Venetian Casino v. Eighth Jud. Dist. Ct.

136 Nev., Advance Opinion 21.0
IN THE COURT OF APPEALS OF THE STATE OF NEVADA

VENETIAN CASINO RESORT, LLC, A No. 79689-COA
NEVADA LIMITED LIABILITY
COMPANY; AND LAS VEGAS SANDS,
LLC, A NEVADA LIMITED LIABILITY
COMPANY,
Petitioners,
vs.
FIED
THE EIGHTH JUDICIAL DISTRICT MAY 1 4 2020
COURT OF THE STATE OF NEVADA,
ELIZABETH & BROWN
IN AND FOR THE COUNTY OF CLERK i• SUPREME COURT

CLARK; AND THE HONORABLE BY sal p...
LERK
KATHLEEN E. DELANEY, DISTRICT
JUDGE,
Respondents,
and
JOYCE SEKERA, AN INDIVIDUAL,
Real Party in Interest.

Original petition for a writ of mandamus or prohibition
challenging a district court order requiring petitioners to produce
unredacted prior incident reports in discovery and refusing to impose
requested protections related to those reports.
Petition granted.

Royal & Miles LLP and Gregory A. Miles and Michael A. Royal, Henderson,
for Petitioners.

The Galliher Law Firm and Keith E. Galliher, Jr., Las Vegas,
for Real Party in Interest.

COURT OF APPEALS
OF
NEVADA

i0) 1947H AND -1W21
BEFORE GIBBONS, C.J., and TAO, J.1

OPINION

By the Court, GIBBONS, C.J.;
The Nevada Rules of Civil Procedure were recently amended,
including significant portions of NRCP 26—the seminal rule governing
discovery. These amendments have changed the analysis that district
courts must conduct. In this writ proceeding, we discuss the proper process
courts must use when determining the scope of discovery under NRCP
26(b)(1). We also provide a framework for courts to apply when determining
whether a protective order should be issued for good cause under NRCP
26(c)(1). Because respondents did not engage in this process or use the
framework we are providing, we grant the petition and direct further
proceedings.
FACTS AND PROCEDURAL HISTORY
Real party in interest, Joyce Sekera, allegedly slipped and fell
on the Venetian Casino Resores marble flooring and was seriously injured.
During discovery, Sekera requested that the Venetian produce incident
reports relating to slip and falls on the marble flooring for the three years
preceding her injury to the date of the request. In response, the Venetian
provided 64 incident reports that disclosed the date, time, and
circumstances of the various incidents. However, the Venetian redacted the

1The Honorable Bonnie A. Bulla, Judge, voluntarily recused herself
from participation in the decision of this matter. In her place, the
Honorable Michael L. Douglas, Senior Justice, was appointed to participate
in the decision of this matter under an order of assignment entered on
February 13, 2020. Nev. Const. art. 6, § 19(1)(c); SCR 10. Subsequently,
that order was withdrawn.

2
personal information of injured parties from the reports, including names,
addresses, phone numbers, medical information, and any social security
numbers collected. Sekera insisted on receiving the unredacted reports in
order to gather information to prove that it was foreseeable that future
patrons could slip and fall on the marble flooring and that the Venetian was
on notice of a dangerous condition.2 Further, Sekera wanted to contact
potential witnesses to gather information to show that she was not
comparatively negligent, as the Venetian asserted. Sekera's counsel
disseminated all 64 redacted reports to other plaintiffs counsel in different
cases, who also were engaged in litigation against the Venetian for slip and
fall injuries.
Unable to resolve their differences regarding redaction, the
Venetian moved for a protective order, which Sekera opposed. The
discovery commissioner found that there was a legitimate privacy issue and
recommended that the court grant the protective order, such that the
reports remain redacted, and prevented Sekera from sharhig the reports
outside of the current litigation. The commissioner further recommended,
however, that after Sekera reviewed the 64 redacted reports and identified
substantially similar accidents that occurred in the same location as her
fall, the parties could have a dispute resolution conference pursuant to
EDCR 2.34. At that conference, the parties would have the opportunity to
reach an agreement to allow disclosure of the persons involved in the
previous similar accidents. If the parties failed to reach an agreement,
Sekera could file an appropriate motion.

2Sekera agreed that any social security numbers should remain
redacted.
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Sekera objected to the discovery commissioner's
recommendation. The district court agreed with the objection and rejected
the discovery commissioner's recommendation in its entirety, thereby
denying the motion for a protective order. The district court concluded
(1) there was no legal basis to preclude Sekera from knowing the identity of
the persons involved in the prior incidents, as this information was relevant
discovery material, and (2) there was no legal basis to prevent the disclosure
of the unredacted reports to third parties not involved in the Sekera
litigation. Nevertheless, the court strongly cautioned Sekera to be careful
with how she shared and used the information.
The Venetian filed the instant petition for writ relief, which was
transferred to this court pursuant to NRAP 17. We subsequently granted a
stay of the district court's order pending resolution of this petition.
DISCUSSION
Writ consideration is appropriate
This court has original jurisdiction to issue writs of mandamus.
Nev. Const. art. 6, § 4(1). But '[t] he decision to entertain a writ petition lies
solely within the discretion of the appellate courts. Quinn v. Eighth
Judicial Dist. Court, 134 Nev. 25, 28, 410 P.3d 984, 987 (2018). "A writ of
mandamus is available to compel the performance of an act that the law
requires . . . or to control an arbitrary or capricious exercise of discretion."
Humphries v. Eighth Judicial Dist. Court, 129 Nev. 788, 791, 312 P.3d 484,
486 (2013). Writ relief is not appropriate where a "plain, speedy, and
adequate remedy" at law exists. Id. "A writ of mandamus may be issued to
compel the district court to vacate or modify a discovery order."3 Valley

