By: Courtney Fulmer, Law Clerk; Jorge “Coco” Padilla, Associate; and Marcus J. Lee, Managing Partner of Las Vegas

Introduction

In the United States District Court for the District of Nevada (“District”), cases are typically assigned to both a district judge and a magistrate judge.  District judges decide all dispositive motions, whereas magistrate judges decide non-dispositive motions, which includes motions to stay discovery.  However, since the Ninth Circuit has not provided clear guidance on the proper standard for deciding motions to stay discovery, this District has seen a split between magistrate judges on the applicable standard.  The purpose of this article is to provide practitioners with guidance on the two approaches magistrate judges use in this District.

In this District, magistrate judges use one of two approaches for ruling on motions to stay discovery.  The first test is the three-pronged ‘preliminary peek’ test, which requires the magistrate judge to take a preliminary peek into the dispositive motion and decide whether it would be successful.  See Flynn v. Nevada, 345 F.R.D. 338 (D. Nev. Jan. 3, 2024).  The second test is the two-pronged ‘good cause’ test, which requires the magistrate judge to determine whether there is good cause to stay discovery.  See Schrader v. Wynn Las Vegas, LLC, 2021 U.S. Dist. LEXIS 198974 (D. Nev. Oct. 14, 2021).

The Preliminary Peek Approach

The ‘preliminary peek’ test has been the traditional approach for magistrate judges in the District.  Originally articulated in Kor Media Group, LLC v. Green, 294 F.R.D. 579, 581 (D. Nev. 2013) (Koppe, J.), this standard allows a stay of discovery when: “(1) the pending motion is potentially dispositive; (2) the potentially dispositive motion can be decided without additional discovery; and (3) the Court has taken a ‘preliminary peek’ at the merits of the potentially dispositive motion and is convinced that the plaintiff will be unable to state a claim for relief.”  Thus, this test requires the magistrate judge to look at the merits of the dispositive motion and determine whether it will be successful.

The majority of the magistrate judges in the District have adopted the “preliminary peek” approach.  See e.g. State Farm Mut. Auto Ins. Co. v. Hudson, 2023 U.S. Dist. LEXIS 73195 (D. Nev. Apr. 24, 2023) (Youchah, J.); Flaherty v. Wells Fargo Bank N.A., 2022 U.S. Dist. LEXIS 32379 (D. Nev. Feb. 24, 2022) (Baldwin, J.); ALPS Prop. & Cas. Ins. Co. v. Levine Law Grp., Inc., 2022 U.S. Dist. LEXIS 120586 (D. Nev. July 8, 2022) (Denney, J.).

The “Good Cause” Approach

The “good cause” test is the newer approach for deciding a motion to stay discovery.  Articulated in Schrader, 2021 U.S. Dist. LEXIS 198974, at *10-11 (Weksler, J.), the test’s two-pronged approach evaluates whether “(1) the dispositive motion can be decided without further discovery; and (2) good cause exists to stay discovery.”  Id.  Good cause can be established by the moving party demonstrating harm or prejudice, that the plaintiff cannot state a claim, to prevent undue burden or expense, or for other reasons.  While the preliminary peek test can satisfy the good cause test, it does not apply in the inverse.  Compare Id. at *11 (“…good cause may be established using the preliminary peek test…”) with Allen v. W. Governors Univ., 2025 U.S. Dist. LEXIS 110356, at *2 (D. Nev. June 11, 2025) (“The parties brief and discuss only the minority so-called ‘good cause’ test… The parties provide no briefing or discussion of the majority ‘preliminary peek’ test… For the reasons already articulated in Flynn, the undersigned will not apply the minority so-called ‘good cause’ approach.”)

The “good cause” test is considered the minority test in the District, but the most recent magistrate judges in Nevada apply it.  See e.g. Williams v. Westgate Las Vegas Resort & Casino, 2025 U.S. Dist. LEXIS 118130 (D. Nev. June 23, 2025) (Couvillier, J.); Xiao Ye Bai v. Bean, 2025 U.S. Dist. LEXIS 106873 (D. Nev. June 4, 2025) (Albregts, J.).  Of the two approaches, the “good cause” test has been dubbed the more practical and pragmatic.

Comparison

The “preliminary peek” test and the “good cause” test are foundationally different.  The good cause test has been criticized as “[d]elaying a plaintiff’s pursuit of justice premised on a bare desire to avoid the ordinary cost or convenience of discovery,” which “is an unjustifiable disservice to those coming to this courthouse as a forum to right a perceived wrong.”  See Flynn, 345 F.R.D. at 349.  On the contrary, the “preliminary peek” test has been criticized as being inconsistent with the actual outcome of dispositive motions and for being an inefficient use of judicial resources because it effectively requires the magistrate judge and the district judge to “fully analyze the same dispositive motion” in which they might “have different views on the merits of the dispositive motion.”  See Schrader, 2021 U.S. Dist. LEXIS 198974, at *7-10.

Based on these differences, proponents of either one test can be critical of parties who fail to apply the test they believe to be the “correct” standard.  See Allen, 2025 U.S. Dist. LEXIS 110356, at *2 (magistrate judge finds that parties submitted the wrong standard for granting a motion to stay discovery and admonishing the parties for failing to brief the proper standard).  This split is particularly convoluted because some magistrate judges have recently deflected from the “preliminary peek” test to the “good cause” test.  Compare Xiao Ye Bai, 2025 U.S. Dist. LEXIS 106873 (applying the “good cause” test to a motion to stay discovery) with Duffy v. ASNY NY, LLC, 2022 U.S. Dist. LEXIS 97470 (D. Nev. May 31, 2022) (previously applying the “preliminary peek” test to a motion to stay discovery).

Conclusion

Even though a motion to stay discovery may seem like a run-of-the-mill motion, it requires special attention in this District.  Since the Ninth Circuit has yet to provide clear guidance on how these motions should be decided, practitioners must be diligent in submitting these motions, because magistrate judges in this District have differing opinions on what they consider the “correct” standard for a motion to stay discovery.  Practitioners in this District should take notice of their assigned magistrate judge and identify the more recent approach adopted by that judge.  While each magistrate judge may use their discretion to change the test they choose to use, recent caselaw clearly indicates the approach each judge uses in evaluating a motion to stay discovery.  Therefore, it is worth taking the time to uncover the applicable standard to stay discovery in each case to save clients from unnecessary delays and costs.  While the Ninth Circuit has not established a standard for reviewing these motions, it may soon become necessary for them to do so to further prevent inconsistencies within district courts under its jurisdiction.