What is a “Discovery Dispute?”

This seems like a question that might have been addressed long ago on this blog, but apparently not. During the course of a case, it may be necessary to decide if an issue requires a motion to compel or is more appropriately addressed as a motion in limine.  This can be a tactical and strategic decision. In the local state courts, a discovery motion is routed to a discovery commissioner, but a motion in limine is routed to the district court because it is an evidentiary question.  This is similar to most federal courts where the Magistrate Judge hears discovery disputes and the district court hears motions in limine.  But what is the line between a discovery dispute and an evidentiary dispute?

To illustrate the difference, consider this scenario I once handled.  Plaintiffs’ only NRCP 16.1(a)(2) expert witness disclosure listed 18 non-retained experts and gave the exact same description for each, whether an orthopedist or dentist.  After discovery closed, Defendants moved for summary judgment, arguing 1) Plaintiffs’ non-retained expert disclosure did not satisfy NRCP 16.1(a)(2)(B), so 2) NRCP 37(c)(1) precluded Plaintiffs from presenting medical causation testimony at trial, and 3) without that testimony Plaintiffs could not satisfy the third element of their negligence cause of action.  Plaintiffs responded the motion was improper because there was no meet and confer, such as described in EDCR 2.34(d) and NRCP 16.1(d)(1), or file a motion to compel further disclosures before seeking summary judgment.

  • Was the motion based upon a “discovery dispute?”

Deciding this question was not easy and required distinguishing the district court’s exclusive jurisdiction over evidentiary matters from a discovery commissioner’s limited jurisdiction to decide “discovery disputes.”  Nevada law to date had not defined this phrase, nor did the later 2019 amendments.

  • The applicable rules do not define the phrase.

NRCP 16.3 created discovery commissioners.  The rule states “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.”[1] NRCP 16.1(d) states “[w]here available or unless otherwise ordered by the court, all discovery disputes (except those presented at the pretrial conference or trial) must first be heard by the discovery commissioner.”  But neither rule defines the phrase “discovery disputes.”

The Eighth Judicial District chose to appoint a discovery commissioner and identified the commissioner’s duties.  “Unless otherwise ordered, all discovery disputes (except disputes presented at a pretrial conference or at trial) must first be heard by the discovery commissioner.”[2]  The phrase “discovery disputes” is not defined.

Both NRCP 16.1(d) and EDCR 2.34(a) require parties to first bring “discovery disputes” to a discovery commissioner.[3] But the rules give no guidance as to what constitutes a “discovery dispute.”  This ambiguity created a problem.  Plaintiffs argued Defendants were required to resort to discovery dispute resolution procedures before moving for summary judgment.  However, neither NRCP 16.3 or EDCR 2.34 give a discovery commissioner jurisdiction to make evidentiary rulings about admitting or excluding evidence at trial and Defendants argued the motion for summary judgment relied upon excluding certain evidence from trial.  As a result, they contended it was not a “discovery dispute” within a discovery commissioner’s limited jurisdiction.

  • Valley Health did not define the phrase.

Plaintiffs cited one case for support.  In Valley Health Sys., LLC v. Dist. Ct.[4] the plaintiff served a request for production per Rule 34, the defendant hospital objected to the request, and the plaintiff then filed a motion to compel that the hospital opposed.  A discovery commissioner initially decided the motion and there is no indication the parties ever objected to whether the motion was a “discovery dispute” subject to a discovery commissioner’s limited jurisdiction.

Substantively, the motion to compel was granted and the hospital objected to the district court, arguing for the first time the documents it was ordered to produce were privileged per NRS 439.875.  “However, Valley Health failed to raise its privilege argument before the discovery commissioner; instead, Valley Health raised the issue for the first time during the district court hearing.”[5]  “[B]ecause Valley Health failed to raise its privilege argument before the discovery commissioner, that argument was waived.”[6]

Valley Health never defined the phrase “discovery dispute?”

  • A motion relying upon NRCP 37(c)(1) is not a “discovery dispute.”

NRCP 37(a) permits a party to file a motion to compel.  “A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling disclosure or discovery as follows….”[7]

If a party fails to make a disclosure required by Rule 16.1(a) or 16.2(a), any other party may move to compel disclosure and for appropriate sanctions. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the party not making the disclosure in an effort to secure the disclosure without court action.[8]

NRCP 37(a)(2)(A) is discretionary.  If a party fails to make a disclosure per NRCP 16.1(a), the other party may move to compel.  If a motion to compel is filed, the party must first satisfy NRCP 37(a)(2)(A)’s meet and confer requirements.

But Defendants did not move to compel per NRCP 37(a)(2)(A).  They instead moved for summary judgment based upon excluding evidence per NRCP 37(c)(1).  That rule states, in relevant part:

A party that without substantial justification fails to disclose information required by Rule 16.1, 16.2, or 26(e)(1), … is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed. In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses, including attorney’s fees, caused by the failure, these sanctions may include any of the actions authorized under Rule 37(b)(2)(A), (B), and (C) and may include informing the jury of the failure to make the disclosure.[9]

NRCP 37(c)(1) contains no meet and confer requirement.  It contains no requirement that a party first litigate a motion to compel per NRCP 37(a) before attempting to invoke NRCP 37(c)(1).  NRCP 37(c)(1) stands as an alternative option for parties, independent of NRCP 37(a).  Parties may invoke either or both, but are not required to satisfy NRCP 37(a) before invoking NRCP 37(c)(1).

This distinction between NRCP 37(a) and NRCP 37(c)(1) is consistent with a discovery commissioner’s limited jurisdiction that NRCP 16.1(d) and EDCR 2.34(a) create.  A NRCP 37(a) motion is the classic example of a “discovery dispute” within that limited jurisdiction because it seeks to compel further discovery.  However, a motion for summary judgment based upon excluding evidence per NRCP 37(c)(1) is not a “discovery dispute.”  It seeks to exclude evidence at trial, not further discovery.  The limited jurisdiction NRCP 16.3 and EDCR 2.34 give a discovery commissioner does not include admitting or excluding evidence at trial.  Instead, a motion relying upon NRCP 37(c)(1) is appropriately addressed to the district court who has exclusive jurisdiction over admitting and excluding evidence for trial.

Or so I argued.

[1] NRCP 16.3(b).

[2] EDCR 2.34(a).

[3] The exceptions to that requirement were not implicated.

[4] Valley Health Sys., LLC v. Dist. Ct., 127 Nev. 167, 170, 252 P.3d 676, 678 (2011).

[5] Id. at 169, 252 P.3d at 677.

[6] Id.

[7] NRCP 37(a).

[8] NRCP 37(a)(2)(A).

[9] NRCP 37(c)(1).