3We recognize that writs of prohibition are typically more appropriate
for the prevention of improper discovery. See, e.g., Club Vista Fin. Servs. v.
COURT OF APPEALS
OF
NEVADA
4
0) 1947B .400
Health Sys., LLC v. Eighth Judicial Dist. Court, 127 Nev. 167, 171, 252 P.3d
676, 678 (2011).
Here, if the discovery order by the district court remained in
effect, a later appeal would not effectively remedy any improper disclosure
of the Venetian's guests private information. Because we conclude that the
Venetian has no plain, speedy, and adequate remedy at law, we exercise our
discretion to entertain the merits of this petition. NRS 34.170.
The district court should have considered proportionality under NRCP
26(b)(1)
The Venetian argues that the district court abused its
discretion when it did not consider and apply proportionality under NRCP
26(b)(1) prior to allowing the discovery.4 Sekera argues that other courts

Eighth Judicial Dist. Court, 128 Nev. 224, 228 n.6, 276 P.3d 246, 249 n.6
(2012). A writ of prohibition is the "proper remedy to restrain a district
judge from exercising a judicial function without or in excess of its
jurisdiction." Smith v. Eighth Judicial Dist. Court, 107 Nev. 674, 677, 818
P.2d 849, 851 (1991); see also NRS 34.320. Here, we are not concluding that
the district court's discovery order was outside its jurisdiction. Instead, we
are (1) compelling the district court to perform the analysis that the law
requires and (2) controlling an arbitrary exercise of discretion. Thus,
mandamus relief is more appropriate, and we deny the Venetian's
alternative request for a writ of prohibition.
4The Nevada Rules of Civil Procedure were amended effective
March 1, 2019. See In re Creating a Comm. to Update & Revise the Nev.
Rules of Civil Procedure, ADKT 0522 (Order Amending the Rules of Civil
Procedure, the Rules of Appellate Procedure, and the Nevada Electronic
Filing and Conversion Rules, December 31, 2018) ("[T]his amendment to
the [NRCP] shall be effective prospectively on March 1, 2019, as to all
pending cases and cases initiated after that date."). Thus, we cite and apply
the current version of Rule 26 because the motions and hearings before the
district court judge, and the resulting orders at issue in this writ petition,
all occurred after March 1, 2019.

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have found the information at stake here to be discoverable under rules
similar to NRCP 26(b)(1).5 We agree with the Venetian.
Generally, Id]iscovery matters are within the district court's
sound discretion, and we will not disturb a district court's ruling regarding
discovery unless the court has clearly abused its discretion." Club Vista,
128 Nev. at 228, 276 P.3d at 249. NRCP 26(b)(1) defines and places
limitations on the scope of discovery:
Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's
claims or defenses and proportional to the needs of
the case, considering the importance of the issues
at stake in the action, the amount in controversy,
the parties relative access to relevant information,
the parties' resources, the importance of the
discovery in resolving the issues, and whether the
burden or expense of the proposed discovery
outweighs its likely benefit.
NRCP 26(b)(1). Further, lilnformation within this scope of discovery need
not be admissible in evidence to be discoverable." Id.
Here, the district court identified only relevance at the hearing
and in its order as the legal basis to deny the protective order. Specifically,
the court stated at the hearing that the information was relevant to show

5The authority cited by Sekera is unpersuasive, as the cases do not
consider proportionality as required by the newly adopted amendments to
NRCP 26(b)(1). However, we emphasize that our opinion does not stand for
the proposition that the information at stake here is not proportional to the
needs of the case and thus not discoverable. Rather, we hold that the
district court must conduct the proper analysis under the current version of
NRCP 26(b)(1) and consider both relevance and proportionality together as
the plain language of the rule requires.

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Of
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(0) 19470 4614.
notice and foreseeability.6 Problematically, the district court did not
undertake any analysis of proportionality as required by the new rule. The
rule amendments added a consideration of proportionality to
redefine [ ] the scope of allowable discovery
consistent with the proportionate discovery
provision in FRCP 26(b). As amended, [NRCP]
26(b)(1) requires that discovery seek information
"relevant to any party's claims or defenses and
proportional needs of the case," departing from the
past scope of "relevant to the subject matter
involved in the pending action." This change allows
the district court to eliminate redundant or
disproportionate discovery and reduce the amount
of discovery that may be directed to matters that
are otherwise proper subjects of inquiry.
NRCP 26 advisory committees note to 2019 amendment; see also FRCP 26
advisory committees note to 2015 amendment ("The objective is to guard
against redundant or disproportionate discovery by giving the court
authority to reduce the amount of discovery that may be directed to matters
that are otherwise proper subjects of inquiry."). When FRCP 26(b)(1) was
amended, federal district courts noted that relevance was no longer enough
for allowing discovery. In re Bard IVC Filters Prod. Liab. Litig., 317 F.R.D.
562, 564 (D. Ariz. 2016) ("Relevancy alone is no longer sufficient—discovery
must also be proportional to the needs of the case."); Samsung Elecs. Am.,

6The Venetian cites Eldorado Club, Inc. v. Graff, 78 Nev. 507, 511,
377 P.2d 174, 176 (1962), to demonstrate prior incidents are not relevant to
establish notice when it relates to a temporary condition "unless . . . the
conditions surrounding the prior occurrences have continued and
persisted." Sekera appears to have abandoned the notice and foreseeability
arguments proffered in the district court and now only argues in her
answering brief that the unredacted reports are relevant to show a lack of
comparative negligence.

