kinds of failure , compensated by the rich produce of the good soil.

After this we have the healing of a dropsical man on the Sabbath, with a reply to the murmuring Pharisees; and then a parable of the failure of invited guests and the filling of their places from the streets.

More and more the Master devotes Himself to the little circle of His disciples, who are taught that they, as well as He, can only triumph through defeat, succeed by failure , and find their life in giving it away.

This rejection of the advances of the Uitlandersby whose aid he could have built up a free and stable republic - led to his downfall, though the failure of the Jameson Raid in the first days of 1896 gave him a signal opportunity to secure the safety of his country by the grant of real reforms. But the Raid taught him no lesson of this kind, and despite the intervention of the British government the Uitlanders' grievances were not remedied.

A hero, who was probably originally intended to demonstrate the failure of the vacillating temperament when brought face to face with the problems of art, proved ill-adapted to demonstrate those precepts for the guidance of life with which the Lehrjahre closes; unstable of purpose, Wilhelm Meister is not so much an illustration of the author's life-philosophy as a lay-figure on which he demonstrates his views.

Goethe's classic principles, when applied to the swift, direct art of the theatre, were doomed to failure , and Die natiirliche Tochter, notwithstanding its good theoretic intention, remains the most lifeless and shadowy of all his dramas.

Indeed the king's horror of Jacobinism was morbid in its intensity, and drove him to adopt all sorts of reactionary measures and to postpone his coronation for some years, so as to avoid calling together a diet; but the disorder of the finances, caused partly by the continental war and partly by the almost total failure of the crops in 1798 and 1799, compelled him to summon the estates to Norrkoping in March 1800, and on the 3rd of April Gustavus was crowned.

After the failure of the conference the elector of Saxony had commissioned two of the councillors to convey Luther to a place of safety without telling him where it was.

Up to this point Adams's career had been almost uniformly successful, but his presidency (1825-1829) was in most respects a failure , owing to the virulent opposition of the Jacksonians; in 1828 Jackson was elected president over Adams. It was during his administration that irreconcilable differences developed between the followers of Adams and the followers of Jackson, the former becoming known as the National Republicans,.

The coal deposits, which are of somewhat indifferent quality, have been worked with varying degrees of failure by a succession of companies, one of which, the Labuan & Borneo Ltd., liquidated in 1902 after the collapse of a shaft upon which large sums had been expended.

The code also regulates wages and prices, and shows a certain humanity towards debtors; and here any failure to carry out these laws would obviously be denounced.

Although there are various points of contact with Palestinian external history, there is a failure to deal with some events of obvious importance, and an emphasis upon others which are less conspicuous in any broad survey of.

The abortive Second Crusade (1147), led by the kings of France and Germany, came to aid the rapidly weakening Latin kingdom after their failure to hold Edessa against Nureddin, the ruler of northern Syria.

The experiment was a failure ; Bahrdt, never at ease under the strict discipline maintained by von Salis, resigned in 1777, and the school was closed.

A large number of these boats were constructed and they afforded some protection to coasting vessels against privateers, but in bad weather, or when employed against a frigate, they were worse than useless, and Jefferson's "gunboat system" was admittedly a failure .

The Afghans, inured to bloodshed from childhood, are familiar with death, and audacious in attack, but easily discouraged by failure ; excessively turbulent and unsubmissive to law or discipline; apparently frank and affable in manner, especially when they hope to gain some object, but capable of the grossest brutality when that hope ceases.

This ill-planned and hazardous enterprise was fraught with the elements of inevitable failure .

When, therefore, the conquest of Khiva in 1873 by the Russians, and their gradual approach towards the amir's northern border, had seriously alarmed Shere Ali, he applied for support to the British; and his disappointment at his failure to obtain distinct pledges of material assistance, and at Great Britain's refusal to endorse all his claims in a dispute with Persia over Seistan, so far estranged him from the British connexion that he began to entertain amicable overtures from the Russian authorities at Tashkend.

After this failure Louis set to work to repair his mistakes.

Failure in Spain was compensated for in Italy.

The attempt resulted in failure in every case, except where the zamindars happened to be the representatives of ancient lines of powerful chiefs.

European enterprise, attracted by the richness of the ore and the low rate of wages, has repeatedly tried to establish iron-works on a large scale; but hitherto every one of these attempts has ended in failure with the exception of the iron-works at Barrakur in Bengal, first started in 1865, which after many years of struggle seem to have turned the corner of success.

The dual system of government, however, established by Clive, had proved a failure .

An unhappy adventure in love deepened his sense of failure , but he became betrothed to Maria White in the autumn of 1840, and the next twelve years of his life were deeply affected by her influence.

In 5900 this district suffered severely from famine owing to the complete failure of the monsoon, and the cultivated area decreased by 50 or 60 70; but, on the whole, trade has improved of late years owing to the new railways, which have stimulated commerce and created fresh centres of industry.

In 1784 the failure of some commercial speculations greatly reduced his means, and about the same time he was dismissed with a small pension from his situation.

The soil is suitable for the cultivation of almost all kinds of tropical produce, and it is to be regretted that the prosperity of the colony depends almost entirely on one article of production, for the consequences are serious when there is a failure , more or less, of the sugar crop. Guano is extensively imported as a manure, and by its use the natural fertility of the soil has been increased to a wonderful extent.

Incensed by the failure of their plot, the friars obtained the recall of Despujols.

But though Austria, Great Britain and presently France, were all equally interested in maintaining the Ottoman empire, the failure of the congress of Vienna in 1815 to take action in the matter of a guarantee of Turkey, and the exclusion of the Sultan from the Holy Alliance, seemed to endorse the claim of Russia to regard the Eastern Question as "her domestic concern" in which "Europe" had no right to interfere.

The Moslems regard this failure as one of the great evils that have befallen the human race, and one which retarded the progress of the world for ages,' the other calamity being the defeat in the battle of Tours by Charles Martel.

After the failure of the siege of Constantinople, the advanced posts in Asia Minor were withdrawn, but the raids were continued regularly.

Irritated by this failure , the caliph in 781 sent Harun, accompanied by his chamberlain Rabi`, with an army of nearly ioo,000 men, with orders to carry the war to the very gates of Constantinople.

The conditions were very hard, and frostbite was responsible for many casualties, for the snow still lay deep on the high ridges, but the spirit of the troops was proof against all trials, and it was against the iron lines of Pasubio that the Austrian offensive came to failure .

The Austrian attempt to break through ended in definite failure , and even its secondary object, that of preventing the Italian offensive on the Isonzo, was not attained.

Failure was due to the fact that the attack met with a resistance that went beyond Conrad's calculations.

When the confederation was almost in a state of collapse because of the failure of the states to respond to requisitions of Congress for supplies for the federal treasury, Madison was among the first to advocate the granting of additional powers to Congress, and urged that congress should forbid the states to issue more paper money.

He found in Washington's attitude - as in Hamilton's failure to pay an instalment of the moneys due France - an "Anglified complexion," in direct opposition to the popular sympathy with France and French Republicanism.

It is a heuristic process liable to failure , and its application by a nation of talkers even to physics where non-expert opinion is worthless somewhat discredited it.

But the divorce of science of nature from mathematics, the failure of biological inquiry to reach so elementary a conception as that of the nerves, the absence of chemistry from the circle of the sciences, disappointed the promise of the dawn and the relative achievement of the noon-day.

In its metaphysic it showed no failure in dialectical constructiveness.

