By Jennifer L. Braster
In 2015, Federal Rule of Civil Procedure 26 was amended to include a proportionality analysis for discovery. In 2019, Nevada followed suit. Now, Nevada Rule of Civil Procedure 26 requires that all discovery be proportionate, namely taking into consideration: (1) the importance of the issues at stake in the action, (2) the amount in controversy, (3) the parties’ relative access to relevant information, (4) the parties’ resources, (5) the importance of the discovery in resolving the issues, and (6) whether the burden or expense of the proposed discovery outweighs its likely benefit. NRCP 26(b)(1). Each of these factors must be weighed in determining whether or not the discovery is permissible.
Commenting on the 2015 federal amendments, Chief Justice John Roberts explained, “The amended rule states, as a fundamental principle, that lawyers must size and shape their discovery requests to the requisites of a case. Specifically, the pretrial process must provide parties with efficient access to what is needed to prove a claim or defense, but eliminate unnecessary or wasteful discovery. The key here is careful and realistic assessment of actual need.” John Roberts, 2015 Year-End Report on the Federal Judiciary, http://www.supremecourt.gov/publicinfo/year-end/2015year-endreport.pdf (emphasis added). In other words, don’t be unreasonable.
As noted by Justice Roberts, our Magistrate Judges, and Discovery Commissioners, litigation is expensive and even if discovery is relevant, it must be proportional to the needs of this case. Discovery that is permissible in a case seeking $10 million in damages may not be permissible in a case seeking $100,000 in damages. Similarly, the court may find that a pro se litigant does not have the same financial resources as the owner of a multi-million dollar company and thus, certain discovery will not be permitted. While these rule amendments do assist in curbing the expense of litigation, there is no longer a hard and fast rule as to what discovery is permissible and effectively, “it depends.”
If a practitioner seeks to limit discovery based on proportionality, it is important to analyze each of the factors and provide the court with justification for limiting discovery. For example, if the party cannot easily access the information or it will be extremely costly to do so, counsel needs to explain why to the court. If the party is elderly or disabled, making cross-country travel very difficult, a practitioner may be able to advocate for a Zoom deposition in a small dollar amount case.
In a recent case before the Supreme Court of Nevada, the Court found that discovery seeking a medical doctor’s disciplinary actions after treatment of the patient at issue in the case in unrelated matters was not proportionate. Norozian v. Eighth Jud. Dist. Ct., 562 P.3d 1083 (Nev. App. 2025). In contrast, in a recent United States District Court case, the Court found that a plaintiff’s medical records were proportionate to the needs of a products liability case as the plaintiff put her mental, physical, and emotional health at issue in the case and defendant took steps to limit the burden. Brown v. Zeltiq Aesthetics, Inc., Case No. 2:22-cv-00972-RFB-NJK, 2023 WL 4624691, at *3 (D. Nev. July 19, 2023).
Importantly, as NRCP 26(b)(1) states, proportionality does not simply consider expense but also burden. Thus, in a case in which a party seeks to depose a company and provides the list of topics for examination, those topics may be limited based on proportionality. For example, in a recent case, the United States District Court for Nevada found a list of topics for examination “excessive and improper” as “rather than targeting those issues for which corporate testimony is truly needed, the deposition notice tries to cover nearly every conceivable facet of the case.” Alvarado-Herrera v. Acuity, 344 F.R.D. 103, 109 (D. Nev. 2023). The court reasoned that contrasting the 68 topics with the 7-hour deposition limit, much of the deposition preparation would be wasted on topics that would not be covered in the deposition. Id.
In other words, as multiple courts have noted, proportionality requires litigants to use common sense in crafting their discovery. The proportionality rule reminds parties to work together in formulating what is truly needed in discovery based on the circumstances of each specific case.
About the author
Jennifer L. Braster is a founding partner at Naylor & Braster, a commercial litigation firm in Las Vegas, Nevada. Jennifer routinely practices in both the federal and state courts in Nevada and in the areas of commercial litigation, consumer finance, and appellate law. Contact her at 702-420-7000.
About the article
This article was originally published in the Communiqué (Apr. 2025), the official publication of the Clark County Bar Association. See https://clarkcountybar.org/about/member-benefits/communique-2025/communique-apr-2025/. The printed magazine was mailed to CCBA members on March 28, 2025.
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