Andy Michael Thompson v. Nevada Secretary of State

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 ANDY MICHAEL THOMPSON, Case No. 2:25-cv-01284-CDS-EJY 5 Plaintiff, ORDER 6 v. 7 NEVADA SECRETARY OF STATE, 8 Defendant. [9] 10 Before the Court is Plaintiff’s Motion to Compel Production of Dominion Voting Systems 11 Contracts and Technical Documentation. ECF No. 22. 12 Under Federal Rule of Civil Procedure 26(d) “[a] party may not seek discovery from any 13 source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted 14 from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or 15 by court order.” Plaintiff does not demonstrate that a Rule 26(f) conference has occurred and there 16 is no discovery plan and scheduling order on file in this matter that would confirm this fact. 17 Further, good cause for early discovery under Rule 26 does not exist. “Good cause may be 18 found where the need for expedited discovery, in consideration of the administration of justice, 19 outweighs the prejudice to the responding party.” Semitool, Inc. v. Tokyo Electron Am., Inc., 208 20 F.R.D. 273 , 276 (N.D. Cal. 2002); see also Am. LegalNet, Inc. v. Davis, 673 F.Supp.2d 1063 , 1066 21 (C.D. Cal. 2009) (“The party seeking expedited discovery ... has the burden of showing good cause 22 for the requested departure from usual discovery procedures”) (quoting Qwest Commc’ns Int’l, Inc. 23 v. WorldQuest Networks, Inc., 213 F.R.D. 418, 419 (D. Colo. 2003)). Here, Plaintiff argues early 24 discovery should be granted because the documents sought through the two requests he includes in 25 his Motion to Compel (ECF No. 22 at 6-7) seek the “only direct evidence of Nevada’s contractual 26 data-preservation obligations”; the documents are solely in Defendant’s possession and control; and 27 there is risk of “further” loss of evidence that will prejudice Plaintiff. Id. at 7. 1 Plaintiff’s arguments in favor of early discovery are not well taken. Defendant has an 2 independent duty to preserve evidence, including electronically stored evidence, once it reasonably 3 anticipates litigation. Gonzalez v. Las Vegas Metropolitan Police Dept., Case No. 2:09-cv-003814 JCM-PAL, 2012 WL 1118949 , at *5 (D. Nev. Apr. 2, 2012) (“A party must preserve evidence it 5 knows or should know is relevant to a claim or defense by any party, or that may lead to the discovery 6 of relevant evidence. ... The duty to preserve arises not only during litigation, but also extends to the 7 period before litigation when a party should reasonably know that evidence may be relevant to 8 anticipated litigation.”) (internal citations omitted). There is no doubt the State is on notice of 9 litigation and, thus, has a duty to preserve evidence it knows or should know is relevant to Plaintiff’s 10 claims or the State’s defenses. For this reason, the fact that Defendant is in possession and control 11 of the evidence and is the sole source of the evidence, as well as Plaintiff’s concerns regarding 12 alleged “further” loss of evidence do not demonstrate the need for early discovery. 13 In light of the Court’s prior concern regarding Plaintiff’s standing to bring his claims (see 14 ECF No. 17), which is not yet resolved, the Court concludes the interest of justice is not served by 15 early discovery. Further, the Court is confident that the State has complied and will continue to 16 comply with the duty to preserve relevant information. As explained in the concomitantly filed 17 Order denying Plaintiff’s Motion for Sanctions and Adverse Inference, Plaintiff offers no evidence 18 that there has been a destruction of information by the State under circumstances that would support 19 spoliation. 20 Accordingly, and based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s Motion 21 to Compel Production of Dominion Voting Systems Contracts and Technical Documentation (ECF 22 No. 22) is DENIED. 23 Dated this 7th day of November, 2025. [25] ELAYNA J. YOUCHAH 26 UNITED STATES MAGISTRATE JUDGE