7
Inc. v. Yang Kun Chung, 321 F.R.D. 250, 279 (N.D. Tex. 2017)
("[Niscoverable matter must be both relevant and proportional to the needs
of the case—which are related but distinct requirements.").7
As noted above, NRCP 26(b)(1) outlines several factors for
district courts to consider regarding proportionality:
[(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)1 the parties' resources; [(5)1 the importance of
the discovery in resolving the issues; and [(6)]
whether the burden or expense of the proposed
discovery outweighs its likely benefit.8
See also In re Bard, 317 F.R.D. at 563. Upon consideration of these factors,
"a court can—and must—limit proposed discovery that it determines is not
proportional to the needs of the case . . . ." Vallejo v. Amgen, Inc., 903 F.3d
733, 742 (8th Cir. 2018) (quoting Carr v. State Farm Mut. Auto. Ins., Co.,
312 F.R.D. 459, 468 (N.D. Tex. 2015)).
The district court abused its discretion when it failed to analyze
proportionality in light of the revisions to NRCP 26(b)(1) and make findings
related to proportionality. Because discovery decisions are "highly fact-

7"[I]ederal decisions involving the Federal Rules of Civil Procedure
provide persuasive authority" for Nevada appellate courts considering the
Nevada Rules of Civil Procedure. Nelson v. Heer, 121 Nev. 832, 834, 122
P.3d 1252, 1253 (2005). Furthermore, the current version of the NRCP is
modeled after the federal rules. NRCP Preface, advisory committee's notes
to 2019 amendment.

8Per the amendments to the Federal Rules of Civil Procedure, these
factors specifically apply to proportionality. See FRCP 26 advisory
committee's note to 2015 amendment ("The present amendment restores
the proportionality factors to their original place in defining the scope of
discovery." (emphasis added)).

8
intensive," In re Anonymous Online Speakers, 661 F.3d 1168, 1176 (9th Cir.
2011), and this court is not positioned to make factual determinations in the
first instance, we decline to do so; instead, we direct the district court to
engage in this analysis.9 See Ryan's Express Transp. Servs., Inc. v. Amador
Stage Lines, 128 Nev. 289, 299, 279 P.3d 166, 172-73 (2012).
The district court should have determined whether the Venetian
demonstrated good cause for a protective order under NRCP 26(c)(1)
The Venetian sought a protective order under NRCP 26(c)(1),
arguing that it had good cause to obtain one. The district court determined
that there was no legal basis for a protective order. We disagree and
conclude the district court abused its discretion when it determined that it
had no legal basis to protect the Venetian's guests information without first
considering whether the Venetian demonstrated good cause for a protective
order based on the individual circumstances before it. As stated above,
discovery matters are generally reviewed for an abuse of discretion. Club
Vista, 128 Nev. at 228, 276 P.3d at 249. A district court abuses its discretion
when it "ma [kes] neither factual findings nor legal arguments" to support
its decision regarding a protective order. In re Nat'l Prescription Opiate
Litig., 927 F.3d 919, 929 (6th Cir. 2019) (quoting Gulf Oil Co. v. Bernard,
452 U.S. 89, 102 (1981)).

9Whi1e the district court abused its discretion by not considering
proportionality whatsoever in its order or at the hearing, the parties are
also responsible for determining if their discovery requests are proportional.
"[T]he proportionality calculation to [FRCP] 26(b)(1)" is the responsibility
of the court and the parties, and "does not place on the party seeking
discovery the burden of addressing all proportionality considerations."
FRCP 26, advisory committee's notes to 2015 amendment.

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NRCP 26(c)(1) articulates the standard for protective orders,
stating that " [t]he court may, for good cause, issue an order to protect a
party or person from annoyance, embarrassment, oppression, or undue
burden or expense . . . The United States Supreme Court has
interpreted the similar language of FRCP 26(c) as conferring "broad
discretion on the trial court to decide when a protective order is appropriate
and what degree of protection is required." Seattle Times Co. v. Rhinehart,
467 U.S. 20, 36 (1984). The Court continued by noting that the "trial court
is in the best position to weigh fairly the competing needs and interests of
the parties affected by discovery." Id. "The unique character of the
discovery process requires that the trial court have substantial latitude to
fashion protective orders." Id.
The United States Court of Appeals for the Ninth Circuit has
articulated a three-part test for conducting a good-cause analysis under
FRCP 26(c). In re Roman Catholic Archbishop of Portland in Or., 661 F.3d
417, 424 (9th Cir. 2011). First, the district court must determine if
particularized harm would occur due to public disclosure of the information.
Id. at 424. ("As we have explained, TA road allegations of harm,
unsubstantiated by specific examples or articulated reasoning, do not

'0Although NRCP 26(c), like its federal counterpart, applies to all
forms of discovery (including written discovery), the Nevada Supreme Court
has defined what constitutes good cause under the rule only in the context
of depositions. See Okada v. Eighth Judicial Dist. Court, 131 Nev. 834, 842-
43, 359 P.3d 1106, 1112 (2015) (articulating factors for courts to consider
when determining good cause for a protective order designating the time
and place of a deposition). Therefore, Nevada courts do not have firm
guidelines to assist their determination of good cause when it comes to
written discovery.

