The Nevada motion to compel: destroying electronic evidence needs intent before the worst sanctions
Nevada procedure · Last verified August 17, 2026
Nevada's Rule 37 follows the modern federal structure, and its most consequential provision is the one governing electronically stored information.
Losing ESI is not, by itself, enough for the sanctions people usually ask for. Rule 37(e) separates two situations: prejudice, which allows curative measures only, and intent to deprive, which unlocks the adverse inference and the harsher outcomes.
Asking for the wrong one is the most common way an otherwise good Nevada spoliation motion fails.
The ESI provision
Nev. R. Civ. P. 37(e):
Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:
(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may o
Four threshold conditions apply before either route opens:
| Condition | |
|---|---|
| The information should have been preserved in anticipation or conduct of litigation | |
| It is lost | |
| Because the party failed to take reasonable steps to preserve it | |
| It cannot be restored or replaced through additional discovery |
Only then do the two routes divide:
| Finding | What the court may do |
|---|---|
| Prejudice | measures "no greater than necessary to cure the prejudice" |
| Intent to deprive | presume the information was unfavorable, instruct the jury it may do so, and the further measures the subsection lists |
The word "only" in (2) is doing real work. Negligence — even gross negligence — gets you (1). The adverse inference requires intent.
Frame the motion accordingly: if you can prove intent, say so and ask for (2). If you cannot, ask for a proportionate cure under (1) rather than overreaching and losing the motion.
The certification
Rule 37(a)(1) requires the motion to include:
certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obt
"Conferred or attempted to confer" — a silent opponent cannot block the motion, but the attempt must be certified.
One forum
A motion for an order compelling disclosure or discovery "must be made in the court where the action is pending." Nevada does not split the forum for depositions or non-parties.
Fees
Nevada is asymmetric in the movant's favor: mandatory when the motion is granted, discretionary when it is denied, in each case subject to substantial justification or injustice — and, as elsewhere in the modern rule, the award applies equally where the discovery is provided after the motion was filed.
Skipping the conference is a bar to recovering expenses, not merely a factor.
Sanctions once an order is disobeyed
Rule 37(b) supplies the familiar list, ending:
(F) rendering a default judgment against the disobedient party; or (G) treating as contempt of court the failure to obey any order except
The contempt exception is for an order to submit to a physical or mental examination.
Before you file
- Confirm service and that the response period has run — see Nevada initial disclosures for what is owed without a request.
- Confer and certify it.
- If the dispute is about ESI, work through the four threshold conditions first, then decide whether you are arguing prejudice or intent.
- Do not ask for an adverse inference without intent. Rule 37(e)(2) says "only upon finding".
- File in the court where the action is pending — there is no alternative forum.
If judgment has already gone against you, see setting aside a Nevada default judgment and note the six-month limit.
How Nevada compares
| Nevada | Arizona | Utah | Federal | |
|---|---|---|---|---|
| Conference certification required | yes | yes | — | yes |
| Single forum for all motions | yes | no | — | no |
| Fees when granted | must | may | — | must |
| Fees when denied | may | may | — | must |
| Late production avoids fees | no | no | — | no |
| ESI adverse inference requires intent | yes, expressly | — | — | yes |
| Curative measures on prejudice alone | yes, "no greater than necessary" | — | — | yes |
A short checklist
- Certify the conference — it is a condition of recovering expenses, not just good practice.
- File where the action is pending.
- For ESI, establish all four thresholds before arguing about the remedy.
- Match the remedy to the finding — cure for prejudice, adverse inference only for intent.
- Ask for measures "no greater than necessary" under (e)(1); overreaching invites denial.
- Remember late production still exposes them to fees.
- Cite the Nevada numbering, which follows the restyled rule rather than the older state pattern.
Where these rules live
- Nev. R. Civ. P. 26 — General Provisions Governing Discovery
- Nev. R. Civ. P. 33 — Interrogatories to Parties
- Nev. R. Civ. P. 34 — Producing Documents and Things
- Nev. R. Civ. P. 37 — Failure to make disclosures or to cooperate in discovery; sanctions
This page explains what the rules say. It isn't legal advice, and what amounts to reasonable steps to preserve information is developed in case law this site doesn't cover.