Nevada State Court Litigation Checklist: Get the Third Edition of this popular book that belongs in the library of every serious Nevada litigator. It has been called an “essential tool” in the arsenal of any attorney. This checklist is as comprehensive as possible so that any attorney or person representing themselves can use it as a resource to at least find the applicable rule or statute that governs most situations, but more importantly, to understand what it takes, “A to Z” to get a case ready for trial. I approach preparation for every lawsuit as if it will go to trial. Although a majority of cases settle, an advocate who prepares each case as though it is going to trial better understands his or her case, and is likely to craft better written discovery and to take better depositions. That litigant is ultimately better equipped to achieve a more favorable settlement than they otherwise would.
- 274 pages
- Includes the elements for almost 200 Nevada causes of action (including annotations to caselaw and statutory authority)
- New chapters on ADR and preparing witnesses to testify
A Litigator’s Guide to Nevada Evidence and Objections: While Nevada’s statutory rules of evidence generally follow the Federal Rules of Evidence, the Federal system is not adopted wholesale. Perhaps as important and confusing, Nevada does not follow the Federal numbering system, making it difficult to easily analogize to known Federal principals while in the heat of the battle in State court. This guide is designed to allow litigators in Nevada who are accustomed to the Federal rules to quickly cross reference with Nevada’s rules, and to serve as a general guide on the contents of our rules of evidence. The second section provides a handy guide to objections, prompting the user on how to lodge the objection, the source of law for the objection, and a short explanation of the objection.
Paperback Edition $44.99
Federal Court Civil Litigation Checklist: Get the Second Edition of this popular checklist. It is a comprehensive “A to Z” approach to coach you from client intake to the first day of trial. Although a majority of cases settle, a litigant who prepares each case as though it is going to trial better understands his or her case, and is likely to craft better written discovery and to take better depositions. That litigant is ultimately better equipped to achieve a more favorable settlement than they otherwise would.
Kindle Edition $49.99
A Litigator’s Guide to Federal Evidence and Objections: This pocket guide is designed to allow litigators to quickly reference to the Federal Rules of Evidence (“FRE”). It is presented in three parts. First is a quick reference guide to the FRE. Second is a guide to objections. It provides a tag line for the objection (i.e., “Objection! Assumes facts not in evidence”), followed rule(s) on which the objection relies and a short explanation of the rule/statute should you need additional support or rationale for the objection. Third, is a complete copy of the 2019 FRE.
I am a Nevada mediator, arbitrator, and litigator with experience resolving hundreds of disputes through ADR. This Mediation Toolbox is designed to assist those involved in mediation in Nevada or federally to navigate the process. Please feel free to reach out to me if there are resources that should be added to this Toolbox.
What is Alternative Dispute Resolution (ADR)?
Nevada Supreme Court Defines Mediation
Three Things Mediation is NOT
Mediate Instead of Filing That Lawsuit: Trying to Compromise Before Starting a Lawsuit
Preparing For Your Mediation (FAQ)
I am a Nevada arbitrator, mediator, and litigator with experience arbitrating hundreds of disputes. This Arbitration Toolbox is designed to assist those involved in arbitration in Nevada or federally to navigate the process. My aim is for this Toolbox to be a knowledge resource center for litigants and advocates who have a matter in arbitration, or for those trying to understand the arbitration process better. Please feel free to reach out to me if there are resources that should be added to this Toolbox.
What is Alternative Dispute Resolution (ADR)?
Nevada Supreme Court Defines Arbitration
Nevada Law Defines “Arbitrator”
Is My Arbitration Confidential?
What Are Your Alternative Dispute Resolution Options in Las Vegas, Nevada? (more…)
Considering Matters Outside the Pleadings
on a Motion to Dismiss
Rule 12(d) requires that if
matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.
As a rule, a court may not consider matters outside the challenged pleading on a motion to dismiss. As is noted by leading commentators, Wright & Miller:
Most federal courts… have viewed the words “matters outside the pleading” as including any written or oral evidence introduced in support of or in opposition to the motion challenging the pleading that provides some substantiation for and does not merely reiterate what is said in the pleadings.
Only materials which are a part of the complaint may be considered on a motion to dismiss. When matters outside the challenged document are presented, the Court must either: 1) exclude the additional material and decide the matter based on the Complaint alone; or 2) convert the matter to a motion for summary judgment under Rule 56 and afford Plaintiff the opportunity to present supporting materials.
