Are Motions to Compel a Predicate for Further Relief?

If a party that bears the burden of proof on a given point fails to participate in discovery on that point, may the opposing party seek relief without first filing a motion to compel?  The Court of Appeals thinks so.

E. Hills Ctr. Phase LL 2015, LLC v. Myrh, Inc. was a commercial lease dispute.[1]  A defense decision was entered because plaintiff Eastern Hills failed to participate in discovery.

Here, Eastern Hills failed to provide its initial disclosures until after the discovery cutoff and only did so two weeks prior to the arbitration hearing-conduct that the district court found compromised Myrh’s ability to depose the proper parties and form an adequate arbitration strategy. Additionally, Eastern Hills failed to timely respond to discovery requests, and when it did, it failed to produce all of the requested information, which was information crucial not only to proving its case, but to Myrh’s ability to defend the case.

Eastern Hills appeared to concede these factual points, but argued any relief was improper because defendant Myrh had not first moved to compel.  That failed because Eastern Hills “points to no authority, and we are not aware of any, which would excuse Eastern Hills’ failure to participate in good faith on this basis.”

[1] No. 75316, 2019 Nev. App. Unpub. LEXIS 1012, 2019 WL 6826453 (Nev. App. December 12, 2019).