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“Those who cannot remember the past are condemned to repeat it.”[1]

It is the dawn of a new era in Nevada state civil court discovery. The Nevada Supreme Court has adopted the Federal Rules of Civil Procedure-style proportionality standard for determining the appropriate scope of discovery.  Gone are the days of discussions over whether discovery is “reasonably calculated to lead to the discovery of admissible evidence.”  But is the proportionality standard really new?  Or is it just in vogue again?  This article discusses cases decided in the Nevada U.S. District Court and elsewhere that should inform how practitioners implement Rule 26 of the Nevada Rules of Civil Procedure.  They read as a cautionary tale.

The 2019 amended Rule 26 says:

(b)     Discovery Scope and Limits.

(1)   Scope. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claims or defenses and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.[2]

            While SCOTUS Chief Justice Roberts called the change to proportional discovery a “big deal”,[3] U.S. District Court Judge Miranda Du has expressed a different opinion, indicating that proportionality does not in reality change the burdens that were already placed on counsel by the prior rules.[4]  After all, proportionality is not a new concept; it was first introduced in the 1983 amendments to FRCP as part of Rule 26(b)(1)(iii), but was later moved to Rule 26(b)(2)(C)(iii) as part of the 1993 amendments.[5]  Proportionality has now been restored to Rule 26(b)(1), where it will play a more prominent role in guiding discovery behavior.

Judges and lawyers now have an elevated obligation to work cooperatively to control the expense and time demands of litigation.[6]  The “active involvement of federal judges is necessary ‘to prevent discovery from becoming a war of attrition or … a device to coerce a party, whether financially weak or affluent.’”[7]  The amendment, therefore, requires that the parties change the way they communicate about what discovery is actually needed in order to eliminate wasteful and unnecessary discovery.  It is “meant to curb the culture of scorched-earth litigation tactics by emphasizing the importance of ensuring that the discovery process ‘provide[s] parties with efficient access to what is needed to prove a claim or defense, but eliminate unnecessary or wasteful discovery.’”[8]

“He Hits From Both Sides Of The [Boiler]Plate.  He’s Amphibious.”[9]

     Objecting that discovery requests are not proportional to the needs of the case is sure to prove too much of a temptation for some Nevada practitioners.  Lawyers should avoid that urge; boilerplate objections are no longer allowed as part of modern discovery.[10]  Merely stating that a request is not proportional to the needs of the case, without further specificity, is a boilerplate objection.  Counsel should beware that creating and using a new boilerplate objection is not likely to win them any friends in the judiciary or among the bar; worse, it may result in a sanction.[11]

FRCP 34 and NRCP 34 make it clear that boilerplate objections are no longer allowed.  NRCP 34(b)(2)(B), like its federal counterpart, requires that when objecting to a request, one must “state the ground for objecting to the request, with specificity, including the reasons.”[12]  “By creating meaningful disincentives to the use of boilerplate objections, courts are using the Rule 34 amendments to strike at the core of the culture of discovery paranoia that has made boilerplate objections so pervasive.”[13]  To be clear, one may lodge an objection (for instance) that a request is overbroad, but must specify how and why it is overbroad while simultaneously admitting and responding to “the scope [of the request] that is not overbroad.”[14]

All discovery is burdensome.  Therefore, in objecting, one must convince the other party (and, perhaps, the court) exactly how the specific request places an unreasonable burden on the responding party, by alleging “(1) specific facts, which indicate the nature and extent of the burden, usually by affidavit or other reliable evidence, or (2) sufficient detail regarding the time, money and procedures required to comply with the purportedly improper request.”[15]

The burden of proof is still on the objecting party to explain, in detail, why the requested discovery should not be allowed.[16]  Crafting objections that are specifically tailored to the case and the requests is key; courts are siding with objecting parties who provide tailored proportionality objections, and against broad discovery requests.[17]

At least one court has held that any objection that does not state the grounds with specificity will be deemed a waiver of all non-privilege objections.[18]  Other courts agree that the use of boilerplate objections places both the party and counsel at risk for substantial sanctions.[19]

“Common Sense is Not so Common”[20]

Proportionality focuses the parties’ attention on the marginal utility of the discovery being sought. [21]  At its core, “proportionality is a ‘common-sense concept’ that should be applied to establish reasonable limits on discovery.” [22]