The court may consider matters of public record, orders, items present in the record of the case when ruling on a motion to dismiss for failure to state a claim upon which relief can be granted. Further, the court may consider any exhibits attached to the complaint.
Additionally, “if the documents are not physically attached to the complaint, they may be considered if the documents’ authenticity is not contested and the plaintiff’s complaint necessarily relies on them.” This rule applies to documents that form the basis of a plaintiff’s case or documents that are quoted extensively in the complaint, on the theory that these documents are not truly “outside” the complaint.
Note: These holdings do not apply to a motion to dismiss for lack of jurisdiction.
 Wright & Miller Federal Practice & Procedure, § 1366 (3d Ed.) (citations omitted).
 See Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994) (overruled on other grounds by Galbraith v. Santa Clara, 307 F.3d 119 (9th Cir. 2002)); see also Gibb v. Scott, 958 F.2d 814, 816 (8th Cir. 1992) (any written or oral evidence in support of or in opposition to the pleading that provides some substantiation for and does not merely reiterate what is said in the pleadings constituted matters outside the pleadings); MacArthur v. San Juan, 309 F.3d 1216, 1221 (10th Cir. 2002) (court should not look beyond the confines of the complaint itself in deciding motion to dismiss); Schmitz v. Mars. Inc., 261 F.Supp.2d 1226, 1229 (D. Or. 2003) (citing Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1997) for the proposition that a Court must limit its review of the contents of the complaint itself on a motion to dismiss); Biospherics, Inc. v. Forbes, Inc., 989 F.Supp. 748, 749 (D. Md. 1997) (generally, when documents not appended to the complaint are submitted to the court, the documents are either stricken or the motion is converted to summary judgment with proper notice given); Schoolhouse, Inc. v. Anderson, 2001 WL 1640081, 6 (D. Minn).
 Friedl v. New York, 210 F.3d 79, 84 (2d Cir. 2000); see also Wright & Miller Federal Practice & Procedure, § 1366 (3d Ed.).
 See Gray v. Receivables Performance Mgmt., 2:10-CV-01240-GMN, 2011 WL 2433812 (D. Nev. June 13, 2011) (Under Fed. R. Evid. 201, a court may take judicial notice of “matters of public record.” (quoting Mack v. South Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir.1986)); See also Williston Basin Interstate Pipeline Co. v. An Exclusive Gas Storage Leasehold and Easement in the Cloverly Subterranean Geological Formation, 524 F.3d 1090, 1096 (9th Cir. 2008).
 Breliant v. Preferred Equities Corp., 109 Nev. 842, 847, 858 P.2d 1258, 1260 (1993) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure, Civil 2D § 1357 (2d ed. 1990); see also Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994); MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir.1986); Ferring B.V. v. Watson Laboratories, Inc. – (FL), 3:11-CV-00481-RCJ, 2012 WL 607539 (D. Nev. Feb. 24, 2012) order clarified, 3:11-CV-00481-RCJ, 2012 WL 3231005 (D. Nev. Aug. 3, 2012).
 See Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir.), cert. denied, 484 U.S. 944, 108 S.Ct. 330, 98 L.Ed.2d 358 (1987).
 Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001).
 Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). See also Hollymatic Corp. v. Holly Sys., Inc., 620 F.Supp. 1366, 1367 (D. III. 1985) (considering contract attached to complaint and admissions in answer and in reply to counterclaim); Berk v. Ascott Inv. Corp., 759 F.Supp. 245, 249 (D. Pa. 1991) (determining court may consider document incorporated by reference into the complaint).
Litigators, Is it Time (Yes, Even As You Are Practicing Social Distancing) to Add Video Conference Mediations to Your Practice?
Last Friday I mediated a matter involving 8 parties, with two attorneys in New York, one in California, and four in Nevada. Not even one of them came to my office. We held the entire mediation remotely via video conference. We held joint sessions with all participants, attorneys-only sessions, and we held caucuses in virtual “rooms” for each group of parties or individual and their counsel. I did my normal thing, shuffling ideas, reality testing, and communicating demands and offers throughout the day. While I was in another “room”, those in a virtual room had their privacy and were able to speak among themselves securely, knowing that neither I nor the other parties could hear their deliberations. Some participated with video and others only through audio.
With today’s video-conferencing capability, anyone with a smart phone can participate in a mediation remotely. I held a mediation last month with two parties in Moscow and others in my office. The world is shrinking, and we can use technology to conduct resolve disputes even as we are working from home during the COVID-19 shutdown. Think about the cases on your docket right now that could be resolved while everyone is at home. Put those smart phones to work and let’s get resolving your cases! Call me to find out more.
