October 2019

Click cover image to download full 48-page issue (PDF file at 4.7 MB).

View the “Civil Procedure” issue of Communiqué* (October 2019), the official publication of the Clark County Bar Association. See features written by members of Nevada’s legal community listed as follows:

Additional content may be found in the 48 pages of the full color issue of the publication (print and PDF versions), including these special features:

    • Get Involved with the CCBA” By Clark County Bar President Jason P. Stoffel
    • View from the Bench: “Exhaustive Rule Review Results in New NRCP” By Chief Justice Mark Gibbons and Associate Chief Justice Kristina Pickering
    • Bar Business
    • Member Moves
    • New Members
    • CCBA CLE Article #7
    • CCBA Membership Benefits & Services
    • The Marketplace

Special thanks to the following businesses for their support of Communiqué (October 2019):

Note in regards to CCBA Article #7: The Clark County Bar Association (CCBA) will offer 1.0 Ethics Continuing Legal Education (CLE) Credit (for 2019) to Nevada lawyers who read the article, complete the accompanying test, and make payment to Clark County Bar Association, 717 South 8th Street, Las Vegas, Nevada, 89101, and per the offer described in the print and PDF versions of the October 2019 issue of Communiqué (see pages 30-38). CCBA is an Accredited Provider with the NV CLE Board.

© 2019 Communiqué, Clark County Bar Association. The content on this page was originally published in October 2019 issue of Communiqué*, the official publication of the Clark County Bar Association. All rights reserved. For permission to reprint this content, contact the publisher Clark County Bar Association, 717 S. 8th Street, Las Vegas, NV 89101. Phone: (702) 387-6011.


Courthouse Cricket: Discovery Missteps and the Duty of Candor to the Tribunal

Ryan Semerad, Esq.

By Jessica Whelan, Esq. and Ryan Semerad, Esq.

Jessica Whelan, Esq.

We are all familiar with the tale of Pinocchio from when we were children—a boy marionette made of wood lives with his creator, an old Italian guy, who wishes upon a star that he would come to life. A fairy grants the wish and appoints a dapper insect to follow and guide the now self-aware-but-not-yet-real talking wooden boy and serve as his conscience. As if this is not enough to turn a young boy into a social pariah, oh yeah, his nose grows every time he tells a lie.

Looking back on this story as adults, we can only help but think one (well, maybe two) things: (1) what kind of sick person came up with that plot; and (2) wouldn’t it help us as lawyers if it were always so easy to tell when someone (think clients, opposing counsel, etc.) was lying? Which brings us to the ethics topic of the moment—Rule 3.3(a)(1)’s mandate that a lawyer not knowingly “[m]ake a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.”

Lawyers rarely get nabbed for committing the first type of violation under Rule 3.3(a)(1)—knowingly making a false statement to a tribunal—but it does happen. For example, in Valley Health Sys., LLC v. Estate of Doe, 134 Nev. Adv. Op. No. 76, 427 P.3d 1021 (2018), a case involving an employee’s alleged sexual assault of a medical patient, the employee had been suspected of assaulting a patient in the past, and these suspicions had been shared with law enforcement by other hospital employees. However, after the plaintiff filed her complaint, the hospital did not identify the employees who provided statements to law enforcement in the plaintiff’s initial disclosures. Further, the hospital, through its attorneys, opposed the plaintiff’s motion for summary judgment in part on the grounds there were no prior known acts of the employee that would have put the hospital on notice of the employee’s misconduct. The Nevada Supreme Court considered the district court’s sanction order, which found the hospital’s counsel (1) willfully violated its discovery obligations under NRCP 16.1 for failing to disclose material witnesses and evidence of which counsel was aware, and (2) violated Rule 3.3(a)(1) by incorrectly representing that they had not withheld any relevant evidence. The district court awarded monetary sanctions and struck the defendant’s answer as sanctions for this misconduct.

