Written by Joe Tommasino, Esq.
Supreme Court of Nevada
Child abuse and neglect: NRS 432B.290(4) provides a limited privilege for child-abuse-or-neglect reporter identities when the agency possessing that information determines that disclosure would harm an investigation or harm the life or safety of any person. The State of Nevada charged real party in interest Nikos Sharp with several criminal offenses stemming from a child-abuse-or-neglect investigation conducted by petitioner Clark County Department of Family Services (DFS). In preparing his defense, Sharp sought information contained in several other reports to DFS involving the alleged victim, and over DFS’s objection, the district court compelled DFS to turn over the information, including the identities of the individuals who reported the abuse or neglect to DFS. In this original proceeding, the Supreme Court of Nevada considered whether the district court erred in ordering DFS to disclose the identities of the persons who made the unrelated allegations involving the alleged victim. Whether a district court can order DFS to disclose reporter identities during criminal discovery is an important issue that implicates both constitutional concerns and the compelling public interest in encouraging citizens to report suspected child abuse. The Court concluded that the plain language of NRS 432B.290 must be harmonized with the constitutional due-process requirements of criminal prosecutions. Construing NRS 432B.290(4) to provide a limited privilege for reporter identities balances policy goals by creating a safety valve: DFS can protect reporter identities if it determines that disclosure would harm an investigation or a person. This interpretation also fits neatly with the other provisions of the statute. For example, NRS 432B.290(2)(e) authorizes DFS to publicly disclose confidential information if “the court determines that public disclosure of the information is necessary for the determination of an issue before it.” Interpreting NRS 432B.290(4) otherwise would improperly impact criminal defendants’ ability to defend themselves by forever foreclosing their ability to get discovery that might be essential to their defense. Under NRS 432B.290(2)(e), the district court is required to conduct an in camera review to determine what can be released, and the judge appropriately did so in this case. Nevertheless, the limited privilege for reporter identities discussed in this case does not apply under the facts presented, so the district court did not err in ordering DFS to disclose the applicable identities. Separately, Justice Lee filed a concurring opinion and proposed that, under NRS 432B.290(4), DFS must always protect the identity of reporters but must protect “any other person” only when the disclosure would cause specified harm. Clark Cnty. Dep’t. of Fam. Serv. v. Dist. Ct. (Sharp), 141 Nev. Adv. Op. No. 10, _ P.3d _ (March 6, 2025).
Education records: The federal Family Education Rights and Privacy Act (FERPA) defines “education records” as records that are both directly related to the student and maintained by the educational institution. This petition for writ relief concerns whether emails stored in a school district’s database but not placed in a student’s permanent file qualify as “education records” under FERPA. The district court ordered the Clark County School District (CCSD) to comply with a request for education records under FERPA by producing all emails stored in CCSD’s Google Vault (a cloud-based electronic database) that referenced a certain student. The Supreme Court of Nevada agreed that the emails are “maintained” by the school district because they are electronically stored in the school district’s email database. However, because CCSD failed to identify or produce any emails, the district court erred in determining that the emails are “directly related” to the student without first assessing the content of those emails. Thus, the district court must perform an in camera review of all emails maintained by CCSD that mention the specific student by name, initial, or student ID number to determine whether the emails are directly related to that student. Clark Cnty. School Dist. v. Dist. Ct. (Angalia B.), 141 Nev. Adv. Op. No. 11, _ P.3d _ (March 6, 2025).
Nevada Uniform Commercial Code (UCC): Discovery tolling does not apply to a breach-of- implied-warranty claim under NRS 104.2725(2). This appeal arose from an alleged violation of the implied warranty of merchantability after the sale of a commercial gasoline storage tank over 15 years ago. Appellant Golden Gate/S.E.T. Retail of Nevada, LLC, claimed that the district court erred in concluding that Golden Gate’s claim was time-barred and, therefore, in granting summary judgment in favor of the manufacturer, respondent Modern Welding Company of California, Inc. In this opinion, the Supreme Court of Nevada considered whether a claim for breach of implied warranty under the Nevada UCC is subject to discovery tolling. The discovery rule tolls the statute of limitations on a cause of action until the plaintiff knows or reasonably should know of the facts underlying the claim. The Court has applied the discovery rule to contract actions when the operative statute of limitations “is silent as to when such a cause of action accrues.” Although the discovery rule may be applied to some contract actions, it would be inappropriate to apply the rule to claims of breach of an implied warranty under NRS 104.2725(2). That statute, which governs limitations periods for UCC breach-of- sale contract actions, is not silent as to when the cause of action accrues. Rather, it specifies that a cause of action for breach of warranty accrues on the tender of delivery of the goods. This distinguishes it from the statutory causes of action where the discovery rule has been applied in the past, which did not speak to the time of accrual. The Court emphasized that applying the discovery rule to NRS 104.2725(2) would contradict the specific statutory language. Moreover, the UCC already provides its own discovery rule for breach-of-warranty claims, and this rule is broadly construed to exclude implied-warranty claims. The UCC applies the discovery rule to breach-of-warranty actions when a warranty “explicitly extends to future performance.” Because the UCC discovery rule requires an explicit promise of future performance, and implied warranties inherently cannot explicitly promise anything, other state courts have generally held that implied warranties are outside the scope of the future-performance exception. Federal courts have also generally concluded that claims for breach of implied warranty under the UCC should not be subject to discovery tolling, as they are excluded from the future-performance exception. Thus, the consensus view supports the conclusion that the discovery rule does not apply to claims of breach of an implied warranty under NRS 104.2725(2). Golden Gates/S.E.T. Retail of Nev., LLC v. Modern Welding Co. of California, Inc., 141 Nev. Adv. Op. No. 12, _ P.3d _ (March 6, 2025).