10
satisfy the Rule 26(c) test.'" (quoting Beckman Indus., Inc. v. Int? Ins. Co.,
966 F.2d 470, 476 (9th Cir. 1992))).
Second, if the district court concludes that particularized harm
would result, then it must "balance the public and private interests to decide
whether. . . a protective order is necessary." Id. (internal quotation marks
and citation omitted). The Ninth Circuit has directed federal district courts
to utilize the factors set forth in a Third Circuit Court of Appeals case,
Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995), to help
them balance the private and public interests. Roman Catholic, 661 F.3d
at 424; see also Phillips v. Gen. Motors, 307 F.3d 1206, 1212 (9th Cir. 2002).
Glenmede sets forth the following nonmandatory and nonexhaustive list of
factors for courts to consider when determining if good cause exists:
(1) whether disclosure will violate any privacy
interests; (2) whether the information is being
sought for a legitimate purpose or for an improper
purpose; (3) whether disclosure of the information
will cause a party embarrassment; (4) whether
confidentiality is being sought over information
important to public health and safety; (5) whether
the sharing of information among litigants will
promote fairness and efficiency; (6) whether a party
benefiting from the order of confidentiality is a
public entity or official; and (7) whether the case
involves issues important to the public.
56 F.3d at 483. The Glenmede court further recognized that the district
court is in the best position to determine what factors are relevant to
balancing the private and public interests in a given dispute. Id.
Third, even if the factors balance in favor of protecting the
discovery material, "a court must still consider whether redacting portions
of the discovery material will nevertheless allow disclosure." Roman
Catholic, 661 F.3d at 425.

11
The Venetian sought a protective order pursuant to NRCP
26(c)(1), but the district court summarily concluded that there was no legal
basis for issuing the protective order. It did so without analyzing whether
the Venetian had shown good cause pursuant to NRCP 26(c)(1).11 The
district court's outright conclusion that there was no legal basis for a
protective order and failure to conduct a good-cause analysis resulted in an
arbitrary exercise of discretion. NRCP 26(c)(1) grants the district court
authority to craft a protective order that meets the factual demands of each
case if a litigant demonstrates good cause. Thus, since the court did have
the legal authority to enter a protective order if the Venetian had shown
good cause under NRCP 26(c)(1), it should have determined whether good
cause existed based on the facts before it.
To determine good cause, we now approve of the framework
established by the Ninth Circuit in Roman Catholic and the factors listed
by the Third Circuit in Glenmede. District courts should use that
framework and applicable factors, and any other relevant factors, to
consider whether parties have shown good cause under NRCP 26(c)(1).12 If

11Sekera argues that the district court did not abuse its discretion by
determining the Venetian did not show good cause. We are not convinced.
The fact that the district court failed to mention good cause, either in its
order or at the hearing, undermines Sekera's argument.

12Writ relief is discretionary, and in light of our disposition, we decline
to address the other issues argued by the parties in this original proceeding.
However, we note that Glenmede factors one, three, and five authorize the
district court to consider the ramifications of information being
disseminated to third parties (i.e., "whether disclosure will violate any
privacy interests," "whether disclosure of the information will cause a party
embarrassment," and "whether the sharing of information among litigants
will promote fairness and efficiency"). 56 F.3d at 483. Importantly, the
Nevada Supreme Court has recently stated that disclosing medical

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(o) loaal) Arta,
the party seeking the protective order has shown good cause, a district court
may issue a remedial protective order as circumstances require. See NRCP
26(c)(1). However, we do not determine whether the Venetian has
established good cause for a protective order; instead, we conclude that is a
matter for the district court to decide in the first instance. See Ryan's
Express, 128 Nev. at 299, 279 P.3d at 172.
CONCLUSION
In denying the Venetian's motion for a protective order, the
district court abused its discretion in two ways. First, it focused solely on
relevancy and did not consider proportionality as required under the
amendments to NRCP 26(b)(1). Second, it did not conduct a good-cause
analysis as required by NRCP 26(c)(1). Because the district court failed to
conduct a full analysis, its decision was arbitrarily rendered.
Thus, we grant the Venetian's petition and direct the clerk of
this court to issue a writ of mandamus instructing the district court to
vacate its order denying the Venetian's motion for a protective order. The
district court shall conduct further proceedings consistent with this opinion
to determine whether disclosure of the unredacted reports is relevant and
proportional under NRCP 26(b)(1). If disclosure is proper, the district court
must conduct a good-cause analysis under NRCP 26(c)(1), applying the
framework provided herein to determine whether the Venetian has shown
good cause for a protective order. If the Venetian demonstrates good cause,

information implicates a nontrivial privacy interest in the context of public
records requests. Cf. Clark Cty. Coroner v. Las Vegas Review-Journal, 136
Nev., Adv. Op. 5, 458 P.3d 1048, 1058-59 (2020) (explaining that juvenile
autopsy reports implicate "nontrivial privacy interest[sr due to the social
and medical information they reveal, which may require redaction before
their release).
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((J) 19471i elltio
the district court may issue a protective order as dictated by the
circumstances of this case.