On a petition for writ of mandamus, defense counsel argued that the district court improperly issued a reputational sanction against counsel for violation of Rule 3.3(a)(1), in part because counsel’s statements were “argument intertwined with opinion.” The Nevada Supreme Court rejected this argument, finding counsel’s representation in summary judgment briefing that no evidence existed to put their client on notice that the alleged sexual assault was foreseeable was a knowing false statement of fact in violation of Rule 3.3(a)(1). The Court ultimately affirmed the district court’s sanction order and denied writ relief to defense counsel.

Since the Valley Health decision, the Supreme Court has affirmed both monetary and reputational sanctions issued against lawyers by district courts, signaling that it supports the district court’s authority to issue such sanctions and that it, in addition to district courts, will continue to take ethical violations seriously.

The lesson of Valley Health? Violations of the Nevada Rules of Civil Procedure and misrepresentations of fact ostensibly couched as argument can lead to harsh consequences for clients and reputational (and even monetary) sanctions for lawyers. Lawyers should be as diligent and as thorough as possible when making disclosures to opposing parties and when they make arguments to the court so as not to intentionally (or otherwise) misrepresent the facts of their case. And, if a lawyer later becomes aware that a factual misstatement has been made in the course of litigation, Rule 3.3(a)(1) mandates that the lawyer correct the false statement.

As far as we are aware, none of the Nevada lawyers reading this article are made of wood. As real boys and girls, we do not have a growing nose or a wise old cricket to guide us in meeting our duty of candor to the tribunal. However, we do have the Rules of Professional Conduct and case law to alert us to the fact that Nevada courts are taking the candor obligation seriously. It is therefore imperative that we use best practices to protect ourselves and our clients. And always let your conscience be your guide.

About the authors

Jessica Whelan is a 2012 graduate of Harvard Law School and Ryan Semerad is a 2016 graduate of The Ohio State University Moritz College of Law. Both are former judicial clerks and practice in Holland & Hart’s Las Vegas office in commercial/appellate litigation and professional ethics.


NRCP 23: The Recent Additions and Underutilized Features

Michael J. Gayan, Esq.

By Michael J. Gayan, Esq.

Perhaps you’ve heard that we’re now operating under amended Nevada Rules of Civil Procedure. Because they apply to virtually every case, the changes to Rules 6, 16.1, 26, 30, 56, and 68, among others, have rightfully received a lot of attention. With some notable exceptions, Nevada’s amended rules largely mirror their federal counterparts. Rule 23, which governs class actions, is one of those exceptions.

Rule 23 Amendments

Amended Rule 23’s content is mostly unchanged except for two new provisions: 23(b) and 23(d)(2). Rule 23(b) authorizes the aggregation of class members’ claims in order to reach the jurisdictional threshold. This change abrogates a recent decision, which declined—albeit in dicta—to permit such aggregation. See Castillo v. United Federal Credit Union, 409 P.3d 54 (Nev. 2018).

Rule 23(d)(2) does two things: (1) prevents the rejection of a Rule 68 offer from adversely impacting the adequacy of a class representative, and (2) permits the substitution of a class representative when a party is unable or unwilling to continue in that role.

Benefits of Rule 23 Amendments

Rule 23(b)’s aggregation of class members’ damages makes sense for two main reasons. First, it’s consistent with how federal courts handle aggregation under FRCP 23 and the Class Action Fairness Act, 28 U.S.C. §§ 1332(d), 1453, 1711-1715. Second, this mandate ensures that large, complex class actions remain in Nevada’s district courts, which are better equipped to handle such cases.

The Rule 23(d)(2) additions, while not new concepts, should eliminate or at least disincentivize certain potentially time-consuming litigation tactics in class actions.

Rule 23’s Breadth and Flexibility

Any lawyer who has litigated class actions can rattle off the basic requirements: numerosity, commonality, typicality, adequacy and, for damages classes, predominance and superiority. There’s plenty of complexity to these issues, but that’s for another day.

This article focuses on some potentially overlooked and underutilized aspects of Rule 23 that make the rule a powerful tool in resolving complex class actions. For example, have you ever considered seeking a defendant class? In addition to allowing a plaintiff to represent other similarly situated individuals, Rule 23 allows one or more members of a class to “be sued as representative parties on behalf of all[.]” Nev. R. Civ. P. 23(a). While unusual, a defendant class may be an efficient tool when one class has damaged another class (e.g., illegal Ponzi/pyramid schemes).

