Proposal for Discovery Rule Changes

In summer 2014 I had a fit of rage followed by a burst of irrational exuberance and drafted a set of proposed rule changes to eliminate the source of that rage. I then moved on.

For those of you not practicing in Las Vegas’ district courts, this is the arcane process that led to my rage. If you are the “prevailing” party, the court will typically instruct you to draft the order. The order is drafted, hopefully executed by all counsel, and then a runner service takes the original document and signatures to court. If you are lucky enough to have your order accepted without multiple rejections, the prevailing party then has the obligation to file the order (another frustrating topic for another time). But how does the order get from the court to you? Depending upon the judge, some place it in their “pick-up” box in the public area of the courthouse. Some are more courteous and place the order in the file folder each law firm is required to have on the first floor of the courthouse, adjacent to the main entrance. If you are lucky, the multitudes of people rifling through those folders and boxes each day don’t grab the wrong piece of paper. If you are lucky the person who picks up your order doesn’t lose it. If you are lucky, the runner service timely returns the paper to your office. If you are lucky that piece of paper is not lost once it arrives in your office.

I am not a fan of this process. It has too many potential failure points. When a hiccup happens, it can seriously undermine my client’s substantive rights. For example, if my client wants to object to a Discovery Commissioner’s report and recommendation, it has 5 days to file that objection from the date the piece of paper is put in the firm’s file folder. No notice is sent to the firm that the order was executed, let alone available for pick-up. Except there are hundreds, if not thousands, of folders. Occasionally the clerk puts the order in the wrong folder and this error is not discovered for more than 5 days. Even when it is discovered, the clerk will never, ever admit to it. Instead the clerk blames a runner service or law firm. Occasionally a runner service does err, but what if it was not my firm’s runner service, but another? What if that other runner service grabs the wrong firm’s file folder or, if the order is in a pick-up box, it grabs orders that are stuck together or simply misreads the caption. Then the order suddenly reappears in my firm’s folder weeks later, but good luck proving that. Sometimes there are in fact law firm errors.

If any of these errors occur, my client’s substantive ability to object to an adverse Discovery Commissioner ruling is lost. Worse, if that client does not object there is an argument that it cannot even raise the order as an appellate issue. This has happened to my clients on multiple occasions over the years. I have heard similar stories from others. It happened again last summer and drove me to draft rule changes designed to replace this unreliable system with one that eliminates as many potential failure points as possible and instead promotes accountability. I also decided to draft some fixes to common, annoying problems that I see.

I strive not to complain unless I am willing to be part of a solution. Perhaps some of you find some good in these proposals and decide to run with them. My insertions are in italics.

Proposed rule changes:

NRCP 16.3 DISCOVERY COMMISSIONERS

Appointment and Compensation.

(a) The court may appoint one or more discovery commissioners to serve at the pleasure of the court. In multi-judge districts, appointment shall be by the concurrence of a majority of all the judges of such district. The compensation of a discovery commissioner may not be taxed against the parties, but when fixed by the court must be paid out of appropriations made for the expenses of the district court.
Powers and Duties.

(b) As directed by the court, a discovery commissioner may enter scheduling orders pursuant to Rule 16(b) and preside at the case conferences and discovery resolution conferences required by Rule 16.1 or 16.2. A discovery commissioner also may conduct settlement conferences pursuant to an agreement by the parties or an order of the district court. A discovery commissioner has and shall exercise the power to administer oaths and affirmations, to regulate all proceedings in every conference before him, and to do all acts and take all measures necessary or proper for the efficient performance of his duties.

Standard of Review for Objections.

(c) If a party files a timely objection to a discovery commissioner’s order, the district court rules upon it. The district court may reconsider any non-dispositive discovery commissioner’s order where the order is clearly erroneous or contrary to law. If the discovery commissioner’s order is case dispositive, 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. The district court, using either standard of review, may accept, reject, or modify, in whole or in part, the findings or recommendations made by the discovery commissioner. The district court may also receive further evidence or remand the matter to the discovery commissioner with instructions.

Source: 28 U.S.C. § 636(b)(1)(A), (C)

Waiver of Appeal.

(d) A party may not assign as error on appeal a defect in a discovery commissioner’s order not timely objected to.

Source: FRCP 72(a)

NRCP 16.1(d)(2) & (3)

(2) Following each discovery motion before a discovery commissioner, the commissioner must prepare and file a report with the commissioner’s recommendations for a resolution of each unresolved dispute an order. The commissioner may direct counsel to prepare the report order. The clerk of the court shall forthwith serve a copy of the report on all parties. Within 5 days after being served with a copy, any party may serve and file written objections to the recommendations. file the order and serve it upon the parties. Any objection to the discovery commissioner’s order must be filed with the district court no more than 10 days later. Written authorities may be filed with an objection, but are not mandatory.

(3) Upon receipt of a discovery commissioner’s report and any objections thereto, the court may affirm, reverse or modify the commissioner’s ruling, set the matter for a hearing, or remand the matter to the commissioner for further action, if necessary.

NRCP 16.1(e)(2) & (3)

(2) Following each discovery motion before the discovery commissioner, the commissioner must prepare and file a report with the commissioner’s recommendations for a resolution of each unresolved dispute an order. The commissioner may direct counsel to prepare the report order. The clerk of the court shall forthwith serve a copy of the report on all parties. Within 5 days after being served with a copy, any party may serve and file written objections to the recommendations file the order and serve it upon the parties. Any objection to the discovery commissioner’s order must be filed with the district court no more than 10 days later. Written authorities may be filed with an objection, but are not mandatory.

(3) Upon receipt of the discovery commissioner’s report and any objections thereto, the court may affirm, reverse, or modify the commissioner’s ruling, set the matter for a hearing, or remand the matter to the commissioner for further action, if necessary.

NRCP 16.205(c)

(2) Following each discovery motion before the discovery commissioner, the commissioner must prepare and file a report with the commissioner’s recommendations for a resolution of each unresolved dispute an order. The commissioner may direct counsel to prepare the report order. The clerk of the court shall forthwith serve a copy of the report on all parties. Within 5 days after being served with a copy, any party may serve and file written objections to the recommendations file the order and serve it upon the parties. Any objection to the discovery commissioner’s order must be filed with the district court no more than 10 days later. Written authorities may be filed with an objection, but are not mandatory.

(3) Upon receipt of the discovery commissioner’s report and any objections thereto, the court may affirm, reverse, or modify the commissioner’s ruling, set the matter for a hearing, or remand the matter to the commissioner for further action, if necessary.

EDCR 2.34

(f) Following the hearing of any discovery motion, the commissioner must prepare and file a report with a recommendation for the court’s an order. The commissioner may direct counsel to prepare the commissioner’s report order, 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. electronically file the order with the court. Any objection to the discovery commissioner’s order must be electronically filed with the district court no more than 5 days later.

(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). A settlement conference requested in the case conference report will only be ordered if the parties unanimously consent. 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.