Vegas Litigator

NRCP Rule 34 allows Parties to serve Requests Production of Documents and Things.  Of course, the scope of the requests is limited by NRCP 26(b) which authorizes parties to obtain discovery regarding any matter not privileged. See, State ex rel. Tidvall v. Eighth Judicial Dist. Court ex rel. County of Clark, 91 Nev. 520, 539 P.2d 456 (1975).  In other words, the material sought should be relevant to the issues of the case.  

There is no numerical limit to the number of Requests for Production that can be asked as there is a limit on the number of Interrogatories that can be asked.  However, Parties should be reasonable in making Discovery Requests.  I cannot imagine that a Court or Discovery Commissioner would allow Requests for Production to be abused by a party if it appears that the Requests were being used to harass the other Party rather than to seek information to prepare the case for settlement or Trial.

Most often, Requests for Production seek documents within the other Party’s possession or control.  If a party uses a third party to care for or control its records, such as a billing company, then that Party should be responsible for gathering that information and producing it to the other Party for use in the case for settlement or Trial.  Documents should be produced in a manner that is meaningful to the Requesting Party.  Rule 34(b) requires that producing party “shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request.”

Rule 34 can also be used to obtain things, such the tires from a car involved in an accident in a case where the Plainitff is claiming injuries as a result of an accident caused by bad tires.  In such a case, the Court has the power to require the owner of the tires (or their insurer) to produce the tires for inspection and testing by the adverse party’s expert witness.  The Court may place restrictions on the testing to be conducted on the tire(s) and will look to ensure there is a proper evidentiary trail to guarantee that the actual tires are the only ones being examined and commented upon during the course of litigation.

Using NRCP 34, a Party should may be allowed to enter another’s land if doing so is necessary for the case.  This would be the case where a defendant’s experts would need to enter a Plaintiff’s home in a construction defect case where the Plaintiff is claiming damages as a result of a poorly constructed home.  Clearly, the Defendant’s experts would need to enter the home to examination the allegedly damaged area so they could form their opinions regarding what, if any, defects were made in constructing the home.  Rendering wuch an opinion could not be done from a distance or with photographs.

As you can see, NRCP Rule 34 is another tool for gathering information allowing Parties to prepare for Trial by finding evidence relevant to the case.  Attorneys will often use Requests for Production prior to Interrogatories and Depositions to form appropriate questions.  Sometimes, they are used as follow ups to the other tools to gather documents and things that were identified in Interrgoatoies or Deposition.

Every case I litigate has its own peculiarities. The fact behind the claims for two Plaintiffs who were injured as passengers in the same car accident are different.  For instance, their histories, injuries, and effects of those injuries on their life are different . This is important when forming Interrogatory Questions (as well as responding to them.)

This does not mean that we must reinvent the wheel for every case we litigate. We can often start with a general framework of questions and tailor them to inquire into the specific peculiarities of the case. I have two standard sets of Interrogatories to be served on the Defendants in automobile accident cases: one consists of 10 Interrogatories and is used in Arbitration cases where we are typically allowed 10 Interrogatories; the other, consisting of 27 Interrogatories, is used in cases that are exempted out of the Arbitration Program.

Many of these questions can be left untouched for any case, such as my Interrogatory seeking fact about an auto accident itself which reads:

Describe in proper sequence the movements and speed and time involved in the operation of your vehicle for the last three (3) minutes immediately preceding the collision described herein. The Answer to this Interrogatory should include, but not be limited to what street, road, parking aisle, etc. you were in; the direction of travel; your relationship to the Plaintiff’s vehicle or other vehicles involved in the accident; your speed, any posted speed limit and the speed safe for the conditions; where you were looking during this time period and whether your attention was diverted from your direction of travel; whether or not you applied your brakes and, if so, did your vehicle slow as a result; and what, if any, attempts were made by you to avoid the accident.