Nevada Court of Appeals
Child custody: When evaluating domestic violence as a best-interest factor under NRS 125C.0035(4)(k), the district court must apply the preponderance-of-the-evidence standard. Domestic-violence allegations must be carefully considered in child-custody proceedings. The Nevada Supreme Court has recognized the “very real threat” domestic violence poses to a child’s safety and well-being when determining custody between parents. Mindful of the harmful effects of domestic violence on child safety and development, the Nevada Legislature has established a rebuttable presumption against awarding physical custody to a perpetrator of domestic violence and has also included domestic violence as a best-interest factor that must be considered when determining child custody. In this opinion, the Court of Appeals clarified that there are two separate evidentiary standards for the statutes at issue: one when using domestic violence to apply a rebuttable presumption and the other when evaluating the role of domestic violence as a best-interest factor. While clear and convincing evidence is the standard when applying the rebuttable presumption that can result in the denial of custody to a parent, preponderance of the evidence is the standard when evaluating domestic violence as a best-interest factor in considering the custody arrangement that is in the best interest of the child. In this case, the district court erred in applying the clear-and-convincing-evidence standard to both statutes in its analysis and, therefore, did not fully evaluate the allegations of domestic violence as a best-interest factor in determining custody. The Court of Appeals took this opportunity to stress that a district court must hear all information regarding domestic violence in order to determine the child’s best interests. In this case, the district court excluded all of appellant’s exhibits, primarily for being untimely disclosed, despite many of the exhibits containing information regarding allegations of domestic violence known to both parties and despite the fact that certain exhibits had previously been disclosed in motion work during the discovery period. This exclusion acted as a discovery sanction under applicable rules governing sanctions. Thus, the district court was required to follow those rules to determine if excluding the trial exhibits was an appropriate sanction for the alleged failure to timely disclose them. The district court’s failure to follow those requirements, especially in light of the nature of some of the exhibits, is reversible error. Accordingly, the Court of Appeals reversed the custody decree and remanded for further proceedings. The Court of Appeals noted that a criminal conviction is not required before the district court may find that a party has committed domestic violence in a civil matter. A criminal conviction requires proof beyond a reasonable doubt, but NRS Chapter 125C does not. Soldo-Allesio v. Ferguson, 141 Nev. Adv. Op. No. 9, _ P.3d _ (February 13, 2025).
Child support: For the purposes of calculating a 20-percent change in income pursuant to NRS 125B.145(4), the controlling child-support order is the most recent substantive order setting the amount of the child support and making a finding about the obligor and obligee parents’ respective incomes, regardless of any subsequent denials of motions to modify. Upon a request for review, a district court may modify a child-support order only when it finds a change in circumstances since the entry of the order and the modification is in the best interest of the child. Although the modification of a child-support order is discretionary even if the district court finds changed circumstances, NRS 125B.145(4) mandates the district court conduct a review of the child-support order when the obligor parent experiences a 20-percent change in gross monthly income. In this case, the Court of Appeals was asked to determine which child-support order is the controlling order for purposes of calculating a 20-percent change in income when an original order has been entered and the amount of child support has remained unchanged over the course of multiple denials of motions to modify the order. The Court of Appeals held that, for purposes of determining changed circumstances under NRS 125B.145(4), the controlling order is the most recent substantive order setting forth the child-support obligation and making findings regarding the respective incomes of the obligor and obligee parents, not any subsequent orders denying motions to modify child support. The Court of Appeals also clarified that prima facie evidence is the standard to be applied to determine whether sufficient evidence exists as to changed circumstances to necessitate a substantive review of the motion to modify child support. In the proceedings below, the district court did not use the correct controlling order when it affirmed the family court master’s recommendation finding no change of circumstances. In addition, the district court failed to substantively review the child-support order as required by NRS 125B.145(4) despite appellant’s prima facie evidence establishing a 20-percent change in income. The Court of Appeals therefore reversed the order denying the motion to modify child support and remanded the matter to the district court for further proceedings. Backman v. Gelbman, 141 Nev. Adv. Op. No. 8, _ P.3d _ (February 13, 2025).
Resources
- “Advance Opinions” are viewable at this link: http://nvcourts.gov/Supreme/Decisions/Advance_Opinions/
- A list of “Forthcoming Opinions” is available at this link every Wednesday: http://nvcourts.gov/Supreme/Decisions/Forthcoming_Opinions/
- “Supreme Court Unpublished Orders” are viewable at this link: http://nvcourts.gov/Supreme/Decisions/Unpublished_Orders/
- “Court of Appeals Unpublished Orders” are viewable at this link: http://nvcourts.gov/Supreme/Decisions/Court_of_Appeals/Unpublished_Orders/
About the author
Joe Tommasino has served as Staff Attorney for the Las Vegas Justice Court since 1996. Joe is the President of the Nevada Association for Court Career Advancement (NACCA).
About the article
© 2025 Clark County Bar Association (CCBA). All rights reserved. No reproduction of any portion of this issue is allowed without written permission from the publisher. Editorial policy available upon request.
This article was originally submitted for publication in the Communiqué (Apr. 2025), the official publication of the Clark County Bar Association.
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