Nevada Supreme Court Justices Disagree on Whether to Entertain a Writ Petition - The Writ

Nevada’s Constitution gives the appellate courts original jurisdiction to issue writs of mandamus, prohibition and certiorari, but courts have complete discretion to consider a writ petition and grant the relief requested. Because the issuance of a writ constitutes extraordinary relief, the appellate courts entertain writ petitions only in limited circumstances and seldom grant them. In a recent published opinion regarding a discovery dispute, the justices of the Nevada Supreme Court disagreed as to whether the standard for the issuance of a writ had been met. See In the Matter of the William J. Raggio Family Trust, 136 Nev. Adv. Op. 21 (April 9, 2020).

The Standard for Writ Relief

An appellate court will issue a writ only when the petitioner does not have a plain, speedy and adequate remedy in the ordinary course of law. If the matter can be reviewed on appeal from a final judgment, writ relief is not appropriate. Courts “will examine each case individually, granting extraordinary relief if the circumstances reveal urgency or strong necessity.” Mona v. Eighth Jud. Dist. Ct., 132 Nev. 719, 724, 380 P.3d 836, 840 (2016) (quotation omitted).

Writ relief is more likely in a case that presents a substantial issue of general importance, a matter of first impression or where an important issue of law requires clarification. If the writ would not resolve the entire controversy in the district court, the appellate court is unlikely to entertain it. “[T]he primary standard” in the determination of whether to entertain a writ petition is “[t]he interests of judicial economy.” Smith v. Eighth Jud. Dist. Ct., 113 Nev. 1343, 1345, 950 P.2d 280, 281 (1997).

Writ Relief in Discovery Matters

Invasive discovery orders commonly give rise to writ petitions. Generally, an appellate court will not consider a writ petition unless the challenged discovery order is one that is likely to cause irreparable harm. Examples of irreparable harm include “a blanket discovery order, issued without regard to the relevance of the information sought” or “an order that requires disclosure of privileged information.” Okada v. Eighth Jud. Dist. Ct., 131 Nev. 834, 839, 359 P.3d 1106, 1110 (2015). Writ review may also occur where the district court has ordered disclosure of issues claimed to be private. See, e.g., Schlatter v. Eighth Jud. Dist. Ct., 93 Nev. 189, 193, 561 P.2d 1342, 1344 (1977).

The rationale for writ relief in the context of discovery is fairly straightforward: “If improper discovery were allowed, the allegedly privileged information would irretrievably lose its confidential and privileged quality and petitioners would have no effective remedy, even by a later appeal.” Wardleigh v. Second Jud. Dist. Ct., 111 Nev. 345, 350-51, 891 P.2d 1180, 1183-84 (1995). In other words, the bell cannot be unrung once a district court compels the disclosure of protected information. To avoid that result, extraordinary intervention by an appellate court may be warranted.

The Raggio Family Trust Case

Raggio Family Trust involved a dispute between a trustee and remainder beneficiaries. The trust document allowed the trustee, in her discretion, to take from the trust principal as much as the trustee deemed to be necessary for her proper support and maintenance. The remainder beneficiaries contended that the trustee intentionally depleted their remainder interest by taking trust distributions, notwithstanding having other sources of income. They sought discovery into those other income sources.

The trustee objected on the basis that the remainder beneficiaries’ requests were not reasonably calculated to lead to discovery of admissible evidence. The district court issued an order compelling the discovery, prompting the trustee to seek a writ of prohibition, or in the alternative, mandamus from the Supreme Court.

In deciding to entertain the writ petition, the majority of the Supreme Court concluded that “the discovery order implicates [the trustee’s] privacy interests as the district court concluded it needed to review her standard of living and supportive resources beyond [the trust distributions]” (internal quotation omitted). If, the majority posited, “the discovery permitted by the district court is legally irrelevant, a later appeal would not remedy the improper disclosure of the information.” On that basis, the Court exercised its discretion to consider the petition and grant the relief requested based on its interpretation of NRS 163.4175 and the language of the trust instrument. The Court issued a writ of prohibition directing the district court to vacate its order compelling discovery.

Justices Cadish and Pickering dissented for two reasons. First, they contended that the “majority … makes no determination that the challenged discovery order is likely to cause irreparable harm,” noting that the trustee “acknowledged that the requested discovery would not result in the disclosure of any privileged information.” Second, they believed there was no finality on a key factual issue and “[i]ssuing an opinion on this issue at this point is contrary to our general practice of ruling on issues only after the district court has had the opportunity to fully analyze and reach its own conclusion on them…” For these reasons, the dissenters would not have considered the writ petition.

Conclusion

Although the standard for issuing a writ has been well articulated in the Court’s jurisprudence, the application of that standard on a case-by-case basis is anything but consistent. For that reason, the privilege and privacy interests at stake should be weighed against the time, expense and uncertainty in seeking writ relief.

Debbie Leonard owns Leonard Law, PC, where her practice focuses on appeals before Nevada’s appellate courts, the Ninth Circuit Court of Appeals and administrative agencies.  She served as the 2013-2014 Chair of the State Bar’s Appellate Litigation Section and is Lead Editor of the Nevada Appellate Practice Manual, 2016 and 2018 editions. She is also a mediator and Nevada Supreme Court settlement judge.