Force Majeure Clauses and the COVID-19 Pandemic
The term “force majeure” translates literally from French as superior force. Black’s Law Dictionary defines force majeure as “[a]n event or effect that can be neither anticipated nor controlled.” In the law, it is the term for a contract provision that allocates the risk of specified events including natural and man-made events. If that unlikely event occurs, the impacted party is excused from performance.  The events can include acts of God, floods, fires, earthquakes, tornadoes, etc., war, terrorism, government orders, embargoes, organized labor strikes, etc.
A force majeure clause relieves a party from performing contractual obligations when certain circumstances beyond their control arise, making performance inadvisable, commercially impracticable, illegal, or impossible. While the economic recession in 2008 was found not to be a force majeure event, government orders to shut down non-essential businesses in favor of social distancing due to the COVID-19 pandemic may constitute force majeure.
As is so often the case in the law, the answer will depend on the language in your contract. If your contract does not have a force majeure clause, you have not bargained for its protection, and the argument will be much harder to make. If you do have the language in your contract, a judge will have to determine whether this event fits the parameters you bargained for and wrote in your contract. Nevada courts have held that when a party makes a contract and reduces it to writing, he must abide by its terms as plainly stated therein. If the clause is clear and unambiguous, the court must construe it from the language therein.
Please contact one of our attorneys to review your contract if it contains a force majeure clause. You may be excused from performance.
 https://www.merriam-webster.com/dictionary/force%20majeure, accessed March 19, 2020.
 https://www.lexology.com/library/detail.aspx?g=e44183ab-74cf-4f2d-906a-7d7850427953, accessed March 19, 2020.
 One World Trade Ctr., LLC v. Cantor Fitzgerald Sec., 789 N.Y.S.2d 652, 655 (N.Y. Sup. Ct. 2004).
 https://www.venable.com/insights/publications/2011/02/understanding-force-majeure-clauses, accessed March 19, 2020.
 See Elavon, Inc. v. Wachovia Bank, Nat’l Ass’n, 841 F. Supp. 2d 1298 (N.D. Ga. 2011).
 See Chiquita Mining Co. V. Fairbanks, Morse & Co., 60 Nev. 142, 104 P.2d 191 (1940); Ellison v. California State Auto Ass’n, 106 Nev. 601, 797 P.2d 975 (1990).
 Southern Trust Mortg. Co. v. K&B Door Co., Inc., 104 Nev. 564, 763 P.2d 353 (1988).
Using Offers of Judgment in Family Court
By: Jay Young and Guest Blogger Rock Rocheleu
A reader asked me about the use of Offers of Judgment in family court disputes. Since I rarely darken the halls of our family courts, I have enlisted the help of my friend and family law attorney Rock Rocheleau to assist with this blog post.
What is an Offer of Judgment?
An offer of judgment, sometimes called an OOJ, is a tool to help settle litigation providing a strong economic incentive for the receiving party to accept the offer. It allows a litigant to share an offer to settle the entire case on terms outlined in the offer. If the offer is accepted, the case is resolved by the offer either being paid or being reduced to judgment. If the offer is rejected and the offering party later obtains a better result than the offer, the party who rejected the offer may be required to pay the attorney fees and costs incurred by the party making the offer.
Those fees and costs are calculated from the date the offer was made. In other words, an offer effectively says, “either take this offer or when I get a better result at trial, you will have to pay my fees and costs incurred from today until the end of this dispute.” A wise party will analyze the strengths and weaknesses of its own case against the value of the offer before rejecting an offer that may subject them to penalties. Since many parties and their attorneys suffer from overconfidence bias, this is a good opportunity to take stock of the dispute.
The rule at the same time provides a strong economic incentive for the offering party to make an attractive offer. If the offer is outside the practical realm of possible outcomes at trial, the other side will not accept the offer, and the penalty of having to pay attorney fees and costs will not be triggered. An offer must be close enough to a possible result at trial to place the other side in fear of the penalty. Therefore, the rule serves to encourage both a reasonable offer and a reasonable acceptance.
Offers of Judgement for Family Law
Nevada Rules of Civil Procedure, Rule 68 and newly enacted Nevada Revised Statutes (“NRS”) 17.117 generally govern offers of judgment. Nevada’s legislature has also carved out special procedures for offers of judgment in specific areas of law. For example, an OOJ in a construction defect case is controlled by NRS 40.665. The statute allows, for example, a contractor may settle a claim by repurchasing the claimant’s residence. The statutory offer is considered an OOJ if it includes specific language required by the statute.
