Administrative Psychology Confidentiality Rules Cannot Override Court-Ordered Civil Discovery of Raw Psychological Test Data

1. Introduction

DAVIS v. DIST. CT. (OHANIAN) (CIVIL), 142 Nev., Adv. Op. 58 (Aug. 27, 2026), arose from a personal-injury action filed by Vasken Ohanian against Tamisha Davis and her employer, MV Transportation, Inc., after Ohanian was struck by a bus. Ohanian alleged physical injuries and psychological/cognitive harm.

Davis retained Dr. Thomas Kinsora, Ph.D. to perform an independent neuropsychological evaluation under NRCP 35. After Dr. Kinsora issued a report critical of Ohanian’s claimed deficits (and of Ohanian’s expert, Dr. Michael A. Elliott, Ph.D.), Ohanian sought discovery of the raw test data—including the test questions—to prepare cross-examination and evaluate the opinions.

The district court repeatedly ordered disclosure to Ohanian’s counsel under a protective order. Davis and MV resisted, relying on NAC 641.234(3), a Nevada Board of Psychological Examiners regulation that purports to bar disclosure of psychological test material/data in judicial proceedings unless “required by specific federal or state law.” Petitioners sought mandamus relief, arguing the regulation prohibited production.

The Nevada Supreme Court (en banc) used advisory mandamus to address the statewide question: whether NAC 641.234(3) can supersede a district court’s discovery authority.

2. Summary of the Opinion

The court denied the writ petition and held:

  • NRS 641.100(2) authorizes the Board to regulate the practice of psychology, not civil discovery in district court.
  • A district court retains broad discretion to order discovery, including disclosure of raw psychological testing data and examiner questions, especially when subject to a protective order.
  • Although an expert psychologist may be subject to NAC 641.234(3) as a licensing rule, that regulation does not prevent compliance with a court-ordered disclosure in civil litigation.
  • The district court did not manifestly abuse its discretion in ordering disclosure to counsel under a protective order.

The court expressly resolved the issue without deciding the constitutionality of NAC 641.234(3), instead deciding the case on the limits of the Board’s statutory authority and the court’s inherent/rule-based control of discovery.

3. Analysis

3.1. Precedents Cited

Powers v. Eighth Jud. Dist. Ct.

Powers v. Eighth Jud. Dist. Ct., 142 Nev., Adv. Op. 35, 589 P.3d 638 (2026), is the opinion’s anchor. There, the court held that NRS 629.620 violated separation of powers to the extent it conflicted with NRCP 35, and it further held that district courts have authority to order disclosure of raw data from mental/physical examinations for litigation purposes, emphasizing that “discovery matters are within the district court’s broad discretion.” In Davis, the court extends Powers’ practical discovery holding to a new source of resistance: an administrative regulation (NAC 641.234(3)) rather than a statute.

Canarelli v. Eighth Jud. Dist. Ct.; Pan v. Eighth Jud. Dist. Ct.; Walker v. Second Jud. Dist. Ct.; MDC Rests., LLC v. Eighth Jud. Dist. Ct.

These cases supply the framework for writ practice and advisory mandamus. Canarelli v. Eighth Jud. Dist. Ct., 138 Nev. 104, 506 P.3d 334 (2022), and Pan v. Eighth Jud. Dist. Ct., 120 Nev. 222, 88 P.3d 840 (2004), reinforce that writ relief is discretionary and extraordinary. Walker v. Second Jud. Dist. Ct., 136 Nev. 678, 476 P.3d 1194 (2020) (quoting MDC Rests., LLC v. Eighth Jud. Dist. Ct., 134 Nev. 315, 419 P.3d 148 (2018)), articulates when advisory mandamus is appropriate—statewide importance and guidance that promotes judicial economy—criteria the court invoked to reach the merits.

Cotter v. Eighth Jud. Dist. Ct.; Club Vista Fin. Servs. v. Eighth Jud. Dist. Ct.; Williams v. Eighth Jud. Dist. Ct.

These authorities provide the review standards. Cotter v. Eighth Jud. Dist. Ct., 134 Nev. 247, 416 P.3d 228 (2018), and Club Vista Fin. Servs. v. Eighth Jud. Dist. Ct., 128 Nev. 224, 276 P.3d 246 (2012), establish that discovery orders are reviewed for “manifest abuse of discretion,” while legal questions are reviewed de novo; Williams v. Eighth Jud. Dist. Ct., 127 Nev. 518, 262 P.3d 360 (2011), is cited for deference to factual findings. The court uses these standards to uphold the district court’s balancing and protective-order approach.

Bisch v. Las Vegas Metro. Police Dep't

Bisch v. Las Vegas Metro. Police Dep't, 129 Nev. 328, 302 P.3d 1108 (2013), is used for plain-meaning statutory interpretation: when unambiguous, statutes are understood according to their plain meaning. The court uses that canon to read NRS 641.100(2) as limited to regulating “the practice of psychology,” not court discovery.

State v. Second Jud. Dist. Ct. (Ojeda); Arnold v. Kip; Diversified Cap. Corp. v. City of North Las Vegas

These cases underscore the district court’s broad discovery control. State v. Second Jud. Dist. Ct. (Ojeda), 134 Nev. 770, 431 P.3d 47 (2018), and Arnold v. Kip, 123 Nev. 410, 168 P.3d 1050 (2007), as amended, affirm wide discretion over discovery matters, including under NRCP 16.1. Diversified Cap. Corp. v. City of North Las Vegas, 95 Nev. 15, 590 P.2d 146 (1979), supports the deferential posture on discovery control absent a clear abuse—supporting the court’s conclusion that the district judge’s protective-order solution fell well within discretion.