Gibbons

I concur:

J.
Tao

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40) 19478

136 Nev., Advance Opinion 21.0
IN THE COURT OF APPEALS OF THE STATE OF NEVADA

VENETIAN CASINO RESORT, LLC, A No. 79689-COA
NEVADA LIMITED LIABILITY
COMPANY; AND LAS VEGAS SANDS,
LLC, A NEVADA LIMITED LIABILITY
COMPANY,
Petitioners,
vs.
FIED
THE EIGHTH JUDICIAL DISTRICT MAY 1 4 2020
COURT OF THE STATE OF NEVADA,
ELIZABETH & BROWN
IN AND FOR THE COUNTY OF CLERK i• SUPREME COURT

CLARK; AND THE HONORABLE BY sal p...
LERK
KATHLEEN E. DELANEY, DISTRICT
JUDGE,
Respondents,
and
JOYCE SEKERA, AN INDIVIDUAL,
Real Party in Interest.

Original petition for a writ of mandamus or prohibition
challenging a district court order requiring petitioners to produce
unredacted prior incident reports in discovery and refusing to impose
requested protections related to those reports.
Petition granted.

Royal & Miles LLP and Gregory A. Miles and Michael A. Royal, Henderson,
for Petitioners.

The Galliher Law Firm and Keith E. Galliher, Jr., Las Vegas,
for Real Party in Interest.

COURT OF APPEALS
OF
NEVADA

i0) 1947H AND -1W21
BEFORE GIBBONS, C.J., and TAO, J.1

OPINION

By the Court, GIBBONS, C.J.;
The Nevada Rules of Civil Procedure were recently amended,
including significant portions of NRCP 26—the seminal rule governing
discovery. These amendments have changed the analysis that district
courts must conduct. In this writ proceeding, we discuss the proper process
courts must use when determining the scope of discovery under NRCP
26(b)(1). We also provide a framework for courts to apply when determining
whether a protective order should be issued for good cause under NRCP
26(c)(1). Because respondents did not engage in this process or use the
framework we are providing, we grant the petition and direct further
proceedings.
FACTS AND PROCEDURAL HISTORY
Real party in interest, Joyce Sekera, allegedly slipped and fell
on the Venetian Casino Resores marble flooring and was seriously injured.
During discovery, Sekera requested that the Venetian produce incident
reports relating to slip and falls on the marble flooring for the three years
preceding her injury to the date of the request. In response, the Venetian
provided 64 incident reports that disclosed the date, time, and
circumstances of the various incidents. However, the Venetian redacted the

1The Honorable Bonnie A. Bulla, Judge, voluntarily recused herself
from participation in the decision of this matter. In her place, the
Honorable Michael L. Douglas, Senior Justice, was appointed to participate
in the decision of this matter under an order of assignment entered on
February 13, 2020. Nev. Const. art. 6, § 19(1)(c); SCR 10. Subsequently,
that order was withdrawn.

2
personal information of injured parties from the reports, including names,
addresses, phone numbers, medical information, and any social security
numbers collected. Sekera insisted on receiving the unredacted reports in
order to gather information to prove that it was foreseeable that future
patrons could slip and fall on the marble flooring and that the Venetian was
on notice of a dangerous condition.2 Further, Sekera wanted to contact
potential witnesses to gather information to show that she was not
comparatively negligent, as the Venetian asserted. Sekera's counsel
disseminated all 64 redacted reports to other plaintiffs counsel in different
cases, who also were engaged in litigation against the Venetian for slip and
fall injuries.
Unable to resolve their differences regarding redaction, the
Venetian moved for a protective order, which Sekera opposed. The
discovery commissioner found that there was a legitimate privacy issue and
recommended that the court grant the protective order, such that the
reports remain redacted, and prevented Sekera from sharhig the reports
outside of the current litigation. The commissioner further recommended,
however, that after Sekera reviewed the 64 redacted reports and identified
substantially similar accidents that occurred in the same location as her
fall, the parties could have a dispute resolution conference pursuant to
EDCR 2.34. At that conference, the parties would have the opportunity to
reach an agreement to allow disclosure of the persons involved in the
previous similar accidents. If the parties failed to reach an agreement,
Sekera could file an appropriate motion.

2Sekera agreed that any social security numbers should remain
redacted.
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Sekera objected to the discovery commissioner's
recommendation. The district court agreed with the objection and rejected
the discovery commissioner's recommendation in its entirety, thereby
denying the motion for a protective order. The district court concluded
(1) there was no legal basis to preclude Sekera from knowing the identity of
the persons involved in the prior incidents, as this information was relevant
discovery material, and (2) there was no legal basis to prevent the disclosure
of the unredacted reports to third parties not involved in the Sekera
litigation. Nevertheless, the court strongly cautioned Sekera to be careful
with how she shared and used the information.
The Venetian filed the instant petition for writ relief, which was
transferred to this court pursuant to NRAP 17. We subsequently granted a
stay of the district court's order pending resolution of this petition.
DISCUSSION
Writ consideration is appropriate
This court has original jurisdiction to issue writs of mandamus.
Nev. Const. art. 6, § 4(1). But '[t] he decision to entertain a writ petition lies
solely within the discretion of the appellate courts. Quinn v. Eighth
Judicial Dist. Court, 134 Nev. 25, 28, 410 P.3d 984, 987 (2018). "A writ of
mandamus is available to compel the performance of an act that the law
requires . . . or to control an arbitrary or capricious exercise of discretion."
Humphries v. Eighth Judicial Dist. Court, 129 Nev. 788, 791, 312 P.3d 484,
486 (2013). Writ relief is not appropriate where a "plain, speedy, and
adequate remedy" at law exists. Id. "A writ of mandamus may be issued to
compel the district court to vacate or modify a discovery order."3 Valley