It is because of the failure of this endeavour to bring the technique of induction within the setting of his Humian psychology of belief that the separation of his contribution to the applied logic of science from his sensationism became necessary, as it happily 1 Mill, Examination of Sir William Hamilton's Philosophy, cap. 17.

Finally, to the psychologist it spelt the failure of intellectualism, and encouraged, therefore, some form of rehabilitated experientialism.

The view of inference with which he complements it is only less satisfactory because of a failure to distinguish the principle of nexus in syllogism from its traditional formulation and rules, and because he is hampered by the intractability which he finds in certain forms of relational construction.

An attempt, however, to perform the same service for another brother-in-law, also called Ladislaus, who had been driven from his Polish dukedom, ended in failure .

It was finally abandoned on account of the failure of the heating vessels.

Disgusted at his failure to become consul in 60, he retired from public life, and devoted himself to writing a history of the Social and Civil Wars.

In spite of this partial failure Leo must be reckoned as one of the greatest of the later Roman emperors.

The last phrase scarcely does justice to the truly humane and devout intentions of the missionaries; but in truth the mission system was a complete failure save in the accumulation of material wealth.

On the failure of the firm he obtained the office of registrar of St Andrew's parish, Newcastle, a post which he held until appointed secretary to the coal trade.

In 1723 Major Davel, at Lausanne, and in 1749 Henzi, in Bern itself, tried to break down this monopoly, but in each case paid the penalty of failure on the scaffold.

The intervention of the powers, culminating in the shattering of the Egyptian fleet at Navarino (q.v.), robbed him of his reward so far as Greece was concerned; the failure of his arms in face of this intervention gave Sultan Mahmud the excuse he desired for withholding the rest of the stipulated price of his assistance.

The threats of Great Britain and France, the failure of Russia to back him up, induced him to refrain; but sooner or later a renewal of the war was inevitable; for the sultan, with but one end in view, was reorganizing his army, and Mehemet Ali, who in the autumn of 1834 had assumed the style of viceroy and sounded the powers as to their attitude in the event of his declaring his complete independence, refused to continue to pay tribute which he knew would be used against himself.

His coming was delayed, in part by the opposition of demons, in part by the failure of the people to obey the law.

As his violent death drew near, his words indicated how he preserved his deep faith unshaken while yet recognizing the seeming failure of his mission.

Coal mines have, in many instances, been opened and abandoned, failure being due to the difficulty of production.

It was originally intended that this should eventually be extended across the territory to Cowie Harbour (Sabuko Bay) on the east coast, but the extraordinary engineering difficulties which oppose themselves to such an extension, the sparse population of the territory, and the failure of the existing line to justify the expectations entertained by its designers, combine to render the prosecution of any such project highly improbable.

This theory gives birth to a sort of ethical by-product whose dominant note is Harmony, the subordination of the individual to the universal reason; moral failure is proportionate to the degree in which the individual declines to recognize his personal transience in relation to the eternal Unity.

At the close of 1691 Anne had declared her approval of the naval expedition in favour of her father, and expressed grief at its failure .

This fact should be remembered when failure to recognize the disease on its first appearance occurs elsewhere.

Nothing is known of its natural history outside the body, but on cultivation it is apt to undergo numerous involution forms. Its presence in a patient is regarded as positive diagnostic proof of plague; but failure to find or to identify it does not possess an equal negative value, and should not be too readily accepted, for many instances are recorded in which expert observers have only succeeded in demonstrating its presence after repeated attempts.

Alcohol and cardiac stimulants may be required to prevent heart failure .

Failure to catch or induce plague from clothing that has been worn by plague patients proves nothing.

They agreed that there was strong evidence to show that " the contamination took place when the bottle was opened at Malkowal, owing to the abolition by the plague authorities of the technique prescribed by the Bombay laboratory, and to the consequent failure to sterilize the forceps which were used in opening the bottle, and which during the process were dropped on the ground "; and they complained of the inadequacy of the inquiries made by the Indian government, and called for Mr Haffkine's exoneration.

The original intention was to push the experiments to a pressure equivalent to thirty atmospheres, but owing to the signs of failure exhibited by the boiler the limit actually reached was twenty-four atmospheres, at which pressure the thermometers indicated a temperature of about 224 0 C. In his last paper, published posthumously in 1838, Dulong gave an account of experiments made to determine the heat disengaged in the combination of various simple and compound bodies, together with a description of the calorimeter he employed.

After this failure Boroevic abandoned his attacks.

Krauss accepted failure for the moment, hoping for an early spring offensive farther west.

Inevitably, the impression was left that the failure in moral had been more widespread than was actually the case.

Their failure led to disaster.

The failure to hold in strength the roads on both sides of the Isonzo has never been satisfactorily explained.

The failure of the Italian artillery to carry out the general order of counter-preparation expressly given by Cadorna, and repeated in no less categorical terms by Capello, had an undoubted effect upon the course of the battle.

This holding of the Italian fire, like the failure to appreciate the necessity for defence in depth, is explained by the fact that as regards the practice of defensive tactics the Italians were some two years in arrears.

His ambition to found a school of composers as well as a school of pianists met with complete success on the one hand and partial failure on the other.

There is always danger of failure when an attempt is thus made 1 It is understood that, in point of fact, the Princess Wittgenstein was determined to marry Liszt; and as neither he nor her family wished their connexion to take this form, Cardinal Hohenlohe quietly had him ordained.

The result was failure , for the democracy of small farmers which would have taxed slavery out of existence was denied proportionate representation.

The failure of these popular movements led to a sharp reaction in Virginia, as in the whole South, in favour of slavery.

Their very failure made possible the modern era.

Its success or failure in this respect can only be judged a postenon, by comparison of the results to which it leads with the facts.

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Choose the option that is a correct conversion of the following simple sentence into a complex sentence: The report of his failure has surprised us all.

1) The report that he has failed has surprised us all. 2) The report of his failing surprised us all. 3) he report of his failure surprised us all. 4) His failure report were surprised us all.

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1) The report that he has failed has surprised us all.

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Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

(a) Motion for an Order Compelling Disclosure or Discovery.

(1) In General. On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. 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 disclosure or discovery in an effort to obtain it without court action.

(2) Appropriate Court. A motion for an order to a party must be made in the court where the action is pending. A motion for an order to a nonparty must be made in the court where the discovery is or will be taken.

(3) Specific Motions.

(A) To Compel Disclosure. If a party fails to make a disclosure required by Rule 26(a) , any other party may move to compel disclosure and for appropriate sanctions.

(B) To Compel a Discovery Response. A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if:

(i) a deponent fails to answer a question asked under Rule 30 or 31 ;

(ii) a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a)(4) ;

(iii) a party fails to answer an interrogatory submitted under Rule 33 ; or

(iv) 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 .

(C) Related to a Deposition. When taking an oral deposition, the party asking a question may complete or adjourn the examination before moving for an order.

(4) Evasive or Incomplete Disclosure, Answer, or Response. 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.

(5) Payment of Expenses; Protective Orders.

(A) If the Motion Is Granted (or Disclosure or Discovery Is Provided After Filing). If the motion is granted—or if the disclosure or requested discovery is provided after the motion was filed—the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. But the court must not order this payment if:

(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action;

(ii) the opposing party's nondisclosure, response, or objection was substantially justified; or

(iii) other circumstances make an award of expenses unjust.

