Written Discovery Deadline

Whether in a state or federal court, it is important to be mindful of the discovery deadline for a host of reasons.  Among them is this deadline terminates your client’s ability to serve written discovery.  The deadline may not, however, be as simple as it seems.

Consider this situation.  Assume the discovery cut-off is May 1.  A party serves written discovery on March 30. On its face, this might be timely.  The rules governing discovery permit 30 days for the responding party to answer discovery requests mandate that “in order to meet the discovery deadline,” the requesting party must file his discovery requests “at least 30 days before the discovery cutoff.”  Smith v. Principal Cas. Ins. Co., 131 F.R.D. 104, 105 (S.D. Miss. 1990) (holding interrogatories served six (6) days prior to the discovery cut off were untimely); see also Thomas v. Pacificorp, 324 F.3d 1176, 1179 (10th Cir. 2003) (stating that discovery requests served on the date of discovery cut off would be untimely). In other words, the responding party must be provided at least 30 days to respond.

Whether written discovery served on March 30 complies with a May 1 discovery deadline depends upon how the discovery was in fact served.  If the discovery is hand-delivered on March 30, the 30 day period begins to run on March 31 pursuant to NRCP 6(a) and the discovery is timely.  If, however, the discovery is simply mailed or served electronically via a court filing, not only does the 30 day period begin on March 31, but three days are added for mailing pursuant to NRCP 6(e).  What does this mean?  The responding party gets 33 days to answer instead of the normal 30 but, because in this scenario the responding party would only receive 32 days within which to answer, the discovery is probably untimely and need not be answered.

Do not disregard this calculation as a hyper technical application of the rule.  Calculation of the proper deadlines is crucial as miscalculating a procedural deadline by little as two days has been held by an unpublished order of the Supreme Court of Nevada as sufficient to dismiss an appeal.

Accordingly, we summarily affirm the district court’s order denying appellant a new trial. As we noted in our June 14 order, new trial motions must be filed within ten days from the date when notice of the final judgment’s entry is served. NRCP 59(b). Under NRCP 6(a), this ten-day period does not include weekends and nonjudicial days. Further, under NRCP 6(e), three days are added to the ten-day period when the notice of entry is served by mail or electronic means. To calculate the due date, the ten-day period is determined and then the three days are added to that date; unlike the ten-day filing period, the three-day mailing period includes weekends and nonjudicial days. Winston Products Co. v. DeBoer, 122 Nev. 517, 134 P.3d 726 (2006); see also Nalty v. Nalty Tree Farm, 654 F. Supp. 1315, 1318 (S.D. Ala. 1987) (recognizing that the final day of the three-day mailing period could land on a weekend or nonjudicial day), discussed with approval in  [3] Winston Products, 122 Nev. at 522, 134 P.3d at 729-30 (noting that federal decisions interpreting analogous rules are persuasive authority); Comments on 2005 Amendments to FRCP 6(e) (“Intermediate Saturdays, Sundays, and legal holidays are included in counting these added three days.”).

Here, the ten-day period commenced the day after notice of the final judgment’s entry was served, October 28, 2010, and ended on Friday, November 12, 2010. Adding three days onto that date would mean that the new trial motion was due by Monday, November 15, 2010. As a result, appellant’s November 17, 2010, new trial motion was untimely, and the district court properly denied it.

Scheer v. Ford Motor Co., 2012 Nev. Unpub. LEXIS 1161, 2-3, 2012 WL 3860432 (Nev. 2012).