Eighth Judicial Court Rules

Rule 2.34 – Discovery disputes; conferences; motions; stays.

Rule 2.34. Discovery disputes; conferences; motions; stays.

  • (a) Unless otherwise ordered, all discovery disputes (except disputes presented at a pretrial conference or at trial) must first be heard by the discovery commissioner.

    (b) Upon reasonable notice, the discovery commissioner may direct the parties to appear for a conference with the commissioner concerning any discovery dispute. Unless otherwise directed, points and authorities need not be filed prior to a conference noticed by the commissioner. Counsel may not stipulate to vacate or continue a conference without the commissioner’s consent.

    (c) The commissioner may shorten or extend any of the times provided for in Rule 2.20 on any discovery motion.

    (d) Discovery motions may not be filed unless an affidavit of moving counsel is attached thereto setting forth that after a discovery dispute conference or a good faith effort to confer, counsel have been unable to resolve the matter satisfactorily. A conference requires either a personal or telephone conference between or among counsel. Moving counsel must set forth in the affidavit what attempts to resolve the discovery dispute were made, what was resolved and what was not resolved, and the reasons therefor. If a personal or telephone conference was not possible, the affidavit shall set forth the reasons.

          If the responding counsel fails to answer the discovery, the affidavit shall set forth what good faith attempts were made to obtain compliance. If, after request, responding counsel fails to participate in good faith in the conference or to answer the discovery, the court may require such counsel to pay to any other party the reasonable expenses, including attorney’s fees, caused by the failure. When a party is not represented by counsel, the party shall comply with this rule.

     (e) The commissioner may stay any disputed discovery proceeding pending resolution by the judge.

    (f) Following the hearing of any discovery motion, the commissioner must prepare and file a report with a recommendation for the court’s order. The commissioner may direct counsel to prepare the commissioner’s report, including findings and recommendations in accordance with Rules 7.21 and 7.23. The clerk of the court or the discovery commissioner designee shall forthwith serve a copy of the report on all parties. The report is deemed received 3 days after the clerk of the court or discovery commissioner designee places a copy in the attorney’s folder in the clerk’s office or 3 days after mailing to a party or the party’s attorney. Within 5 days after being served with a copy, any party may serve and file specific written objections to the recommendations with a courtesy copy delivered to the office of the discovery commissioner. Failure to file a timely objection shall result in an automatic affirmance of the recommendation.

    (g) Papers or other materials submitted for the discovery commissioner’s in camera inspection must be accompanied by a captioned cover sheet complying with Rule 7.20 which indicates that it is being submitted in camera. All in camera submissions must also contain an index of the specific items submitted. A copy of the index must be furnished to all other parties. If the in camera materials consist of documents, counsel must provide to the commissioner an envelope of sufficient size into which the in camera papers can be sealed without being folded.

    (h) If when counsel meet and confer pursuant to NRCP 16.1, they discover that the parties would benefit from participating in a settlement conference, that information along with 5 dates consistent with the settlement program on which it can be held should be included in the case conference report prepared pursuant to NRCP 16.1(c). The discovery commissioner will then pass said information on to the department managing the settlement conference program which department will contact counsel to get the case so scheduled.

          [Amended; effective January 17, 2012.]

    Cases

    Bahena v. Goodyear Tire & Rubber Co., 235 P.3d 592 (Nev. 2010).

    NRCP 37(b)(2)(C). In this case, the discovery commissioner made a ruling at a hearing on December 14, 2006, that Goodyear must produce a witness for deposition to testify as to the authenticity of voluminous documents prior to December 28, 2006. Goodyear did not request the discovery commissioner stay this ruling pursuant to EDCR 2.34(e), the local district court rule that would allow such a stay. Thereafter, the time to produce the witness for deposition passed. On January 3, 2007, Goodyear filed objections to the discovery commissioner’s written report and recommendations dated December 20, 2006, requiring the deposition. The district court initially approved the discovery commissioner’s recommendations by an order dated January 5, 2007. Since the district court did not receive a copy of the objections filed by Goodyear on January 3, 2007, the district court allowed Goodyear to argue its objections at a hearing [**12] held January 9, 2007. The district court again overruled Goodyear’s objections at the conclusion of this hearing. n5

    FOOTNOTES

    n5 After the discovery commissioner’s report and recommendations are signed and objected to, the district court has the option of affirming and adopting the recommendations without a hearing, modifying or overruling the recommendations without a hearing, or setting a date and time for a hearing upon the objections filed. NRCP 16.1(d)(3). If the recommendations are affirmed and adopted, the order of the district court is effective retroactive to the date of the hearing before the discovery commissioner when the ruling is verbally made. EDCR 2.34(e) permits the discovery commissioner to stay the ruling pending review by the district court.

    Goodyear was required to comply with the discovery commissioner’s ruling announced at the December 14 hearing, unless the ruling was overruled by the district court. See NRCP 16.3(b) (stating that the discovery commissioner has the authority “to do all acts and take all measures necessary or proper for the efficient performance of his duties”). HN4A ruling by the discovery commissioner is effective and must be complied with for discovery purposes [**13] once it is made, orally or written, unless the party seeks a stay of the ruling pending review by the district court. Id.; EDCR 2.34(e). Goodyear failed to seek a stay of the ruling or an expedited review by the district court prior to the time to comply with the ruling, and was therefore required to comply with the discovery commissioner’s directive. The failure to do so was tantamount to a violation of a discovery order as it relates to NRCP 37(b)(2). Young, 106 Nev. at 92, 787 P.2d at 779 (holding that a court’s oral ruling was sufficient to “constitute an order to provide or permit discovery under NRCP 37(b)(2)”).