Bahena v. Goodyear Tire & Rubber Co.

• Decision Date: 01 July 2010
• Docket Number: No. 49207.,49207.
• Citation: 235 P.3d 592
• Court: Nevada Supreme Court
• Parties: Teresa BAHENA, Individually, and as Special Administrator for Evertina M. Trujillo Tapia, Deceased; Mariana Bahena, Individually; Mercedes Bahena, Individually; Maria Rocio Perreya, Individually; Maria Lourdes Bahena-Meza, Individually; Maricela Bahena, Individually; Ernesto Torres and Leonor Torres, Individually, and Leonor Torres, as Special Administrator for Andres Torres, Deceased; Leonor Torres for Armando Torres and Crystal Torres, Minors, Represented as their Guardian Ad Litem; Victoria Campe, as Special Administrator of Frank Enriquez, Deceased; Patricia Jayne Mendez, for Joseph Enriquez, Jeremy Enriquez, and Jamie Enriquez, Minors, Represented as their Guardian Ad Litem; and Maria Arriaga for Koji Arriaga, Represented as his Guardian Ad Litem, Appellants/Cross-Respondents,v.GOODYEAR TIRE & RUBBER COMPANY, Respondent/Cross-Appellant.

235 P.3d 592

Teresa BAHENA, Individually, and as Special Administrator for Evertina M. Trujillo Tapia, Deceased; Mariana Bahena, Individually; Mercedes Bahena, Individually; Maria Rocio Perreya, Individually; Maria Lourdes Bahena-Meza, Individually; Maricela Bahena, Individually; Ernesto Torres and Leonor Torres, Individually, and Leonor Torres, as Special Administrator for Andres Torres, Deceased; Leonor Torres for Armando Torres and Crystal Torres, Minors, Represented as their Guardian Ad Litem; Victoria Campe, as Special Administrator of Frank Enriquez, Deceased; Patricia Jayne Mendez, for Joseph Enriquez, Jeremy Enriquez, and Jamie Enriquez, Minors, Represented as their Guardian Ad Litem; and Maria Arriaga for Koji Arriaga, Represented as his Guardian Ad Litem, Appellants/Cross-Respondents,v.GOODYEAR TIRE & RUBBER COMPANY, Respondent/Cross-Appellant.

No. 49207.

Supreme Court of Nevada.

July 1, 2010.

COPYRIGHT MATERIAL OMITTED

Albert D. Massi, Ltd., and Albert D. Massi, Las Vegas, for Appellants/Cross-Respondents Arriagas, Campe, Mendez, and Torres.

Callister & Reynolds and Matthew Q. Callister and R. Duane Frizell, Las Vegas, for Appellants/Cross-Respondents Bahena, Bahena-Meza, and Perreya.

Lewis & Roca, LLP, and Daniel F. Polsenberg and Joel D. Henriod, Las Vegas, for Respondent/Cross-Appellant Goodyear Tire & Rubber Company.

Before the Court En Banc.

OPINION

By the Court, GIBBONS, J.:

In this appeal we consider whether the district court abused its discretion when it struck a defendant's answer, as to liability only, as a discovery sanction pursuant to NRCP 37(b)(2)(C) and NRCP 37(d). We conclude that the district court did not abuse its discretion by imposing non-case concluding sanctions and by not holding a full evidentiary hearing. We further conclude that the district court exercised its inherent equitable power and properly applied the factors set forth in Young v. Johnny Ribeiro Building, 106 Nev. 88, 92-93, 787 P.2d 777, 780 (1990). We therefore affirm the judgment of the district court.

FACTS AND PROCEDURAL HISTORY

This case arises out of a single-vehicle, multiple rollover accident sustained by the appellants/cross-respondents (collectively, Bahena) that occurred when the left rear Goodyear tire separated from the vehicle.

The appellants were family members and friends. Three people were killed in the accident. Seven other passengers suffered injuries. A teenage boy suffered a closed head injury that caused a persistent vegetative state. Bahena sued respondent/cross-appellant Goodyear Tire and Rubber Company for wrongful death and other tort claims arising from the accident. Although the district court precluded Goodyear from litigating the issue of liability, the district court permitted Goodyear to fully litigate, without any restrictions, all claims by Bahena for compensatory and punitive damages.

The district court set the trial date for January 29, 2007. The discovery cutoff was December 15, 2006.

On November 28, 2006, Bahena filed a second motion to compel for sanctions seeking better responses to interrogatories and to require an index matching the discovery documents. The motion to compel pertained to interrogatory answers and a mass production of documents Goodyear had previously produced. At the hearing before the discovery commissioner on December 5, 2006, the discovery commissioner made a written finding of fact that he did not believe that Goodyear was acting in good faith and that Goodyear must designate which Rule 34 request made by Bahena the specific documents produced were responding to; otherwise, Goodyear was being evasive and noncompliant with discovery. The discovery commissioner's findings and recommendations were not objected to and subsequently approved by the district court when it entered an order on January 5, 2007.

