NAC455.350. Discovery and investigation.

     1. The Commission, the staff, any party to a complaint or any potential complainant is subject to the provisions of this chapter concerning discovery, but is not bound by the Nevada Rules of Civil Procedure or title 4 of NRS when conducting:

     (a) An investigation relating to a violation of this chapter or NRS 455.080 to 455.180, inclusive, before the filing of a complaint;

     (b) Any discovery using a written data request or written interrogatories relating to a violation of this chapter or NRS 455.080 to 455.180, inclusive, before or during the course of a proceeding concerning a complaint;

     (c) Any oral deposition relating to a violation of this chapter or NRS 455.080 to 455.180, inclusive, before or during the course of a proceeding concerning a complaint; or

     (d) Any hearing or similar proceeding concerning a complaint.

Ê No informality in any proceeding or in the manner of taking testimony or conducting discovery will invalidate any order, decision, rule or regulation made. Any investigation or discovery conducted pursuant to this subsection is valid if any information requested is not privileged and is reasonably calculated to obtain information that is relevant to the proceeding.

     2. Except as otherwise provided in subsection 3, before the filing of a complaint, the staff or any potential complainant may undertake an appropriate investigation of an operator or excavator to determine:

     (a) Whether a violation of this chapter or NRS 455.080 to 455.180, inclusive, has occurred; or

     (b) Any fact, circumstance, condition, practice or matter that the staff or potential complainant determines is necessary to assist in the enforcement of this chapter or NRS 455.080 to 455.180, inclusive.

     3. Any operator or excavator who is the subject of an investigation or against whom a complaint is filed may:

     (a) Before a complaint is filed, petition the Commission for appropriate relief if the operator or excavator believes that the investigation is conducted for an improper purpose or is overbroad or unduly burdensome. If the Commission accepts a petition filed pursuant to this paragraph, the Commission will assign the petition to a presiding officer.

     (b) After a complaint is filed, file a motion with the Commission to prohibit any discovery or to restrict or modify the scope of any discovery.

Ê Any petition or motion filed pursuant to this subsection must demonstrate good cause for the requested relief and must not be filed to cause any delay or otherwise burden an investigation or proceeding. The Commission or presiding officer may suspend any investigation or discovery conducted pursuant to this subsection pending the outcome of any action by the Commission or a presiding officer.

     4. A motion to limit the number of data requests must be filed with the Commission and served upon all parties of record not later than 45 days after the opening of the complaint docket.

     5. Except as otherwise provided in subsection 6, a data request, a notice of deposition and an objection or response to a discovery request must be served upon the appropriate party at the address, telephone number or electronic mail address designated in the complaint, response or petition for leave to intervene and may be sent by United States mail, overnight delivery service, facsimile or electronic mail. All data requests, notices of depositions, objections and responses to data requests also must be served upon the staff.

     6. In lieu of service pursuant to subsection 5, a responding party in a case with a significant volume of discovery responses may deposit those responses in a password-protected website.

     7. A notice of deposition must state the date, time and location of the deposition and be served at least 10 working days before the date of the deposition, unless a shorter period is agreed upon by the deposing party and the deponent’s counsel. The deposing party may enumerate in the notice any specific documents the deponent must bring to the deposition.

     8. A party may object in whole or in part to a discovery request within 5 working days after receiving the request. An objection to a discovery request must be in writing and state the specific grounds for the objection.

     9. Unless otherwise ordered by the Commission or presiding officer or agreed to by the parties, or unless a timely objection has been made, a response to a data request must be served on or otherwise made available to the requesting party not later than 10 working days after receipt of the request by the responding party, except that the responding party will be allowed an additional 5 working days within which to respond if the responding party timely notifies the requesting party of the need for the additional time to respond because the responding party is experiencing technical or practical difficulties in providing a thorough response within the 10-day period.

     10. Except as otherwise provided in subsection 11 or upon order from the Commission or presiding officer, a response to a data request must be submitted in the following quantities and to the following persons:

     (a) Two copies must be submitted to the counsel for the staff assigned to the docket, unless directed otherwise by the staff in the data request; and

     (b) One copy must be submitted to the requesting party.

     11. If a response to a data request is transmitted by electronic mail or deposited in a password-protected website, the responding party shall provide one hard copy of the response to the counsel for the staff assigned to the docket within 2 working days after the due date for the response. The parties may agree to, or the presiding officer may order, an on-site inspection of the response to a data request if the response involves confidential or voluminous material. If an on-site inspection is agreed to by the parties or ordered by the presiding officer, the responding party shall make reasonable efforts to facilitate the inspection.

     12. If a dispute arises concerning discovery, the involved parties shall confer in good faith to attempt to resolve the dispute before seeking resolution by the presiding officer. The presiding officer may conduct a telephonic conference to resolve the discovery dispute and shall rule on all motions relating to discovery.

     13. The following standards apply to a response to a discovery request to the extent available in the format requested:

     (a) Computer files must be provided in an executable file format specified by the staff.

     (b) Image files must not be used.

     (c) Nominally numeric fields, including, without limitation, account numbers or negative values, must contain numeric data and not literal data.

     (d) Spreadsheet computer files which perform calculations must operate so that a change in input causes a change in output.

     14. If a party who is responding to a data request believes that the response contains information which is confidential or commercially sensitive or which constitutes a trade secret, the party may, before providing the response, request that a confidentiality agreement be signed by the party specifying the grounds for the claim of confidential treatment of the information. If a confidentiality agreement is signed, the recipient of the information shall not publicly disclose the information except:

     (a) With the approval of the party who requested the confidentiality agreement; or

     (b) Pursuant to an order of a court of competent jurisdiction or the Commission.

     15. A party claiming that a response to a data request is confidential must submit as part of the response, in addition to the full unredacted confidential copy to those parties who have signed a confidentiality agreement pursuant to subsection 14, a redacted copy of the response to the data request and:

     (a) Describe with particularity the information to be treated as confidential information;

     (b) Specify the grounds for the claim of confidential treatment of the information; and

     (c) Specify the period during which the information must be retained, which may not exceed 5 years unless a request for an extension is granted by the Commission.

     16. The parties may agree in writing to alternative discovery procedures and time frames. A party may pursue any other form of discovery provided for in the Nevada Rules of Civil Procedure upon agreement with the party to whom the discovery request is directed or with permission from the presiding officer upon good cause shown.

     17. If a responding party fails to respond adequately after an order from the Commission or presiding officer concerning discovery, the Commission or presiding officer may, upon the motion of any party of record, enter such order as the Commission or presiding officer deems just and appropriate.

     18. A response to a motion for discovery must be filed with the Commission and served upon all parties of record within 5 working days after the motion for discovery is filed with the Commission. A reply to the response, if any, must be filed with the Commission within 5 working days after the response is filed with the Commission.

     19. Discovery must be completed at least 15 calendar days before the date set for the hearing unless otherwise ordered by the Commission. Any party to the complaint seeking to have this time shortened or lengthened must do so by a motion to the Commission. The Commission will grant the motion for good cause shown.

     20. As used in this section:

     (a) “Data request” means a comprehensive vehicle for obtaining discovery and includes, without limitation, interrogatories, requests for admission and requests for production of documents or inspection of property.

     (b) “Potential complainant” means the Attorney General, a district attorney, a city attorney, the staff, the governmental agency that issued the permit to conduct an excavation or demolition, an operator, or a person conducting an excavation or demolition who may bring an action for the enforcement of a civil penalty pursuant to NRS 455.170.

     (Added to NAC by Pub. Utilities Comm’n by R156-03, eff. 8-25-2004; A by R029-11, 2-20-2013)