(B) If the Motion Is Denied. If the motion is denied, the court may issue any protective order authorized under Rule 26(c) and must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees. But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.

(C) If the Motion Is Granted in Part and Denied in Part. If the motion is granted in part and denied in part, the court may issue any protective order authorized under Rule 26(c) and may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.

(b) Failure to Comply with a Court Order.

(1) Sanctions Sought in the District Where the Deposition Is Taken. If the court where the discovery is taken orders a deponent to be sworn or to answer a question and the deponent fails to obey, the failure may be treated as contempt of court. If a deposition-related motion is transferred to the court where the action is pending, and that court orders a deponent to be sworn or to answer a question and the deponent fails to obey, the failure may be treated as contempt of either the court where the discovery is taken or the court where the action is pending.

(2) Sanctions Sought in the District Where the Action Is Pending.

(A) For Not Obeying a Discovery Order. If a party or a party's officer, director, or managing agent—or a witness designated under Rule 30(b)(6) or 31(a)(4)— fails to obey an order to provide or permit discovery, including an order under Rule 26(f) , 35 , or 37(a) , the court where the action is pending may issue further just orders. They may include the following:

(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;

(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;

(iii) striking pleadings in whole or in part;

(iv) staying further proceedings until the order is obeyed;

(v) dismissing the action or proceeding in whole or in part;

(vi) rendering a default judgment against the disobedient party; or

(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.

(B) For Not Producing a Person for Examination. If a party fails to comply with an order under Rule 35(a) requiring it to produce another person for examination, the court may issue any of the orders listed in Rule 37(b)(2)(A)(i) —(vi), unless the disobedient party shows that it cannot produce the other person.

(C) Payment of Expenses. Instead of or in addition to the orders above, the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.

(c) Failure to Disclose, to Supplement an Earlier Response, or to Admit.

(1) Failure to Disclose or Supplement. If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), 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. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard:

(A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure;

(B) may inform the jury of the party's failure; and

(C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i) —(vi).

(2) Failure to Admit. If a party fails to admit what is requested under Rule 36 and if the requesting party later proves a document to be genuine or the matter true, the requesting party may move that the party who failed to admit pay the reasonable expenses, including attorney's fees, incurred in making that proof. The court must so order unless:

(A) the request was held objectionable under Rule 36(a) ;

(B) the admission sought was of no substantial importance;

(C) the party failing to admit had a reasonable ground to believe that it might prevail on the matter; or

(D) there was other good reason for the failure to admit.

(d) Party's Failure to Attend Its Own Deposition, Serve Answers to Interrogatories, or Respond to a Request for Inspection.

(1) In General.

(A) Motion; Grounds for Sanctions. The court where the action is pending may, on motion, order sanctions if:

(i) a party or a party's officer, director, or managing agent—or a person designated under Rule 30(b)(6) or 31(a)(4)— fails, after being served with proper notice, to appear for that person's deposition; or

(ii) a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34 , fails to serve its answers, objections, or written response.

(B) Certification. A motion for sanctions for failing to answer or respond must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action.

(2) Unacceptable Excuse for Failing to Act. A failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c) .

(3) Types of Sanctions. Sanctions may include any of the orders listed in Rule 37(b)(2)(A)(i) —(vi). Instead of or in addition to these sanctions, the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.

(e) Failure to Preserve Electronically Stored Information. If electronically stored information 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:

(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or

(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment.

(f) Failure to Participate in Framing a Discovery Plan. 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(f) , the court may, after giving an opportunity to be heard, require that party or attorney to pay to any other party the reasonable expenses, including attorney's fees, caused by the failure.

(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 30, 1970, eff. July 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Pub. L. 96—481, Â§205, Oct. 21, 1980, 94 Stat. 2330; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec. 1, 2007; Apr. 16, 2013, eff. Dec. 1, 2013; Apr. 29, 2015, eff. Dec. 1, 2015.)

Notes of Advisory Committee on Rules—1937

The provisions of this rule authorizing orders establishing facts or excluding evidence or striking pleadings, or authorizing judgments of dismissal or default, for refusal to answer questions or permit inspection or otherwise make discovery, are in accord with Hammond Packing Co. v. Arkansas , 212 U.S. 322 (1909), which distinguishes between the justifiable use of such measures as a means of compelling the production of evidence, and their unjustifiable use, as in Hovey v. Elliott , 167 U.S. 409 (1897), for the mere purpose of punishing for contempt.

Notes of Advisory Committee on Rules—1948 Amendment

The amendment substitutes the present statutory reference.

Notes of Advisory Committee on Rules—1970 Amendment

Rule 37 provides generally for sanctions against parties or persons unjustifiably resisting discovery. Experience has brought to light a number of defects in the language of the rule as well as instances in which it is not serving the purposes for which it was designed. See Rosenberg, Sanctions to Effectuate Pretrial Discovery , 58 Col.L.Rev. 480 (1958). In addition, changes being made in other discovery rules requiring conforming amendments to Rule 37.

Rule 37 sometimes refers to a "failure" to afford discovery and at other times to a "refusal" to do so. Taking note of this dual terminology, courts have imported into "refusal" a requirement of "willfulness." See Roth v. Paramount Pictures Corp ., 8 F.R.D. 31 (W.D.Pa. 1948); Campbell v. Johnson , 101 F.Supp. 705, 707 (S.D.N.Y. 1951). In Societe Internationale v. Rogers , 357 U.S. 197 (1958), the Supreme Court concluded that the rather random use of these two terms in Rule 37 showed no design to use them with consistently distinctive meanings, that "refused" in Rule 37(b)(2) meant simply a failure to comply, and that willfulness was relevant only to the selection of sanctions, if any, to be imposed. Nevertheless, after the decision in Societe , the court in Hinson v. Michigan Mutual Liability Co ., 275 F.2d 537 (5th Cir. 1960) once again ruled that "refusal" required willfulness. Substitution of "failure" for "refusal" throughout Rule 37 should eliminate this confusion and bring the rule into harmony with the Societe Internationale decision. See Rosenberg, supra , 58 Col.L.Rev. 480, 489—490 (1958).

Subdivision (a) . Rule 37(a) provides relief to a party seeking discovery against one who, with or without stated objections, fails to afford the discovery sought. It has always fully served this function in relation to depositions, but the amendments being made to Rules 33 and 34 give Rule 37(a) added scope and importance. Under existing Rule 33, a party objecting to interrogatories must make a motion for court hearing on his objections. The changes now made in Rules 33 and 37(a) make it clear that the interrogating party must move to compel answers, and the motion is provided for in Rule 37(a). Existing Rule 34, since it requires a court order prior to production of documents or things or permission to enter on land, has no relation to Rule 37(a). Amendments of Rules 34 and 37(a) create a procedure similar to that provided for Rule 33.

Subdivision (a)(1) . This is a new provision making clear to which court a party may apply for an order compelling discovery. Existing Rule 37(a) refers only to the court in which the deposition is being taken; nevertheless, it has been held that the court where the action is pending has "inherent power" to compel a party deponent to answer. Lincoln Laboratories, Inc. v. Savage Laboratories, Inc ., 27 F.R.D. 476 (D.Del. 1961). In relation to Rule 33 interrogatories and Rule 34 requests for inspection, the court where the action is pending is the appropriate enforcing tribunal. The new provision eliminates the need to resort to inherent power by spelling out the respective roles of the court where the action is pending and the court where the deposition is taken. In some instances, two courts are available to a party seeking to compel answers from a party deponent. The party seeking discovery may choose the court to which he will apply, but the court has power to remit the party to the other court as a more appropriate forum.

