Court of Appeals Gives Guidance on Rule 26

The 2019 amendments to Nevada’s Rules of Civil Procedure changed the scope of discovery.  Last Thursday the Court of Appeals published a decision that provides reiterates discovery must be evaluated against both relevancy and proportionality. It also gave guidance as to factors to consider for granting protective orders.

Venetian Casino Resort, LLC v. Dist Ct. arose from a slip and fall.[1]  Plaintiff requested Venetian

produce incident reports relating to slip and falls on marble flooring for the three years preceding her injury to the date of the request.  In response, the Venetian provided 64 incident reports that disclosed the date, time, and circumstances of the various incidents.  However, the Venetian redacted the personal information of injuries parties from the reports, including names, addresses, phone numbers, medical information, and any social security numbers collected.

Plaintiff objected to the redactions, asserting initially that the information was relevant to her constructive notice claim.  She also asserted this information was relevant to defending against the comparative negligence affirmative defense.  Plaintiff then took things into her own hands and disseminated all 64 reports to others engaged in litigation with Venetian.

Venetian then moved for a protective order.  The Discovery Commissioner agreed there was a privacy concern at issue, the redactions were appropriate, and that Plaintiff could not share the reports outside the case.  Plaintiff objected to the district court, who overruled the Discovery Commissioner completely and ordered Venetian to produce the unredacted reports without limitation as to how Plaintiff could share them.  Venetian then moved for writ relief.

Why was the writ even heard on the merits?

The Court of Appeals wrote “a later appeal would not effectively remedy any improper disclosure of the Venetian’s guests’ private information.”  At this point, my impression is that there simply is no agreement at all among the appellate courts about when or even why writ petitions should be heard.  Privilege seems to be a common basis, but there is no privilege implicated here.  The district court was correct on that point.  But if “privacy” is a basis upon which a writ might be heard on its merits, what “privacy” factors are relevant?  The mere fact that someone was present at a casino does not seem to be much of a concern.  Plaintiff agreed that the Social Security numbers would remain redacted.

The sole point of my comments is that predicting the basis upon which a discovery based writ petition might actually be heard is a crapshoot.[2]

Is the information proportional?

The Court of Appeals expressly refused to decide whether the information Plaintiff sought was discoverable.[3]  Instead the writ was granted because the district court’s order considered only relevancy, but Rule 26(b)(1) expressly requires a two step analysis: 1) relevancy; 2) proportionality.  As to relevancy, Plaintiff apparently abandoned her argument that the reports were relevant to this point.  It would have been far more interesting if the argument had been pursued because of the potential implications for Eldorado Club v. Graff.[4]  The Court of Appeals never stated whether this information was in fact relevant to comparative negligence.  Regardless, assuming relevance was demonstrated, the district court simply never performed the proportionality analysis which by itself was a basis to grant the writ.

What is “good cause” sufficient to support a protective order?

The district court ruled there was no legal basis for a protective order.  This also was an abuse of discretion because the district court should have considered “whether the Venetian demonstrated good cause for a protective order based on the individual circumstances before it.”

The Court of Appeals then gave guidance about how to determine if good cause is present for protective orders.  The guidance largely mirrors the federal system.  “First the district court must determine if particularized harm would occur due to public disclosure of the information.”  Generalized claims of harm will not suffice.  If particularized harm is demonstrated, then is “must balance the public and private interests to decide whether a protective order is necessary.”  A nonmandatory and nonexhaustive list of factors includes:

  1. whether disclosure will violate any privacy interests;
  2. whether the information is being sought for a legitimate purpose or for an improper purpose;
  3. whether disclosure of the information will cause a party embarrassment;
  4. whether confidentiality is being sought over information important to public health and safety;
  5. whether the sharing of information among litigants will promote fairness and efficiency;
  6. whether a party benefiting from the order of confidentiality is a public entity or official; and
  7. whether the case involves issues important to the public.

If these factors weigh in favor of a protective order the district court “must still consider whether redacting portions of the discovery material will nevertheless allow disclosure.”

The district court did not do any of this, so the writ was entered and remand ordered for proceedings consistent with the opinion.

[1] 136 Nev. Adv. Op. 26 (2020).

[2] Also discussed in the April 20, 2020 post.

[3] Note 5.

[4] Discussed in the March 18, 2019 post.