Why Have We Never Evaluated The Clark County Discovery Commissioner?

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I don't think there is any argument that, as litigators, we spend the vast majority of our time in any case deeply involved in the discovery process. The ability to discover certain information and to exclude certain information is often times the catalyst for a settlement or the determinant for a jury verdict. Ya Ya, I know the judge decides what comes in at trial. However, there is no denying that the ONLY Discovery Commissioner in the 8th Judicial District Court of Nevada has an amazing amount of power.

I'm bringing this up because I recently looked at the Washoe County Judicial Evaluations for 2008. The Washoe County Bar Association handles this judicial survey. While they were only able to get 244 practicing attorneys to respond, the results are still better than nothing. I'm definitely in favor of a Statewide Judicial Evaluation system, however, Washoe does cover some things that we here in Clark County overlook in the RJ/CCBA Evaluations, called Judging the Judges. Per capita, Washoe County really puts the 'hurt' on Clark County, as we could only get 799 survey responses. Along with the fact that Washoe asks those surveyed whether or not to retain the judges, their evaluation survey includes their Discovery Commissioner ("DC"), their Probate Commissioner ("PC") and their Special Masters ("SM"). DUH, why didn't we think of that? You know we were the first to start the survey in 1992. Oh well, so much for being proactive.

I remember when I first began appearing in front of the DC here in Las Vegas. My initial thoughts, though at the time seemingly naive, now have proven to be the most grounded. I could not get my arms around the fact that out of the 'um-teen' Departments back then, there was only one person in charge of all the discovery disputes. Confusingly I could not get my arms around the fact that 'that is a lot of power for one person'. As time rolled on, my opinions became more and more justified.

Now, here we are decades later & guess what? We have 25 Departments & still, 'that is a lot of power for one person'. To make matters worse, it is not an elected position and it is not evaluated in the Judging the Judges Attorney Survey. WHY? Sadly, I don't have an answer, other than...uh...I don't have an answer.

Here are some things to consider relevant to the DC position:

• The DC position is appointed and there is no set term, in fact, I have no idea how the public would even call for removal of a bad DC;


• The DC hears all civil discovery disputes in Clark County;


• The DC can issue sanctions (e.g. monetary, strike pleadings, force appearances);


• The DC has issued a Full set of Opinions published between 1988-2003, though has not given us anything in 6 years, even though the discovery rules have drastically changed since 2003. You can even cite these Opinions in briefs regarding discovery disputes;


• The DC's rulings are enunciated in a Report & Recommendation to the District Court Judge;


• If you disagree with the Report and Recommendation of the DC, you can appeal to the District Court Judge. In years past, this used to be taken seriously. More often than not, these days, all you get is a rubber stamp on the DC's Report & Recommendations;


• The lack of consistency since the change in DC, is appalling, in my opinion.

When I was practicing some years ago as a young associate, one of the partners would always appeal the ruling of the DC as a matter of course. In his words, "the Commissioner does not like me, so he never rules in my favor. I get more fairness from the elected judges." In my opinion, I did not really find that to be true with regard to my personal experience with Comm. Biggar. But then again, he did not hate me. However, the point that should be taken here is that this partner always had to go to the one and only DC for discovery disputes and he had no recourse but to appeal, a consistently costly venture.

In recent years, our long time DC (Biggar) decided to take Comm. Ashworth's place in Probate Court, creating a vacancy. Whola! We have Comm. Bulla. I really don't know how she ascended to that position. I'm not part of the 'LV Insiders Club', as far as you know. Frankly, I was not a fan of Comm. Biggar (mainly because I thought he was too powerful), until we got Comm. Bulla. Now I sing praises to his name. Why? You knew where you stood with Comm. Biggar. I have not found the same consistency with Comm. Bulla. That is why I am most frustrated when I see that our Northern brothers are smart enough to provide some sort of an evaluation of their DC, while we Southerners ignore the impact of our DC, altogether.

I won't go into specific cases regarding what I often refer to as the Comm. Bulla Keno Game. However, what I've experienced and witnessed is plenty to draw the conclusory opinions that I possess. Suffice it to say, there is little to no consistency in Comm. Bulla's decisions. In one situation there will be a sanction for discovery abuses or a scheduling problem with experts. However, if you change the firm involved to a conspicuously larger and more powerful law firm, under the same set of facts, BOOM, no sanctions. In another situation, depending on the mood of Comm. Bulla, you could have a fine from $200 to $2000 for the same offense. Oft times, the only change in circumstance appears to be the firm involved.

In her defense though, this is a HUGE responsibility. She must handle the discovery disputes for the entire District. To my knowledge, she doesn't get a clerk to help her out and she is supposed to read everything, know everything and rule on everything. From my experience, she does not...read everything, that is. In many hearings, I've found that she is not even familiar with rudimentary facts of the case. I've even seen her confuse the offending party by sanctioning the attorney that brought the motion for sanctions, holding that he abused the discovery process, when the abuse was clearly by the other side. I'd hope that got corrected on appeal to District Court.

This is a bit like talking about racism or gay marriage at dinner. It is very polarizing and uncomfortable, while we are just sitting here trying to eat. At some point though, everyone is taking a side of the argument and it usually depends completely on the connection to the topic, not the logic/reasoning of the topic. I recognize that most of us won't say 'boo' about our DC, in public, for fear of retribution. That's fine. But, we should. The problem is, we don't have a place to voice these opinions in order to effectuate change. Other than complaining to the Judges via appeals from the DC Reports, we can't evaluate Comm. Bulla's performance.

OK, so I've said it. You know many of you were thinking it. While these statement are just my opinion, they are based upon a solid amount of experience in front of Comm Bulla and Biggar, as well as numerous experiences of several colleagues. What I've found a few years down the road now is that I'm screaming for the return of the Biggar Days. I never thought I'd say that. Since that is not going to happen (due to Biggar's retirement to ensure his pension), I'd at least ask for the chance to evaluate Comm. Bulla in the 2010 survey. Hello RJ!! After that, if Nevada ever gets Judicial Evaluations in gear, I surely hope that don't miss the DC loophole, too.
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