3.2. Legal Reasoning

  1. Framing the question as institutional authority, not just confidentiality. The court did not decide whether psychological test questions are sensitive (they often are). Instead, it asked a threshold public-law question: can an agency rule, adopted under a limited delegation, constrain a court’s civil discovery authority established by court rules?
  2. Limiting the Board’s rulemaking authority to “the practice of psychology.” The court interpreted NRS 641.100(2) to authorize regulation of licensed psychologists’ professional practice. It does not authorize regulation of district-court discovery, which the court treated as governed by the Nevada Rules of Civil Procedure (citing NRCP 1). Accordingly, NAC 641.234(3) cannot operate as a binding constraint on the district court’s discovery orders.
  3. Reaffirming broad discovery discretion and extending Powers to administrative rules. Relying on Powers v. Eighth Jud. Dist. Ct., the court reiterated that even if NRCP 35 does not expressly address disclosure of raw data, the district court can order it because discovery is within its broad discretion and NRCP 16.1 “explicitly allows for the disclosure of data used to make an expert report.”
  4. Compatibility of NRCP 35 examiners with NRCP 16.1 expert obligations. Petitioners attempted to cabin disclosure obligations by portraying Dr. Kinsora as primarily a Rule 35 examiner rather than a Rule 16.1 testifying expert. The court rejected this as a false dichotomy: nothing makes NRCP 35 and NRCP 16.1 mutually exclusive when the examiner is also a testifying expert.
  5. Protective orders as the doctrinal “middle path.” The district court’s order did not require public dissemination; it required disclosure to counsel under a protective order. The Supreme Court treated that as a “judicious balancing” of cross-examination fairness and test-integrity concerns, and thus well within discretion.
  6. Avoidance of constitutional rulings. Although Ohanian argued NAC 641.234(3) was unconstitutional (exceeding statutory authority, violating separation of powers, or creating an unlawful privilege), the court resolved the case without constitutional adjudication—holding simply that the regulation does not control judicial discovery decisions.

3.3. Impact

  • Discovery primacy over professional-board confidentiality rules. The decision establishes that Nevada professional licensing regulations—at least where grounded in “practice” authority like NRS 641.100(2)—do not displace a district court’s power to compel discovery under the Nevada Rules of Civil Procedure.
  • Expanded practical reach of Powers. After Powers (statutory conflict), Davis addresses the next likely litigation tactic (administrative-rule conflict). Together they signal that, in Nevada, rule-based civil discovery and court control are not easily curtailed by legislative or administrative enactments that intrude on procedure.
  • Stronger footing for cross-examination and expert scrutiny in neuropsych cases. Litigants challenging neuropsych opinions can more credibly demand raw data and even test questions—particularly where the defense expert critiques the opposing expert’s test selection or administration—so long as the request is proportional and managed with protective orders.
  • Procedural leverage: sanctions risk for noncompliance. The court highlighted NRCP 16.1(e)(3) sanctions for violating discovery orders, including exclusion of testimony. Experts and retaining parties now have clearer notice that refusing production based on NAC 641.234(3) is unlikely to be a safe harbor.
  • Anticipated future disputes. The court did not decide whether NAC 641.234(3) is valid as a licensing/ethical rule, nor how far “test material” protection might extend in other contexts (e.g., trade secret arguments by test publishers). Future cases may test how protective orders should be structured (e.g., attorney-eyes-only, expert-only review, limits on copying).

4. Complex Concepts Simplified

Raw psychological test data / test material
The underlying inputs behind an expert’s conclusions—scores, item responses, notes, and sometimes the actual test questions or prompts. Here, the dispute centered on whether opposing counsel could see the questions, not just Ohanian’s answers.
Protective order
A court order limiting who may view sensitive discovery and how it may be used (e.g., only for litigation, not publicly disclosed). The court treated protective orders as the mechanism that reconciles discovery needs with confidentiality and test-integrity concerns.
Advisory mandamus
A discretionary writ procedure the Nevada Supreme Court uses to resolve significant legal questions likely to recur, even when immediate relief is not essential, to guide courts statewide and promote judicial economy.
Manifest abuse of discretion
A high bar for overturning discovery rulings. The question is not whether the Supreme Court would have made the same discovery call, but whether the district court clearly misinterpreted or misapplied the law.
Separation of powers (procedural rulemaking)
Nevada courts treat procedural rules (like the NRCP) as within the judiciary’s domain. In Powers v. Eighth Jud. Dist. Ct., a statute conflicting with a court rule was invalid to that extent. In Davis, the court avoided a constitutional ruling but effectively maintained the same boundary: administrative rules cannot control judicial discovery procedure.
Agency authority vs. court authority
Agencies can regulate within the power the Legislature grants them. Here, NRS 641.100(2) lets the Board regulate “the practice of psychology,” but not how district courts run discovery. Courts can order production even if doing so puts a licensee in tension with an agency regulation.

5. Conclusion

DAVIS v. DIST. CT. (OHANIAN) (CIVIL) clarifies that NAC 641.234(3) does not restrain Nevada district courts’ authority to compel discovery of raw psychological testing data, including examination questions, when necessary for litigation and managed through protective orders. The Board’s authority under NRS 641.100(2) reaches the practice of psychology, not civil discovery. Practically, the decision strengthens transparent expert testing in neuropsychological disputes and warns litigants that refusal to comply with discovery orders—based on professional-board confidentiality rules—risks sanctions under NRCP 16.1(e)(3), including exclusion of expert testimony.