The Long Odds of a Successful Discovery Writ

You think your client has suffered a grievous, horribly wrong, entirely baseless discovery ruling![1]  Then you decide that “zealous representation,”[2] means you will pursue a writ to Nevada’s Supreme Court to vindicate your client’s rights!  Will it work?[3]

Have you preserved the issue?

The second and eighth judicial districts use discovery commissioners.  There are specific procedures and deadlines about objecting to the ruling.[4]  Did you comply with them?  Was the argument that you want to take up presented to them?  If not, then that argument may have already been waived.

The court generally isn’t going to care.

“But why Santie Claus, why?” you ask.[5]  “Generally, a district court’s ruling on discovery matters is within its sound discretion and will not be disturbed absent a clear abuse of that discretion.”[6]  There is also the standing presumption that the appellate courts will generally refuse “to review a discovery order through a petition for extraordinary relief….”[7]  Good luck with that.

Well, my client or case is exceptional![8]

There are two ways that seem to make a case “exceptional.”  The presumption against hearing a petition can be overcome if “the challenged discovery order is one that is likely to cause irreparable harm, such as a blanket discovery order, issued without regard to the relevance of the information sought, or an order that requires disclosure of privileged information.”[9]  The blanket discovery order factor is established in Schlatter v. Dist. Ct.[10]

Is there a privilege involved? “While writ relief is rarely available with respect to discovery orders, once information is produced, any privilege applicable to that information cannot be restored. Thus, a writ petition is the proper mechanism to seek relief in this instance, and we will consider the petition.”[11]  That is how discovery orders were reviewed via writ petitions in Valley Health and Club Vista.  It is also how multiple discovery writs were heard in the Wynn v. Okada saga.[12] 

Don’t have a privilege or blanket discovery order issue? “Those two exceptions were my last hope!”  No, there is another.  Who do you represent?  Yes, that is sometimes a factor.  For instance, the first published Wynn v. Okada decision discussed where a deposition should be taken.[13]  Why was the petition heard?  “Here, although the challenged order does not fall within either of this court’s two presumptive categories for considering a discovery-related writ petition, we exercise our discretion to consider Okada’s petition because it raises important issues of law that need clarification.”  I disagree that a deposition’s location rose to the level requiring en banc Supreme Court consideration, but note who the parties were.

Then there is Raggio v. Dist. Ct.  It was a dispute where a trust beneficiary (Righetti) sued the trustee (Dale).  “Righetti sought discovery of Dale’s accounting and distributions of the Credit Shelter Trust to prove these claims.”  The trust gave “allows the trustee to pay as much of the principal of the trust ‘as the Trustee, in the Trustee’s discretion, shall deem necessary for the proper support, care, and maintenance’ of Dale.”  The parties disagreed as to how to evaluate the trustee’s discretion as to what is “necessary for the proper support, care, and maintenance.”  The district court then concluded that to assess that phrase it was necessary to know about Dale’s financial affairs in both trusts, not just the one to which Righetti was a contingent beneficiary.  The writ petition followed.

No privilege argument was presented.  There was no blanket discovery order because the discovery was limited to the trusts.  The petition was considered because

the discovery order implicates Dale’s privacy interests as the district court concluded it needed to review her “standard of living and supportive resources beyond the marital deduction trust” to determine if the distributions were necessary and proper. If the discovery permitted by the district court is legally irrelevant, a later appeal would not remedy the improper disclosure of the information.

I disagree.  As the dissent noted, “Dale has made no showing of a likelihood of irreparable injury, having acknowledged that the requested discovery would not result in the disclosure of any privileged information, and failed to demonstrate any particular harm if the records were to be disclosed.”  I’d argue the reason this petition was heard because it involved William Raggio.  If you are newer to Nevada, Google him.

Then there is Turnberry v. Dist. Ct. where corporate entities involved in the failed Fountainbleu Las Vegas project were suing each other (still) apparently now over a $95,000,000 loan.  The district court ordered Turnberry to produce certain documents, “produce a privilege log for privileged documents and provide a sworn declaration for documents it did not or could not possess.”[14]  The court decided to hear this petition on its merits.  “If improper discovery were allowed, petitioners would lose their substantive right to withhold documents, as the documents would have already been disclosed.”  That factor is not one discussed in the other cases.  I cannot explain why the petition was heard other than who was involved, again.

So my writ petition is probably a lost cause?

If it does fit within the two official factors or the amorphous third, then I’m not optimistic.

[1] A semi-common thought.

[2] A term that has been struck from the rules of professional conduct anyway.

[3] I wouldn’t put money on it.

[4] Those in the eighth are generally discussed in the May 6, 2013 post.

[5] Cindy Lou Who: Santie Claus, why? Why are you taking our Christmas tree? Why?

[6] Raggio v. Dist. Ct., (In re William J. Raggio Family Tr.), 136 Nev. Adv. Op. 21 (Apr. 9, 2020).

[7] Id.

[8] Sure it is.

[9] Club Vista Fin. Servs. v. Dist. Ct., 128 Nev. 224, 228, 276 P.3d 246, 249 (2012).

[10] 93 Nev. 189, 561 P.2d 1342 (1977).

[11] Valley Health Sys., LLC v. Dist. Ct., 127 Nev. 167, 169, 252 P.3d 676, 677 (2011).

[12] Several of the opinions were discussed here.  Those relevant to privilege were discussed on July 31, 2017 and  February 5, 2018.

[13] Discussed on October 19, 2015.

[14] No. 78620, 2020 Nev. Unpub. LEXIS 330 (Mar. 26, 2020).