Rule 23 contains two more features that substantially bolster its utility and flexibility. Buried in the middle of the rule, a brief subsection allows the use of issue classes and subclasses. See Nev. R. Civ. P. 23(d)(5). Both of these devices afford parties and the courts numerous options when considering class certification in complex cases. For example, if the court has concerns with the plaintiff’s damages model, it may certify a liability-only class with damages handled via mini-trials, appointment of a special master, or other options. See Carnegie v. Household Int’l, Inc., 376 F.3d 656 (7th Cir. 2004); In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124 (2d Cir. 2001).

Possibly its most powerful mechanism for resolving complex class actions, Rule 23 allows certification of subclasses. Rather than denying certification due to differences between class members, a court may certify subclasses grouping the overall class into subparts that each meet the Rule 23 requirements. Subclasses offer flexibility for various situations, including for products with different models, when damages vary over time, and when some class members have claims against fewer than all defendants.

In addition to providing certification options, subclasses double as excellent settlement and trial tools. The In re Kitec Fitting Litigation, Eighth Judicial District Court Case No. A493302 (Williams, J.), provides a prime example. That certified class involved 35,000 members and 60 defendants, with only some defendants facing claims from all class members. Most defendants faced claims from groups of 50 to many thousands of class members. Over the course of the case, the court certified more than 50 settlement subclasses in various configurations based on defendants and dates. This process allowed defendants to exit and most class members to obtain relief without waiting for a global resolution of the case. The court also certified subclasses for trial purposes and presided over two subclass trials. The court’s deft use of subclasses greatly simplified case management and facilitated an efficient resolution to that complex class action.

Rule 23’s powerful tools and new features, combined with some creativity, increase the chances of class claims being resolved on their merits rather than failing due to—or being weakened by—procedural pitfalls.

About the author

Michael J. Gayan, Esq. is a partner at Kemp, Jones & Coulthard, LLP. His litigation practice focuses on class actions, complex commercial disputes, product liability, construction defects, and personal injury.


Nevada Appellate Procedure: A Step-By-Step Guide

By Eric D. Walther, Esq.

Eric D. Walther, Esq.

Nevada’s unique appellate rules can overwhelm even the most seasoned district court litigators. The purpose of this article is to provide a step-by-step guide for filing a basic civil appeal in Nevada. Although this article does not cover all of the nuances of appellate procedure, it should provide a good framework for getting started.

Step 1: Notice of Appeal and Case Appeal Statement

An appeal begins with the filing of a notice of appeal in the district court. The notice of appeal must be filed within 30 days after service of the written notice of entry of the judgment or order being appealed. NRAP 4(a)(1). The notice of appeal must contain the information outlined in NRAP 3(c), including each district court order being appealed.

The appealing party must also file a case appeal statement in the district court, which outlines basic information about the district court case. The case appeal statement must include the information in NRAP 3(f)(3) and must substantially comply with the format of Form 2 in NRAP’s Appendix of Forms. NRAP 3(f)(4).

Step 2: Filing fee

The Supreme Court of Nevada’s filing fee is $250 and is paid to the district court clerk when filing the notice of appeal and case appeal statement. NRAP 3(e).

Step 3: Docketing

The district court clerk will forward the notice of appeal, case appeal statement, and filing fee to the Supreme Court Clerk. NRAP 3(g)(1). Thereafter, the Supreme Court Clerk will docket the appeal and notify the parties of the docketing date and appellate case number. NRAP 12(a).

Step 4: District court transcripts

The parties have a duty to confer on which district court transcripts are needed for the appeal. NRAP 9(a)(1)(A). To order transcripts, the appellant must file a transcript request form that contains the information in NRAP 9(a)(3)(C)(i)-(v) and substantially complies with Form 3 in NRAP’s Appendix of Forms. NRAP 9(a)(3)(C). The appellant must file the original transcript request form with the district court clerk and a file-stamped copy of the transcript request form with the Supreme Court Clerk within 14 days of the docketing date. NRAP 9(a)(3)(A). If the parties have already obtained any necessary transcripts, then a certification that no transcript is needed should be filed. NRAP 9(a)(3)(C) and Form 14.