Subdivision (a)(2) . This subdivision contains the substance of existing provisions of Rule 37(a) authorizing motions to compel answers to questions put at depositions and to interrogatories. New provisions authorize motions for orders compelling designation under Rules 30(b)(6) and 31(a) and compelling inspection in accordance with a request made under Rule 34. If the court denies a motion, in whole or part, it may accompany the denial with issuance of a protective order. Compare the converse provision in Rule 26(c).

Subdivision (a)(3) . This new provision makes clear that an evasive or incomplete answer is to be considered, for purposes of subdivision (a), a failure to answer. The courts have consistently held that they have the power to compel adequate answers. E.g., Cone Mills Corp. v. Joseph Bancroft & Sons Co ., 33 F.R.D. 318 (D.Del. 1963). This power is recognized and incorporated into the rule.

Subdivision (a)(4) . This subdivision amends the provisions for award of expenses, including reasonable attorney's fees, to the prevailing party or person when a motion is made for an order compelling discovery. At present, an award of expenses is made only if the losing party or person is found to have acted without substantial justification. The change requires that expenses be awarded unless the conduct of the losing party or person is found to have been substantially justified. The test of "substantial justification" remains, but the change in language is intended to encourage judges to be more alert to abuses occurring in the discovery process.

On many occasions, to be sure, the dispute over discovery between the parties is genuine, though ultimately resolved one way or the other by the court. In such cases, the losing party is substantially justified in carrying the matter to court. But the rules should deter the abuse implicit in carrying or forcing a discovery dispute to court when no genuine dispute exists. And the potential or actual imposition of expenses is virtually the sole formal sanction in the rules to deter a party from pressing to a court hearing frivolous requests for or objections to discovery.

The present provision of Rule 37(a) that the court shall require payment if it finds that the defeated party acted without "substantial justification" may appear adequate, but in fact it has been little used. Only a handful of reported cases include an award of expenses, and the Columbia Survey found that in only one instance out of about 50 motions decided under Rule 37(a) did the court award expenses. It appears that the courts do not utilize the most important available sanction to deter abusive resort to the judiciary.

The proposed change provides in effect that expenses should ordinarily be awarded unless a court finds that the losing party acted justifiably in carrying his point to court. At the same time, a necessary flexibility is maintained, since the court retains the power to find that other circumstances make an award of expenses unjust—as where the prevailing party also acted unjustifiably. The amendment does not significantly narrow the discretion of the court, but rather presses the court to address itself to abusive practices. The present provision that expenses may be imposed upon either the party or his attorney or both is unchanged. But it is not contemplated that expenses will be imposed upon the attorney merely because the party is indigent.

Subdivision (b) . This subdivision deals with sanctions for failure to comply with a court order. The present captions for subsections (1) and (2) entitled, "Contempt" and "Other Consequences," respectively, are confusing. One of the consequences listed in (2) is the arrest of the party, representing the exercise of the contempt power. The contents of the subsections show that the first authorizes the sanction of contempt (and no other) by the court in which the deposition is taken, whereas the second subsection authorizes a variety of sanctions, including contempt, which may be imposed by the court in which the action is pending. The captions of the subsections are changed to deflect their contents.

The scope of Rule 37(b)(2) is broadened by extending it to include any order "to provide or permit discovery," including orders issued under Rules 37(a) and 35. Various rules authorize orders for discovery— e.g ., Rule 35 (b)(1), Rule 26(c) as revised. Rule 37(d). See Rosenberg, supra , 58 Col.L.Rev. 480, 484—486. Rule 37(b)(2) should provide comprehensively for enforcement of all these orders. Cf. Societe Internationale v. Rogers , 357 U.S. 197, 207 (1958). On the other hand, the reference to Rule 34 is deleted to conform to the changed procedure in that rule.

A new subsection (E) provides that sanctions which have been available against a party for failure to comply with an order under Rule 35(a) to submit to examination will now be available against him for his failure to comply with a Rule 35(a) order to produce a third person for examination, unless he shows that he is unable to produce the person. In this context, "unable" means in effect "unable in good faith." See Societe Internationale v. Rogers , 357 U.S. 197 (1958).

Subdivision (b)(2) is amplified to provide for payment of reasonable expenses caused by the failure to obey the order. Although Rules 37(b)(2) and 37(d) have been silent as to award of expenses, courts have nevertheless ordered them on occasion. E.g., United Sheeplined Clothing Co. v. Arctic Fur Cap Corp ., 165 F.Supp. 193 (S.D.N.Y.1958); Austin Theatre, Inc. v. Warner Bros. Picture, Inc ., 22 F.R.D. 302 (S.D.N.Y. 1958). The provision places the burden on the disobedient party to avoid expenses by showing that his failure is justified or that special circumstances make an award of expenses unjust. Allocating the burden in this way conforms to the changed provisions as to expenses in Rule 37(a), and is particularly appropriate when a court order is disobeyed.

An added reference to directors of a party is similar to a change made in subdivision (d) and is explained in the note to that subdivision. The added reference to persons designated by a party under Rules 30(b)(6) or 31(a) to testify on behalf of the party carries out the new procedure in those rules for taking a deposition of a corporation or other organization.

Subdivision (c) . Rule 37(c) provides a sanction for the enforcement of Rule 36 dealing with requests for admission. Rule 36 provides the mechanism whereby a party may obtain from another party in appropriate instances either (1) and admission, or (2) a sworn and specific denial, or (3) a sworn statement "setting forth in detail the reasons why he cannot truthfully admit or deny." If the party obtains the second or third of these responses, in proper form, Rule 36 does not provide for a pretrial hearing on whether the response is warranted by the evidence thus far accumulated. Instead, Rule 37(c) is intended to provide posttrial relief in the form of a requirement that the party improperly refusing the admission pay the expenses of the other side in making the necessary proof at trial.

Rule 37(c), as now written, addresses itself in terms only to the sworn denial and is silent with respect to the statement of reasons for an inability to admit or deny. There is no apparent basis for this distinction, since the sanction provided in Rule 37(c) should deter all unjustified failures to admit. This omission in the rule has caused confused and diverse treatment in the courts. One court has held that if a party gives inadequate reasons, he should be treated before trial as having denied the request, so that Rule 37(c) may apply. Bertha Bldg. Corp. v. National Theatres Corp ., 15 F.R.D. 339 (E.D.N.Y. 1954). Another has held that the party should be treated as having admitted the request. Heng Hsin Co. v. Stern, Morgenthau & Co ., 20 Fed.Rules Serv. 36a.52, Case 1 (S.D.N.Y. Dec. 10, 1954). Still another has ordered a new response, without indicating what the outcome should be if the new response were inadequate. United States Plywood Corp. v. Hudson Lumber Co ., 127 F.Supp. 489, 497—498 (S.D.N.Y. 1954). See generally Finman, The Request for Admissions in Federal Civil Procedure , 71 Yale L.J. 371, 426—430 (1962). The amendment eliminates this defect in Rule 37(c) by bringing within its scope all failures to admit.

Additional provisions in Rule 37(c) protect a party from having to pay expenses if the request for admission was held objectionable under Rule 36(a) or if the party failing to admit had reasonable ground to believe that he might prevail on the matter. The latter provision emphasizes that the true test under Rule 37(c) is not whether a party prevailed at trial but whether he acted reasonably in believing that he might prevail.

