Complying with the Meet and Confer Requirement in Nevada Discovery Disputes

Nevada law requires that counsel, before filing a motion regarding a discovery dispute, meet and confer in an attempt to resolve the matter without court intervention.  This article discusses the requirements of that obligation, together with the mechanics of how the parties must be prove compliance with the requirement to the court.

The Eighth Judicial Court Rule (“EDCR”) 2.34 provides, in relevant part:

(d) Discovery motions may not be filed unless an affidavit of moving counsel is attached thereto setting forth that after a discovery dispute conference or a good faith effort to confer, counsel have been unable to resolve the matter satisfactorily. A conference requires either a personal or telephone conference between or among counsel. Moving counsel must set forth in the affidavit what attempts to resolve the discovery dispute were made, what was resolved and what was not resolved, and the reasons therefor. If a personal or telephone conference was not possible, the affidavit shall set forth the reasons.

(Emphasis added).  Further, all “[a]ffidavits/declarations must contain only factual, evidentiary matter, conform to the requirements of NRCP 56(e), and avoid mere general conclusions or argument.”  EDCR 2.21(c).

Therefore, in order to comply with the reporting requirement, one must submit sworn, admissible testimony.  NRCP 56(e) requires “[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”

The first requirement of Rule 56(e) is that the sworn testimony must be made upon personal knowledge.  See generally Saka v. Sahara–Nevada Corp., 92 Nev. 703, 705, 558 P.2d 535, 536 (1976) (recognizing that affidavits must be based on “the affiant’s personal knowledge, and there must be an affirmative showing of his competency to testify to them” (as cited by Las Vegas Convention & Visitors Auth. v. Miller, 124 Nev. 669, 687, 191 P.3d 1138, 1150 (2008)).  A witness is only competent to testify to a fact if there is evidence that she has personal knowledge of the matter.  NRS 50.025(l)(a); see also Bennett v. State, 281 P.3d 1154 (Nev. 2009).   A person only has personal knowledge of a fact that she has “personally observed.”  Bennett v. State, 281 P.3d 1154 (Nev. 2009) (quoting State v. Vaughn, 101 Wash.2d 604, 682 P.2d 878, 882 (Wash.1984); cf. Lane v. District Court, 104 Nev. 427, 446, 760 P.2d 1245, 1257 (1988) (noting that the witness was incompetent to testify because she was not present at the time in question)).

By incorporating the Rule 56(e) standard, the Rule’s authors and the courts distinguish circumstances where facts may be presented in motions before the court only by personal knowledge with other circumstances where one may testify based on belief.  Williams v. Clark Cnty. Dist. Attorney, 118 Nev. 473, 480, 50 P.3d 536, 540 n.9  (2002) (City of Santa Cruz v. Municipal Court, 49 Cal.3d 74, 260 Cal.Rptr. 520, 776 P.2d 222, 230 (1989) (acknowledging that the legislature may expressly authorize the use of affidavits based on information and belief or may require affidavits based on personal knowledge). Compare NRS 31.330 (providing that affidavit charging a garnishee with liability may be made upon information and belief), with NRCP 56(e) (stating that affidavits supporting or opposing a summary judgment motion shall be made on personal knowledge)).”

Testimony about one’s belief without personal knowledge is insufficient under the Rule 56(e) standard, and is therefore insufficient to qualify under the Nevada meet and confer reporting standard.  See Coblentz v. Hotel Employees & Rest. Employees Union Welfare Fund, 112 Nev. 1161, 1172, 925 P.2d 496, 502 (1996).  In fact, “a district court’s reliance upon an affidavit which does not comply with [Rule 56(e)] may constitute reversible error.”  See Havas v. Hughes Estate, 98 Nev. 172, 173, 643 P.2d 1220, 1221 (1982) (quoting Daugherty v. Wabash Life Ins. Co., 87 Nev. 32, 482 P.2d 814 (1971); cf. State of Washington v. Maricopa County, 143 F.2d 871 (9th Cir. 1944)).

Further, hearsay statements are, of course, inadmissible under Rule 56(e) or any other evidentiary standard.  NRS 51.065; see also Moore v. United States, 429 U.S. 20, 21-22, 97 S.Ct. 29, 50 L.Ed.2d 25 (1976) (per curiam); Donnelly v. United States, 228 U.S. 243, 273, 33 S.Ct. 449, 57 L.Ed. 820 (1913).  Mere conclusions rather than factual statements are inadmissible.  See EDCR 2.21(c); see also Gunlord Corp. v. Bozzano, 95 Nev. 243, 245, 591 P.2d 1149, 1150 (1979).

The requirements for the report on the good faith meet and confer are outlined by Alboum v. Koe, M.D., et al.,  Discovery Commissioner Opinion #10 (November, 2001).

In order to satisfy the requirements of E.D.C.R. 2.34 the movant must detail in an affidavit the essential facts sufficiently to enable the [Court] to pass preliminary judgment on the adequacy and sincerity of the good faith discussion between the parties.  It must include the name of the parties who conferred or attempted to confer, [the conference should be between the attorneys/parties – not delegated to secretaries or paralegals] the manner in which they communicated, the dispute at issue, as well as the dates, times and results of the discussions, if any, and why negotiations proved fruitless.

One must show that:

[d]uring the informal negotiations, the parties [presented] to each other the merits of their respective positions with the same candor, specificity and support, as they do when presenting their position to the [Court].  ‘Only after all the cards have been laid on the table, and a party has meaningfully assessed the relative strengths and weaknesses of its position in light of all available information, can there be a ‘sincere effort’ to resolve the matter.’

Id. (quoting Nevada Power Co. vs. Monsanto Co., 151 F.R.D. 118, 120 (D. Nev. 1993); Prescient Partners, L.P. v. Fieldcrest Cannon, 1998 U.S. Dist. Lexis 1826 (S.D. N.Y. 1998)).  The meet and confer requirement, together with the requirement regarding how the same is reported to the Court, is to be strictly construed.  Id. (citing Moran v. Bonneville Square Assoc., 117 Nev. Adv. Op. 46, 25 P.3d 898 (2001); KDI Sylvan Pools v. Workman, 107 Nev. 340, 810 P.2d 1217 (1991)).   Failure to comply should result in denial of the Motion.  Id. (citing Schick v. Fragin, 1997 Bankr. Lexis 1250 (Bankr. S.D. N.Y. 1997); Tri-Star Pictures v. Unger, 171 F.R.D. 94 (S.D. N.Y. 1997)).

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Jay Young, Mediator and Arbitrator

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