Counsel now have an affirmative duty to work together to craft discovery that satisfies the proportionality standard.[23]  Under amended Rule 26(b)(1), a party seeking discovery must employ common sense and must “size and shape their discovery requests to the requisites of a case.”[24]  For instance, “[t]he mere fact that an insurer contracts with a vendor . . . does not subject all aspects of the insurer/vendor relationship to discovery”; instead, there must be  a connection to claims at issue.[25]

Magistrate Judge Leen quoted Justice Roberts, who in his year-end report, instructed federal judges to “‘take on a stewardship role, managing their cases from the onset rather than allowing parties alone to dictate the scope of discovery’ and to actively engage in case management to ‘identify the critical issues, determine the appropriate breadth of discovery, and curtail dilatory tactics, gamesmanship, and procedural posturing.’”[26]  All parties involved—counsel, the court, and academia—share the burden to use a common-sense approach regarding how much discovery is needed in any given case.[27]  Magistrate Judge Foley agrees, stating “[t]he pretrial process must provide parties with efficient access to what is needed to prove a claim or defense, but eliminate unnecessary and wasteful discovery.  This requires active involvement of federal judges to make decisions regarding the scope of discovery.”[28]

“The More Things Change, the More They Stay the Same”[29]

    These new amendments do not change the fact that discovery requests must be relevant to the matter being litigated.[30]  “A lawyer signing a discovery document also certifies that it is ‘neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.’ Fed.R.Civ.P. 26(g)(1)(B)(iii).”[31]  NRCP 26(g)(1)(B)(iii) mirrors that requirement.

Some courts have even opined that the amendments don’t change any burdens on counsel; they just require more diligence in addressing proportionality.[32]  For example, the plaintiff in Fernandez v. Cox[33] took the somewhat unique position (given the amendments) that a party seeking discovery does not have the burden to prove proportionality.  Judge Du held that a facially overly broad request, or one where relevancy is not readily apparent, requires the requesting party to show its relevancy.[34]  Both parties have the same obligation to prove proportionality.[35]  Proportionality does not alter the court’s ability to enter a protective order for good cause shown.[36]

Similarly, the obligations of a party seeking discovery from non-parties have not changed.  Proportionality considerations still apply to third-party discovery.[37]

“A Cake, Franck, Is Made Of Flour And Water.  My First Car Didn’t Cost $1,200.”[38]

 The judicial system is the most expensive machine ever invented for finding out what happened and what to do about it.
Irving R. Kaufman

Magistrate Judge Foley disagrees with the notion that parties may ignore the expense of discovery practice.  He wrote that the “general statement . . . regarding a party’s right to pursue less efficient or duplicative discovery avenues can no longer be justified under amended Rule 26(b) given its greater emphasis on the need for proportionality in discovery.”[39]  He further suggests that where responsive information can be provided more accurately and with less burden through one method of discovery rather than another, the parties have a duty to explore and use the more accurate, less burdensome method.[40]  In fact, a court may order sequencing of discovery if doing so will best allow the parties to access the information necessary to resolve the matter.[41]

To properly object that a request places undue burden and expense on the responding party, one must explain in detail why the request is too burdensome and/or expensive to justify a response.[42]  The objecting party must specify the amount of time and/or expense it would incur in responding to the request, documenting how it came to that conclusion.  If the cost of responding to a discovery request is disproportionate to the amount in controversy, one may object that it is not proportionate to the needs of the case.[43]  Where responding to a discovery request would be not be burdensome, our judges require compliance.[44]  However, at least one court has noted that “[d]iscovery and its costs are neither a shield to ward off nor hammer to throttle the opposing party,” indicating that even though it may be expensive, proportional discovery is still required.[45]

Where a requesting party has greater resources than the responding party (also known as “information asymmetry”), courts show less sympathy to that party’s claims of burden.  Corporations often have superior access to records and more sophisticated access to the data than individuals.[46]  The Advisory Committee Note to the 2015 amendment to Rule 26(b)(1) reads in relevant part:

A party claiming undue burden or expense ordinarily has far better information—perhaps the only information—with respect to that part of the determination. A party claiming that a request is important to resolve the issues should be able to explain the ways in which the underlying information bears on the issues as that party understands them.  The court’s responsibility, using all the information provided by the parties, is to consider these and all the other factors in reaching a case-specific determination of the appropriate scope of discovery.[47]

“There is an Enormous Gap Between Public Policy and Public Opinion.”[48]