Subdivision (d) . The scope of subdivision (d) is broadened to include responses to requests for inspection under Rule 34, thereby conforming to the new procedures of Rule 34.

Two related changes are made in subdivision (d): the permissible sanctions are broadened to include such orders "as are just"; and the requirement that the failure to appear or respond be "willful" is eliminated. Although Rule 37(d) in terms provides for only three sanctions, all rather severe, the courts have interpreted it as permitting softer sanctions than those which it sets forth. E.g., Gill v. Stolow , 240 F.2d 669 (2d Cir. 1957); Saltzman v. Birrell , 156 F.Supp. 538 (S.D.N.Y. 1957); 2A Barron & Holtzoff, Federal Practice and Procedure 554—557 (Wright ed. 1961). The rule is changed to provide the greater flexibility as to sanctions which the cases show is needed.

The resulting flexibility as to sanctions eliminates any need to retain the requirement that the failure to appear or respond be "willful." The concept of "willful failure" is at best subtle and difficult, and the cases do not supply a bright line. Many courts have imposed sanctions without referring to willfulness. E.g., Milewski v. Schneider Transportation Co ., 238 F.2d 397 (6th Cir. 1956); Dictograph Products, Inc. v. Kentworth Corp ., 7 F.R.D. 543 (W.D.Ky. 1947). In addition, in view of the possibility of light sanctions, even a negligent failure should come within Rule 37(d). If default is caused by counsel's ignorance of Federal practice, cf. Dunn. v. Pa. R.R ., 96 F. Supp. 597 (N.D.Ohio 1951), or by his preoccupation with another aspect of the case, cf. Maurer-Neuer, Inc. v. United Packinghouse Workers , 26 F.R.D. 139 (D.Kans. 1960), dismissal of the action and default judgment are not justified, but the imposition of expenses and fees may well be. "Willfulness" continues to play a role, along with various other factors, in the choice of sanctions. Thus, the scheme conforms to Rule 37(b) as construed by the Supreme Court in Societe Internationale v. Rogers , 357 U.S. 197, 208 (1958).

A provision is added to make clear that a party may not properly remain completely silent even when he regards a notice to take his deposition or a set of interrogatories or requests to inspect as improper and objectionable. If he desires not to appear or not to respond, he must apply for a protective order. The cases are divided on whether a protective order must be sought. Compare Collins v. Wayland , 139 F.2d 677 (9th Cir. 1944), cert. den . 322 U.S. 744; Bourgeois v. El Paso Natural Gas Co ., 20 F.R.D. 358 (S.D.N.Y. 1957); Loosley v. Stone , 15 F.R.D. 373 (S.D.Ill. 1954), with Scarlatos v. Kulukundis , 21 F.R.D. 185 (S.D.N.Y. 1957); Ross v. True Temper Corp ., 11 F.R.D 307 (N.D.Ohio 1951). Compare also Rosenberg, supra , 58 Col.L.Rev. 480, 496 (1958) with 2A Barron & Holtzoff, Federal Practice and Procedure 530—531 (Wright ed. 1961). The party from whom discovery is sought is afforded, through Rule 26(c), a fair and effective procedure whereby he can challenge the request made. At the same time, the total non-compliance with which Rule 37(d) is concerned may impose severe inconvenience or hardship on the discovering party and substantially delay the discovery process. Cf . 2B Barron & Holtzoff, Federal Practice and Procedure 306—307 (Wright ed. 1961) (response to a subpoena).

The failure of an officer or managing agent of a party to make discovery as required by present Rule 37(d) is treated as the failure of the party. The rule as revised provides similar treatment for a director of a party. There is slight warrant for the present distinction between officers and managing agents on the one hand and directors on the other. Although the legal power over a director to compel his making discovery may not be as great as over officers or managing agents, Campbell v. General Motors Corp ., 13 F.R.D. 331 (S.D.N.Y. 1952), the practical differences are negligible. That a director's interests are normally aligned with those of his corporation is shown by the provisions of old Rule 26(d)(2), transferred to 32(a)(2) (deposition of director of party may be used at trial by an adverse party for any purpose) and of Rule 43(b) (director of party may be treated at trial as a hostile witness on direct examination by any adverse party). Moreover, in those rare instances when a corporation is unable through good faith efforts to compel a director to make discovery, it is unlikely that the court will impose sanctions. Cf. Societe Internationale v. Rogers , 357 U.S. 197 (1958).

Subdivision (e) . The change in the caption conforms to the language of 28 U.S.C. §1783, as amended in 1964.

Subdivision (f) . Until recently, costs of a civil action could be awarded against the United States only when expressly provided by Act of Congress, and such provision was rarely made. See H.R.Rept.No. 1535, 89th Cong., 2d Sess., 2—3 (1966). To avoid any conflict with this doctrine, Rule 37(f) has provided that expenses and attorney's fees may not be imposed upon the United States under Rule 37. See 2A Barron & Holtzoff, Federal Practice and Procedure 857 (Wright ed. 1961).

A major change in the law was made in 1966, 80 Stat. 308, 28 U.S.C. §2412 (1966), whereby a judgment for costs may ordinarily be awarded to the prevailing party in any civil action brought by or against the United States. Costs are not to include the fees and expenses of attorneys. In light of this legislative development, Rule 37(f) is amended to permit the award of expenses and fees against the United States under Rule 37, but only to the extent permitted by statute. The amendment brings Rule 37(f) into line with present and future statutory provisions.

Notes of Advisory Committee on Rules—1980 Amendment

Subdivision (b)(2) . New Rule 26(f) provides that if a discovery conference is held, at its close the court shall enter an order respecting the subsequent conduct of discovery. The amendment provides that the sanctions available for violation of other court orders respecting discovery are available for violation of the discovery conference order.

Subdivision (e) . Subdivision (e) is stricken. Title 28, U.S.C. Â§1783 no longer refers to sanctions. The subdivision otherwise duplicates Rule 45(e)(2).

Subdivision (g) . New Rule 26(f) imposes a duty on parties to participate in good faith in the framing of a discovery plan by agreement upon the request of any party. This subdivision authorizes the court to award to parties who participate in good faith in an attempt to frame a discovery plan the expenses incurred in the attempt if any party or his attorney fails to participate in good faith and thereby causes additional expense.

Failure of United States to Participate in Good Faith in Discovery . Rule 37 authorizes the court to direct that parties or attorneys who fail to participate in good faith in the discovery process pay the expenses, including attorney's fees, incurred by other parties as a result of that failure. Since attorneys' fees cannot ordinarily be awarded against the United States (28 U.S.C. §2412), there is often no practical remedy for the misconduct of its officers and attorneys. However, in the case of a government attorney who fails to participate in good faith in discovery, nothing prevents a court in an appropriate case from giving written notification of that fact to the Attorney General of the United States and other appropriate heads of offices or agencies thereof.

Notes of Advisory Committee on Rules—1987 Amendment

The amendments are technical. No substantive change is intended.

Notes of Advisory Committee on Rules—1993 Amendment

Subdivision (a) . This subdivision is revised to reflect the revision of Rule 26(a), requiring disclosure of matters without a discovery request.