3We recognize that writs of prohibition are typically more appropriate
for the prevention of improper discovery. See, e.g., Club Vista Fin. Servs. v.
COURT OF APPEALS
OF
NEVADA
4
0) 1947B .400
Health Sys., LLC v. Eighth Judicial Dist. Court, 127 Nev. 167, 171, 252 P.3d
676, 678 (2011).
Here, if the discovery order by the district court remained in
effect, a later appeal would not effectively remedy any improper disclosure
of the Venetian's guests private information. Because we conclude that the
Venetian has no plain, speedy, and adequate remedy at law, we exercise our
discretion to entertain the merits of this petition. NRS 34.170.
The district court should have considered proportionality under NRCP
26(b)(1)
The Venetian argues that the district court abused its
discretion when it did not consider and apply proportionality under NRCP
26(b)(1) prior to allowing the discovery.4 Sekera argues that other courts

Eighth Judicial Dist. Court, 128 Nev.. 224, 228 n.6, 276 P.3d 246, 249 n.6
(2012). A writ of prohibition is the "proper remedy to restrain a district
judge from exercising a judicial function without or in excess of its
jurisdiction." Smith v. Eighth Judicial Dist. Court, 107 Nev. 674, 677, 818
P.2d 849, 851 (1991); see also NRS 34.320. Here, we are not concluding that
the district court's discovery order was outside its jurisdiction. Instead, we
are (1) compelling the district court to perform the analysis that the law
requires and (2) controlling an arbitrary exercise of discretion. Thus,
mandamus relief is more appropriate, and we deny the Venetian's
alternative request for a writ of prohibition.
4The Nevada Rules of Civil Procedure were amended effective
March 1, 2019. See In re Creating a Comm. to Update & Revise the Nev.
Rules of Civil Procedure, ADKT 0522 (Order Amending the Rules of Civil
Procedure, the Rules of Appellate Procedure, and the Nevada Electronic
Filing and Conversion Rules, December 31, 2018) ("[T]his amendment to
the [NRCP] shall be effective prospectively on March 1, 2019, as to all
pending cases and cases initiated after that date."). Thus, we cite and apply
the current version of Rule 26 because the motions and hearings before the
district court judge, and the resulting orders at issue in this writ petition,
all occurred after March 1, 2019.

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have found the information at stake here to be discoverable under rules
similar to NRCP 26(b)(1).5 We agree with the Venetian.
Generally, Id]iscovery matters are within the district court's
sound discretion, and we will not disturb a district court's ruling regarding
discovery unless the court has clearly abused its discretion." Club Vista,
128 Nev. at 228, 276 P.3d at 249. NRCP 26(b)(1) defines and places
limitations on the scope of discovery:
Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's
claims or defenses and proportional to the needs of
the case, considering the importance of the issues
at stake in the action, the amount in controversy,
the parties relative access to relevant information,
the parties' resources, the importance of the
discovery in resolving the issues, and whether the
burden or expense of the proposed discovery
outweighs its likely benefit.
NRCP 26(b)(1). Further, lilnformation within this scope of discovery need
not be admissible in evidence to be discoverable." Id.
Here, the district court identified only relevance at the hearing
and in its order as the legal basis to deny the protective order. Specifically,
the court stated at the hearing that the information was relevant to show

5The authority cited by Sekera is unpersuasive, as the cases do not
consider proportionality as required by the newly adopted amendments to
NRCP 26(b)(1). However, we emphasize that our opinion does not stand for
the proposition that the information at stake here is not proportional to the
needs of the case and thus not discoverable. Rather, we hold that the
district court must conduct the proper analysis under the current version of
NRCP 26(b)(1) and consider both relevance and proportionality together as
the plain language of the rule requires.

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notice and foreseeability.6 Problematically, the district court did not
undertake any analysis of proportionality as required by the new rule. The
rule amendments added a consideration of proportionality to
redefine [ ] the scope of allowable discovery
consistent with the proportionate discovery
provision in FRCP 26(b). As amended, [NRCP]
26(b)(1) requires that discovery seek information
"relevant to any party's claims or defenses and
proportional needs of the case," departing from the
past scope of "relevant to the subject matter
involved in the pending action." This change allows
the district court to eliminate redundant or
disproportionate discovery and reduce the amount
of discovery that may be directed to matters that
are otherwise proper subjects of inquiry.
NRCP 26 advisory committees note to 2019 amendment; see also FRCP 26
advisory committees note to 2015 amendment ("The objective is to guard
against redundant or disproportionate discovery by giving the court
authority to reduce the amount of discovery that may be directed to matters
that are otherwise proper subjects of inquiry."). When FRCP 26(b)(1) was
amended, federal district courts noted that relevance was no longer enough
for allowing discovery. In re Bard IVC Filters Prod. Liab. Litig., 317 F.R.D.
562, 564 (D. Ariz. 2016) ("Relevancy alone is no longer sufficient—discovery
must also be proportional to the needs of the case."); Samsung Elecs. Am.,

6The Venetian cites Eldorado Club, Inc. v. Graff, 78 Nev. 507, 511,
377 P.2d 174, 176 (1962), to demonstrate prior incidents are not relevant to
establish notice when it relates to a temporary condition "unless . . . the
conditions surrounding the prior occurrences have continued and
persisted." Sekera appears to have abandoned the notice and foreseeability
arguments proffered in the district court and now only argues in her
answering brief that the unredacted reports are relevant to show a lack of
comparative negligence.

