By Alan Freer and Jeffrey Luszeck
Attorneys new to trust and estate litigation often assume the Nevada Rules of Civil Procedure (NRCP) control discovery in matters arising under Nevada Revised Statutes (NRS) Titles 12 and 13. NRS Chapter 155 and the Eighth Judicial District Court Rules (EDCR) displace the NRCP in specific ways that practitioners need to track.
Discovery begins upon filing of a proceeding and service of the notice of hearing
Under NRS 155.170(1), an “interested person” in matters initiated under Titles 12 and 13 may “obtain discovery, perpetuate testimony or conduct examinations in any manner authorized by law or by the Nevada Rules of Civil Procedure . . . ,” upon filing of a proceeding and service of the notice of hearing to the other interested persons.
Although an interested party is not required to attend and/or file an early case conference report prior to conducting discovery, see NRS 155.170(2), a probate commissioner or probate court judge, in Clark County, may set deadlines provided for under NRCP 16 and 16.1 as deemed necessary based on the nature and scope of the issues to be determined at the evidentiary hearing. See EDCR 4.17(c).
Who hears the discovery dispute?
“In contested matters before the probate commissioner, all discovery disputes must first be heard by the probate commissioner, the probate commissioner’s designee, or a special master approved by the parties, unless otherwise ordered by the probate judge” (EDCR 4.18(a)), while all discovery disputes in contested matters before the probate judge must first be heard by the discovery commissioner. See EDCR 4.18(b).
Motion practice and timing
A discovery motion filed with the discovery commissioner (see EDCR 2.34(d)) or probate commissioner (see EDCR 4.18(3)), must contain “an affidavit of moving counsel [] setting forth that after a discovery dispute conference or a good faith effort to confer, counsel have been unable to resolve the matter satisfactorily.”
Although motion practice in matters initiated under Titles 12 and 13 can generally be heard on ten-day notice (see, e.g., NRS 155.010(a)), discovery motions are rarely, if ever, heard on ten-day notice.
Report and recommendations, and objections thereto
Irrespective of who hears the discovery dispute (i.e., the discovery commissioner or probate commissioner) a report and recommendation will issue. Following the hearing of any discovery motion, the discovery commissioner must file a report with its recommendations. See EDCR 2.35(f). The probate commissioner will also file a report with its recommendations (see EDCR 4.05(b)), unless the parties stipulate to immediate entry of an order on the recommendations. See EDCR 4.05(d). The timeframe to object to a report and recommendation entered by the discovery commissioner or probate commissioner is 14 days. See EDCR 2.34(f)(1) and EDCR 4.06(1).
Although the language in EDCR 2.34(f)(2) and 4.07(c) differ slightly, upon receipt of a discovery commissioner or probate commissioner’s report, the court shall either affirm, reverse, or modify the ruling and/or remand the matter to the respective commissioner for further action.
About the authors
Jeffrey P. Luszeck and Alan D. Freer are members of Solomon, Dwiggins, Freer & Steadman, Ltd. where they focus their practice primarily on trust and estate litigation. Mr. Luszeck serves as Co-Chair of the Probate and Trust Section’s Legislative Committee.
About the article
This article was originally published in the Communiqué (Sep 2026), the official publication of the Clark County Bar Association.
The articles and advertisements appearing in Communiqué magazine do not necessarily reflect the opinion of the CCBA, the CCBA Publications Committee, the editorial board, or the other authors. All legal and other issues discussed are not for the purpose of answering specific legal questions. Attorneys and others are strongly advised to independently research all issues.
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