Motion for Sanctions for Failure to Comply with Discovery in Nevada

Background

“NRCP 37(b)(2) authorizes as discovery sanctions dismissal of a complaint, entry of default judgment, and awards of fees and costs. Generally, NRCP 37 authorizes discovery sanctions only if there has been willful noncompliance with a discovery order of the court.” (Young v. Johnny Ribeiro Building (1990) 106 Nev. 88, 92 citing Fire Insurance Exchange v. Zenith Radio Corp. (1987) 103 Nev. 648, 651.)

General Information for Complaints and Motions

In Young, the Nevada Supreme Court “recognized that, in addition to specific sanctioning authority provided by law, ‘courts have inherent equitable powers to dismiss actions or enter default judgments for . . . abusive litigation practices.’” (Eby v. Johnston Law Office, 138 Nev. Adv. Op. 63, 17 (Nev. 2022) quoting Young v. Johnny Ribeiro Building, Inc. (1990) 106 Nev. 88 at 92.)

In Young, the court also forth “a non-exhaustive list of factors which a court may properly consider in deciding whether dismissal is an appropriate sanction. Those factors include:

1. the degree of willfulness of the offending party;
2. the extent to which the non-offending party would be prejudiced by a lesser sanction;
3. the severity of the sanction of dismissal relative to the severity of the discovery abuse;
4. whether any evidence has been irreparably lost;
5. the policy favoring adjudication on the merits;
6. whether sanctions unfairly operate to penalize a party for the misconduct of his or her attorney; and
7. the need to deter both the parties and future litigants from similar abuses.”

(Stubli v. Big D International Trucks (1991) 107 Nev. 309, 313 citing Young, 106 Nev. at 93.)

Standard of Review and Burdens of Proof

“[A reviewing court] need not determine whether [it] would have imposed sanctions in the case, but merely whether ‘no reasonable judge could reach a similar conclusion under the same circumstances.’” (NCP Bayou 2, LLC v. Medici, No. 73820, at *5 [Nev. Mar. 21, 2019] quoting Leavitt v. Siems (2014) 130 Nev. 503, 509.)

Discovery sanctions “are generally reviewed for an abuse of discretion on appeal, but the Young court held ‘that a somewhat heightened standard of review’ applies when the sanction is dismissal with prejudice.” (Id.)

Meet and Confer

Under Nev. R. Prac. Eight Jud. Dist. Ct. 2.34(d), “[d]iscovery 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.” (Id.)

“A conference requires either a personal or telephone conference between or among counsel.” (Id.)

Affidavit Requirements

“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.” (Nev. R. Prac. Eight Jud. Dist. Ct. 2.34(d).)

“If a personal or telephone conference was not possible, the affidavit shall set forth the reasons.... If the responding counsel fails to answer the discovery, the affidavit shall set forth what good faith attempts were made to obtain compliance.” (Id.)

The Court’s Decision

“‘[D]ismissal with prejudice is a harsh remedy to be utilized only in extreme situations,’ which a court must weigh against the policy favoring disposition of cases on their merits.” (Eby v. Johnston Law Office, 138 Nev. Adv. Op. 63, 17 (Nev. 2022) quoting Moore v. Cherry (1974) 90 Nev. 390, 393.) “And ‘while dismissal need not be preceded by other less severe sanctions, it should be imposed only after thoughtful consideration of all the factors involved in a particular case.’” (Eby, id., quoting Young, 106 Nev. at 92.)

In, NCP Bayou 2, LLC v. Medici, the Court of Appeals held “that the district court did not abuse its discretion when it sanctioned Multibank for its repeated discovery abuses, which included issuing the Google subpoena while Elvira's motion to quash was pending, failing to give respondents notice of a subpoena to Google, withholding a crucial letter from Microsoft, and failing to disclose a similar letter from Google.” (NCP Bayou 2, LLC v. Medici, No. 73820, at *6 [Nev. Mar. 21, 2019].)