Several of Nevada’s Rules of Civil Procedure require parties, and non-parties, to produce all documents, electronically stored information, and tangible things that are within their “possession, custody, or control.” However, until recently, neither the Rules of Civil Procedure nor the Nevada Supreme Court had defined the scope of this phrase. On July 9, 2020, the Nevada Supreme Court issued a new opinion clarifying that the phrase pertains to all documents, electronically stored information and tangible things: (1) that are within a party’s or non-party’s actual possession; or (2) that the party or non-party has a legal right to obtain. State, Dep’t of Taxation v. Eighth Jud. Dist. Ct. ex rel. Cnty. of Clark, 136 Nev. Adv. Op. 42, 466 P.3d 1281 (July 9, 2020).
Specifically, NRCP 16.1(a)(1)(A)(ii) requires a party to disclose copies “of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or
defenses . . . .” Similarly, NRCP 34(a)(1), requires a party to produce copies of all documents, electronically stored information, and tangible things which are within the party’s “possession, custody, or control” and responsive to the adverse party’s written discovery request. Moreover, NRCP 45(a)(1)(A)(iii) requires a non-party to produce all documents, electronically stored information, and tangible things which are within the non-party’s “possession, custody, or control” and are responsive to a subpoena served on the non-party.
There has been much debate over the definition of the phrase “possession, custody, or control” and the lengths parties or non-parties must go to in order to obtain relevant documents that are beyond their physical possession. Often, parties and non-parties relied on federal law for guidance on this issue; however, federal law was not very instructive as there was a split of authority among the federal courts. Several Circuit Courts of Appeal, including the Ninth Circuit Court of Appeal, interpreted the phrase to mean documents in a party’s or non-party’s actual possession, as well as documents that the party or non-party had a legal right to obtain. See, e.g., In re Citric Acid Litig., 191 F.3d 1090, 1107-08 (9th Cir. 1999). Other Circuit Courts of Appeal, like the Second Circuit Court of Appeal, defined the phrase to mean documents within a party’s or non-party’s actual possession or documents that the party or non-party had a “practical ability to produce,” even if there is no legal right to such documents. Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 138 (2d Cir. 2007).
The Nevada Supreme Court has ultimately chosen to adopt the Ninth Circuit’s interpretation of the phrase “possession, custody, or control (actual possession or a legal right to obtain). The Court reasoned that requiring a party to produce documents, electronically stored information, or tangible things that it had the “practical ability” to obtain with good faith efforts would often prove futile where the party lacked the legal right to such documents.
About Sarah Harmon:
Sarah E. Harmon is a partner at Bailey Kennedy and has over 18 years of experience in the areas of appellate advocacy and civil/business litigation, including breach of contract, fraud, legal malpractice, products liability, complex civil litigation, and many other types of business disputes. Her experience with appellate advocacy includes appeals from adverse judgments and orders as well as petitions for extraordinary writ relief. Ms. Harmon can assist clients with obtaining settlements and judgments before going to trial, avoiding errors at trial, and properly preserving issues for an appeal.
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