For family law cases, our Nevada Supreme Court found NRCP 68 inapplicable to divorce proceedings. “To hold NRCP 68 applicable to divorce matters would be incompatible with the pattern and policy of our law, for several reasons.” Leeming v. Leeming, 87 Nev. 530, 533, 490 P.2d 342, 344, 345 (1971). There are several social considerations supporting this holding. For one, there is an overarching public policy that the best interest of the child is paramount to all custody matters. If a parent becomes too concerned about the possibility of paying the other parent’s attorney fees, it may deter a parent’s good faith claim. The rule could have a chilling effect on determining what is in the interest of the child.
In response, our legislature created NRS 125.141 to specifically allow a different type of offer of judgment in a divorce case. The law allows an offer of judgement in a divorce matter to be made as long as terms regarding child custody, child support, and alimony are not included in the offer. This mechanism provides each parties the opportunity to settlement asset and debt issues. The receiving party has ten days to accept the offer. The NRS 125.141 offer of judgment carries the same potential penalty for rejecting an offer as is found in NRCP 68 and NRS 17.117. NRS 125.141(4)(c).
Additionally, the family court judge is given discretion when determining an award based on the rejection of an offer of judgment. The family court judge may consider, inter alia: 1) whether each party had an attorney; 2) whether the offer was made or rejected in good faith; and 3) whether the rejecting party increased the costs of litigation. NRS 125.141(5).
Awarding Attorney Fees
The effective purpose of an OOJ is to deter unreasonable litigation. In our American system of justice, attorney fees are not awarded to the prevailing party unless required by contract or statute. Moreover, judges have discretion when awarding fees to the prevailing party under contract or statute.
NRS 18.010 provides an award of attorney fees to a prevailing party, and NRS 7.085, provides for an award of attorney fees when a party takes an unreasonable legal position. Family law motions even have a rule for awarding attorney fees if a motion was filed without first attempting to resolve the issue with the other party. EDCR 5.501. Each allows for judge discretion when answering the questions of “who prevailed?” or “was the position unreasonable?” A NRS 125.141 OOJ is more binary and does not allow as much discretion. With a NRS 125.141 OOJ, the question is simple–“Were you awarded more assets than the offer provided?” If the answer is no, then you may owe attorney fees.
Under NRS 18.010 analysis, the court may decide both parties prevailed, and thus refuse to award attorney fees. The Supreme Court has stated that a party faced with the offer of judgment penalty provisions cannot recover any attorney fees based upon some other statute. Albios v. Horizon Communities, Inc., 122 Nev. 409, 418, 132 P.3d 1022, 1028 (2006).
An offer of judgement is a valuable tool used by skilled divorce attorneys. The next time you need leverage to settle the assets and debts portion of your case, think about sending an OOJ. If you need further assistance, please contact Rock.
How to get a free copy of your credit reports (once a year)
By Michael Kind, Esq., Guest Blogger
A quick guide on how to get a free copy of your consumer report.
AnnualCreditReport.com is a website maintained by the three biggest credit reporting agencies– Equifax, Experian, and TransUnion. The site was created in order to comply with their obligations under the Fair and Accurate Credit Transactions Act (FACTA) to provide a way for people to receive their free credit reports once per year.
Can I Sue Under the Fair Debt Collection Practices Act?
By Michael Kind, Esq., Guest Blogger
Many people are scared of debt collectors. And for good reason: debt collectors are often accused of using unfair and deceptive tactics. These tactics may include making improper threats or harassing people who allegedly owe money.
Effects of Unfair Debt Collection Practices
In the 1970s, the U.S. government conducted a study about debt collection throughout the country. It was determined that abusive debt collection practices contribute to bankruptcies, marital instability, the loss of jobs, invasions of peoples’ privacy, and other unwanted results.
Congress enacted the Fair Debt Collection Practices Act (FDCPA) to eliminate abusive debt collection practices by debt collectors. The FDCPA creates guidelines under which debt collectors may conduct business, defines the rights of consumers involved with debt collectors, and prescribes penalties and remedies for violations of the rules.