Pursuant to new subdivision (a)(2)(A), a party dissatisfied with the disclosure made by an opposing party may under this rule move for an order to compel disclosure. In providing for such a motion, the revised rule parallels the provisions of the former rule dealing with failures to answer particular interrogatories. Such a motion may be needed when the information to be disclosed might be helpful to the party seeking the disclosure but not to the party required to make the disclosure. If the party required to make the disclosure would need the material to support its own contentions, the more effective enforcement of the disclosure requirement will be to exclude the evidence not disclosed, as provided in subdivision (c)(1) of this revised rule.

Language is included in the new paragraph and added to the subparagraph (B) that requires litigants to seek to resolve discovery disputes by informal means before filing a motion with the court. This requirement is based on successful experience with similar local rules of court promulgated pursuant to Rule 83.

The last sentence of paragraph (2) is moved into paragraph (4).

Under revised paragraph (3), evasive or incomplete disclosures and responses to interrogatories and production requests are treated as failures to disclose or respond. Interrogatories and requests for production should not be read or interpreted in an artificially restrictive or hypertechnical manner to avoid disclosure of information fairly covered by the discovery request, and to do so is subject to appropriate sanctions under subdivision (a).

Revised paragraph (4) is divided into three subparagraphs for ease of reference, and in each the phrase "after opportunity for hearing" is changed to "after affording an opportunity to be heard" to make clear that the court can consider such questions on written submissions as well as on oral hearings.

Subparagraph (A) is revised to cover the situation where information that should have been produced without a motion to compel is produced after the motion is filed but before it is brought on for hearing. The rule also is revised to provide that a party should not be awarded its expenses for filing a motion that could have been avoided by conferring with opposing counsel.

Subparagraph (C) is revised to include the provision that formerly was contained in subdivision (a)(2) and to include the same requirement of an opportunity to be heard that is specified in subparagraphs (A) and (B).

Subdivision (c) . The revision provides a self-executing sanction for failure to make a disclosure required by Rule 26(a), without need for a motion under subdivision (a)(2)(A).

Paragraph (1) prevents a party from using as evidence any witnesses or information that, without substantial justification, has not been disclosed as required by Rules 26(a) and 26(e)(1). This automatic sanction provides a strong inducement for disclosure of material that the disclosing party would expect to use as evidence, whether at a trial, at a hearing, or on a motion, such as one under Rule 56. As disclosure of evidence offered solely for impeachment purposes is not required under those rules, this preclusion sanction likewise does not apply to that evidence.

Limiting the automatic sanction to violations "without substantial justification," coupled with the exception for violations that are "harmless," is needed to avoid unduly harsh penalties in a variety of situations: e.g ., the inadvertent omission from a Rule 26(a)(1)(A) disclosure of the name of a potential witness known to all parties; the failure to list as a trial witness a person so listed by another party; or the lack of knowledge of a pro se litigant of the requirement to make disclosures. In the latter situation, however, exclusion would be proper if the requirement for disclosure had been called to the litigant's attention by either the court or another party.

Preclusion of evidence is not an effective incentive to compel disclosure of information that, being supportive of the position of the opposing party, might advantageously be concealed by the disclosing party. However, the rule provides the court with a wide range of other sanctions—such as declaring specified facts to be established, preventing contradictory evidence, or, like spoliation of evidence, allowing the jury to be informed of the fact of nondisclosure—that, though not self-executing, can be imposed when found to be warranted after a hearing. The failure to identify a witness or document in a disclosure statement would be admissible under the Federal Rules of Evidence under the same principles that allow a party's interrogatory answers to be offered against it.

Subdivision (d) . This subdivision is revised to require that, where a party fails to file any response to interrogatories or a Rule 34 request, the discovering party should informally seek to obtain such responses before filing a motion for sanctions.

The last sentence of this subdivision is revised to clarify that it is the pendency of a motion for protective order that may be urged as an excuse for a violation of subdivision (d). If a party's motion has been denied, the party cannot argue that its subsequent failure to comply would be justified. In this connection, it should be noted that the filing of a motion under Rule 26(c) is not self-executing—the relief authorized under that rule depends on obtaining the court's order to that effect.

Subdivision (g) . This subdivision is modified to conform to the revision of Rule 26(f).

Committee Notes on Rules—2000 Amendment

Subdivision (c)(1) . When this subdivision was added in 1993 to direct exclusion of materials not disclosed as required, the duty to supplement discovery responses pursuant to Rule 26(e)(2) was omitted. In the face of this omission, courts may rely on inherent power to sanction for failure to supplement as required by Rule 26(e)(2), see 8 Federal Practice & Procedure §2050 at 607—09, but that is an uncertain and unregulated ground for imposing sanctions. There is no obvious occasion for a Rule 37(a) motion in connection with failure to supplement, and ordinarily only Rule 37(c)(1) exists as rule-based authority for sanctions if this supplementation obligation is violated.

The amendment explicitly adds failure to comply with Rule 26(e)(2) as a ground for sanctions under Rule 37(c)(1), including exclusion of withheld materials. The rule provides that this sanction power only applies when the failure to supplement was "without substantial justification." Even if the failure was not substantially justified, a party should be allowed to use the material that was not disclosed if the lack of earlier notice was harmless.

"Shall" is replaced by "is" under the program to conform amended rules to current style conventions when there is no ambiguity.

GAP Report . The Advisory Committee recommends that the published amendment proposal be modified to state that the exclusion sanction can apply to failure "to amend a prior response to discovery as required by Rule 26(e)(2)." In addition, one minor phrasing change is recommended for the Committee Note.

Committee Notes on Rules—2006 Amendment

Subdivision (f) . Subdivision (f) is new. It focuses on a distinctive feature of computer operations, the routine alteration and deletion of information that attends ordinary use. Many steps essential to computer operation may alter or destroy information, for reasons that have nothing to do with how that information might relate to litigation. As a result, the ordinary operation of computer systems creates a risk that a party may lose potentially discoverable information without culpable conduct on its part. Under Rule 37(f), absent exceptional circumstances, sanctions cannot be imposed for loss of electronically stored information resulting from the routine, good-faith operation of an electronic information system.

Rule 37(f) applies only to information lost due to the "routine operation of an electronic information system"—the ways in which such systems are generally designed, programmed, and implemented to meet the party's technical and business needs. The "routine operation" of computer systems includes the alteration and overwriting of information, often without the operator's specific direction or awareness, a feature with no direct counterpart in hard-copy documents. Such features are essential to the operation of electronic information systems.

Rule 37(f) applies to information lost due to the routine operation of an information system only if the operation was in good faith. Good faith in the routine operation of an information system may involve a party's intervention to modify or suspend certain features of that routine operation to prevent the loss of information, if that information is subject to a preservation obligation. A preservation obligation may arise from many sources, including common law, statutes, regulations, or a court order in the case. The good faith requirement of Rule 37(f) means that a party is not permitted to exploit the routine operation of an information system to thwart discovery obligations by allowing that operation to continue in order to destroy specific stored information that it is required to preserve. When a party is under a duty to preserve information because of pending or reasonably anticipated litigation, intervention in the routine operation of an information system is one aspect of what is often called a "litigation hold." Among the factors that bear on a party's good faith in the routine operation of an information system are the steps the party took to comply with a court order in the case or party agreement requiring preservation of specific electronically stored information.

Whether good faith would call for steps to prevent the loss of information on sources that the party believes are not reasonably accessible under Rule 26(b)(2) depends on the circumstances of each case. One factor is whether the party reasonably believes that the information on such sources is likely to be discoverable and not available from reasonably accessible sources.