Step 5: Docketing Statement

The appellant must file a docketing statement with the Supreme Court Clerk within 21 days after the docketing date. NRAP 14(b). The docketing statement sets forth, among other things, jurisdictional information and the issues on appeal. The docketing statement must comply with the form provided by the Supreme Court Clerk: https://nvcourts.gov/Supreme/Appellate_Practice_Forms/. NRAP 14(b).

Step 6: Briefs and appendices

Unless referral to the Supreme Court Settlement Program stays the deadlines, the appellant’s opening brief must be filed within 120 days after the docketing date and must contain the sections outlined in NRAP 28(a)(1)-(12). NRAP 31(a)(1)(A). The respondent’s answering brief must be filed within 30 days after the appellant’s opening brief is served. NRAP 31(a)(1)(B). The answering brief must also contain the sections outlined in NRAP 28(a)(1)-(10), except that the following sections can be omitted if the respondent is satisfied with the appellant’s version of these sections: jurisdictional statement, routing statement, statement of issues, statement of the case, statement of facts, and standard of review. NRAP 28(b). Appellant’s reply brief must be filed within 30 days after the respondent’s answering brief is served. NRAP 31(a)(1)(C). All briefs must comply with the formatting requirements in NRAP 32, including one-inch margins, 14-point typeface, and double-spacing.

The parties have a duty to confer and attempt to reach an agreement concerning a possible joint appendix, which serves as the record on appeal. NRAP 30(a). If an agreement cannot be reached, each party must file its own appendix. The appendices must include all district court transcripts and filings that are necessary to resolve the appeal, including the items outlined in NRAP 30(b)(2)(A)-(J). Appendices must comply with the formatting requirements in NRAP 30(c).

Step 7: Oral argument

Most appeals are decided on the briefs without oral argument. If the court determines that oral argument is needed, the Supreme Court Clerk will notify the parties. NRAP 34(a).

Step 8: Decision

The assigned appellate court will resolve the appeal in either a published opinion or an unpublished order. NRAP 36(c).

Step 9: Post-decision petitions

After a decision is filed by either the Court of Appeals or Supreme Court, the losing party has 18 days to file a petition for rehearing. NRAP 40(a)(1). Importantly, rehearing is only appropriate if the court “overlooked or misapprehended” a material point of law or fact. NRAP 40(a)(2). Petitions for rehearing must contain the information in NRAP 40(a)(2) and must comply with the formatting rules in NRAP 40(b).

After the Court of Appeals issues a decision, the losing party may seek review by the Supreme Court. NRAP 40B. A petition for review by the Supreme Court must be filed within 18 days after the filing of the Court of Appeals’ decision under Rule 36, or its decision on rehearing under Rule 40. NRAP 40B(c). The petition must contain the information in NRAP 40B(d), including the reasons why review by the Supreme Court is warranted, and must comply with the formatting rules in NRAP 32. NRAP 40B(d).

If a three-justice Supreme Court panel denies a petition for rehearing, the petitioning party has 14 days to file a petition for en banc reconsideration. NRAP 40A(b). Petitions for en banc reconsideration are disfavored and are only appropriate when: “(1) reconsideration by the full court is necessary to secure or maintain uniformity of decisions of the Supreme Court or Court of Appeals, or (2) the proceeding involves a substantial precedential, constitutional or public policy issue.” NRAP 40A(a). Petitions for en banc reconsideration must contain the information in NRAP 40A(c) and must comply with the formatting rules in NRAP 40A(d).

Step 10: Remittitur

Issuance of remittitur transfers jurisdiction back to the district court. Remittitur will issue 25 days after entry of the court’s dispositive decision or 25 days after entry of an order denying a post-decision petition. NRAP 41.

About the author

Eric D. Walther is a member of the appellate and commercial litigation practice groups at Snell & Wilmer.


Proportionality Primer: Federal Guidance for Understanding the 2019 Amendment to Nev. R. Civ. P. 26(b)(1)

Andrew Sharples, Esq.
Andrew Sharples, Esq.

By Andrew Sharples, Esq.