7
Inc. v. Yang Kun Chung, 321 F.R.D. 250, 279 (N.D. Tex. 2017)
("[Niscoverable matter must be both relevant and proportional to the needs
of the case—which are related but distinct requirements.").7
As noted above, NRCP 26(b)(1) outlines several factors for
district courts to consider regarding proportionality:
[(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)1 the parties' resources; [(5)1 the importance of
the discovery in resolving the issues; and [(6)]
whether the burden or expense of the proposed
discovery outweighs its likely benefit.8
See also In re Bard, 317 F.R.D. at 563. Upon consideration of these factors,
"a court can—and must—limit proposed discovery that it determines is not
proportional to the needs of the case . . . ." Vallejo v. Amgen, Inc., 903 F.3d
733, 742 (8th Cir. 2018) (quoting Carr v. State Farm Mut. Auto. Ins., Co.,
312 F.R.D. 459, 468 (N.D. Tex. 2015)).
The district court abused its discretion when it failed to analyze
proportionality in light of the revisions to NRCP 26(b)(1) and make findings
related to proportionality. Because discovery decisions are "highly fact-

7"[I]ederal decisions involving the Federal Rules of Civil Procedure
provide persuasive authority" for Nevada appellate courts considering the
Nevada Rules of Civil Procedure. Nelson v. Heer, 121 Nev. 832, 834, 122
P.3d 1252, 1253 (2005). Furthermore, the current version of the NRCP is
modeled after the federal rules. NRCP Preface, advisory committee's notes
to 2019 amendment.

8Per the amendments to the Federal Rules of Civil Procedure, these
factors specifically apply to proportionality. See FRCP 26 advisory
committee's note to 2015 amendment ("The present amendment restores
the proportionality factors to their original place in defining the scope of
discovery." (emphasis added)).

8
intensive," In re Anonymous Online Speakers, 661 F.3d 1168, 1176 (9th Cir.
2011), and this court is not positioned to make factual determinations in the
first instance, we decline to do so; instead, we direct the district court to
engage in this analysis.9 See Ryan's Express Transp. Servs., Inc. v. Amador
Stage Lines, 128 Nev. 289, 299, 279 P.3d 166, 172-73 (2012).
The district court should have determined whether the Venetian
demonstrated good cause for a protective order under NRCP 26(c)(1)
The Venetian sought a protective order under NRCP 26(c)(1),
arguing that it had good cause to obtain one. The district court determined
that there was no legal basis for a protective order. We disagree and
conclude the district court abused its discretion when it determined that it
had no legal basis to protect the Venetian's guests information without first
considering whether the Venetian demonstrated good cause for a protective
order based on the individual circumstances before it. As stated above,
discovery matters are generally reviewed for an abuse of discretion. Club
Vista, 128 Nev. at 228, 276 P.3d at 249. A district court abuses its discretion
when it "ma [kes] neither factual findings nor legal arguments" to support
its decision regarding a protective order. In re Nat'l Prescription Opiate
Litig., 927 F.3d 919, 929 (6th Cir. 2019) (quoting Gulf Oil Co. v. Bernard,
452 U.S. 89, 102 (1981)).

9Whi1e the district court abused its discretion by not considering
proportionality whatsoever in its order or at the hearing, the parties are
also responsible for determining if their discovery requests are proportional.
"[T]he proportionality calculation to [FRCP] 26(b)(1)" is the responsibility
of the court and the parties, and "does not place on the party seeking
discovery the burden of addressing all proportionality considerations."
FRCP 26, advisory committee's notes to 2015 amendment.

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NRCP 26(c)(1) articulates the standard for protective orders,
stating that " [t]he court may, for good cause, issue an order to protect a
party or person from annoyance, embarrassment, oppression, or undue
burden or expense . . . The United States Supreme Court has
interpreted the similar language of FRCP 26(c) as conferring "broad
discretion on the trial court to decide when a protective order is appropriate
and what degree of protection is required." Seattle Times Co. v. Rhinehart,
467 U.S. 20, 36 (1984). The Court continued by noting that the "trial court
is in the best position to weigh fairly the competing needs and interests of
the parties affected by discovery." Id. "The unique character of the
discovery process requires that the trial court have substantial latitude to
fashion protective orders." Id.
The United States Court of Appeals for the Ninth Circuit has
articulated a three-part test for conducting a good-cause analysis under
FRCP 26(c). In re Roman Catholic Archbishop of Portland in Or., 661 F.3d
417, 424 (9th Cir. 2011). First, the district court must determine if
particularized harm would occur due to public disclosure of the information.
Id. at 424. ("As we have explained, TA road allegations of harm,
unsubstantiated by specific examples or articulated reasoning, do not

'0Although NRCP 26(c), like its federal counterpart, applies to all
forms of discovery (including written discovery), the Nevada Supreme Court
has defined what constitutes good cause under the rule only in the context
of depositions. See Okada v. Eighth Judicial Dist. Court, 131 Nev. 834, 842-
43, 359 P.3d 1106, 1112 (2015) (articulating factors for courts to consider
when determining good cause for a protective order designating the time
and place of a deposition). Therefore, Nevada courts do not have firm
guidelines to assist their determination of good cause when it comes to
written discovery.

