Date: May 20, 2026

Powers v. Dist. Ct. (Bueno): NRS 629.620 Is Unconstitutional as Applied to NRCP 35 Discovery Examinations; “Good Cause” Limits Recording and Interpreter Conditions

Introduction

Case: POWERS v. DIST. CT. (BUENO) (CIVIL), 142 Nev., Advance Opinion 35 (Nev. May 14, 2026).
Court: Supreme Court of Nevada (en banc).
Posture: Original petition for a writ of mandamus or, alternatively, prohibition challenging a district court discovery order compelling a neuropsychological examination under specified conditions.

The underlying civil case arises from a motor vehicle collision in which plaintiff Carlos Patino Bueno alleged a traumatic brain injury and sought nearly $2 million in damages. Defendant/petitioner Gabriel Powers agreed Bueno would undergo a neuropsychological examination but disputed the conditions governing that exam.

The central issues were (1) whether NRS 629.620 can govern conditions of court-ordered discovery examinations despite NRCP 35, and (2) whether specific conditions imposed by the district court—raw data disclosure, audio recording, and use of an interpreter—were permissible under NRCP 35 and general discovery discretion.

Summary of the Opinion

The Nevada Supreme Court held that NRS 629.620 violates separation of powers to the extent it imposes conditions that conflict with or exceed those established by NRCP 35 for court-ordered physical or mental examinations conducted during civil discovery. As applied to NRCP 35 discovery exams, the statute is unconstitutional and of no effect.

On the challenged exam conditions, the Court held:

Raw testing data: The district court did not abuse its discretion by ordering disclosure of raw data to counsel and others involved in litigation, subject to reasonable restrictions via a protective order.
Audio recording: The district court abused its discretion by permitting audio recording absent cognizable, fact-specific “good cause” under NRCP 35.
Interpreter: The district court abused its discretion in ordering a court-certified interpreter for the entirety of the exam on this record; the order improperly managed the conduct of the evaluation rather than ensuring access, and it rested largely on the (erroneous) premise of enabling attorneys to understand a recording.

Relief: Writ granted in part (mandamus issued directing modification of the exam conditions to deny interpreter and (absent alternative sufficient good cause) deny audio recording), and denied in part (raw data disclosure condition upheld). The request for prohibition was denied.

Analysis

Precedents Cited

1) Separation of powers and court rule supremacy over procedural statutes

Lyft, Inc. v. Eighth Jud. Dist. Ct., 137 Nev. 832, 501 P.3d 994 (2021): The cornerstone precedent. The Court used Lyft’s two-step framework—(i) determine whether the statute and rule irreconcilably conflict; (ii) if so, decide whether the statute is substantive or procedural for separation-of-powers purposes. Lyft previously invalidated NRS 52.380 for unconstitutionally encroaching on judicial rulemaking in the same exam-conditions space.
State v. Connery, 99 Nev. 342, 661 P.2d 1298 (1983): Provided the operative rule that when the Legislature enacts a procedural statute conflicting with an existing procedural court rule, the statute is “of no effect.”
Comm'n on Ethics v. Hardy, 125 Nev. 285, 212 P.3d 1098 (2009); Nev. Const. art. 3, § 1: Supplied general separation-of-powers principles preventing encroachment by one branch on another.
Hefetz u. Beauor, 133 Nev. 323, 397 P.3d 472 (2017): Cited for the substantive-versus-procedural lens used when statute and court rule conflict.
State v. Second Jud. Dist. Ct. (Marshall), 116 Nev. 953, 11 P.3d 1209 (2000), and NRS 2.120(2): Reinforced the judiciary’s inherent authority to regulate the judicial process, including discovery procedures.
Sibbach v. Wilson & Co., 312 U.S. 1 (1941): Used (as in Lyft) to characterize the federal analogue to NRCP 35 as procedural, supporting the conclusion that NRCP 35 governs “the judicial process for enforcing rights and duties.”
Azar v. Allina Health Servs., 587 U.S. 566 (2019): Provided a clear articulation: substantive rules create duties/rights/obligations; procedural rules specify how they are enforced. The Court used this distinction to reject the statute’s “substantive rights” framing when the operative provisions were merely exam procedures (observer/recording mechanics).
Jones v. Coty Inc., 362 F. Supp. 3d 1182 (S.D. Ala. 2018): Persuasive authority cautioning that legislative labeling of “substantive right” is not dispositive where the actual content is procedural.
Claypool v. Mladineo, 724 So. 2d 373 (Miss. 1998): Cited comparatively to show that categorization may inform but does not control the constitutional analysis, particularly where procedural rules are implicated.
Tarn v. Eighth Jud. Dist. Ct., 131 Nev. 792, 358 P.3d 234 (2015): Provided standards of review and presumption of constitutionality, placing the burden on the challenger to make a clear showing of invalidity.

