EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, July 29, 2017

Nevada Case Makes Clear That Rules of Evidence Aren't Rules of DIscovery

The recent opinion of the United States District Court for the District of Nevada in Caballero v. Bodega Latino Corporation d/b/a El Super, 2017 WL 3174931 (D. Nevada 2017), is the latest illustration that the rules of evidence are not rules of discovery.*

In Caballero,  there was

a slip and fall accident that allegedly occurred on July 30, 2015, in one of Bodega's El Super grocery stores in North Las Vegas....[Marina[ Caballero alleges that, as she was walking in the produce department looking for a plastic bag to put vegetables in, she slipped on a wet substance on the floor and fell, sustaining injuries.... Caballero filed a complaint against Bodega in Nevada district court alleging claims for (1) negligence; (2) negligent hiring, training, supervision, and retention; and (3) vicarious liability/respondeat superior.

During discovery, Cabellero made several requests for production, including Request Number 24:


Produce all documents related to policy changes made as a result of the subject incident.


Objection. Request No. 24 seeks evidence of subsequent remedial measures which are inadmissible to prove negligence. NRS 48.095. Thus, the information requested is not calculated to lead to the discovery of admissible evidence.

The defendant cited NRS 48.095, which is Nevada's state counterpart to Federal Rule of Evidence 407. Rule 407 provides that

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

  • negligence;
  • culpable conduct;
  • a defect in a product or its design; or
  • a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.

Rule 407 isn't saying that evidence of subsequent remedial measures is irrelevant; instead, it's primarily based upon "a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety." In other words, without Rule 407, defendants like El Super would be gun shy about instrumentalities/locations safer after accidents if those changes could be used against them at trial.

 This distinction is important given a recent amendment to the Federal Rules of Civil Procedure. Federal Rule of Civil Procedure 26(b)(1) used to provide that inadmissible evidence was discoverable if it "appears reasonably calculated to lead to the discovery of admissible evidence." A 2015 amendment to that Rule, however, deleted that phrase and replaced it with language that better represents the phrase's original intent: "Information within this scope of discovery need not be admissible in evidence to be discoverable." Overall, the Rule now states that

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Under this Rule, "[a]dmissibility is different than discoverability," and Caballero was able to establish that the evidence sought was relevant to her claims. Therefore, it was discoverable even if it might not be admissible.


*Except for rules of privilege and possibly the rape shield rule.



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This is gonna betray my amateurness, but does inadmissible yet still discoverable mean that it must be turned over to the opposing side, even though neither side will be able to introduce it at trial?

I can imagine a few reasons, namely that knowledge can lead to new investigative paths which may later produce admissible or important evidence, right?

Posted by: Paul | Jul 30, 2017 5:23:03 PM

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