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Breaking down Nevada Rule of civil Procedure 26

Breaking down Nevada Rule of Civil Procedure 26.

The purpose of this short blog is to break down NRCP so that we get an understanding as to how this discovery rule functions. The purpose of this rule is to define the general guidelinesof discovery. It is the first rule of 11 rules (26 through 37) which define rules of deposition and discovery in the litigation process within the Nevada Rules of Civil Procedure. NRCP 26 is defined by subsections (a) through (h). Here we will briefly look at each of these eight subsections.

NRCP 26 (a) tells us when discovery commences, as well as the methods of such discovery. Specifically, it tells us that a party may commence with discovery at any time after the filing of the joint case conference report. However before a party can conduct discovery, that party must have already complied with NRCP16.1(a)(1). Remember that NRCP 16.1(a)(1) is the rule which tells us we must submit initial disclosures to the opposing party of a litigation matter. So essentially two things must happen before a party can conduct discovery: first they have to comply with 16.1 and submit their initial disclosures, then, secondly, this discovery process can only begin after the parties file their joint case conference report. Remember, the joint case conference report must be submitted within 30 days of the joint case conference. Lastly NRCP 26(a) tells us what form of discovery we may conduct in these circumstances. These methods consist of deposition by oral exam or by written questions; interrogatories, production of documents/things, permission to enter upon land or other property under Rule 34 or 45(a)(1)(C), physical and mental examination, and finally requests for admission.

NRCP(b) defines the scope and limits of discovery. Generally speaking, the rule says that you may obtain discovery on any matter that is relevant to a claim or defense of the moving party or defending party. Also the rule tells us that it is no defense, and there will be no grounds, for an objection based on the fact that the information sought will be inadmissible at trial. The moving party need only show that the information sought could lead to the discovery of admissible evidence.

NRCP (b)(2) sets some limits on the scope of discovery. The court could limit the number of depositions and interrogatories, the length of depositions, and the number of requests made. In determining the frequency and extent of discovery that the court will permit, the court will look at such things as: whether the discovery sought is cumulative or otherwise obtainable from another source which is more convenient or less burdensome. The court will look to the needs of the case, the amount in controversy, resources of the parties, and the significance of the issues at stake in litigation. Thus, the court will conduct a balancing test in each case considering these above factors. The court can make these limitations on its own or pursuant to a motion.

NRCP(b)(3) tells us that a party may even obtain discovery of the documents and tangible things of the other parties' which were prepared for the purpose of litigation. However this is not carte blanche as the discovering side can only do so after it makes a showing that it has substantial need of the materials and cannot otherwise acquire the substantial equivalent of the these materials. If the court does order such disclosure it will protect against discovery of mental impressions, conclusions, opinions, or legal theories of an attorney.

NRCP (b)(4) is broken down into (a), (b), and (c). Section (a) tells us that a party can depose an expert whose opinion may be presented at trial. However, this deposition should not be conducted until after the expert has submitted his or her expert report. Section (b) of this rule tells us that a party can also discover facts or opinions of the other parties' non-testifying experts by way of deposition or interrogatories. However, it must only do so as provided in NRCP 35(b) or upon a showing that the party seeking the information cannot otherwise obtain these facts or opinions by other means. Part (c) tells us that the party requesting such discovery from the non-testifying expert must pay the other party a fair portion of the fees incurred in using the expert's services.

NRCP (b)(5) states that a party who wishes to protect information that would otherwise be discoverable by claiming that it is privileged or trial preparation material shall describe the nature of the protected document or communication in a manner which will allow the other party to determine if the privilege exists while at the same time not revealing the nature of the document or communication.

NRCP 26(c) discusses protective orders. There are times when the court may issue protective orders upon motion of one of the parties. The language of the code says that the court will do so to protect a party from, "Annoyance, embarrassment, oppression, or undue burden or expense." This language is somewhat broad and ambiguous. For instance what qualifies as "oppression" or "annoyance?" We can imagine that a well serving court would balance the necessity of the discovery sought with the "oppression" one might suffer as a result of responding to such discovery. For instance, discovery that's sole purpose is to annoy or oppress may likely be protected against. The court can fashion these protective orders in a number of ways such as by specifying the terms and conditions of discovery. The court may decide to protect some matters but not others such as protecting trade secrets.

NRCP 26(d) tells us that there is no necessary sequence for conducting discovery. Discovery may be had in whatever sequence a discovering party may prefer. The other parties conducting of discovery does not in any way delay the deadlines for the first parties conduction of discovery.

NRCP 26(e) dictates that a party who makes disclosures pursuant to 16.1 or 16.2 has a duty to supplement and/or correct prior disclosures with information acquired later. This rule also applies to experts who have given testimony by way of deposition or otherwise provided their expert report. The rule also stands for any answers to interrogatories or requests for production.

NRCP 26 (f) tells us that we must quote the interrogatory or request for production immediately before each answer to the same.

NRCP 26 (g) governs the signing of disclosures and discovery requests. Bottom line an attorney of record must sign each disclosure and/or report per 16.1 and 16.2. The same also goes for discovery requests and responses to such discovery. The signature verifies that the discovery is made in good faith and is not meant to harass, obscure, equivocate, cause unnecessary delays, or increase the cost of litigation. The signature also warrants that the discovery or disclosure is not unreasonably burdensome or expensive given the needs of the case.

NRCP 26 (h) states that if a party comes into litigation after discovery has already been conducted by some of the parties, the newly entered party may demand of any existing parties documents in which discovery has been disclosured and responses have been made to discovery. The part whom has had disclosures or responses demanded upon them must furnish these items to the demanding party.

Categories: Personal Injury, Evidence