Re-Writing Nevada’s Rules of Civil Procedure, Part 5: Redefining the Scope of Discovery

A major factor in the 2015 changes to the federal rules was the focus on redefining the scope of discovery.  These changes were driven by anecdotal evidence that was then supported by empirical studies that discovery costs were out of control and a barrier to justice, however you wish to define that concept.  Too often discovery is used as a weapon to harass rather than a tool to find truth.  The NRCP could be revised to shift the focus of discovery back to finding admissible evidence rather than increasing the opponent’s litigation costs to drive a settlement.

NRCP 1 would be edited to match FRCP 1:        These rules govern the procedure in the district courts in all suits of a civil nature whether cognizable as cases at law or in equity, with the exceptions stated in Rule 81. They shall  must be construed and administered, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action.

The 2015 federal committee that created this version of Rule 1 explained the purpose was “to emphasize that just as the court should construe and administer these rules to secure the just, speedy, and inexpensive determination of every action, so the parties share the responsibility to employ the rules in the same way.”  The committee noted regular “pleas to discourage over-use, misuse, and abuse of procedural tools that increase cost and result in delay. Effective advocacy is consistent with — and indeed depends upon — cooperative and proportional use of procedure.”

Implementing this change also requires revising NRCP 26(b)(1):

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.  All discovery is subject to the limitations imposed by Rule 26(b)(2)(i), (ii), and (iii).

The point of this change was discussed at length by the federal committee in its findings.  I encourage those who are interested to read it.

Another tool to help focus the scope of discovery is to limit the amount of written discovery.  FRCP limits the number of interrogatories to 25, as opposed to 40 in NRCP.  I practice in the federal courts on a regular basis and have discerned no substantive difference between 25 interrogatories and 40.  I have, however, experienced more abuse in state court than in federal court.  I also encourage a numerical limit for Rule 34 and to retain the limit for Rule 36.

Second, I propose allowing an “early” discovery section in the rule.  I routinely serve written discovery before the formal discovery period begins, with the understanding that the party’s 30 day period within which to respond does not commence until the JCCR is filed.  By encouraging this practice, the NRCP could promote proactive civil discovery.

Rule 33(a):  Without leave of court or written stipulation, any party may serve upon any other party written interrogatories, not exceeding 40 25 in number including all discrete subparts, to be answered by the party served or, if the party served is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish such information as is available to the party. Leave to serve additional interrogatories shall be granted to the extent consistent with the principles of Rule 26(b)(2). Without leave of court or written stipulation, interrogatories may not be served before the time specified in Rule 26(a).  Interrogatories may be served before the time specified in Rule 26(a), but the time to respond will not commence until the case conference report is filed per NRCP 16.1(c).

Rule 34(a):  A party may serve on any other party a request within the scope of Rule 26(b), not exceeding 25 in number including all discrete subparts:

Rule 34(b)(2)(A):   Requests may be served before the time specified in Rule 26(a), but the time to respond will not commence until the case conference report is filed per NRCP 16.1(c). The party to whom the request is directed must respond in writing within 30 days after being served. A shorter or longer time may be stipulated under Rule 29 or be ordered by the court.

Rule 36(c):  No party shall serve upon any other single party to an action more than 40 25 requests for admissions that do not relate to the genuineness of documents, in which subparts of requests shall count as separate requests, without first obtaining a written stipulation, subject to Rule 29, of such party to additional requests or obtaining an order of the court upon a showing of good cause granting leave to serve a specific number of additional requests.

Nevada could also help streamline discovery by adopting the work product protections concerning expert witnesses that the federal courts implemented in 2010, as discussed in a prior post. It could also adopt the clawback provisions of the federal rules for inadvertent disclosure of privileged information.