On March 1, 2019, Nevada enacted exhaustive changes to the Nevada Rules of Civil Procedure. ADKT 522. Among the 2019 amendments are changes to Nev. R. Civ. P. 26(b)(1), which adopts the federal rule and narrows the scope of discovery. Under the prior version of the rule, discovery was open to “any matter, not privileged, which is relevant to the subject matter involved in the pending action…” Nev. R. Civ. P. 26(b)(1) (prior version, eff. July 1, 2008). The 2019 amendment retains the nonprivileged and relevancy limitations, but further narrows the scope by restricting discovery to that which is “proportional” to the needs of the case. Nev. R. Civ. P. 26(b)(1). The Advisory Committee Note to the 2019 Amendment clarifies the new rule “redefines the scope of allowable discovery” and “allows the district court to eliminate redundant or disproportionate discovery and reduce the amount of discovery that may be directed to matters that are otherwise proper subjects of inquiry.” Nev. R. Civ. P. 26(b)(1), Advis. Comm. Notes on Subsection (b) (2019).

So how does the proportionality limitation work in practice? Federal decisions are a helpful starting point as the proportionality limitation has been in the Federal Rules of Civil Procedure since 2015. Executive Management, Ltd. v. Ticor Title Ins. Co., 118 Nev. 46, 53, 38 P.3d 872, 876 (2002) (“Federal cases interpreting the Federal Rules of Civil Procedure ‘are strong persuasive authority, because the Nevada Rules of Civil Procedure are based in large part upon their federal counterparts.’” (quoting Las Vegas Novelty v. Fernandez, 106 Nev. 113, 119, 787 P.2d 772, 776 (1990)).

A Common-Sense Approach

In his 2015 year-end report, Chief Justice John Roberts commented on the federal proportionality amendment, opining that “Rule 26(b)(1) crystalizes the concept of reasonable limits on discovery through the increased reliance on the common-sense concept of proportionality”. John Roberts, 2015 Year-End Report on the Federal Judiciary (Dec. 31, 2015) (“2015 Year-End Report”), p. 6. This new approach charges opposing attorneys, as well as the presiding judge, “to work cooperatively in controlling the expense and time demands of litigation…” Id. at 6. The amendments emphasize that “lawyers–though representing adverse parties–have an affirmative duty to work together, and with the court, to achieve prompt and efficient resolutions of disputes.” Id.

The role of the court is critical in this process as “[t]he amended rules… emphasize the crucial role of federal judges in engaging in early and effective case management.” Id. at p. 7. Chief Justice Roberts urged judges “to take on a stewardship role, managing their cases from the onset rather than allowing parties alone to dictate the scope of discovery” and encouraged early and active involvement in the case management process to “identify the critical issues, determine the appropriate breadth of discovery, and curtail dilatory tactics, gamesmanship, and procedural posturing.” Id. at p. 10-11. He believes the heightened role of the court in setting the scope and tenor of discovery, particularly through in-person interactions with counsel, will result in a harmonious and cordial discovery process. As he put it, “a well-timed scowl from a trial judge can go a long way in moving things along crisply.” Id. at p. 7.

Magistrate judges in the District of Nevada have put Chief Justice Robert’s vision into practice, recognizing that:

A change in the legal culture that embraces the leave no stone unturned and scorched earth approach to discovery is long overdue. Discovery overuse and abuse is depriving ordinary citizens, even those with considerable means, of having their cases heard in federal court. Discovery is more often than not too expensive and time consuming to result in an efficient and just result.

Roberts v. Clark County School Dist., 312 F.R.D. 594, 604 (D. Nev. 2016). District of Nevada decisions therefore provide a blueprint for how the proportionality limitation will affect state court practice.

