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NRCP Rule 26
RULE 26. GENERAL PROVISIONS
GOVERNING DISCOVERY
(a) Discovery Methods. At any time after the
filing of a joint case conference report, or upon the entry of an order waiving
compliance with Rule 16.1(c), or not sooner than ten (10) days after a party
has filed his own case conference report, any party who has complied with Rule
16.1 may obtain additional discovery by one or more of the following methods:
depositions upon oral examination or written questions; written interrogatories;
production of documents or things or permission to enter upon land or other
property, for inspection and other purposes; physical and mental examinations;
and requests for admission.
(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:
(1) In General. 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 frequency or extent of use of the discovery methods
set forth in subdivision (a) shall be limited by the court if it determines
that: (i) the discovery sought is unreasonably cumulative or duplicative, or is
obtainable from some other source that is more convenient, less burdensome, or
less expensive; (ii) the party seeking discovery has had ample opportunity by
discovery in the action to obtain the information sought; or (iii) the discovery
is unduly burdensome or expensive, taking into account the needs of the case,
the amount in controversy, limitations on the parties’ resources, and the
importance of the issues at stake in the litigation. The court may act upon its
own initiative after reasonable notice or pursuant to a motion under subdivision
(c).
(2) Insurance Agreements. A party may obtain discovery
of the existence and contents of 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. Information concerning the insurance
agreement is not by reason of disclosure admissible in evidence at trial. For
purposes of this paragraph, an application for insurance shall not be treated
as part of an insurance agreement.
(3) Trial Preparation: Materials. Subject to the
provisions of subdivision (b)(4) of this rule, a party may obtain discovery of
documents and tangible things otherwise discoverable under subdivision (b)(1)
of this rule and prepared in anticipation of litigation or for trial by or for
another party or by or for that other party’s representative (including his
attorney, consultant, surety, indemnitor, insurer, or agent) only upon a
showing that the party seeking discovery has substantial need of the materials
in the preparation of his case and that he is unable without undue hardship to
obtain the substantial equivalent of the materials by other means. In ordering
discovery of such materials when the required showing has been made, the court
shall protect against disclosure of the mental impressions, conclusions,
opinions, or legal theories of an attorney or other representative of a party
concerning the litigation.
A party may obtain without the required showing a
statement concerning the action or its subject matter previously made by that
party. Upon request, a person not a party may obtain without the required
showing a statement concerning the action or its subject matter previously made
by that person. If the request is refused, the person may move for a court
order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred
in relation to the motion. For purposes of this paragraph, a statement
previously made is (A) a written statement signed or otherwise adopted or approved
by the person making it, or (B) a stenographic, mechanical, electrical, or
other recording, or a transcription thereof, which is a substantially verbatim
recital of an oral statement by the person making it and contemporaneously
recorded.
(4) Trial Preparation: Experts. Discovery of facts
known and opinions held by experts, otherwise discoverable under the provisions
of subdivision (b)(1) of this rule and acquired or developed in anticipation of
litigation or for trial, may be obtained only as follows:
(A)(i) A party may through interrogatories require any
other party to identify each person whom the other party expects to call as an
expert witness at trial, to state the subject matter on which the expert is
expected to testify, and to state the substance of the facts and opinions to
which the expert is expected to testify and a summary of the grounds for each
opinion.
(ii) Upon motion, the court may order further discovery
by other means, subject to such restrictions as to scope and such provisions,
pursuant to subdivision (b)(4)(C) of this rule and subdivision (h) of Rule 30,
concerning fees and expenses.
(B) A party may discover facts known or opinions held
by an expert who has been retained or specially employed by another party in
anticipation of litigation or preparation for trial and who is not expected to
be called as a witness at trial, only as provided in Rule 35(b) or upon a
showing of exceptional circumstances under which it is impracticable for the
party seeking discovery to obtain facts or opinions on the same subject by
other means.
(C) Unless manifest injustice would result, (i) the
court shall require that the party seeking discovery pay the expert a
reasonable fee for time spent in responding to discovery under subdivisions
(b)(4)(A)(ii) and (b)(4)(B) of this rule; and
(ii) with respect to discovery obtained under
subdivision (b)(4)(A)(ii) of this rule the court may require, and with respect
to discovery obtained under subdivision (b)(4)(B) of this rule the court shall
require, the party seeking discovery to pay the other party a fair portion of
the fees and expenses reasonably incurred by the latter party in obtaining
facts and opinions from the expert.
(5) Demand for Expert Witness List and Reports and
Writings Exchange.
(A) In addition to the discovery allowed by subdivision
(b)(4) of this rule, not later than the tenth day after a trial date is
selected, or 90 days prior to the date set for the commencement of trial,
whichever is later, any party may serve on any party a demand to exchange lists
of expert witnesses and all discoverable reports and writings concerning each
expert witness’s proposed testimony.
