Recent Amendments to Local Court Rules Mandate Changes to Your Discovery Motion Practice

On April 26, 2024, the Supreme Court of the State of Nevada issued its Order Amending the Rules of Practice for the Eighth Judicial District Court.[1]  Hidden amongst the hundreds of substantive and stylistic changes to the rules are amendments that demand a drastic change in behavior regarding the requirement to hold a meaningful pre-filing dispute resolution conference (sometimes referred to as the “meet and confer” requirement) before filing a discovery motion. 

The requirement is not new, as the court has long required parties demonstrate they engaged in a meaningful dispute resolution attempt before filing a motion.  Nevertheless, counsel all too often provide the court with conclusory statements in their affirming affidavit, such as “opposing counsel and I met and conferred in good faith about the matters at issue in this motion but were unable to resolve the matter without court intervention.”  Such a conclusory affidavit does not satisfy the dispute resolution conference requirement, as it does not allow the court to make a preliminary judgment whether the requirement to meet and confer was actually met.  A motion only accompanied by such a conclusory affidavit is subject to denial without reaching the merits of the motion itself.[2]

To make this point clearer, the amendments now perfectly align EDCR 2.34,[3] EDCR 4.18,[4] and EDCR 5.402[5] and require additional threshold proof regarding what attempts were made to resolve the dispute without court intervention.  They require an affidavit accompanying any discovery dispute that must include:

1. The names of the parties who conferred;
2. Describe the manner in which they communicated (either in person or by telephone as is required by EDCR 2.34(d), EDCR 4.18(d), and EDCR 5.402(d));
3. If a personal or telephone conference was not possible, the motion shall set forth the reasons;
4. Describe “with specificity what attempts to resolve the discovery dispute were made;”
5. Detail “what was resolved and what was not resolved, and the reasons therefor[;]” and
6. Demonstrate that counsel discussed their disputed issues with the same level of detail and legal support as is contained in their briefing before the court.

The amendments read:

A conference requires either a personal or telephone conference between or among counsel…. If a personal or telephone conference was not possible, the affidavit shall set forth the reasons why the conference was not held…. The movant must sufficiently detail in an affidavit the essentials facts to enable the discovery commissioner to pass preliminary judgment on the adequacy and sincerity of the good faith discussion between the parties.  It must include the names of the parties who conferred or attempted to confer and the manner in which they communicated.  The affidavit must demonstrate that counsel discussed their disputed issues with the same level of detail and legal support as is contained in their briefing before the court.

EDCR 2.34(d); EDCR 4.18(d); EDCR 5.402(d).

The amendments codify requirements long recognized by the court and further align state court rules and customs with those in Nevada’s federal courts.  They echo Discovery Commissioner Opinion #10, Alboum v. Koe, which explained:

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 Commissioner 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.[6] 

But the amendments also now require proof that the movant discussed their disputed issues with the same level of detail and legal support as is contained in their briefing before the court.  In other words, if counsel argues new theories or caselaw in the motion that were not presented to opposing counsel, there was no effort to meet and confer on those theories or caselaw. [7]  Therefore the court may not hear those theories or consider the caselaw.  The dispute resolution conference is meant to be a substitute for judicial intervention, not a mere box to check allowing entrance to the courtroom.[8] 

Wise counsel will provide their opposition with every theory and every authority they intend to provide the court or risk the matter being denied without reaching the merits of the motion itself.[9]  If you haven’t, then consider sending a draft of your motion before filing it, giving counsel one last opportunity to comply; the goal is to resolve the matter without court intervention.  Moreover, the requirement has teeth.  A motion that fails to adequately certify that the parties held a meaningful dispute resolution conference may subject the moving party to sanctions.  NRCP 37(a)(5)(A)(i) contains a mandatory sanction for filing a discovery motion “before attempting in good faith to obtain the disclosure or discovery without court action.”

One may argue that this new procedure forces a more expensive resolution process on the parties.  While perhaps true in the short run, it emphasizes that the court is not to intervene in discovery except in extraordinary circumstances.^[10]  Parties are to resolve their own disputes where possible.  If your opposition fails to comply after you have put all your cards on the table, you may safely file your motion.

Jay Young is a former Discovery Commissioner who now consults on discovery matters and serves as special master/referee in disputes including those involving discovery.  He serves as a Mediator, Arbitrator, and Special Master. For further discussion of the pre-filing dispute resolution requirements, refer to A Litigator’s Guide to Nevada Discovery Law, available on Amazon.

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[1] The Order followed the October 23, 2023 petition by Chief Judge Jerry A. Wiese and Judge Jacqueline M. Bluth, Chairperson of the Rules Committee of the Eighth Judicial District Court, requesting changes to the Eighth Judicial District Court Rules (“EDCR”).

[2] Alboum v. Koe, M.D., et al., Discovery Commissioner Opinion #10 (November 2001); Elan Microelectronics Corp. v. Pixcir Microelectronics Co., 2013 U.S. Dist. LEXIS 114165 (D. Nev. 2013).

[3] Civil Division discovery disputes.

[4] Probate, Trust and Administration of Estates discovery disputes.

[5] Family Division discovery disputes.

[6] Alboum v. Koe, M.D., et al., Discovery Commissioner Opinion #10 (November 2001) (citing Shufflemaster, Inc. v. Progressive Games, Inc., 170 F.R.D. 166 (D. Nev. 1996); Messier v. Southbury Training School, 1998 U.S. Dist. Lexis 20315 (D. Conn. 1998)).

[7] Guerrero v. Wharton, No. 16-cv-01667 (D. Nev. Jan. 22, 2018).

[8] Nev. Power v. Monsanto, 151 F.R.D. 118, 120 (D. Nev. 1993)

[9] Alboum v. Koe, M.D., et al., Discovery Commissioner Opinion #10 (November 2001); Elan Microelectronics Corp. v. Pixcir Microelectronics Co., 2013 U.S. Dist. LEXIS 114165 (D. Nev. 2013).

[10] Cardoza v. Bloomin’ Brands, Inc., 141 F. Supp. 3d 1137, 1145 (D. Nev. 2015).