An Emphasis on Proportionality

The need for proportionality is now “at the forefront of [Rule 26].” Bonanza Beverage Co. v. MillerCoors, LLC, 2:18-cv-01445-JAD-GWF, 2019 WL 302491, at *3 (D. Nev. January 23, 2019) (citing Roberts, 312 F.R.D. at 602-603). “[E]ven if the discovery is relevant, the parties and the court are required to give greater consideration to the proportionality of the discovery.” Id. (emphasis added). In determining whether proposed discovery is proportional to the needs of the case, the court will consider and balance the six factors listed in Rule 26: (1) the importance of the issues at stake in the action, (2) the amount in controversy, (3) the parties’ relative access to relevant information, (4) the parties’ resources, (5) the importance of the discovery in resolving the issues, and (6) whether the burden or expense of the proposed discovery outweighs its likely benefit. Nev. R. of Civ. P. 26(b)(1) and Fed. R. of Civ. P. 26(b)(1) (listing same six factors); see also, On Demand Direct Response, LLC v. McCart -Pollak, No. 2:15-cv-01576-MMD-NJK, 2018 WL 2014067, at *3 (D. Nev. April 30, 2018) (stating the court will balance these factors). Additionally, “[t]he strength or weakness of a particular claim or defense… may have some bearing on the determination of whether the proposed discovery is proportional.” HomeRun Products, LLC v. Twin Towers Trading, Inc., No.: 2:18-cv-00794-JCM-GWF, 2019 WL 1207930 (D. Nev. March 14, 2019).

A Collective and Collaborative Burden

In most instances, the party resisting discovery has the burden of demonstrating why the request is improper. Heyman v. Nevada ex rel. Board of Regents of Nevada System of Higher Education, No. 2:15–cv–01228–RFB–GWF, 2017 WL 4288699, at *8 (D. Nev. September 27, 2017) (citations omitted). It is only when a request is overly broad on its face, or when the relevancy is not readily apparent, the party seeking discovery has the burden of demonstrating relevancy. Id. (citations omitted). While the proportionality limitation does not change this basic analysis, there is now a greater emphasis on whether the discovery at issue is proportional to the needs of the case. Id. This emphasis requires the collective input of the parties and the court “to consider the proportionality of all discovery and consider it in resolving discovery disputes.” Caballero v. Bodega Latina Corp., No. 2:17-cv-00236-JAD-VCF, 2017 WL 3174931, at *2 (D. Nev. July 25, 2017) (quoting Fed. R. Civ. P. 26, Advis. Comm. Notes (2015)). The Fed. R. Civ. P. 26 Advisory Committee Notes explain the practical considerations behind this collective dynamic:

A party claiming undue burden or expense ordinarily has far better information—perhaps the only information—with respect to that part of the determination. A party claiming that a request is important to resolve the issues should be able to explain the ways in which the underlying information bears on the issues as that party understands them. The court’s responsibility, using all the information provided by the parties, is to consider these and all the other factors in reaching a case-specific determination of the appropriate scope of discovery.

Fed. R. Civ. P. 26, Advis. Comm. Notes (2015).

In other words, in order for the court to consider and balance the factors set forth in Rule 26, it must rely on information supplied by both the propounding and opposing parties. E.g., On Demand Direct Response, LLC, supra, 2018 WL 2014067, at *3 (“In this case, the Court cannot conduct this balancing because neither party supports its positions.”) It is therefore incumbent on both parties to explain and support their respective positions in the context of Rule 26 to assist the court in making the right call.

The Death of Boilerplate Objections

Consistent with the above considerations, a party should not assert “disproportionality” as a general or boilerplate objection. In federal court, “[g]eneral or boilerplate objections such as ‘overly burdensome and harassing’ are improper – especially when a party fails to submit any evidentiary declarations supporting such objections.” On Demand Direct Response, LLC v. McCart -Pollak, No. 2:15-cv-01576-MMD-GWF, 2019 WL 1867427 (D. Nev. April 25, 2019) (quoting Gray v. Unum Life Ins. Co. of Am., No. EDCV 17-1778-JGB-KKx, 2018 WL 4566850, at *2 (C.D. Cal. Sept. 21, 2018)). The proper practice is for the party claiming undue burden to “allege specific facts which indicate the nature and extent of the burden, usually by affidavit or other reliable evidence.” Nationstar Mortg., LLC v. Flamingo Trails No. 7 Landscape Maint. Ass’n, 316 F.R.D. 327, 334 (D. Nev. 2016) (quoting Jackson v. Montgomery Ward & Co., 173 F.R.D. 524, 529 (D. Nev. 1997)). The same process applies to an objection based on proportionality.