(B) The time and place for the service of the list of
expert witnesses and the exchange of reports and writings shall be set forth in
the demand and may be any reasonable time after the date of exchange. The “date
of exchange” shall be 20 days after the date of service of demand on the party
(3 days shall be added to the prescribed time if served by mail pursuant to N.R.C.P. 6(e)) or 70 days prior to the date set for
the commencement of the trial, whichever is later. (The 70th day shall be determined
by counting the day preceding commencement of trial as the 1st day).
(C) Upon motion and showing of good cause the court may
designate a different date for service of the demand or for exchange of lists
and documents under this paragraph.
(D) Each witness list shall include the name and
business or residence address of each expert witness whom the party in good
faith expects to call in person or through depositions and a brief narrative
statement of the qualifications of such witnesses and the general substance of
the testimony which the witness is expected to give.
(E) The exchange of lists and documents shall be
simultaneous. The person who served a demand shall serve his or her list and
discoverable reports and writings upon each party on whom a demand was served.
Each party upon whom a demand is served shall serve his or her list and
discoverable reports upon the party who served the demand.
(F) If after service of a list of expert witnesses, a
party determines to call an expert witness not included in the list, such party
shall: (i) immediately give written notice to the parties upon whom the expert
witness list was served; (ii) make such expert witnesses available for
deposition, and (iii) immediately make available for inspection and copying
such expert witness’s discoverable reports and writings. The district court may
permit a witness under this subsection only as provided in Rule 26(b)(5)(H).
(G) Except as provided herein, upon objection of a
party who has served his list of witnesses in compliance with the provisions
hereof, no party required to serve a list of expert witnesses on the objecting
party may call an expert witness to testify except for purposes of impeachment
unless the requirements of 26(b)(5) for that witness have been met. Impeachment
witnesses shall be limited to matters related to the truth or veracity of the
witness being impeached and shall not also be used as rebuttal witnesses.
(H) The court may, upon such terms as may be just,
permit a party to call a witness on direct examination during the party’s case
in chief where such witness should have been listed, but was not included in
such party’s list of expert witnesses, so long as the court finds that such
party has made a good faith effort to comply with the provisions of Rule
26(b)(5) including supplementing any list exchanged, provided that it appear as
of the date of exchange, such party: (i) could not in the exercise of reasonable
diligence have determined to call such witness or, (ii) failed to determine to
call such witness through mistake, inadvertence, surprise or excusable neglect.
(c) Protective Orders. Upon motion by a party
or by the person from whom discovery is sought, and for good cause shown, the
court in which the action is pending may make any order which justice requires
to protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense, including one or more of the following: (1) that the
discovery not be had; (2) that the discovery may be had only on specified terms
and conditions, including a designation of the time or place; (3) that the discovery
may be had only by a method of discovery other than that selected by the party
seeking discovery; (4) that certain matters not be inquired into, or that the
scope of the discovery be limited to certain matters; (5) that discovery be
conducted with no one present except persons designated by the court; (6) that
a deposition after being sealed be opened only by order of the court; (7) that
a trade secret or other confidential research, development, or commercial
information not be disclosed or be disclosed only in a designated way; (8) that
the parties simultaneously file specified documents or information enclosed in
sealed envelopes to be opened as directed by the court.
If the motion for a protective order is denied in whole
or in part, the court may, on such terms and conditions as are just, order that
any party or person provide or permit discovery. The provisions of Rule
37(a)(4) apply to the award of expenses incurred in relation to the motion.
(d) Sequence and Timing of Discovery. Unless
the court upon motion, for the convenience of parties and witnesses and in the
interests of justice, orders otherwise, methods of discovery may be used in any
sequence and the fact that a party is conducting discovery, whether by
deposition or otherwise, shall not operate to delay any other party’s
discovery.
(e) Supplementation of Responses. A party who
has responded to a request for discovery with a response that was complete when
made is under a duty to supplement his response to include information
thereafter acquired, as follows:
(1) A party is under a duty seasonably to supplement
his response with respect to any question directly addressed to (A) the
identity and location of persons having knowledge of discoverable matters, and
(B) the identity of each person expected to be called as an expert witness at
trial, the subject matter on which he is expected to testify, and the substance
of his testimony.
(2) A party is under a duty seasonably to amend a prior
response if he obtains information upon the basis of which (A) he knows that
the response was incorrect when made, or (B) he knows that the response though
correct when made is no longer true and the circumstances are such that a
failure to amend the response is in substance a knowing concealment.
(3) A duty to supplement responses may be imposed by
order of the court, agreement of the parties, and no later than 45 days prior
to trial through new requests for supplementation of prior responses.