This Interrogatory is much lengthier than it need be.  It originally, consisted solely of the first sentence. However, I expanded it to include the lengthy explanation of what the description of the last few minutes up to and including the accident should include as the result of numerous Defense Attorneys objecting to the first sentence being “vague and ambiguous”.  Now, of course, Defense Attorneys attempt to state that the explanatory language is made up of several Interrogatories. Just another proof that lawyers and gamesmanship often go hand in hand.

If the auto accident I am dealing with involves a Defendant that was under the influence, I would make sure to ask about any use of alcohol or drugs shortly before the accident in my Interrogatories. I may even request an Arbitrator for a few additional Interrogatories if I felt it necessary to cover additional topics than those covered by my standard set.

California has developed a set of Form Interrogatories that can be used by simply checking those that apply. Such a set has the advantage of having been approved by the Court and, therefore, not easily objected to. However, they may lack some flexibility when it comes to specifics of a certain case. In some case, it is helpful to have a starting set of Interrogatories such as those provided in a multitude of books and websites provided standard questions. The same holds true of using Interrogatories from the multitude of forms books available for use by attorneys or parties. They serve as a good starting point, but should be reviewed and modified to fit the specific facts and circumstances of each case.

Nevada Rules of Civil Procedure Rule 33 allows for written Interrogatories as one method of finding (or Discovering) information relevant to a civil lawsuit. That Rule states:

(a) Availability. Without leave of court or written stipulation, any party may serve upon any other party written interrogatories, not exceeding 40 in number including all discrete subparts, to be answered by the party served or, if the party served is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish such information as is available to the party. Leave to serve additional interrogatories shall be granted to the extent consistent with the principles of Rule 26(b)(2). Without leave of court or written stipulation, interrogatories may not be served before the time specified in Rule 26(a).

(b) Answers and objections.

(1) Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the objecting party shall state the reasons for objection and shall answer to the extent the interrogatory is not objectionable. The answers shall first set forth each interrogatory asked, followed by the answer or response of the party.

(2) The answers are to be signed by the person making them, and the objections signed by the attorney making them.

(3) The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections if any, within 30 days after the service of the interrogatories. A shorter or longer time may be directed by the court or in the absence of such an order, agreed to in writing by the parties subject to Rule 29.

(4) All grounds for an objection to an interrogatory shall be stated with specificity. Any ground not stated in a timely objection is waived unless the party’s failure to object is excused by the court for good cause shown.

(5) The party submitting the interrogatories may move for an order under Rule 37(a) with respect to any objection to or other failure to answer an interrogatory.

(c)Scope; use at trial. Interrogatories may relate to any matters which can be inquired into under Rule 26(b), and the answers may be used to the extent permitted by the rules of evidence.

An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pretrial conference or other later time.

(d) Option to produce business records. Where the answer to an interrogatory may be derived or ascertained from the business records of the party upon whom the interrogatory has been served or from an examination, audit or inspection of such business records, including a compilation, abstract or summary thereof, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries. A specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be ascertained.

As with all Discovery in a civil case in Nevada District Courts, Interrogatories must conform to the scope and limitations set forth in NRCP 26(b)(2) which 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:

(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. All discovery is subject to the limitations imposed by Rule 26(b)(2)(i), (ii), and (iii).

(2) Limitations. By order, the court may alter the limits in these rules or set limits on the number of depositions and interrogatories, the length of depositions under Rule 30 or the number of requests under Rule 36. The frequency or extent of use of the discovery methods otherwise permitted under these rules and by any local rule 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) of this rule.

In other words, the Questions asked in the Interrogatories must have something to do with the lawsuit, must be fair and reasonable and must not be intended to harass the other side. For instance, I would be hard pressed to justify asking an Interrogatory requesting information about the cooking of food at a restaurant if my client’s lawsuit was based on a claim for a personal injury arising out of a slip and fall on ice outside of that restaurant. An objection to that question pursuant to NRCP 33 and 26 would be upheld unless I could show that the Interrogatory sought relevant information or information that could lead to the discovery of relevant information. I could be justified in asking such an Interrogatory in that case if I could show that one theory of the case was that, somehow, the cooking process led to water accumulating and freezing outside of the restaurant causing the dangerous condition and my client’s injury. Not terribly likely and not a question I would want to waste time asking or defending if it would not help my case.