The protection provided by Rule 37(f) applies only to sanctions "under these rules." It does not affect other sources of authority to impose sanctions or rules of professional responsibility.

This rule restricts the imposition of "sanctions." It does not prevent a court from making the kinds of adjustments frequently used in managing discovery if a party is unable to provide relevant responsive information. For example, a court could order the responding party to produce an additional witness for deposition, respond to additional interrogatories, or make similar attempts to provide substitutes or alternatives for some or all of the lost information.

Changes Made after Publication and Comment . The published rule barred sanctions only if the party who lost electronically stored information took reasonable steps to preserve the information after it knew or should have known the information was discoverable in the action. A footnote invited comment on an alternative standard that barred sanctions unless the party recklessly or intentionally failed to preserve the information. The present proposal establishes an intermediate standard, protecting against sanctions if the information was lost in the "good faith" operation of an electronic information system. The present proposal carries forward a related element that was a central part of the published proposal—the information must have been lost in the system's "routine operation." The change to a good-faith test made it possible to eliminate the reference to information "discoverable in the action," removing a potential source of confusion as to the duty to preserve information on sources that are identified as not reasonably accessible under Rule 26(b)(2)(B).

The change to a good-faith standard is accompanied by addition of a provision that permits sanctions for loss of information in good- faith routine operation in "exceptional circumstances." This provision recognizes that in some circumstances a court should provide remedies to protect an entirely innocent party requesting discovery against serious prejudice arising from the loss of potentially important information.

As published, the rule included an express exception that denied protection if a party "violated an order in the action requiring it to preserve electronically stored information." This exception was deleted for fear that it would invite routine applications for preservation orders, and often for overbroad orders. The revised Committee Note observes that violation of an order is an element in determining whether a party acted in good faith.

The revised proposal broadens the rule's protection by applying to operation of "an" electronic information system, rather than "the party's" system. The change protects a party who has contracted with an outside firm to provide electronic information storage, avoiding potential arguments whether the system can be characterized as "the party's." The party remains obliged to act in good faith to avoid loss of information in routine operations conducted by the outside firm.

The Committee Note is changed to reflect the changes in the rule text.

The changes from the published version of the proposed rule text are set out below. [Omitted]

Committee Notes on Rules—2007 Amendment

The language of Rule 37 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.

Changes Made After Publication and Comment . See Note to Rule 1, supra.

Committee Notes on Rules—2013 Amendment

Rule 37(b) is amended to conform to amendments made to Rule 45, particularly the addition of Rule 45(f) providing for transfer of a subpoena-related motion to the court where the action is pending. A second sentence is added to Rule 37(b)(1) to deal with contempt of orders entered after such a transfer. The Rule 45(f) transfer provision is explained in the Committee Note to Rule 45.

Changes Made After Publication and Comment . No changes were made after publication and comment.

Amendment by Public Law

1980 —Subd. (f). Pub. L. 96—481 repealed subd. (f) which provided that except to the extent permitted by statute, expenses and fees may not be awarded against the United States under this rule.

Effective Date of 1980 Amendment

Amendment by Pub. L. 96—481 effective Oct. 1, 1981, and applicable to adversary adjudication defined in section 504(b)(1)(C) of Title 5, and to civil actions and adversary adjudications described in section 2412 of Title 28, Judiciary and Judicial Procedure, which are pending on, or commenced on or after Oct. 1, 1981, see section 208 of Pub. L. 96—481, set out as an Effective Date note under section 504 of Title 5, Government Organization and Employees.

Committee Notes on Rules—2015 Amendment

Subdivision (a). Rule 37(a)(3)(B)(iv) is amended to reflect the common practice of producing copies of documents or electronically stored information rather than simply permitting inspection. This change brings item (iv) into line with paragraph (B), which provides a motion for an order compelling “production, or inspection.”

Subdivision (e). Present Rule 37(e), adopted in 2006, provides: “Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.” This limited rule has not adequately addressed the serious problems resulting from the continued exponential growth in the volume of such information. Federal circuits have established significantly different standards for imposing sanctions or curative measures on parties who fail to preserve electronically stored information. These developments have caused litigants to expend excessive effort and money on preservation in order to avoid the risk of severe sanctions if a court finds they did not do enough.

New Rule 37(e) replaces the 2006 rule. It authorizes and specifies measures a court may employ if information that should have been preserved is lost, and specifies the findings necessary to justify these measures. It therefore forecloses reliance on inherent authority or state law to determine when certain measures should be used. The rule does not affect the validity of an independent tort claim for FEDERAL RULES OF CIVIL PROCEDURE 39 spoliation if state law applies in a case and authorizes the claim.

The new rule applies only to electronically stored information, also the focus of the 2006 rule. It applies only when such information is lost. Because electronically stored information often exists in multiple locations, loss from one source may often be harmless when substitute information can be found elsewhere. The new rule applies only if the lost information should have been preserved in the anticipation or conduct of litigation and the party failed to take reasonable steps to preserve it. Many court decisions hold that potential litigants have a duty to preserve relevant information when litigation is reasonably foreseeable. Rule 37(e) is based on this common-law duty; it does not attempt to create a new duty to preserve. The rule does not apply when information is lost before a duty to preserve arises.

In applying the rule, a court may need to decide whether and when a duty to preserve arose. Courts should consider the extent to which a party was on notice that litigation was likely and that the information would be relevant. A variety of events may alert a party to the prospect of litigation. Often these events provide only limited information about that prospective litigation, however, so that the scope of information that should be preserved may remain uncertain. It is important not to be blinded to this reality by hindsight arising from familiarity with an action as it is actually filed.

Although the rule focuses on the common-law obligation to preserve in the anticipation or conduct of litigation, courts may sometimes consider whether there was an independent requirement that the lost information be preserved. Such requirements arise from many sources — statutes, administrative regulations, an order in another case, or a party’s own information-retention protocols. The court should be sensitive, however, to the fact that such independent preservation requirements may be addressed to a wide variety of concerns unrelated to the current litigation. The fact that a party had an independent obligation to preserve information does not necessarily mean that it had such a duty with respect to the litigation, and the fact that the party failed to observe some other preservation obligation does not itself prove that its efforts to preserve were not reasonable with respect to a particular case.

The duty to preserve may in some instances be triggered or clarified by a court order in the case. Preservation orders may become more common, in part because Rules 16(b)(3)(B)(iii) and 26(f)(3)(C) are amended to encourage discovery plans and orders that address preservation. Once litigation has commenced, if the parties cannot reach agreement about preservation issues, promptly seeking judicial guidance about the extent of reasonable preservation may be important.

The rule applies only if the information was lost because the party failed to take reasonable steps to preserve the information. Due to the ever-increasing volume of electronically stored information and the multitude of devices that generate such information, perfection in preserving all relevant electronically stored information is often impossible. As under the current rule, the routine, good-faith operation of an electronic information system would be a relevant factor for the court to consider in evaluating whether a party failed to take reasonable steps to preserve lost information, although the prospect of litigation may call for reasonable steps to preserve information by intervening in that routine operation. This rule recognizes that “reasonable steps” to preserve suffice; it does not call for perfection. The court should be sensitive to the party’s sophistication with regard to litigation in evaluating preservation efforts; some litigants, particularly individual litigants, may be less familiar with preservation obligations than others who have considerable experience in litigation.

