This blog was written for my own personal benefit. Here I look at Rule 26 of the Nevada Rules of Civil Procedure which governs general rules governing discovery. The rule provides for obtaining discovery by method of deposition, interrogatories, production of documents or things, requests for admissions, and permission to enter land for inspection of other purposes such as physical and mental examinations.
A party may initiate such discovery by one of these methods as soon as the joint case conference report or otherwise not sooner than ten days following a party’s separate case conference report filing. In addition, any party seeking discovery by one of these methods must have previously complied with 16.1(a)(1) which governs attendance at the early case conference and exchange of documents which are contemplated to be used in support of a party’s case.
A party can seek discovery of any material which is relevant to the subject matter of the case, whether it goes to the claim of defense of either parties’ case and remember that it is not a valid abjection that discovery may not be sought because the information sought would be inadmissible at trial. All that is necessary is that the information sought be reasonably calculated to lead to the discovery of admissible evidence.
Remember that the court can alter the rules and limits of discovery. The court may look to see if the discovery sought is unreasonably cumulative, or duplicative, or obtainable from other sources. The court should look at the needs of the case, the amount in controversy, and the limitations on the parties’ resources, as well as the importance of the issues at state in the litigation.
A party may even seek discovery of the other parties’ trial preparation materials. However such requesting party would need to show substantial need for the materials and that the materials couldn’t me attained from other sources or without undue hardship. If the court does order that such trial preparation materials be disclosed it can at the same time limit what is disclosed by protecting against mental impressions, conclusions, opinions and legal theories of the other parties attorney.
If the other party has disclosed an expert whose opinion will be presented at trial then a deposition of this expert may be had. Keep in mind that such deposition shall not be conducted under the experts mandatory report has been disclosed. If the expert has been retained by the other party but not for the purposes of testifying at trial or submitting a report then the expert can not only be called on for deposition or interrogatory responses upon a showing of exceptional circumstances making it impracticable to obtain the information from another source.
If a party claims that information is privileged or protected as trial preparation material then the party must make such claim expressly and describe the nature of the document or communication without revealing the information sought to be protected against. Moreover a party can always file a motion requesting a protective order. Such motion may be sought to protect against annoyance, embarrassment, oppression, undue burden or expense. The court then has numerous variety of orders it can issue if it seeks to offer such protection.
Remember that both parties have an ongoing duty to supplement 16.1 or 16.2 disclosures as such new information becomes available. This same supplemental requirement goes for discovery responses as well.
An attorney is required to sing such disclosures pursuant to 16.1 or 16.2. Such signature certifies that such requests are warranted by law, not interposed for any improper purpose such as to harass or delay proceedings, and is not unduly burdensome or expensive.