10
satisfy the Rule 26(c) test.'" (quoting Beckman Indus., Inc. v. Int? Ins. Co.,
966 F.2d 470, 476 (9th Cir. 1992))).
Second, if the district court concludes that particularized harm
would result, then it must "balance the public and private interests to decide
whether.. . . a protective order is necessary." Id. (internal quotation marks
and citation omitted). The Ninth Circuit has directed federal district courts
to utilize the factors set forth in a Third Circuit Court of Appeals case,
Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995), to help
them balance the private and public interests. Roman Catholic, 661 F.3d
at 424; see also Phillips v. Gen. Motors, 307 F.3d 1206, 1212 (9th Cir. 2002).
Glenmede sets forth the following nonmandatory and nonexhaustive list of
factors for courts to consider when determining if good cause exists:
(1) whether disclosure will violate any privacy
interests; (2) whether the information is being
sought for a legitimate purpose or for an improper
purpose; (3) whether disclosure of the information
will cause a party embarrassment; (4) whether
confidentiality is being sought over information
important to public health and safety; (5) whether
the sharing of information among litigants will
promote fairness and efficiency; (6) whether a party
benefiting from the order of confidentiality is a
public entity or official; and (7) whether the case
involves issues important to the public.
56 F.3d at 483. The Glenmede court further recognized that the district
court is in the best position to determine what factors are relevant to
balancing the private and public interests in a given dispute. Id.
Third, even if the factors balance in favor of protecting the
discovery material, "a court must still consider whether redacting portions
of the discovery material will nevertheless allow disclosure." Roman
Catholic, 661 F.3d at 425.

11
The Venetian sought a protective order pursuant to NRCP
26(c)(1), but the district court summarily concluded that there was no legal
basis for issuing the protective order. It did so without analyzing whether
the Venetian had shown good cause pursuant to NRCP 26(c)(1).11 The
district court's outright conclusion that there was no legal basis for a
protective order and failure to conduct a good-cause analysis resulted in an
arbitrary exercise of discretion. NRCP 26(c)(1) grants the district court
authority to craft a protective order that meets the factual demands of each
case if a litigant demonstrates good cause. Thus, since the court did have
the legal authority to enter a protective order if the Venetian had shown
good cause under NRCP 26(c)(1), it should have determined whether good
cause existed based on the facts before it.
To determine good cause, we now approve of the framework
established by the Ninth Circuit in Roman Catholic and the factors listed
by the Third Circuit in Glenmede. District courts should use that
framework and applicable factors, and any other relevant factors, to
consider whether parties have shown good cause under NRCP 26(c)(1).12 If

11Sekera argues that the district court did not abuse its discretion by
determining the Venetian did not show good cause. We are not convinced.
The fact that the district court failed to mention good cause, either in its
order or at the hearing, undermines Sekera's argument.

12Writ relief is discretionary, and in light of our disposition, we decline
to address the other issues argued by the parties in this original proceeding.
However, we note that Glenmede factors one, three, and five authorize the
district court to consider the ramifications of information being
disseminated to third parties (i.e., "whether disclosure will violate any
privacy interests," "whether disclosure of the information will cause a party
embarrassment," and "whether the sharing of information among litigants
will promote fairness and efficiency"). 56 F.3d at 483. Importantly, the
Nevada Supreme Court has recently stated that disclosing medical

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the party seeking the protective order has shown good cause, a district court
may issue a remedial protective order as circumstances require. See NRCP
26(c)(1). However, we do not determine whether the Venetian has
established good cause for a protective order; instead, we conclude that is a
matter for the district court to decide in the first instance. See Ryan's
Express, 128 Nev. at 299, 279 P.3d at 172.
CONCLUSION
In denying the Venetian's motion for a protective order, the
district court abused its discretion in two ways. First, it focused solely on
relevancy and did not consider proportionality as required under the
amendments to NRCP 26(b)(1). Second, it did not conduct a good-cause
analysis as required by NRCP 26(c)(1). Because the district court failed to
conduct a full analysis, its decision was arbitrarily rendered.
Thus, we grant the Venetian's petition and direct the clerk of
this court to issue a writ of mandamus instructing the district court to
vacate its order denying the Venetian's motion for a protective order. The
district court shall conduct further proceedings consistent with this opinion
to determine whether disclosure of the unredacted reports is relevant and
proportional under NRCP 26(b)(1). If disclosure is proper, the district court
must conduct a good-cause analysis under NRCP 26(c)(1), applying the
framework provided herein to determine whether the Venetian has shown
good cause for a protective order. If the Venetian demonstrates good cause,

information implicates a nontrivial privacy interest in the context of public
records requests. Cf. Clark Cty. Coroner v. Las Vegas Review-Journal, 136
Nev., Adv. Op. 5, 458 P.3d 1048, 1058-59 (2020) (explaining that juvenile
autopsy reports implicate "nontrivial privacy interest[sr due to the social
and medical information they reveal, which may require redaction before
their release).
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the district court may issue a protective order as dictated by the
circumstances of this case.

Gibbons

I concur:

J.
Tao

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