Objecting to Discovery Commissioner’s Report and Recommendations

It is inevitable that everyone will lose a discovery motion someday and feel the need to object to it.  Locally, there are very specific rules governing these objections and timelines within which the objection must be served.  One unanswered question is what standard of review will the district court apply to the objection?  Will the court review it for abuse of discretion, a de novo standard or something else?  This issue and potential answers to it were explored in an article I authored for the May, 2013 Communique, entitled The Unanswered Question When Objecting to a Discovery Commissioner’s Report and Recommendations.

The Unanswered Question

Discovery disputes are a fact of modern practice.  After a discovery commissioner rules upon a dispute, one or more of the litigants might be dissatisfied with the ruling and could elect to object to it.  As attorneys, we must evaluate the probability of a successful objection, which requires knowing the standard against which the objection will be evaluated.  This leads to an unanswered question in state court:  what is the standard of review a district court will apply to an objection to a discovery commissioner’s report and recommendations?

Walk Before You Run:  Will The Court Even Need to Consider the Standard of Review?

A variety of procedural problems often seem to determine the fate of the objection before the standard of review question is even addressed.  First, was the order compelling the objectionable discovery stayed pursuant to EDCR 2.34(e)?  “The commissioner may stay any disputed discovery proceeding pending resolution by the judge.” 

A ruling by the discovery commissioner is effective and must be complied with for discovery purposes once it is made, orally or written, unless the party seeks a stay of the ruling pending review by the district court. 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).[1]

In other words, if no EDCR 2.34(e) stay is granted, the parties are obligated to begin complying with the ruling.  Without the stay, the problematic discovery may already be completed before the district court ever considers an objection to a discovery commissioner’s ruling.  Unringing the bell, if at all possible, is extraordinarily difficult.

Second, did the objecting party preserve the issue?  “In this opinion, we review our rule regarding the waiver of an issue on appeal that is not first raised in the district court.  We expand that rule to include the situation where a party fails to raise an issue before the discovery commissioner and, instead, raises the issue for the first time before the district court.”[2]  Arguments not raised before a discovery commissioner may not be argued for the first time in the objection.

Finally, is the objection timely?  Once a discovery commissioner executes the report and recommendations, the order is then served upon the parties and forwarded to the district court for approval.  NRCP 16.1(d)(2) provides “[w]ithin 5 days after being served with a copy, any party may serve and file written objections to the recommendations. Written authorities may be filed with an objection, but are not mandatory.”  Locally EDCR 2.34(f) modifies this slightly because the court requires each firm to maintain a folder with the clerk of the court.  “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.”  The rule then largely mirrors NRCP 16.1(d)(2), except that it arguably requires written authorities.  “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.”[3]

Running:  What is the Standard of Review for the Objection?

If the procedural requirements are satisfied, the objection may be heard on the merits and the standard of review question must be considered.  NRCP 16.1(d) establishes the general parameters for resolving discovery disputes, but is silent as to the standard of review.  NRCP 16.3, which creates the discovery commissioner position and generally establishes its powers and duties, is also silent.  EDCR 2.34 also governs discovery disputes, but is silent as to the standard of review. Nor does it appear the Supreme Court has ruled explicitly on this topic. 

Is the standard abuse of discretion?  The party prevailing on the discovery motion would likely favor this standard.  Furthermore, it does apply to review of orders concerning NRCP 37 sanctions.  “Where the discovery sanctions are within the power of the district court, this court will not reverse the particular sanctions imposed absent a showing of abuse of discretion.  Even if we would not have imposed such sanctions in the first instance, we will not substitute our judgment for that of the district court.”[4]  However, an order compelling the production of documents is not, alone, a sanction under NRCP 37.  NRCP 37 is only invoked later if the order is not obeyed.

Is the standard de novo?  This standard is likely favored by the objecting party, but would seem to defeat the purpose of utilizing discovery commissioners to divert most discovery related disputes away from the district court’s docket.  Especially where non case-concluding motions are filed, seeking to compel the production of documents for instance, it would seem to undermine the authority of a discovery commissioner to simply start the process over in a district court.  This concern may have been a contributing factor to the Supreme Court’s preservation ruling in Valley Health.

Is the standard something else?  The Supreme Court has discussed the standard of review where case concluding discovery sanctions are imposed.  If the sanction is “case concluding,” meaning the sanction results in the striking of an answer “both as to liability and damages,” Nevada utilizes “a somewhat heightened standard of review.”[5]

What happens in federal court?  Assuming a magistrate judge is hearing the discovery dispute, the standard of review is statutory.  The district court “may reconsider any pretrial matter . . . where it has been shown that the [magistrate judge’s] order is clearly erroneous or contrary to law.”[6]  Federal courts routinely refer discovery matters for handling by magistrate judges and apply the clearly erroneous standard in reviewing the resulting recommendation.  “The district court must affirm the magistrate judge’s order unless the district court is left with the ‘definite and firm conviction that a mistake has been committed.’”[7]  This is consistent with FRCP 72(a) concerning non-dispositive motions referred to a magistrate judge.  If a party objects to the magistrate judge’s recommendation, the district judge may “modify or set aside any part of the order that is clearly erroneous or is contrary to law.”[8]

It is notable, the standard of review changes for dispositive motions.  There the district court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.”[9]

Conclusion

Enough uncertainty exists to permit a good-faith debate as to which of these standards applies to routine discovery motions in state court such as those seeking to compel production of documents.  The standard argued will vary depending upon the role of each party to the objection.  A wary practitioner should be cognizant of them all.

Post Script

In attending CLEs and various conferences, I have learned the standard varies depending upon the district court handling the objection.  For instance, based upon an April 2, 2013 hearing in 09A588346, I am aware Judge Miley appears to apply an abuse of discretion standard.

The May, 2013 Communique is also worth reading for an article jointly authored by DCs Bulla and Beecroft concerning their implementation of the 2012 revisions to disclose requirements for non-retained experts.


[1] Bahena v. Goodyear Tire & Rubber Co., 126 Nev. 243, 250-51, 235 P.3d 592, 597 (2010).

[2] Valley Health Sys., LLC v. Dist. Ct., 127 Nev. 167, 169, 252 P.3d 676, 677 (2011).

[3] EDCR 2.34(f).

[4] Young v. Johnny Ribeiro Bldg., 106 Nev. 88, 92, 787 P.2d 777 (1990).

[5] Bahena, 126 Nev. at 249, 235 P.3d at 596.

[6] 28 U.S.C. § 636(b)(1)(A). 

[7] In re First Am. Corp. ERISA Litig., 263 F.R.D. 549, 561 (C.D. Cal. 2009) (quoting Burdick v. Comm’r, 979 F.2d 1369, 1370 (9th Cir. 1992)).

[8] Id

[9] 28 U.S.C. § 636(b)(1)(C).