(4) No later than 45 days before trial, each party
shall also supplement all prior answers to interrogatories under Rule 33, all
responses to requests for production under Rule 34, and the discovery required
to be disclosed pursuant to Rule 16.1(b)(1), (3) and (5).
(f) Discovery Conference. At any time after
commencement of an action the court may direct the attorneys for the parties to
appear before it for a conference on the subject of discovery. The court shall
do so upon motion by the attorney for any party if the motion includes:
(1) A statement of the issues as they then appear;
(2) A proposed plan and schedule of discovery;
(3) Any limitations proposed to be placed on discovery;
(4) Any other proposed orders with respect to
discovery; and
(5) A statement showing that the attorney making the
motion has made a reasonable effort to reach agreement with opposing attorneys
on the matter set forth in the motion. Each party and his attorney are under a
duty to participate in good faith in the framing of a discovery plan if a plan
is proposed by the attorney for any party. Notice of the motion shall be served
on all parties. Objections or additions to matters set forth in the motion
shall be served not later than 10 days after service of the motion.
Following the discovery conference, the court shall
enter an order tentatively identifying the issues for discovery purposes,
establishing a plan and schedule for discovery, setting limitations on
discovery, if any, and determining such other matters, including the allocation
of expenses, as are necessary for the proper management of discovery in the
action. An order may be altered or amended when ever justice so requires.
Subject to the right of a party who properly moves for
a discovery conference to prompt convening of the conference, the court may
combine the discovery conference with a pre-trial conference authorized by Rule
16.
(g) Signing of Discovery Requests, Responses, and
Objections. Every request for discovery or response or objection thereto
made by a party represented by an attorney shall be signed by at least one
attorney of record in his individual name, whose address shall be stated. A
party who is not represented by an attorney shall sign the request, response, or
objection and state his address. The signature of the attorney or party
constitutes a certification that he has read the request, response, or
objection, and that to the best of his knowledge, information, and belief
formed after a reasonable inquiry it is: (1) consistent with these rules and
warranted by existing law or a good faith argument for the extension,
modification, or reversal of existing law; (2) not interposed for any improper
purpose, such as to harass, obscure, equivocate or to cause unnecessary delay
or needless increase in the cost of litigation; and (3) not unreasonable or
unduly burdensome or expensive, given the needs of the case, the discovery
already had in the case, the amount in controversy, and the importance of the
issues at stake in the litigation. If a request, response, or objection is not
signed, it shall be stricken unless it is signed promptly after the omission is
called to the attention of the party making the request, response or objection
and a party shall not be obligated to take any action with respect to it until
it is signed.
If a certification is made in violation of this rule,
the court, upon motion or upon its own initiative, shall impose upon the person
who made the certification, the party on whose behalf the request, response, or
objection was made, or both, an appropriate sanction, which may include an
order to pay the amount of the reasonable expenses incurred because of the
violation, including a reasonable attorney’s fee.
(h) Demand for Prior Discovery. Whenever a
party makes a written demand for discovery which took place prior to the time
he became a party to the action, each party who has previously responded to a
request for admission or production or answered interrogatories shall make
available to the demanding party the document(s) in which the discovery
responses in question are contained for inspection and copying or furnish to
the demanding party a list identifying each such document by title and upon
further demand shall furnish to the demanding party, at the expense of the
demanding party, a copy of any listed discovery response specified in the
demand or, in the case of request for production, shall make available for
inspection by the demanding party all documents and things previously produced.
Further, each party who has taken a deposition shall make a copy of the
transcript thereof available to the demanding party at the latter’s expense.
(i) Time Limit on Discovery. All parties shall
be entitled as a matter of right to complete discovery proceedings until 45
days before the date set for the trial of the case and to have motions
concerning discovery heard until 30 days before the date set for the trial of
the case. The right to complete discovery proceedings or have a motion
concerning discovery heard closer to the trial date shall be within the discretion
of the court. In exercising its discretion the court shall take into
consideration the necessity and reasons for the discovery, the diligence or
lack of diligence of the party seeking the discovery or order and the reasons
for not having completed the discovery or having had the motion heard earlier,
whether permitting the discovery or granting the order will prevent the case
from going to trial on the day set or otherwise interfere with the trial
calendar or result in prejudice to any party, and any other matter relevant to
the request. This rule shall not preclude or limit voluntary exchanges of
information or discovery by stipulation of the parties or enforcement of the
stipulation, but in no event shall these exchanges or stipulations require a
court to grant a continuance of trial. As used in this Rule, discovery is
completed on the day responses are due or the day a deposition begins.
(j) Form of Responses. Answers and objections
to interrogatories shall identify and quote each interrogatory in full
immediately preceding the statement of any answer or objection thereto.
Answers, denials, and objections to requests for admission shall identify and
quote each request for admission in full immediately preceding the statement of
any answer, denial, or objection thereto.
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