    Economic issues are not the sole driver in determining proportionality. The “rule recognizes that many cases in public policy spheres, such as employment practices, free speech, and other matters, may have importance far beyond the monetary amount involved”.[49]  Therefore, where a party can demonstrate that a case “involves important issues and has the potential to broadly impact a wide range of third-parties not involved in the litigation,” courts generally allow broader discovery, finding that it is proportional to the unique needs of the case as public policy and therefore permissible.[50]  Public policy considerations cut the other way as well.   While tax documents may be discoverable generally, Magistrate Judge Foley has held that “public policy against unnecessary public disclosure arises from the need, if the tax laws are to function properly, to encourage taxpayers to file complete and accurate returns.[51]  Further, where the need for the requested information does not outweigh one’s privacy interest (such as in one’s financial records), requests are denied.[52]

The “new” changes ushered in by the 2019 amendments to NRCP are not really new at all.  Practitioners are well-advised to alter their discovery practice if they believe that boilerplate, non-tailored objections or requests are allowed in modern discovery.  Let the recent past federal decisions inform our future behavior as Nevada state court litigators.

 


[1] George Santayana, The Life of Reason: The Phases of Human Progress—Volume 1 Reason in Common Sense (1905).
[2] Emphasis added.
[3] Roberts v. Clark Cty. Sch. Dist., 312 F.R.D. 594, 603 (D. Nev. Jan. 11, 2016) (Leen, M.J.) (as explained by Chief Justice Roberts in his year-end Report, amendments “may not look like a big deal at first glance, but they are.” He went on to say that accomplishing the amendments’ goals will only occur “if the entire legal community, including the bench, bar, and legal academy, step up to the challenge of making real change”).
[4] Fernandez v. Cox, 2017 WL 4873066, at *3 (D. Nev. Oct. 26, 2017) (Du, D.J.).
[5] Advisory committee’s note, 1993 Amendments.
[6] Roberts, 312 F.R.D. at 603 (quoting Chief Justice Roberts).
[7] Izzo v. Wal-Mart Stores, Inc., No. 215CV01142JADNJK, 2016 WL 409694, at *2 (D. Nev. Feb. 2, 2016) (Koppe, M.J.) (quoting Roberts, 312 F.R.D. at 603).
[8] Nationstar Mortg., LLC v. Flamingo Trails No. 7 Landscape Maint. Ass’n, 316 F.R.D. 327, 331 (D. Nev. 2016) (Koppe, M.J.) (quoting Roberts, 312 F.R.D. at 603–04).
[9] Yogi Berra.
[10] Gibson v. SDCC, 2016 WL 845308, at *6 (D. Nev. Mar. 2, 2016) (Leen, M.J.) (boilerplate objections are insufficient to show discovery that should not be allowed).
[11]  “Boilerplate and generalized objections are inadequate and tantamount to no objection at all.”  Partner Weekly, LLC v. Viable Mktg. Corp., WL 1577486, at *2 (D. Nev. Apr. 17, 2014) (Ferenbach, M.J.) (citing Walker v. Lakewood Condo. Owners Ass’n, 186 F.R.D. 584, 587 (C.D. Cal.1999)); see also Note 17, infra.
[12] Emphasis added.
[13] The Sedona Conference Federal Rule of Civil Procedure 34(b)(2) Primer: Practice Pointers for Responding to Discovery Requests, The Sedona Conference Journal (2018).
[14] Sprint Comm’s Co. L.P. v. Crow Creek Sioux Tribal Court, No. 4:10-CV-04110, 2016 WL 782247, at *5 (D.S.D. Feb. 26, 2016) (granting portions of defendant’s motion to compel and also noting that the amendments require “[t]he producing party” to “alert other parties to the fact that documents have been withheld and thereby facilitate an informed discussion of the objection”) (citation omitted).