Since the Rule sets a limitation on the number of Interrogatories being asked, you must be careful in drafting them in a manner that will effectively gather information that can be used directly in the case or as a source for gathering the necessary information to support or defend a case. In 1997, the United States District Court for the District of Nevada rendered a decision regarding the meaning of the term “discrete subparts” as stated in NRCP 33(a). In Kendall v. GES Exposition Services, 174 F.R.D. 684 (1997) that court stated:

Probably the best test of whether subsequent questions, within a single interrogatory, are subsumed and related, is to examine whether the first question is primary and subsequent questions are secondary to the primary question. Or, can the subsequent question stand alone? Is it independent of the first question? Genuine subparts should not be counted as separate interrogatories. However, discrete or separate questions [*686] should be counted as separate interrogatories, notwithstanding they are joined by a conjunctive word and may be related.

By way of example of both kinds of questions, the Court will refer to examples from the interrogatories in dispute. The following constitute interrogatories with legitimate subparts which are subsumed in the primary question:

INTERROGATORY NO. 10: Was “KENDALL” given any warning/reprimand during her employment with Defendants? If so, identify each warning/reprimand by date of incident, brief description of the incident and person who administered the warning/reprimand by name, gender, position and address.

INTERROGATORY NO. 16: In response to Plaintiff’s Interrogatory No. 8, Defendants Answer by stating, inter alia, that Kendall was “called to work in freight GES after December 1991 and declined the work.” Identify each and every instance by date, show and labor list reflecting Defendants’ assertion that Kendall was called to work in freight at GES and declined. Also, identify the person who administered the labor call and drafted the labor list.

In the first example, all the questions are designed to describe any warning/reprimand. In the second example, the questions seek to identify instances where the Plaintiff was called to work but declined. The subsequent questions in each interrogatory are necessary to complete the details required in the identification.

The following are examples of independent questions being improperly combined into one interrogatory (sometimes by using “and” or “also” to join the questions):

INTERROGATORY NO. 1: Identify fully the minimum qualifications for an employee to be hired onto “freight,” including, but not limited to, the ability to drive heavy machinery, experience in the industry, and all other criteria used by Defendants. Also, identify any document in which these qualifications are articulated.

INTERROGATORY NO. 11: State, with particularity, the value of “KENDALL’S” yearly compensation while employed by Defendants, including, but not limited to, salary, incentive payments, bonuses, life insurance, contributions to pensions plan medical insurance and state the basis by which the Defendant arrives at the value for each. Also, set forth the value of all increases to salary and other benefits that “KENDALL” would have received as a matter of course if she would have continued to be employed by Defendants, giving the inclusive dates during each was applicable.

In the first example, the first question asks for a description of qualifications. The second question asks for a description of documents. The first question can be answered fully and completely without answering the second question. The second question is totally independent of the first and not “factually subsumed within and necessarily related to the primary question.” See, Lawrence v. First Kansas Bank & Trust Co., 169 F.R.D. 657, 660-661 (D.Kan. 1996). The second question is really a fugitive request for production of documents and the discovery effort would be better served in that format.

In the second example, the first question, which contains a number of legitimate subparts, asks for a calculation of past compensation and benefits actually received by the Plaintiff. The second question, however, asks for a calculation of speculative increases in salary and benefits based upon a hypothetical situation. While both questions may be related to the issue of Plaintiff’s claims for damages, they are separate and distinct questions which require separate calculations. Each question is independent of the other and can stand alone. The second [**9] question is not subsumed in the first.

Some questions seek direct information. We typically ask the Defendant in a personal injury accident case to detail their version of the accident by way of Interrogatory. This information, given under oath, can be used for many purposes such as impeachment at Trial should the Defendant’s version of the accident change or as the basis for a Motion for Partial Summary Judgment on the Issue of Liability if there is no issue of fact as to who caused the accident and the Defendant will not stipulate to liability.

