Existing law authorizes an observer to be present at a mental or physical examination ordered by a court for the purpose of discovery in a civil action. The observer may: (1) be an attorney for the person undergoing the examination; and (2) make an audio or stenographic recording of the examination. (NRS 52.380) In 2021, the Nevada Supreme Court held that such a statute is unconstitutional because it: (1) is a procedural statute that does not create a substantive right; and (2) attempts to abrogate an existing rule of procedure that the court “prescribed under its inherent authority to regulate the judicial process.” (Lyft, Inc. v. Eighth Jud. Dist. Court, 137 Nev. Adv. Op. 86, 501 P.3d 994, 1002 (2021); N.R.C.P. 35) Section 2 of this bill repeals this statute. Section 1 of this bill provides that, with certain exceptions, a person compelled to submit to a mental or physical examination pursuant to a court order, a contractual obligation or any other type of obligation has the right to: (1) receive notice of the examination at least 21 days before the date of the examination; (2) have an interpreter and certain observers present throughout the examination; (3) take notes or appoint an observer to take notes during the examination; and (4) after providing notice to the examiner, make certain recordings of the examination. Section 1 further provides that the testimony or reports of the examiner are not privileged communications. Section 1 authorizes a person compelled to submit to a mental or physical examination to bring an action against a person who has violated the rights established by section 1, if notice of the alleged violation is provided to that person not later than 7 days before the action is commenced. The person compelled to submit to a mental or physical examination may obtain certain remedies in that action, including: (1) attorney's fees; (2) actual damages or a fine of $1,500, whichever is greater; (3) injunctive and protective relief; and (4) an order prohibiting the use of any information gathered during the examination in any judicial or administrative proceeding. Finally, section 1 exempts from the requirements of section 1 certain compelled mental or physical examinations, including, without limitation, such an examination conducted by an examiner with whom the person compelled to submit to the examination has a preexisting relationship as a patient or will have a future relationship as a patient.

Statutes affected:
As Introduced: 52.380
Reprint 1: 52.380
Reprint 2: 52.380
As Enrolled: 52.380
BDR: 52.380