2) Harmonization canons and conflict analysis

Williams v. State, Dep't of Corr., 133 Nev. 594, 402 P.3d 1260 (2017), and Laird v. State, Pub. Emps. Ret. Bd., 98 Nev. 42, 639 P.2d 1171 (1982): Supplied the general/specific canon used to test whether NRCP 35 could be treated as a specific carve-out from NRS 629.620. The Court rejected that approach on these facts, concluding the provisions irreconcilably conflict.
Finke v. Comair, Inc., 489 S.W.3d 242 (Ky. Ct. App. 2016): Persuasive authority for applying general/specific reasoning even across statutes versus civil rules, though the Nevada Court ultimately resolved the matter by finding direct conflicts.

3) Writ practice, advisory mandamus, and discovery discretion

Gen. Motors Corp. v. Eighth Jud. Dist. Ct., 122 Nev. 466, 134 P.3d 111 (2006): Cited for the Court’s discretion to entertain writ petitions.
Int'l Garne Tech., Inc. v. Second Jud. Dist. Ct., 124 Nev. 193, 179 P.3d 556 (2008): Provided mandamus standards (controlling arbitrary/capricious discretion).
Club Vista Fin. Servs. v. Eighth Ad. Dist. Ct., 128 Nev. 224, 276 P.3d 246 (2012): Cited both for prohibition standards and for the deferential abuse-of-discretion review of discovery rulings.
Archon Corp. v. Eighth Jud. Dist. Ct., 133 Nev. 816, 407 P.3d 702 (2017) (quoting United States u. Horn, 29 F.3d 754 (1st Cir. 1994)): The basis for invoking advisory mandamus because the issue was novel, of great public importance, likely to recur, and likely to evade effective review after discovery is completed.
MB Am., Inc. v. Alaska Pac. Leasing, 132 Nev. 78, 367 P.3d 1286 (2016), and Staccato v. Valley Hosp., 123 Nev. 526, 170 P.3d 503 (2007): Provided abuse-of-discretion sub-standards (clearly erroneous factfinding, disregarding controlling law, or applying incorrect legal standards).

4) Raw data disclosure and protective orders (persuasive out-of-state authority)

Randy's Trucking, Inc. v. Superior Court of Kern County, 308 Cal. Rptr. 3d 645 (2023): The Court found this reasoning “persuasive” on two key points—trial court discretion to order raw neuropsychological data disclosure even absent explicit textual authorization, and the sufficiency of protective orders to address test security and misuse concerns.
Carpenter v. Superior Ct. of Alarneda Cnty., 45 Cal. Rptr. 3d 821 (2006): Quoted within Randy’s Trucking for the proposition that lack of express authority does not preclude discretionary disclosure orders.
Wright v. Hobby Lobby Stores, Inc., 344 F.RD. 538 (D. Colo. 2023): Supported allowing counsel access to raw test data (not limited to board-certified neuropsychologists) and using protective orders to address confidentiality/test-security concerns.
Cook v. Nation Express, LLC, No. 3:20- cv-77, 2021 WL 640508 (S.D. Ohio Jan. 19, 2021), and Glennon v. Performance Food Grp., Inc., No. 2:20-cv-38, 2021 WL 3130050 (S.D. Ga. July 23, 2021): Cited for the view that ethical/test-security concerns can be mitigated by court order and do not outweigh the opposing party’s right to test an expert’s conclusions, and that courts should not force a party to hire an expert solely to access underlying data.

