Read online now: “Discovery Law” issue of COMMUNIQUÉ (February 2019), the official publication of the Clark County Bar Association. See below for features written by members of Nevada’s legal community listed as follows:
- “Change is in the Air: How the Supreme Court’s Comprehensive Rule Revisions Will Impact Discovery in Civil Actions” by Carl R. Houston, Esq.
- “Determining Community Property Assets and Debts in A Divorce Case” by Jennifer Poynter-Willis, Esq.
- “A Mandatory Duty to Confer After Noticing an FRCP 30(b)(6) Deposition” by Jacquelyn Franco, Esq.
In the full, color, printed edition, readers may find a variety of practical content, including these special features:
- “Can We All Place Nice in the Sandbox in Discovery?” By CCBA President Jason P. Stoffel
- “See You on The Other Side” by Supreme Court of Nevada Chief Justice Michael L. Douglas and Michael A. Cherry
- Bar Activities, New Members, Member Moves, Court Changes, and The Marketplace
© 2019 The content on this page was originally published in COMMUNIQUÉ*, the official publication of the Clark County Bar Association. (February 2019). All rights reserved. For permission to reprint this content, contact the publisher Clark County Bar Association, 717 S. 8th Street, Las Vegas, NV 89101. Phone: (702) 387-6011.
Change is in the Air: How the Supreme Court’s Comprehensive Rule Revisions Will Impact Discovery in Civil Actions
By Carl R. Houston, Esq.
The New Year brings numerous changes after the Supreme Court’s Nevada Rules of Civil Procedure (“NRCP”) Committee recently completed an extensive review of our state’s rules. On December 31, 2018, the Supreme Court issued ADKT 0522, its Order Amending the Rules of Civil Procedure, the Rules of Appellate Procedure, and the Nevada Electronic Filing and Conversion Rules. A primary purpose of the committee’s revisions is to promote a “just, speedy, and inexpensive resolution of every action and proceeding.” NRCP 1. Changes can be found on the Supreme Court’s website and will take effect March 1, 2019. https://nvcourts.gov/Supreme/Rules/Amendments/Nevada_Rules_of_Civil_Procedure. They will apply to “all civil actions and proceedings pending or filed in Nevada’s district and appellate courts after that date.” This article outlines a few of these changes:
NRCP 16.1(a): Expanding Mandatory Pretrial Mandatory Requirements
In an attempt to streamline document production, NRCP 16.1(a)(1)(A)(ii) integrates language from its federal counterpart, which requires parties to include “any record, report, or witness statement in any form, including audio or audiovisual form, concerning the incident that gives rise to the lawsuit.” The committee noted that the initial “record” or “report” requirement “includes but is not limited to: incident reports, records, logs and summaries, maintenance records, former repair and inspection records and receipts, sweep logs, and any written summaries of such documents.” These documents “should include those that are prepared or exist at or near the time of the subject incident. The reasonable time required for production  will depend on the facts and circumstances of each case.” NRCP 16.1(a)(1)(A)(ii).
Rule 30: Number of Depositions, Discussions During Deposition Breaks
Number of depositions
Like FRCP 30, NRCP 30(a)(2)(A)(i) limits parties to ten depositions, unless there is a stipulation or court order providing otherwise. As the federal advisory committee noted, a main “objective is to emphasize that counsel  develop a mutual cost-effective plan for discovery.”
The committee further adopted case law holding that communications between a witness and attorney during a “convenience break” are not privileged, unless it is for preserving a privilege or to enforce a court ordered limitation. Following the break, however, the attorney must state on the record: “(1) that a conference took place; (2) the subject of the conference; and (3) the result of the conference, i.e., whether to assert privilege or not.” Coyote Springs Inv., LLC v. Eighth Judicial Dist. Court, 131 Nev. Adv. Op. 18 (2015).
NRCP 34: Producing Documents or Electronically Stored Information
As the universe of data increasingly expands in our digital world, NRCP 34(b)(2)(E)(i) addresses the production of documents—especially those electronically stored—that are kept in “the usual course of business.” The rule now provides that if the foregoing document production would be “unduly burdensome” for the requesting party to correlate, the responding party must: (a) specify the records with enough detail so that the requesting party can locate responsive documents; or (b) “organize and label the records to correspond to the categories in the request.” Id.