[15] Id. (citing Jackson v. Montgomery Ward & Co., Inc., 173 F.R.D. 524 (D. Nev.1997) (citations omitted); Cory v. Aztec Steel Bldg., Inc., 225 F.R.D. 667, 672 (D. Kan.2005)) (emphasis added).
[16] Kwasniewski v. Sanofi-Aventis U.S. LLC, No. 212CV00515GMNNJK, 2017 WL 6887851, at *1 (D. Nev. Mar. 3, 2017) (Koppe, M.J.) (citing Carr v. State Farm Mut. Auto. Ins. Co., 312 F.R.D. 459, 469 (N.D. Tex. 2015) (addressing burdens following 2015 amendments to the discovery rules).
[17] See, e.g.Black v. Buffalo Meat Serv., Inc., No. 15-CV-49S, 2016 WL 4363506, at *6 (W.D.N.Y. Aug. 16, 2016).
[18] Fischer v. Forrest, No. 14 Civ. 01304, 2017 WL 773694 (S.D.N.Y. Feb. 28, 2017).
[19] Liguria Foods, Inc. v. Griffith Labs, Inc., No. 14 Civ. 3041, 2017 WL 976626 (N.D. Iowa Mar. 14, 2017).
[20] Voltaire.  Or, as I like to say, common sense in an oxymoron.
[21] Guerrero v. Wharton, No. 216CV01667GMNNJK, 2017 WL 7314240, at *2 (D. Nev. Mar. 30, 2017) (Koppe, M.J.) (citing In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., 180 F. Supp. 3d 273, 280 n.43 (S.D. N.Y. 2016).
[22] Id. (citing Sprint Comm’s 316 F.R.D. at 263).
[23] Caballero v. Bodega Latina Corp., 2017 WL 3174931, at *2 (D. Nev. July 25, 2017) (Ferenbach, M.J.).
[24] Morrison v. Quest Diagnostics Inc., 2016 WL 355120, at *1–2 (D. Nev. Jan. 27, 2016) (Leen, M.J.) (quoting Roberts, C.J.);  Roberts, 312 F.R.D. at 603 (quoting Roberts, C.J.).
[25] McCall v. State Farm Mut. Auto. Ins. Co., 2017 WL 3174914, at *9 (D. Nev. July 26, 2017) (Foley, Jr., M.J.).
[26] Gibson, 2016 WL 845308 at *4.
[27] Roberts, 312 F.R.D. at 603. (quoting Roberts, C.J.)  (the amendments “may not look like a big deal at first glance, but they are.”  Justice Roberts suggested the need for “the entire legal community, including the bench, bar, and legal academy, step up to the challenge of making real change”).
[28] Heyman v. State of Nev., 2017 WL 4288699, at *7-8 (D. Nev. Sept. 27, 2017) (Foley, Jr., M.J.)
[29] Jon Bon Jovi, The More Things Change, Bon Jovi’s Greatest Hits: The Ultimate Collection (2010).
[30] Caballero, 2017 WL 3174931 at *1 (“The 2015 amendments did not change this [relevancy] language from the previous version.”); Heyman, 2017 WL 5559912 at *4–5 (evidence of defendant’s sexual history was not relevant or proportional to needs of the case, but the defendant’s drug or alcohol use was relevant because the use may affect one’s memory).
[31] Pettit v. Pulte Mortg., LLC, No. 2:11-CV-00149-GMN, 2011 WL 5546422, at *5 (D. Nev. Nov. 14, 2011) (Leen, M.J.).
[32] See Dao v. Liberty Life Ass. Co., No. 14-CV-04749, 2016 WL 796095, at *3 (N.D. Cal. Feb. 23, 2016) (amended Rule 26(b)(1) “does not actually place a greater burden on the parties with respect to their discovery obligations, including the obligation to consider proportionality, than did the previous version of the Rule”); White Mtn. Cmtys. Hosp. Inc. v. Hartford Cas. Ins. Co., No. 3:13-CV-8194, 2015 WL 8479062, at *2 n.5 (D. Ariz. Dec. 9, 2015) (the amendments to Rule 26(b) do not change the responsibilities to consider proportionality for the court or counsel).
[33] 2017 WL 4873066, at *3 (D. Nev. Oct. 26, 2017) (Du, D.J.).
[34] Id.
[35] Caballero, 2017 WL 3174931, at *2 (“party seeking discovery does not alone carry the burden to prove proportionality … [r]ather, the amendment imposes a collective burden on ‘[t]he parties and the court’”).
[36] Birch v. Lombardo, 2017 WL 6063068, at *6 (D. Nev. Dec. 6, 2017) (Hoffman, Jr., M.J.) (“Even if . . . discovery is relevant and proportional to the needs of the case, the court may, for ‘good cause,’ enter a protective order.”)