Other questions seek the location of information relevant to a case. For example, in a case alleging bad faith in the handling of a Medical Payments claim against my client’s insurer, I might ask the insurer to “State the names of any and all persons who were involved in the evaluation of the Plaintiff’s Medical Payments Coverage claim arising out of the automobile accident at issue in this case at any time.” The Defendant would be required to identify all of those people involved in handling the Medical Payments claim whose Deposition could then be set seeking further information relevant to the case.

A party must Answer the Interrogtories (unless otherwise agreed) within 30 days of the date they are served. The Answers must contain each Interrogatory followed by the Answer for that Interrogatory. The Answers may also include objections provided that “all grounds for an objection to an interrogatory shall be stated with specificity.” See, NRCP 33(b)(4). “Any ground not stated in a timely objection is waived unless the party’s failure to object is excused by the court for good cause shown.” Id.

The Party serving the Interrogatories has the right to request the court to compel the other party to Answer them if there is a dispute as to the sufficiency of the Answers pursuant to NRCP 37. In Clark County, any party filing a Motion regarding a Discovery dispute to be heard by the Discovery Commissioner must comply with Eighth Judicial District Court Rules Rule 2.34. Other courts may have their own rules regarding procedures before filing Motions and those should be checked to ensure that the Motion will be heard.

Nevada Arbitration Rules Rule 11(A) states “The extent to which discovery is allowed, if at all, is in the discretion of the arbitrator, who must make every effort to ensure that the discovery, if any, is neither costly nor burdensome. Types of discovery shall be those permitted by the Nevada Rules of Civil Procedure, but may be modified in the discretion of the arbitrator to save time and expense.” Typically, the parties and the Arbitrator agree to limit the amount of Discovery. Often, each side agrees to a limit of 10 Interrogatories per party. I have been involved in a few cases where the parties and Arbitrator agreed that, due to the coplexity of the case, it was necessary and proper to allow 15, 20 or even the full 40 Interrogatories allowed by NRCP 33.

Interrogatories are a good starting point for conducting the myriad of Discovery allowed by the Rules. They are cost effective and can serve as a locator of information to be used in other written discovery such as Requests for Admission and Requests for Production. They can also be used as a source for preparing Deposition questions of adverse parties (including their employees or agents) and witnesses.

In addition to the general Discovery Rules of NRCP 16.1 and 26, the Deposition process is controlled by NRCP 28 – 31 (the use of Depositions at Trial is controlled by NRCP 32.  In this post, I am going to discuss Rules 28, 29 and 30(b)(2)-(4).

Historically, Depositions were recorded by Court Reporters using stenographic machines.  The record of the Deposition includes the questions asked, answers given and any objections to any questions asked.  The Courts have kept up with the times by allowing use of non-stenographic means of recording.  The use of these alternate means have been approved as they have proven to be able to accurately record the testimony given.

RULE 30(b) is concerned with the requirements for the Notice of Examination.  This includes the General Requirements of NRCP 30(b)(1) as well as the methods of recording the Deposition.  As noted above, the classic method is by Stenographic means.  As stated in NRCP 30(b)(4) this is the means that is used unless agreed to by the Parties.  That Rule also notes that certain introductory information must be read into the Deposition by the Court Reporter.  Lastly, Rule 30(b)(4) requires that, “at the end of the deposition, the officer shall state on the record that the deposition is complete and shall set forth any stipulations made by counsel concerning the custody of the transcript or recording and the exhibits, or concerning other pertinent matters.”

Rule 28 controls the persons before whom depositions may be taken.  Part (a) of that Rule addresses Depositions taken within the United States and its Territories stating such “depositions shall be taken before an officer authorized to administer oaths by the laws of the United States or of the place where the examination is held, or before a person appointed by the court in which the action is pending.”  Typically, this is a Certified Court Reporter who is also a Notary Public. These dedicated professionals have taken extensive training and have been tested to ensure their speed and accuracy.  Often, Court Reporters will use an audio recording as a backup to further ensure their accuracy and avoid interruptions in the Deposition.

