Nevada Motion to Compel

Introduction

Key Things to Know

1. 1

   A Nevada motion to compel asks for an order compelling an answer, a designation, production or inspection under NRCP 37(a)(3)(B), and DCR Rule 23 dictates how the interrogatory version has to be written: the demand must set forth in full the interrogatory and the answer or answers to it. NRCP 37(a)(4) supplies the reason a response on paper can still be compelled, treating an evasive or incomplete disclosure, answer or response as a failure to disclose, answer or respond.

2. 2

   Expect a discovery commissioner, not a judge, at the first hearing. NRCP 16.1(d) is headed Automatic Referral of Discovery Disputes and provides that where 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 under Rule 16.3. NRCP 16.3(b)(2) lets a commissioner preside at discovery resolution conferences and over discovery motions. The words Where available matter: the referral bites in a judicial district that has appointed a commissioner under NRCP 16.3(a).

3. 3

   The commissioner does not simply rule, and the next deadline is yours to meet. NRCP 16.3(c)(1) requires the commissioner to prepare a report with recommendations for a resolution of each unresolved dispute, to file it with the court and to serve a copy on each party. Under NRCP 16.3(c)(2) any party then has 14 days after being served with the report to file and serve written objections, written authorities may be filed with an objection but are not mandatory, and if authorities are filed any other party has 7 days to respond. Under 16.3(c)(3) the court may affirm, reverse or modify without a hearing, set a hearing, or remand. Let the 14 days pass and there is nothing in front of the judge to decide.

4. 4

   Nevada caps two devices at 40, and the second cap has no federal counterpart at all. NRCP 33(a)(1) allows no more than 40 written interrogatories per party including all discrete subparts, absent stipulation or court order. NRCP 36(a)(7)(A) allows no more than 40 requests for admission on any single party without a written stipulation under Rule 29 or, on a showing of good cause, a court order granting leave to serve a specific number of additional requests. NRCP 36(a)(7)(B) counts subparts of requests as separate requests and exempts requests going to the genuineness of documents. A cap cuts both ways here: discovery served over the limit was not discovery the other side had to answer.

5. 5

   Requests for admission do not go through NRCP 37(a) at all. NRCP 36(a)(3) admits the matter automatically if no written answer or objection is served within 30 days, so a total non-response leaves nothing to compel. Where an answer or objection was served, NRCP 36(a)(6) gives a motion to determine the sufficiency of an answer or objection, and its remedies are different: unless the court finds an objection justified it must order that an answer be served, and on finding an answer non-compliant it may order either that the matter is admitted or that an amended answer be served. The rule imports the money exposure in one sentence, saying Rule 37(a)(5) applies to an award of expenses.

6. 6

   The expense award is mandatory and symmetrical, and the verb is must. NRCP 37(a)(5)(A) provides that if the motion is granted, or if the disclosure or requested discovery is provided after the motion was filed, the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both, to pay the movant's reasonable expenses incurred in making the motion, including attorney fees. Three things stop it: that the movant filed before attempting in good faith to obtain the discovery without court action, that the nondisclosure, response or objection was substantially justified, or that other circumstances make an award of expenses unjust. Subparagraph (B) makes the same award mandatory against a losing movant, so a thin demand is a real risk.

7. 7

   Nevada's rules set no deadline for bringing the motion and no waiver against the movant, and there is no longer clock for a defendant served with discovery early. NRCP 33(b)(2), 34(b)(2)(A) and 36(a)(3) each run 30 days from service of the request on the responding party, with no alternative period measured from the summons. NRCP 26(d) is headed Sequence of Discovery and says only that the methods may be used in any sequence and that discovery by one party does not require another to delay its own. A shorter or longer time may be stipulated under NRCP 29 or ordered by the court, and in practice the real outside limit is the close of discovery set by the NRCP 16.1(b) discovery plan and scheduling order.

Nevada Requirements for Motion to Compel

• The DCR Rule 23 Demand, With Each Interrogatory and Answer Set Out in Full

  Rule 23 of the Rules of the District Courts of the State of Nevada provides that a demand to compel further answer to any interrogatory shall set forth in full the interrogatory and the answer or answers thereto. This is Nevada's functional separate statement even though the phrase separate statement appears nowhere in Nevada's rules, and it sits in the district court rules rather than in NRCP 37. Draft accordingly: the disputed interrogatory in the body, the whole of the answer underneath, item by item, rather than a cross-reference to an exhibit.

