dissenting:
I would grant rehearing because I believe due process requires it. The $30,000,000 default judgment in this case rests on the district court choosing to believe one side’s lawyers over another’s, with no evidentiary hearing, no cross-examination, and a genuine dispute over willfulness, fault, and prejudice. The majority quotes *616dictum from Robinson v. Higuera, 760 P.2d 622, 624 (Ariz. Ct. App. 1988), questioned in Montgomery Ward & Co. v. Superior Court, 863 P.2d 911 (Ariz. Ct. App. 1993), that “[d]ue process does not require that a hearing be held in every case” (emphasis added) involving “civil death penalty” (or what Nevada now calls non-case concluding but liabihty-determining) sanctions. But this is a straw man argument. The question is not whether an evidentiary hearing is always required before a court strikes a party’s complaint or answer for violation of a discovery order or rule. The question is whether an evidentiary hearing was required in this case. See id. (qualifying its dictum by noting, “[w]here willfulness or bad faith or fault of the party is clear from the record a hearing may not be necessary” (emphasis added)).
As discussed in my original dissent, the discovery sins seem fairly minor — (1) timely serving interrogatory answers but with the verification to follow; (2) producing documents as kept in the ordinary course of business pursuant to NRCP 34, as opposed to labeling them to correspond to particular discovery requests; and (3) accepting a “deemed authentic” sanction instead of going through a records authentication deposition during the week between Christmas and New Year’s Day. A fitting penance for these sins would have been to deem the interrogatory answers verified and the documents authentic. But for the severe sanction imposed, the record needed to clearly show otherwise irremediable prejudice caused by the sanctioned party’s willful discovery defaults, and it does not.
The prejudice identified was delay — risk of loss of the impending trial date. This claim assumes that the discovery not provided was overdue and made a difference to liability. It is here that the sanctions claim falls apart.
Unlike Young v. Johnny Ribeiro Building, 106 Nev. 88, 181 P.2d 111 (1990), and Nevada. Power v. Fluor Illinois, 108 Nev. 638, 837 P.2d 1354 (1992), this case does not involve lost, destroyed, or fabricated evidence. All documents and things requested were produced. The bone of contention was the way the documents produced were organized — as kept in the ordinary course of business versus labeled to correspond to individual production requests. NRCP 34(b) gives the producing party a choice: “A party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request.” And while the discovery commissioner found the defendant “eyasive” in not labeling its documents to correspond to individual discovery requests, no one brought the NRCP 34(b) issue to him until discovery had closed (or was about to close), and trial was mere weeks away; what, if anything, he ordered besides authentication was not documented before he left the bench.
*617The plaintiffs’ delay in raising the organization of the documents as an issue makes it fair to ask how much their manner of production really mattered. Similarly, the sanctions proponents’ experts already knew the documents, having reviewed them in other products liability cases, and admitted they needed nothing more for their opinions. In contrast to Young, where expert proof of actual evidentiary prejudice was provided, here, the experts said the opposite: The discovery omission (if omission it was — no order compelling production was proved to have been violated) did not affect the substantive proof in the case.
On this record, it was an abuse of discretion and a violation of due process to summarily strike Goodyear’s answer.. The affidavits, expert reports, deposition excerpts, and discovery commissioner minutes, together with Goodyear’s written request for an evidentiary hearing, established genuine issues of material fact as to what discovery violations actually occurred, whether they were willful, whose fault the delay was, and prejudice. The majority notes that, “[ajlthough Goodyear requested an evidentiary hearing, it did not make an offer of proof to the district court as to what evidence should be considered in addition to the representations of counsel.” I disagree. More in the way of an offer of proof was not required on the conflicts unmistakably established by the record. Compare Bronneke v. Rutherford, 120 Nev. 230, 236, 89 P.3d 40, 44 (2004) (“an offer of proof is necessary only when it is unclear what evidence the party claiming error would have produced”), with La-Tex Partnership v. Deters, 111 Nev. 471, 475-76, 893 P.2d 361, 364-65 (1995) (reversing denial of NRCP 60(b) motion and holding that, “[a]t the very least, the district court should have ordered an evidentiary hearing to resolve the uncertainty” in the facts; rejecting the respondents’ argument that a formal offer of proof was required to reverse for failure to provide an evidentiary hearing).
The majority does not simply deny rehearing. It “clarifies” its original opinion in a way that leaves the decision whether to grant an evidentiary hearing before striking a party’s pleading to the standardless discretion of the district court, instead of dependent on the presence or absence of disputed issues of fact. This is contrary to clear Nevada precedent, Nevada Power, 108 Nev. at 645, 837 P.2d at 1359 (“If the party against whom dismissal may be imposed raises a question of fact as to any of these factors [willfulness, prejudice, and proportionality], the court must allow the parties to address the relevant factors in an evidentiary hearing” (emphasis added)), and to the law articulated in the opinions the majority distinguishes. Pinkstaff v. Black & Decker (U.S.) Inc., 211 P.3d 698, 703-04 (Colo. 2009) (recognizing that an order striking a defendant’s answer and deeming liability admitted is “tantamount to an entry of default judgment,” “the harshest of all *618sanctions,” and “only to be applied in extreme circumstances”); Montgomery Ward & Co., 863 P.2d at 914 (“A party’s right to due process limits a trial court’s authority to strike a pleading”; “[t]he heavier the sanction contemplated, the more deliberate the process that is due” (distinguishing Robinson, 760 P.2d at 624)).
For these reasons and those stated in my original dissent, I dissent from the majority’s “clarifying” opinion and from the denial of rehearing. The “controlling authority” that has been “overlooked, misapplied or [not] considered],” NRAP 40(c)(2)(B), is fundamental: due process, the check and balance that makes the risk associated with litigation acceptable. Liability should not be decided by sanction without a fair evidentiary hearing on all contested issues of fact material to the sanction imposed. Here, that did not occur.