The next discovery dispute pertained to a deposition noticed by Bahena of a Goodyear representative for December 11, 2006. Goodyear moved for a protective order on December 8, 2006. The discovery commissioner held a hearing upon the motion for protective order on December 14, 2006. The commissioner ruled that the deposition should go forward and recommended in writing on December 20, 2006, as follows:

IT IS RECOMMENDED THAT prior to December 28, 2006, Goodyear will have a representative appear at the office of Plaintiffs' counsel in Las Vegas, Nevada to render testimony in the presence of a court reporter regarding the authenticity of the approximately 74,000 documents bates stamped GY-Bahena produced by Goodyear in this matter. Any document Goodyear's representative does not either affirm or deny as authentic will be deemed authentic.

These recommendations were served on Goodyear on December 21, 2006. Goodyear did not request the discovery commissioner to stay the deposition prior to December 28, 2006. In addition, Goodyear did not file its objections to the discovery commissioner's recommendations until January 3, 2007. ¹ On January 5, 2007, the district court entered its order approving the discovery commissioner's recommendations retroactive to the December 14, 2006, hearing date. Goodyear had filed a timely objection to the discovery commissioner's recommendations on January 3, 2007. However, the district court did not receive the objections prior to entering its order on January 5, 2007.

Bahena filed a motion for sanctions on December 29, 2006. This motion was based upon Goodyear's unverified interrogatory responses and boilerplate or proprietary and trade-secret objections.² In this motion, Bahena sought additional relief, including the striking of Goodyear's answer and the entry of judgment as to both liability and damages. At a hearing upon this motion held January 9, 2007, the district court also considered and overruled Goodyear's objections to the recommendations and sustained its January 5, 2007, order regarding producing a witness for deposition to authenticate the documents as verbally ruled by the discovery commissioner on December 14, 2006. The district court struck Goodyear's answer as to liability and damages for sanctions based upon discovery abuses.

After the January 9, 2007, hearing, Bahena filed a motion to establish all its damages by way of a prove-up hearing. Goodyear filed an opposition to this motion and a countermotion for reconsideration of all the discovery sanctions approved by the district court, pursuant to its January 5, 2007, approval of the discovery commissioner's recommendations for the December 14, 2006, hearing, and its January 9, 2007, order granting the motion to strike Goodyear's answer as to liability and damages. The district court set a hearing for these motions, pursuant to an order shortening time, for January 18, 2007. During the hearing, the district court granted Goodyear's request for reconsideration of its January 9, 2007, ruling to strike Goodyear's answer as to both liability and damages and entertained further argument on these issues. The district court further proceeded to accept factual representations made by all of the parties' attorneys present in court on behalf of Bahena and Goodyear, as officers of the court. At this hearing, which consisted of 64 pages of transcript, the district court questioned the attorneys regarding the nature of the discovery disputes and the various responses. The district court further considered the voluminous exhibits and affidavits of counsel for the parties that were attached to the various motions and countermotions filed by Bahena and Goodyear. The district court imposed reduced sanctions of striking Goodyear's answer as to liability only, and denied Bahena's request to establish its damages by way of a prove-up hearing.

In analyzing its decision for imposing these non-case concluding sanctions, the district court reasoned that Goodyear's conduct throughout the discovery process caused stalling and unnecessary delays. The district court stated that the repeated discovery delays attributed to Goodyear were such that continuing the trial date to allow discovery to be completed was not the appropriate remedy for Bahena since the prejudice was extreme and inappropriate. The district court noted that the Bahena plaintiffs included a 14-year-old who had been in a persistent vegetative state for the past two years together with the estates of three dead plaintiffs. The district court further held that since the trial was scheduled to commence January 29, 2007, Goodyear knew full well that not responding to discovery in good faith would require the trial date to be vacated. If the trial had proceeded, there could have been an open question as to the authenticity of approximately 74,000 documents that were the subject of the December 14, 2006, hearing before the discovery commissioner. The district court then analyzed and applied the factors to be considered in the imposition of discovery sanctions set forth in Young v. Johnny Ribeiro Building, and codified findings of fact and conclusions of law in a written order filed January 29, 2007.³ The case then proceeded to jury trial on the issue of damages only and Bahena obtained a judgment in excess of $30 million in compensatory damages. However, Goodyear received a defense verdict upon Bahena's claim for punitive damages.

DISCUSSION

In reviewing sanctions, we do not consider whether we, as an original matter, would have imposed the sanctions. Our standard of review is whether the district court abused its discretion in doing so. Foster v. Dingwall, 126 Nev. ----, 227 P.3d 1042 (2010). However, we do not impose a somewhat heightened standard of review because the sanctions in this case did not result in the case concluding sanctions of striking Goodyear's answer both as to liability and damages. In Clark County School District v. Richardson Construction, we concluded that:

Under NRCP 37(b)(2), a district court has discretion to sanction a party for its failure to comply with a discovery order, which includes document

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