Rule 28(b) concerns Depositions taken in foreign Countries.  That rules states that depositions may be taken in a foreign country under four conditions:

(1) pursuant to any applicable treaty or convention; or 

(2) pursuant to a letter of request (whether or not captioned a letter rogatory); or

(3) on notice before a person authorized to administer oaths in the place where the examination is held, either by the law thereof or by the law of the United States; or

(4) before a person commissioned by the court, and a person so commissioned shall have the power by virtue of the commission to administer any necessary oath and take testimony. 

The Rule goes on to state:

A commission or a letter of request shall be issued on application and notice and on terms that are just and appropriate. It is not requisite to the issuance of a commission or a letter of request that the taking of the deposition in any other manner is impracticable or inconvenient; and both a commission and a letter of request may be issued in proper cases. A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title. A letter of request may be addressed “To the Appropriate Authority in §here name the country.” When a letter of request or any other device is used pursuant to any applicable treaty or convention, it shall be captioned in the form prescribed by that treaty or convention. Evidence obtained in response to a letter of request need not be excluded merely for the reason that it is not a verbatim transcript, because the testimony was not taken under oath, or because of any similar departure from the requirements for depositions taken within the United States under these rules.

The Editor’s Note to Rule 28 regarding the Amendment effective January 1, 2005 states:

The rule is amended to conform to the federal rule, which, consistent with modern terminology and the primary method provided by The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, replaced the phrase “letter rogatory” with “letter of request.” The third sentence in subdivision)a) of the Nevada rule, governing the issuance of commissions and letters of request for depositions taken within other states, is retained. It does not have a federal counterpart.

As an extra precaution, an otherwise qualified Court reporter can be disqualified if he or she has a financial interest in the case or if he or she “is a relative or employee or attorney or counsel of any of the parties, or is a relative or employee of such attorney or counsel.”

Rule 30(b)(2) states that “[t]he party taking the deposition shall state in the notice the method by which the testimony shall be recorded. Unless the court orders otherwise, it may be recorded by sound, sound-and-visual, or stenographic means, and the party taking the deposition shall bear the cost of the recording. Any party may arrange for a transcription to be made from the recording of a deposition taken by nonstenographic means.”

In fairness, the Rules allow any Party to use its chosen method of recording the Deposition.  Specifically, Rule 30(b)(3) states that “[w]ith 5 days’ notice to the deponent and other parties, any party may designate another method to record the deponent’s testimony in addition to the method specified by the person taking the deposition. The additional record or transcript shall be made at that party’s expense unless the court otherwise orders.

NRCP 30(b)(4) states that “[t]he appearance or demeanor of deponents or attorneys shall not be distorted through camera or sound-recording techniques.”  It must be an honest and accurate showing of the Deponent.  In a recent discussion, an attorney who represents Defendants on behalf of their insurance companies noted that it is helpful to adjusters to evaluate witnesses if they an watch a videotape showing the Parties appearance and demeanor as would be seen by a Jury at Trial.

The last Rule I will discuss in this post is Rule 29.  That, allows Parties to make stipulations regarding Depositions and Discovery such stipulations would include variations on the Rules regarding time, place and manner of taking Depositions, shortening notice requirements for Depositions, and modifying “the procedures governing or limitations placed upon discovery, except that stipulations extending the time provided in Rules 33, 34, and 36 for responses to discovery may, if they would interfere with any time set for completion of discovery, for hearing of a motion, or for trial, be made only with the approval of the court.”  

It seems sensible that if the Parties agree to a modification and the Court is not affected by the agreement, the Court should not be involved.  It is also sensible that the Court should be notified and approve the modification if it affects the Court’s schedule.  This reasoning is set forth in Drafter’s Note to the Amendment effective on January 1, 2005. The Drafters wrote:

The rule is amended to conform to the federal rule, which allows parties to stipulate to certain procedural waivers and limitations in discovery, while protecting against a stipulation that is contrary to court mandated discovery deadlines, such as a stipulation to waive early disclosure under Rule 16.1. The amended rule requires that stipulations to extend the time for responses to discovery provided in Rules 33, 34, and 36 may be made only with the court’s approval if the extension would interfere with times set for completing discovery, hearing a motion, or trial.