NRCP 35: Requests Related to Physical & Mental Examination of Persons
Rule 35(a) expressly provides that a “court may for good cause shown direct that an examination be audio recorded.” However, the committee noted that a “generalized fear that the examiner might distort or inaccurately report what occurs at the examination is not sufficient to establish good cause to audio record the examination.” Id. Moreover, the individual who is being examined may have an observer present (e.g. “family member”) if the examined party timely “identifies the observer and his or her relationship to the party.” However, the committee stated that the observer “should not be the attorney or employed by the attorney for the party against whom the request for examination is made, and the observer may not disrupt or participate in the examination.” The party requesting the foregoing must raise it either during briefing or at the hearing.
Timing of Examination Reports
To expedite expert discovery, a “Rule 35(b) report [containing] opinions concerning the physical or mental condition in controversy  contemplate that the report will be provided by the initial expert disclosure deadline, assuming that deadline is within 30 days of the examination.” Stated differently, the revised rule virtually compels that the “examining party” provide the report within 30 days of the examination, if that date occurs before the initial expert disclosure deadline. The foregoing is corroborated by a similar rule that provides that a “rebuttal examination expert must be timely disclosed by the rebuttal expert disclosure deadline or within 30 days of the examination, whichever occurs first.” Id.
Carl R. Houston, Esq. is a litigator with the Ladah Law Firm, and has over ten years of experience in a variety of areas. Carl received his J.D. from the University of Oregon School of Law, and B.S. from the University of Southern California.
Determining Community Property Assets and Debts in A Divorce Case
By Jennifer Poynter-Willis, Esq.
So, you have a divorce case that requires discovery to ascertain the community property assets and debts of the marriage. This article will provide a brief overview of the discovery process in family court. Specifically, Nevada Rules of Civil Procedure (NRCP) 33, 34, and 36 will assist you in obtaining the necessary information to determine the full and complete marital estate to be divided in a divorce.
Perhaps you represent a spouse that is unaware of the exact assets of the marriage or perhaps you represent a party who suspects the other of hidden assets or marital waste. Either way, the discovery process will become a valuable tool in finding all existing assets.
NRCP 16.2 provides discovery requirements that must be complied with in all cases. Specifically, each party must complete a financial disclosure form at the onset of a case, listing their income, expenses, assets, and debts.
NRCP 16.2 also provides that mandatory disclosures be made by each party. Such disclosures include, but are not limited to, bank account, investment account, credit card statements, debt information, proof of ownership of real property, retirement accounts, proof of insurance, tax returns, proof of income, and similar documents that can provide a snapshot of what assets, income, and debt exist in the marital estate. However, NRCP 16.2 only mandates that six months’ worth of statements be given to the opposing party.
In some cases, it will be necessary to obtain statements for a time period longer than six months. There are several scenarios that may give rise to the need to review account statements for a period of more than six months, such as hidden assets or marital waste.
When a party requests additional information, the need to propound interrogatories, requests for production of documents, or request for admissions will become necessary. A request for documents can be sent to the opposing party or his counsel requesting the specific dates needed.
A party has 30 days to respond to discovery requests. See NRCP 33 (interrogatories), NRCP 34 (production of documents), and NRCP 36 (requests for admissions). If a party fails to provide the information requested and it is reasonably within their ability to obtain such information, the party requesting the information can file a motion to compel before the discovery commissioner at the family court to compel the non-responding party to provide the information.
It may also be necessary to request the information directly from a third party, such as a bank, credit card company, or employer, pursuant to NRCP 45. A subpoena duces tecum can be sent directly to the entities, requesting that documents be provided in lieu of someone attending a deposition. However, one must ensure that service of the subpoena is made at a location within the state of Nevada. Otherwise, that third party business may refuse to comply with an out of state subpoena.