• A Check on Whether Your District Has a Discovery Commissioner

  NRCP 16.1(d) provides that where 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 under Rule 16.3. NRCP 16.3(a) lets a judicial district appoint one or more commissioners, by concurrence of a majority of all judges in a multi-judge district, so whether one exists depends on your district. NRCP 16.3(b)(2) lets the commissioner preside at discovery resolution conferences and over discovery motions. Settle this first, because it decides who reads the demand you are about to write.

• A Diary Entry for the 14-Day Objection Window

  NRCP 16.3(c)(1) requires the commissioner to prepare a report with recommendations for a resolution of each unresolved dispute, to file it with the court and to serve a copy on each party. NRCP 16.3(c)(2) then gives any party 14 days after being served with the report to file and serve written objections, provides that written authorities may be filed with an objection but are not mandatory, and gives any other party 7 days to file responding authorities if authorities are filed. Under 16.3(c)(3) the court may affirm, reverse or modify without a hearing, set a hearing, or remand. Nothing reaches the judge if the 14 days pass without an objection.

• The Interrogatory and Admission Counts, Both Capped at 40

  NRCP 33(a)(1) allows no more than 40 written interrogatories per party including all discrete subparts, absent stipulation or court order, with leave to serve more granted to the extent consistent with Rule 26(b)(1) and (2). NRCP 36(a)(7)(A) allows no more than 40 requests for admission on any single party without a written stipulation under Rule 29 or, on a showing of good cause, a court order granting leave to serve a specific number of additional requests, which the Federal Rules do not do at all. Subparagraph (B) counts subparts of requests as separate requests and exempts requests relating to the genuineness of documents. Count before filing: discovery served over the cap was not discovery the other side had to answer.

• The Right Vehicle for a Request for Admission

  Requests for admission are outside NRCP 37(a). If nothing was served, NRCP 36(a)(3) provides that the matter is admitted unless a written answer or objection addressed to it, signed by the party or its attorney, is served within 30 days, so there is no order to seek. If an answer or objection was served and is inadequate, NRCP 36(a)(6) gives a motion to determine the sufficiency of an answer or objection: unless the court finds an objection justified it must order that an answer be served, and on finding an answer non-compliant it may order either that the matter is admitted or that an amended answer be served. That rule says Rule 37(a)(5) applies to an award of expenses.

• The NRCP 37(a)(1) Certification Inside the Motion

  NRCP 37(a)(1) makes the certification a required content of the motion: the motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action. Nevada states the price of skipping it, at NRCP 37(a)(5)(A)(i), which bars the expense award where the movant filed before attempting in good faith to obtain the discovery without court action. Separately, any pre-motion conference requirement with prescribed content comes from an individual judicial district's own rules of practice rather than from a statewide rule, so check the rules for the district your case is in.

• An Objection-by-Objection Note on Form and Waiver

  DCR Rule 23 requires that each objection to an interrogatory, a request for admission or a demand for production of documents, and each application for a protective order, include a verbatim statement of the interrogatory, question, request or demand together with the basis for the objection, and that answers to interrogatories set forth each question in full before each answer. So a response that objects without quoting what it objects to is defective in form. Add the substantive point from NRCP 33(b)(4): any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure. Take the objections one at a time and say which of the two duties each one misses.

• The Expense Request, With the Symmetric Exposure Priced In

  NRCP 37(a)(5)(A) provides that if the motion is granted, or if the disclosure or requested discovery is provided after the motion was filed, the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both, to pay the movant's reasonable expenses incurred in making the motion, including attorney fees. The court must not order payment where the movant filed before attempting in good faith to obtain the discovery without court action, where the nondisclosure, response or objection was substantially justified, or where other circumstances make an award unjust. Subparagraph (B) makes the same award mandatory against a losing movant or the attorney filing the motion, and (C) permits apportionment on a split result. Attach a statement of the amount claimed.