Because the rule calls only for reasonable steps to preserve, it is inapplicable when the loss of information occurs despite the party’s reasonable steps to preserve. For example, the information may not be in the party’s control. Or information the party has preserved may be destroyed by events outside the party’s control — the computer room may be flooded, a “cloud” service may fail, a malign software attack may disrupt a storage system, and so on. Courts may, however, need to assess the extent to which a party knew of and protected against such risks.

Another factor in evaluating the reasonableness of preservation efforts is proportionality. The court should be sensitive to party resources; aggressive preservation efforts can be extremely costly, and parties (including governmental parties) may have limited staff and resources to devote to those efforts. A party may act reasonably by choosing a less costly form of information preservation, if it is substantially as effective as more costly forms. It is important that counsel become familiar with their clients’ information systems and digital data — including social media — to address these issues. A party urging that preservation requests are disproportionate may need to provide specifics about these matters in order to enable meaningful discussion of the appropriate preservation regime.

When a party fails to take reasonable steps to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation, and the information is lost as a result, Rule 37(e) directs that the initial focus should be on whether the lost information can be restored or replaced through additional discovery. Nothing in the rule limits the court’s powers under Rules 16 and 26 to authorize additional discovery. Orders under Rule 26(b)(2)(B) regarding discovery from sources that would ordinarily be considered inaccessible or under Rule 26(c)(1)(B) on allocation of expenses may be pertinent to solving such problems. If the information is restored or replaced, no further measures should be taken. At the same time, it is important to emphasize that efforts to restore or replace lost information through discovery should be proportional to the apparent importance of the lost information to claims or defenses in the litigation. For example, substantial measures should not be employed to restore or replace information that is marginally relevant or duplicative.

Subdivision (e)(1). This subdivision applies only if information should have been preserved in the anticipation or conduct of litigation, a party failed to take reasonable steps to preserve the information, information was lost as a result, and the information could not be restored or replaced by additional discovery. In addition, a court may resort to (e)(1) measures only “upon finding prejudice to another party from loss of the information.” An evaluation of prejudice from the loss of information necessarily includes an evaluation of the information’s importance in the litigation.

The rule does not place a burden of proving or disproving prejudice on one party or the other. Determining the content of lost information may be a difficult task in some cases, and placing the burden of proving prejudice on the party that did not lose the information may be unfair. In other situations, however, the content of the lost information may be fairly evident, the information may appear to be unimportant, or the abundance of preserved information may appear sufficient to meet the needs of all parties. Requiring the party seeking curative measures to prove prejudice may be reasonable in such situations. The rule leaves judges with discretion to determine how best to assess prejudice in particular cases.

Once a finding of prejudice is made, the court is authorized to employ measures “no greater than necessary to cure the prejudice.” The range of such measures is quite broad if they are necessary for this purpose. There is no all-purpose hierarchy of the severity of various measures; the severity of given measures must be calibrated in terms of their effect on the particular case. But authority to order measures no greater than necessary to cure prejudice does not require the court to adopt measures to cure every possible prejudicial effect. Much is entrusted to the court’s discretion.

In an appropriate case, it may be that serious measures are necessary to cure prejudice found by the court, such as forbidding the party that failed to preserve information from putting on certain evidence, permitting the parties to present evidence and argument to the jury regarding the loss of information, or giving the jury instructions to assist in its evaluation of such evidence or argument, other than instructions to which subdivision (e)(2) applies. Care must be taken, however, to ensure that curative measures under subdivision (e)(1) do not have the effect of measures that are permitted under subdivision (e)(2) only on a finding of intent to deprive another party of the lost information’s use in the litigation. An example of an inappropriate (e)(1) measure might be an order striking pleadings related to, or precluding a party from offering any evidence in support of, the central or only claim or defense in the case. On the other hand, it may be appropriate to exclude a specific item of evidence to offset prejudice caused by failure to preserve other evidence that might contradict the excluded item of evidence.

Subdivision (e)(2). This subdivision authorizes courts to use specified and very severe measures to address or deter failures to preserve electronically stored information, but only on finding that the party that lost the information acted with the intent to deprive another party of the information’s use in the litigation. It is designed to provide a uniform standard in federal court for use of these serious measures when addressing failure to preserve electronically stored information. It rejects cases such as Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99 (2d Cir. 2002), that authorize the giving of adverse-inference instructions on a finding of negligence or gross negligence.

Adverse-inference instructions were developed on the premise that a party’s intentional loss or destruction of evidence to prevent its use in litigation gives rise to a reasonable inference that the evidence was unfavorable to the party responsible for loss or destruction of the evidence. Negligent or even grossly negligent behavior does not logically support that inference. Information lost through negligence may have been favorable to either party, including the party that lost it, and inferring that it was unfavorable to that party may tip the balance at trial in ways the lost information never would have. The better rule for the negligent or grossly negligent loss of electronically stored information is to preserve a broad range of measures to cure prejudice caused by its loss, but to limit the most severe measures to instances of intentional loss or destruction.

Similar reasons apply to limiting the court’s authority to presume or infer that the lost information was unfavorable to the party who lost it when ruling on a pretrial motion or presiding at a bench trial. Subdivision (e)(2) limits the ability of courts to draw adverse inferences based on the loss of information in these circumstances, permitting them only when a court finds that the information was lost with the intent to prevent its use in litigation.

Subdivision (e)(2) applies to jury instructions that permit or require the jury to presume or infer that lost information was unfavorable to the party that lost it. Thus, it covers any instruction that directs or permits the jury to infer from the loss of information that it was in fact unfavorable to the party that lost it. The subdivision does not apply to jury instructions that do not involve such an inference. For example, subdivision (e)(2) would not prohibit a court from allowing the parties to present evidence to the jury concerning the loss and likely relevance of information and instructing the jury that it may consider that evidence, along with all the other evidence in the case, in making its decision. These measures, which would not involve instructing a jury it may draw an adverse inference from loss of information, would be available under subdivision (e)(1) if no greater than necessary to cure prejudice. In addition, subdivision (e)(2) does not limit the discretion of courts to give traditional missing evidence instructions based on a party’s failure to present evidence it has in its possession at the time of trial.

Subdivision (e)(2) requires a finding that the party acted with the intent to deprive another party of the information’s use in the litigation. This finding may be made by the court when ruling on a pretrial motion, when presiding at a bench trial, or when deciding whether to give an adverse inference instruction at trial. If a court were to conclude that the intent finding should be made by a jury, the court’s instruction should make clear that the jury may infer from the loss of the information that it was unfavorable to the party that lost it only if the jury first finds that the party acted with the intent to deprive another party of the information’s use in the litigation. If the jury does not make this finding, it may not infer from the loss that the information was unfavorable to the party that lost it.

Subdivision (e)(2) does not include a requirement that the court find prejudice to the party deprived of the information. This is because the finding of intent required by the subdivision can support not only an inference that the lost information was unfavorable to the party that intentionally destroyed it, but also an inference that the opposing party was prejudiced by the loss of information that would have favored its position. Subdivision (e)(2) does not require any further finding of prejudice.

Courts should exercise caution, however, in using the measures specified in (e)(2). Finding an intent to deprive another party of the lost information’s use in the litigation does not require a court to adopt any of the measures listed in subdivision (e)(2). The remedy should fit the wrong, and the severe measures authorized by this subdivision should not be used when the information lost was relatively unimportant or lesser measures such as those specified in subdivision (e)(1) would be sufficient to redress the loss.

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