For example, Bank of America’s headquarters is in North Carolina and the address for their legal department is in San Francisco, California. If either of those locations were served, Bank of America could refuse to comply because the subpoena is the result of an out-of-state divorce action. Rather than filing an action in a different state under the Uniform Interstate Depositions and Discovery Act, which would allow a party to initiate a case outside the state for the purpose of issuing the subpoena, the subpoena can simply be served upon a local branch of Bank of America in the state of Nevada. That branch will in turn then send the subpoena to their legal department which will be required to comply because a subpoena issued in a Nevada lawsuit was served upon a Nevada branch of the business.
Once the financial information in a case is obtained, it must then be analyzed to determine what community property assets, income, and debts exist, and whether a tracing of such assets is necessary to prove that funds or assets were diverted, hidden, or wasted. To do this, an expert will be necessary to review the account statements and provide a report outlining his or her findings for the court. Typically, a forensic accountant is used to do this. The expert must be timely named as an expert witness and the report must be produced in discovery so that it can be used at the time of trial. You will want to ensure that the expert qualifies as an expert. If there are assets that were transferred or liquidated, the party responsible must provide answers. The lesson in all of this? Seek the additional information so your client has a complete picture of his or her community property interest in the assets.
A Mandatory Duty to Confer After Noticing an FRCP 30(b)(6) Deposition
By Jacquelyn Franco
The Judicial Conference Advisory Committee on Appellate, Bankruptcy, Civil, and Evidence Rules has proposed amendments to their respective rules, scheduled to go into effect on December 1, 2020. Of note for civil practitioners are the proposed changes to FRCP 30 – Depositions by Oral Examination.
Specifically, Rule 30(b)(6) as amended would (1) direct the serving party and the named organization to confer before or promptly after the notice or subpoena is served and (2) continue conferring, as necessary, regarding the number and description of matters for examination and the identity of the persons who will testify. See Preliminary Draft of Proposed Amendments, Committee Notes at http://www.uscourts.gov/rules-policies/proposed-amendments-published-public-comment. The amendment would also require that a subpoena notify a nonparty organization of its duty to confer and to designate one or more witnesses to testify. Id.
Further, it is noted that the mandatory obligation would be to confer in good faith, consistent with proportionality goals of the 2015 amendments to Rules 1 and 26(b)(1). Id. The duty to confer would continue, if needed, to fulfill the requirements of good faith. Id. But the conference process would have to be completed a reasonable time before the deposition is scheduled to occur. Id.
Lastly, according to the proposed Committee Notes: “When the need for a Rule 30(b)(6) deposition is known early in the case, the Rule 26(f) conference may provide an occasion for beginning discussion on these topics. In appropriate cases, it may also be helpful to include reference to Rule 30(b)(6) depositions in the discovery plan submitted to the court under Rule 26(f)(3), and in the matters considered at a pretrial conference under Rule 16.” Id.
What does this mean for the practitioner? Be prepared. If you are plaintiff’s counsel, plan out your case, think about themes, and notice specific topics for deposition to help your position. Please do not waste time on a fishing expedition. If you are defense counsel, talk to your client; get to know their officers, directors, and managers; and carefully choose the appropriate, knowledgeable representative. Nothing is worse than an ill-prepared 30(b)(6) witness. But more importantly, work together! Clients on both sides will benefit from the cooperation between their lawyers.
At this time, the Committee of Rules of Practice and Procedure has approved the amendment only for publication and comment. The proposed amendment has not been submitted to, or considered by, the Judicial Conference or the Supreme Court of Nevada. Comments on the proposed Rule 30(b)(6) amendment, whether favorable, adverse, or otherwise, must be submitted the to the committee by Friday, February 15, 2019. Comments may be made at https://www.regulations.gov/comment?D=USC-RULES-CV-2018-0003-0001. If you have questions about the rulemaking process or pending rules amendments, you can contact the Rules Committee staff at 202-502-1820 or visit: http://www.uscourts.gov/rules-policies.
Jacquelyn Franco, Esq. is an associate with Backus, Carranza & Burden. She focuses on insurance defense, product and premises liability, and commercial transportation. Ms. Franco can be reached at (702) 872-5555 or firstname.lastname@example.org.
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