Nevada Civil cases filed in the District Court are controlled by the Nevada Rules of Civil Procedure (NRCP). Those Rules are based on the Federal Rules of Civil Procedure (FRCP) and Nevada case law regarding the Rules will often follow decisions of the Federal Courts. Discovery in both cases is controlled by Rules 26 – 37. However, the Discovery phase really begins with FRCP Rule 16 in Federal Court and NRCP Rules 16 and 16.1 in Nevada District Court. Rule 16 in both Courts controls Pretrial Conferences, scheduling, and management of the cases. NRCP 16.1 sets mandatory pretrial discovery requirements. Nevada Justices’ Courts follow similar Rules as well.
Both of these sets of Rules allow for Discovery. Simply put, Discovery is a set of tools Parties can use to flesh out their cases and to find what information the other Party intends to use to support its case at Trial, Arbitration, or Mediation. Discovery may allow cases to be settled prior to a Trial, Arbitration, or Mediation by exposes strengths and weaknesses in the Parties’ cases.
Nevada Depositions and Discovery
Section V. of the Nevada Rules of Civil Procedure is titled “Depositions and Discovery” and, as stated, contains the rules for the tools used in the Discovery process. Those Rules are:
- RULE 26. General provisions governing discovery
- RULE 27. Depositions before action or pending appeal
- RULE 28. Persons before whom depositions may be taken
- RULE 29. Stipulations regarding discovery procedure
- RULE 30. Depositions upon oral examination
- RULE 31. Depositions upon written questions
- RULE 32. Use of depositions in court proceedings
- RULE 33. Interrogatories to parties
- RULE 34. Production of documents and things and entry upon land for inspection and other purposes
- RULE 35. Physical and mental examination of persons
- RULE 36. Requests for admission
- RULE 37. Failure to make disclosure or cooperate in discovery: Sanctions
As this post is only an overview of Discovery, I will end it with a general description of the scope of discovery and the tools used during the discovery process.
NRCP 26(b)(1), which sets forth the general scope of Discovery, states:
(b) Discovery scope and limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
“Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”
The Rule goes on to note that “[a]ll discovery is subject to the limitations imposed by Rule 26(b)(2)(i), (ii), and (iii)” which will be discussed in a later post.
Tools used during Discovery process
The major tools we use during the Discovery process are: Depositions, Interrogatories, Requests for Production, Requests for Physical and/or Mental Examinations of Persons, and Requests for Admissions. Each of these tools is described in general below.
Depositions may be conducted orally under NRCP Rule 30 or in writing under NRCP Rule 31. To date, I have never had cause to conduct a Deposition upon written questions. A quick reading of the Rule shows them to be cumbersome, allow for the opportunity for responses to be formulated, and prevents the Party being deposed from being evaluated as a live witness. An oral deposition is testimony taken under oath. Testimony is typically taken in front of a Court reporter who swears the witness prior to the beginning of the Deposition. Any Party involved in the lawsuit may attend and question the Deponent. Oral Depositions are done face to face and allow the Attorneys involved in the case to evaluate the witness or party as a witness. You can learn what the Party or witness will say at Trial and see how he or she will appear to the Jury: Is he nervous? Does she appear honest? Can she be made to respond aggressively or defensively? Can he be intimidated? This information can be just as useful as the information regarding the facts that the Party or witness may state at Trial.
Interrogatories, provided for in NRCP Rule 33, are written questions from one Party to another. The Rule limits the number of Interrogatories to 40, including subparts. I have never seen this limitation strictly enforced and, in fact, the Rule allows the Courts to grant leave for Parties to serve additional Interrogatories. All Interrogatories must be Answered within 30 days unless there is a valid objection which must be stated in place of the Answer. Answers to Interrogatories MUST be signed by the Party or representative of the Party where the Party is a legal entity such as a Corporation or Trust. The Attorney signs the Objections to the Interrogatories.
NRCP Rule 34 allows Parties to request documents to be copied and produced or made available for that Parties review. Documents being sought should be identified with specificity to avoid delays in their production. The Rule also allows for a Party to inspect things in the other Party’s possession, such as a tire claimed to be poorly produced in a products liability case. Lastly, a Party could request access to land to inspect it. For instance, a Contractor may request access to property in a case where he is a Defendant in a construction defects case and needs access to the building in order to have an expert test it to determine if the building was built within the proper standards.
NRCP Rule 35 allows courts to require a Party whose physical or mental condition is in controversy to undergo an examination by a licensed practitioner. This is commonly called an Independent Medical Examination, or IME for short. In the Las Vegas area, IME’s of Plaintiffs claiming physical and/or mental damages are typically done by agreement of the Parties as a Court would, typically, order them done if the Plaintiff refused to consent to an examination requested by the Defendant. The Court can only order an IME if a Motion is made by the Party seeking the IME. If an IME is conducted pursuant to this Rule, the Party who submitted to the IME has a right to request any reports, test results or other information gained by the IME.
The purpose of Requests for Admissions (NRCP 36) is to narrow the scope of the litigation by requiring a party to admit to the truth of a matter. As an example, a Plaintiff in a personal injury accident may send a Request for Admission to an employer defendant requesting that the person who caused the Plaintiff to be injured as working in the scope and course of his employment with the employer defendant at the time of the accident. If the Defendant admits this, then the Plaintiff will not have to prove the employer-employee relationship during the Trial in order to establish that the employer is vicariously liable for causing the accident. A Party who receives Requests for Admissions must respond to them within 30 days or suffer the consequences of having the matter be deemed to be admitted. A Party’s response to a Request for Admission is limited to an admission, denial, objection to the Request, or set forth the reasons why the Party can not admit or deny the Request.