[37] Sci. Games Corp. v. AGS LLC, 2017 WL 3013251, at fn. 3 (D. Nev. July 13, 2017) (Koppe, M.J.) (“Because the scope of permissible discovery under Rule 45 parallels the scope of discovery permitted by Rule 26, these proportionality considerations apply to third-party discovery disputes.”).
[38] George Banks, Father of the Bride, Touchstone Pictures (1991).
[39] HSBC Bank USA v. Green Valley Pecos Homeowners Ass’n, Inc., 2016 WL 6915301 (D. Nev. Nov. 21, 2016) (Foley, Jr., M.J.)
[40] Ballentine v. Las Vegas Metro. Police Dep’t, 2016 WL 2743504, at *7 (D. Nev. May 9, 2016) (Foley, Jr., M.J.).
[41] Wide Voice, LLC v. Sprint Commc’ns. Co. L.P., 2016 WL 155031, at *2 (D. Nev. Jan. 12, 2016) (Ferenbach, M.J.) (“The parties and court should consider sequencing discovery to focus on those issues with the greatest likelihood to resolve the case, and the biggest bang-for the buck at the outset, with more discovery, later, as the case deserves.”) (quoting Laurence Pulgram, The Top 7 Takeaways from the 2015 Federal Rules Amendments, A.B.A. (Dec. 2015)).
[42] Gurshin v. Bank of Am. Nat’l Ass’n, No. 2:15-CV-323-GMN-VCF, 2017 WL 68650, at *3 (D. Nev. Jan. 5, 2017), reconsideration denied sub nom. Gurshin v. Bank of Am., N.A., No. 215CV00323GMNVCF, 2017 WL 4248130 (D. Nev. Sept. 25, 2017) (Ferenbach, M.J.) (boilerplate objections which were not specifically tailored to the request are overruled)’ State Farm Mut. Auto. Ins. Co. v. Pointe Physical Therapy, LLC, 255 F. Supp. 3d 700, 705 (E.D. Mich. 2017), aff’d, 2017 WL 3116261 (E.D. Mich. July 21, 2017)).
[43] Nece v. Quicken Loans, Inc., 2018 WL 1072052, at *2 n.1 (M.D. Fla. Feb. 27, 2018) (Party seeking class certification of an unauthorized telephone marketing consumer action requested 3 million emails.  The court found the same was disproportionate to the damages, where damages are limited to $500 per violation).
[44] Wilson v. Wal-Mart Stores, Inc., 2016 WL 526225, at *3 (D. Nev. Feb. 9, 2016) (Ferenbch, M.J.) (defendant’s argument that videotaping worksite was burdensome was not persuasive).
[45] Goes Int’l, AB v. Dodur Ltd., 2016 WL 427369, at *4 (N.D. Cal. Feb. 4, 2016).
[46] Labrier v. State Farm Fire & Cas. Co., 314 F.R.D. 637, 643 (W.D. Mo. 2016), vacated on other grounds by 872 F.3d 567 (8th Cir. 2017).
[47] Advisory Committee’s Notes to FRCP 26, 2015 Amendments.
[48] Noam Chomsky, Failed States, Democracy Now, March 31, 2006.
[49] Advisory Committee’s Note to FRCP 26(b)(1), 1983 Amendments.
[50] Oxbow Carbon & Minerals LLC v. Union Pac. R.R. Co., 322 F.R.D. 1, 7 (D. D.C. 2017).
[51] Amsel v. Gerrard et al., 2017 WL 1383443, at *2 (D. Nev. Apr. 12, 2017) (Foley, Jr., M.J.).
[52] Amsel, WL 1383443, at *4 (Court denied defendants’ request for plaintiffs’ financial information to show hours plaintiffs worked, because “[d]efendants’ credibility argument does not overcome [p]laintiffs’ privacy interests in their financial records.”).

About the Author

Jay Young is a Las Vegas, Nevada attorney. His practice focuses on acting as an Arbitrator and Mediator.

Mr. Young can be reached at 702.667.4868 or at jay@h2law.com.

The information provided on this site does not, and is not intended to constitute legal advice. You understand each legal matter should be considered to be unique and subject to varying results. You should not take or refrain from taking action based on any information contained on this website without first consulting legal counsel, as it is not intended to advise you on your particular matter. Further, you understand that no guarantee is given that the information contained herein is an accurate statement of the law at any given point in time, as the law is constantly changing. Please see http://nevadalaw.info/disclaimer

 

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