5) “Good cause” for recording examinations

Nogess v. Poydras Ctr., LLC, No. 16-15227 c/w No. 16-15234, 2018 WL 1172958 (E.D. La. Mar. 6, 2018): Cited for the proposition that recording is appropriate only on “special circumstances amounting to good cause.”
Schaffer v. Sequoyah Trading & Transp., 273 F.R.D. 662 (D. Kan. 2011); Greenhorn v. Marriott Intern., Inc., 216 F.R.D. 649 (D. Kan. 2003); Maldonado v. Union Pac. R.R. Co., No. 09-1187—EFM, 2011 WL 841432 (D. Kan. Mar. 8, 2011): Used to illustrate rare, fact-specific circumstances supporting recording (severe memory/mental health issues affecting ability to report, evidence of examiner abuse/noncompliance, or serious communication limitations).
NRCP 35, Advisory Committee Notes (2019 amendment): Treated as a key interpretive guide—“generalized fear” that an examiner might distort events is insufficient to establish good cause to record.

6) Interpreter authority in civil matters

Caballero v. Seventh Jud. Dist. Ct., 123 Nev. 316, 167 P.3d 415 (2007): Recognized the district court’s inherent authority to appoint interpreters in civil proceedings to ensure fairness and impartiality. Here, however, the Supreme Court found the record did not justify the interpreter condition as imposed.

Notable contextual references: The Court highlighted an ongoing statewide divide and referenced other pending writ matters: LV Rest. Mgmt. Corp. v. Eighth Jud. Dist, Ct., Docket No. 89532, Flamingo Paradise Gaming, LLC v. Eighth Jud. Dist. Ct., Docket No. 89783, and Morgan v. Eighth Jud. Dist. Ct., Docket No. 90645. These were not decided in the opinion but underscored recurrence and the need for statewide clarification.

Legal Reasoning

A. Why NRCP 35 displaces NRS 629.620 in civil discovery exams

Step 1 (Lyft): irreconcilable conflict. The Court identified three direct conflicts:
- Recording: NRCP 35(a)(3) permits audio recording only on good cause, while NRS 629.620(1)(e) treats recording (audio/stenographic/video) as an examinee “right.”
- Observers: NRCP 35(a)(4)(B) generally bars observers in neuropsychological/psychological/psychiatric exams absent good cause, while NRS 629.620(1)(b) allows an observer as of right.
- Who may observe: NRCP 35(a)(4) excludes attorneys and those employed by a party/attorney, while NRS 629.620(1)(b) allows “the person's attorney” or persons “hired by or on behalf of the person.”
Step 2 (Lyft): substantive vs procedural. The Court held the conflicting provisions of NRS 629.620 are procedural because they regulate how exams are conducted, not the underlying rights/duties. Even the statute’s added remedies and asserted “bodily autonomy” rationale did not transform observer/recording mechanics into substantive law. Because NRCP 35 is procedural and the judiciary has inherent authority over discovery rules, the statute unconstitutionally encroached on judicial power and is “of no effect” as applied to NRCP 35 discovery exams.

B. Application to the three contested conditions

1) Raw data disclosure: within discretion and consistent with Nevada discovery rules

The Court treated raw neuropsychological data as discoverable information supporting expert opinion. It relied on two sources of authority: (i) NRCP 16.1 (disclosure of data used to make an expert report), and (ii) the district court’s broad discretion over discovery management (as emphasized in Club Vista Fin. Servs. v. Eighth Ad. Dist. Ct.).

The Court rejected the argument that raw data must be restricted to neuropsychologists, reasoning (consistent with Randy's Trucking, Inc. v. Superior Court of Kern County and Wright v. Hobby Lobby Stores, Inc.) that counsel must be able to scrutinize the foundations of the defense expert’s opinion, including for cross-examination; protective orders can address confidentiality/test-security; and speculative concerns do not outweigh the fairness needs inherent in adversarial testing of expert proof.

2) Audio recording: “generalized fear” is not good cause under NRCP 35

The Court found the district court’s rationale—fear of examiner misreporting—fell squarely within what the NRCP 35, Advisory Committee Notes (2019 amendment) deem insufficient. The Court emphasized recording should be exceptional, supported by fact-specific “special circumstances,” not concerns that would apply in virtually any case. The district court also erred by invoking legislative “rights” language from NRS 629.620 when NRCP 35 controlled.

