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12 Nev. L.J. 486 (2011-2012)
Death Penalty without a Hearing - How the Nevada Supreme Court's Decision in Bahena v. Goodyear Incorrectly Defines Discovery Sanctions and Denies Due Process to Civil Litigants

handle is hein.journals/nevlj12 and id is 498 raw text is: DEATH PENALTY WITHOUT A HEARING? HOW THE NEVADA SUPREME COURT S DECISION IN BAHENA v. GOODYEAR INCORRECTLY DEFINES DISCOVERY SANCTIONS AND DENIES DUE PROCESS TO CIVIL LITIGANTS Jonathan J. Winn* I. INTRODUCTION In recent years, perhaps nothing has changed complex civil litigation more than the ever-expanding role of discovery. With the arrival of e-discovery, courts now demand that litigants locate, categorize, and produce every docu- ment, e-mail, voice-mail, or text message that could possibly lead to relevant evidence.' Unsurprisingly, as courts augmented the production burden, the number of discovery disputes increased.2 Consequently, more and more courts across the country must consider when and whether to issue discovery sanc- tions, including the civil justice system's ultimate discovery sanction-the civil death penalty.3 A court invokes the civil death penalty by striking a party's pleadings for discovery abuses, thereby quashing any defense that party may have regarding the merits of its underlying claims.4 Practitioners call such sanctions the death penalty because the sanctioned party loses its constitu- tional right to defend itself.' * Juris Doctor Candidate, May 2012, William S. Boyd School of Law, University of Nevada, Las Vegas. 1 See INST. FOR THE ADVANCEMENT OF THE AM. LEGAL Sys., ELECTRONIC DISCOVERY: A VIEW FROM THE FRONT LINES 1-2 (2008), http://www.du.edu/legalinstitute/pubs/EDis- covery-FrontLines.pdf. 2 See id. 3 See Retta A. Miller & Kimberly O'D. Thompson, Death Penalty Sanctions: When to Get Them and How to Keep Them, 46 BAYLOR L. REV. 737, 738 (1994); Sherman Joyce, The Emerging Business Threat of Civil 'Death Penalty' Sanctions, LEGAL OPINION LETTER (Wash. Legal Found., D.C.), Sept. 10, 2009, at 1, http://www.wlf.org/publishing/ publication-detail.asp?id=2102. 4 See Miller & Thompson, supra note 3, at 739-41. 5 See, e.g., Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 850 (Tex. 1992) (referring to a court's striking of pleadings as the death penalty). The civil death penalty implicates due process rights because the sanction acts as an adjudication of a party's claims based on the party's conduct during discovery and not the merits of the party's claims. See Wyle v. R.J. Reynolds Indus., Inc., 709 F.2d 585, 591 (9th Cir. 1983) (Sanctions interfering with a liti- gant' s claim or defenses violate due process when imposed merely for punishment of an 486

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