As previously discussed, NRCP 16.1 (Mandatory Pretrial Discovery Requirements) is the beginning of Discovery in Conventional Trials in Nevada District Courts. NRCP 16.1(a) (Required Disclosures) sets forth three (3) groups of items that must be disclosed before Trial.
We are only concerned with two of those at this time: Initial Disclosures under NRCP 16.1(a)(1); and Disclosures of Expert Testimony under NRCP 16.1(a)(2). NRCP 16.1(a)(3) discusses disclosures that normally take place shortly before Trial and will be discussed at a later date.
Strict enforcement under Initial Disclosures Rule
The Initial Disclosures under NRCP 16.1(a)(1) are (theoretically) required. In my experience, I do not see my opposing Parties making the effort to make these disclosures. Perhaps they don’t want to do the work; perhaps they just want to make it more difficult on me as their opponent. I think that this Rule, as many of the other Discovery Rules, should be more strictly enforced. Strict enforcement (with Sanctions as needed) will, over time, prevent the need for many of the Motions before the Discovery Commissioner.
It is important for Parties, their Attorneys and the Courts to finish cases in a timely and efficient manner. Strict enforcement of 16.1(a) benefits that goal. As an example, NRCP 16.1(a)(1)(A) “a party must, without awaiting a discovery request, provide to other parties”. . .”[t]he name and, if known, the address and telephone number of each individual likely to have information discoverable under Rule 26(b), including for impeachment or rebuttal, identifying the subjects of the information.”
Note that this is not instructing the Party to list only the witnesses she intends to call to support her case. The Party must include witnesses known to her to have discoverable information. This includes persons that have records in the possession of others that are needed for any party in the case.
Requiring this information to be disclosed at the beginning prevents the need for Parties to wait until a Scheduling Order is filed to serve Interrogatories requesting the identity of Custodians of Records and waiting for the Party holding the information to respond to the Interrogatories (by Rule up to 30 days later.) Clearly, time is saved if the Party seeking the information has the identity of the Custodian of Record from the outset.
Other items that must be required according to the rule at the beginning of the case are:
- NRCP 16.1(a)(1)(B) A copy of, or a description by category and location of, all documents, data compilations, and tangible things that are in the possession, custody, or control of the party and which are discoverable under Rule 26(b);
- NRCP 16.1(a)(1)(C) A computation of any category of damages claimed by the disclosing party, making available for inspection and copying as under Rule 34 the documents or other evidentiary matter, not privileged or protected from disclosure, on which such computation is based, including materials bearing on the nature and extent of injuries suffered; and
- NRCP 16.1(a)(1)(D) For inspection and copying as under Rule 34 any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment and any disclaimer or limitation of coverage or reservation of rights under any such insurance agreement.
Like NRCP 16.1(a)(1)(A), NRCP 16.1(a)(1)(B) avoids delays in the Discovery process by requiring information to be disclosed at the beginning rather than waiting perhaps 60 days the information to be provided in Answers to Interrogatories and Responses to Requests for Production.
NRCP 16.1(a)(1)( C) helps Parties defending claims evaluate their position by providing what damages are being sought from the beginning. In many cases where there is a limited amount of insurance coverage available, this may help the case end earlier if the Party defending the claim finds that it is better to settle the claim than contest it over the limited amount of money at issue.
Likewise, NRCP 16.1(a)(1)(D) allows Parties making claims where insurance coverage may be available to compensate that Party evaluate the case and, perhaps, make offers to settle the case that result in an earlier settlement. It also informs the Party making the claim if the other Party’s insurer may be denying coverage under the policy. Again, this may be helpful in settling some cases earlier.
NRCP 16.1(a)(2) requires Parties to disclose information regarding experts they may call at Trial. In the “old days”, the Rules specifically allowed for information regarding experts to be requested by way of Interrogatory. Now, the Party wishing to provide expert testimony is under the duty to provide it in a timely fashion.
NRCP 16.1(a)(2)(B) increases the duty on Parties intending on calling experts at Trial. In the old days, an expert did not have to provide a report. Back then, the first detailed information about an expert’s opinion could have been at his deposition. Now, it is required to be produced by the Party who intends to offer the expert testimony stating:
Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. . . The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions;any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding 10 years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.
Preparing for Trial
These requirements make it easy for a Party against whom an expert will testify to prepare for Trial or Deposition of that expert. The opinions and bases of those opinions are known allowing the Party to determine if they will depose the expert and, if the expert is deposed, the questions that will be asked about the expert’s opinions and qualifications can be thought out in advance.
The Rule also allows Parties to find prior books, articles, Depositions or Trial testimony that may be inconsistent with the opinions the expert will testify to at Trial for the purpose of impeaching the expert. In the past, this could be found at the expert’s Deposition (if he remembered those details at that time) but now, there is no need to wait to schedule a Deposition before seeking these materials.
Under the disclosure requirements of NRCP 16.1(a)(1) and (2) Parties should be off and running with Discovery from the outset. If the Rules are enforced, Parties will be able to shorten the time needed for Discovery and, therefore, the time needed for cases to get to Trial – a benefit to everyone involved in litigation: Parties, their attorneys and the Courts.