In Riverport Ins. Co. v. State Far, Fire & Casualty Co., No.: 2:18-cv-00330-GMN-NJK, 2018 WL 6435883, *2, n.4 (D. Nev. December 6, 2018), an insurance dispute over coverage for a slip-and-fall accident, the defendant resisted production of its underwriting file based in part on the argument that it was not proportional to the needs of the case. Critically, the defendant did not provide a declaration explaining why production of the file would be significantly burdensome. Id. This was fatal to the defendant’s argument because the proportionality analysis turns on “whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id. (quoting Fed. R. Civ. P. 26(b)(1)). The defendant could not possibly prevail under this analysis without evidence. In granting the plaintiff’s motion to compel, Judge Koppe reiterated that “[b]oilerplate assertions of disproportionality are insufficient to show that discovery should be denied.” Id. (citing On Demand Direct Response, LLC, 2018 WL 2014067, at *3; see also, Colony Ins. Co. v. Sanchez, No.: 2:18-cv-01950-JCM-NJK, 2019 WL 3241160, at *6 (D. Nev. July 18, 2019) (“Plaintiff provides no declaration or other competent evidence demonstrating what time, expense, or burden it would actually incur, however. That shortcoming alone heavily militates against a finding of undue burden or disproportionality.”)

Conversely, in In re Bard IVC Filters Products Liability Litigation, 317 F.R.D. 562 (D. Ariz. 2016), the Court found the resisting party presented specific and sufficient evidence to show disproportionality. Bard involved a product liability action against a medical device manufacturer. The plaintiffs’ sought discovery of communications between the defendant’s numerous foreign subsidiaries with regulatory authorities regarding the product. Id. at 563. In determining whether the requests were proportional to the needs of the case, the court found defendant “would be required to identify the applicable custodians from these foreign entities for the last 13 years, collect ESI from these custodians, and search for and identify communications with foreign regulators. The Court is persuaded by these specifics that the burden of this foreign discovery would be substantial.” Id. at 566. Unlike Riverport, the defendant in Bard provided “specifics” that the proposed discovery outweighed its likely benefit. Id.; see also, Ashcraft v. Experian Information Solutions, Inc., No.: 2:16-cv-02978-JAD-NJK, 2018 WL 6171772, at *2 (D. Nev. November 26, 2018) (Judge Koppe denying a motion to compel where the defendant produced a declaration “explaining that responding to these discovery requests would require manually retrieving and reviewing millions of records.”)

Planning for Proportionality

Parties should use the Early Case Conference to create a discovery plan tailored to the specific needs of their case, which includes proportionality considerations. Parties have the flexibility to optimize their discovery plan by proposing “what changes should be made in the limitations on discovery imposed under these rules and what other limitations should be imposed”. Nev. R. Civ. P. 16.1(b)(4)(C)(v).

Upshot

Chief Justice Roberts challenged attorneys and judges to “engineer a change in our legal culture that places a premium on the public’s interest in speedy, fair, and efficient justice.” 2015 Year-End Report, p. 11. The 2019 adoption of the proportionality limitation in Nevada has the potential to reshape our legal practice by achieving these objectives. This effort will require collaboration and cooperation between opposing counsel and the court. Courts should engage with parties early to help set the size and shape of discovery. Discovery requests should be thoughtful and strategic while objections should be specific and supported by evidence. This approach should result in a more meaningful and efficient discovery process.

About the author

Andrew Sharples is an associate attorney at Naylor & Braster, representing clients in business litigation, labor law and appellate practice. He can be reached at asharples@nblawnv.com.

Note in regards to CCBA Article #7: The Clark County Bar Association (CCBA) will offer 1.0 Ethics Continuing Legal Education (CLE) Credit (for 2019) to Nevada lawyers who read the article, complete the accompanying test, and make payment to Clark County Bar Association, 717 South 8th Street, Las Vegas, Nevada, 89101, and per the offer described in the print and PDF versions of the October 2019 issue of Communiqué (see pages 30-38). CCBA is an Accredited Provider with the NV CLE Board.


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