3) Interpreter: absent evidence of need, the order improperly managed the examination

While acknowledging general authority to appoint interpreters for fairness (citing Caballero v. Seventh Jud. Dist. Ct.), the Court held the record lacked evidence justifying an interpreter—particularly where the examiner was Spanish-fluent and Spanish testing materials existed to improve reliability. The Court also found the interpreter condition was bound up with the (improper) recording order, which the district court sought to make intelligible to attorneys. In the Court’s framing, NRCP 35 addresses access and litigation fairness, not micro-management of the testing methodology absent a demonstrated need.

C. Due process claim rejected

Powers argued the order would effectively deprive him of an exam because neuropsychologists might refuse to participate if raw data must be disclosed. The Court rejected this as insufficiently shown (e.g., the submitted declaration and signatures—mostly from California—did not establish near-universal refusal), and it stressed that expert witnesses engaged in litigation are not entitled to special deference beyond ordinary compliance with discovery and court orders.

Impact

Statewide rule clarity: The opinion resolves a major source of inconsistency among Nevada judges and discovery commissioners by holding that NRS 629.620 cannot override NRCP 35 in civil discovery examinations. This will likely standardize rulings on recording/observer demands that were being asserted as statutory “rights.”
Legislative drafting limits (separation of powers): The Court signals that relabeling procedural preferences as “substantive rights” and adding remedies will not save a statute that functionally displaces court-promulgated discovery procedure. Future legislative efforts in this area must avoid dictating the conduct of NRCP discovery mechanisms in ways that contradict court rules.
Exam-condition litigation recalibrated:
- Parties seeking to record NRCP 35 exams must build an evidentiary record of “special circumstances,” not rely on generic distrust of defense experts.
- Parties resisting raw data disclosure face an uphill battle if their objections are generalized (ethics, test security) and not tied to concrete risks that a protective order cannot manage.
- Requests for interpreters must be grounded in actual demonstrated need, and courts are cautioned against substituting their preferred exam methodology for the examiner’s, absent compelling reasons tied to fairness and access.
Strategic consequences for neuropsychological IMEs: By endorsing raw data disclosure to counsel (not limited to neuropsychologists) under protective orders, the opinion may increase disputes over protective order terms (designation, access limits, handling, return/destruction), and could influence how neuropsychologists structure litigation engagement in Nevada.

Complex Concepts Simplified

NRCP 35 examination (often called an “IME”): A court-ordered physical or mental examination of a party when their condition is in controversy in litigation. NRCP 35 sets conditions (including limits on observers and recordings) and requires “good cause” for certain intrusive safeguards like recording.
Separation of powers (Nev. Const. art. 3, § 1): The Nevada Constitution divides government power among branches. Courts have inherent authority over judicial procedure (including discovery rules). The Legislature cannot enact procedural statutes that conflict with court rules in a way that controls courtroom process.
Substantive vs procedural law: Substantive law creates rights and duties (what people are entitled to, what they must do). Procedural law governs how courts enforce those rights and duties (how litigation works). Here, “observer and recording rights” in exams were deemed procedural mechanics, not substantive rights.
Advisory mandamus: A discretionary writ the Nevada Supreme Court uses to resolve important, recurring legal questions that would likely evade meaningful review on appeal (such as discovery disputes that become moot once discovery is finished).
Good cause: A case-specific, evidence-based justification. Under NRCP 35, good cause for recording is not satisfied by ordinary distrust; it requires special circumstances (e.g., demonstrated inability to recall/report what happened, documented examiner misconduct).
Protective order (NRCP 26(c)): A court order limiting the use, dissemination, and handling of sensitive discovery materials. The Court treated protective orders as the primary tool for addressing confidentiality and test-security concerns associated with raw neuropsychological data.

Conclusion

Powers v. Dist. Ct. (Bueno) establishes two principal rules with immediate statewide consequences: (1) NRS 629.620 cannot constitutionally dictate conditions for NRCP 35 discovery examinations where it conflicts with NRCP 35, because doing so intrudes on the judiciary’s procedural rulemaking authority; and (2) in neuropsychological exams, raw data disclosure to counsel may be ordered under protective orders, while recording and interpreter conditions require a fact-specific evidentiary showing (and generalized fears or attorney-convenience rationales will not suffice).

Doctrinally, the decision reinforces Nevada’s post-Lyft, Inc. v. Eighth Jud. Dist. Ct. boundary line: legislative policy preferences about litigation procedure—no matter how forcefully framed—cannot override court-promulgated discovery rules when the operative provisions are procedural in substance.