Prohibited acts under the FDCPA
The FDCPA generally prohibits unfair and deceptive collection practices, restricts communication by debt collectors, and requires transparency through disclosures. For example:
- a debt collector is not allowed to communicate with someone when the collector knows that the person is represented by an attorney. 15 U.S. Code Section 1692c(a)(2)
- a debt collector’s ability to communicate with a debtor who disputes the debt is restricted. Section 1692c(c)
- a debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Section 1692e
- a collector may not falsely represented the amount or the legal status of a debt. Section 1692e(2)
- a collector cannot threaten to take action against a person which could not be legally taken (arrests, etc.). Section 1692e(5)
- a collector may not use any false representation or deceptive means to collect or attempt to collect any debt. Section 1692e(10)
- the false representation or implication that documents are not legal process forms or do not require action by the consumer is prohibited. Section 1692e(15)
- a debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Section 1692f
- a collector may not collect or attempt to collect an amount not expressly authorized by the agreement creating the debt or permitted by law. Section 1692f(1)
- debt collectors must provide certain disclosures when attempting to collect debt from people. Section 1692g
What is considered a “misleading” statement under the FDCPA?
The FDCPA’s prohibition on misleading statements poses the question, “Misleading to whom?” Does the answer depend on whether the collector meant for the statement to be misleading? Does the answer lie in whether the person was actually misled? Does it matter if that person happens to be extra gullible or uniquely sophisticated about debt collection issues? Or does the judge look to see if the person could have been misled? This approach isn’t easy because some people are more easily tricked than others.
In Nevada (which is in the Ninth Circuit), courts use the third approach: they evaluate the tendency of language to deceive. That means, courts don’t assess whether the person was actually deceived but whether she could have been misled. The test used is whether the least sophisticated reader would be misled or deceived by the language. Gonzales v. Arrow Fin. Servs., LLC, 660 F.3d 1055, 1061-62 (9th Cir. 2011) (The standard is designed to protect consumers of below average sophistication or intelligence, or those who are uninformed or naive; “The ‘least sophisticated debtor’ standard is lower than simply examining whether particular language would deceive or mislead a reasonable debtor”).
The FDCPA is a strict liability statute
Is the debt collection company excused if they can prove that the violation was a mistake?
No. The FDCPA is a strict liability law, meaning that a plaintiff does not need to prove that an FDCPA violation was intentional in order to prevail. E.g., Reichert v. Nat’l Credit Sys., 531 F.3d 1002, 1004 (9th Cir. 2008); Clark v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162 (9th Cir. 2006)); McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939, 948 (9th Cir. 2011).
Under the FDCPA, a victim of unfair to deceptive collection practices may recover any damages proven, up to $1,000, plus reasonable attorney’s fees and costs.
For more information about FDCPA claims, contact Mike.
The Rules of the Game: Comprehensive Amendments to the Nevada Rules of Civil Procedure
The Changes Coming to the Nevada Rules of Civil Procedure: An Overview
Deadlines and Due Dates Under the 2019 Nevada Rules of Civil Procedure
What Can Nevada State Court Attorneys Learn About Proportionality From Federal Court Decisions?
NRCP 26 – GENERAL PROVISIONS GOVERNING DISCOVERY
NRCP 29 – STIPULATIONS ABOUT DISCOVERY PROCEDURE
NRCP 35 – PHYSICAL AND MENTAL EXAMINATIONS
NRCP 37 – FAILURE TO MAKE DISCLOSURE OR TO COOPERATE IN DISCOVERY; SANCTIONS (more…)
Commercial (Business) Litigation Causes of Action
While not exhaustive, the following is a list of possible claims/remedies that you may consider making in your commercial litigation matters, linked to the elements for each claim.
Abuse of Process
Accounting, a Remedy
Appointment Of A Receiver
Breach of Contract
Breach of Duty of Loyalty
Breach of Express Warranty
Breach of Fiduciary Duty
Breach of Fiduciary Duty; Aiding and Abetting Another’s
Breach of Fiduciary Duty; Breach of the Duty of Loyalty; Usurpation of Corporate Opportunity; the Corporate Opportunity Doctrine
Breach of Implied Warranty of Habitability
Breach of Implied Warranty of Merchantability
Breach of the Covenant of Good Faith and Fair Dealing—Contract
Breach of the Covenant of Good Faith and Fair Dealing—Tort
Breach of the Covenant Not To Compete; Anti-Competition Covenant; Restrictive Covenant
Breach of Warranty of Fitness for a Particular Purpose
Civil Racketeering Influenced and Corrupt Organizations Act (RICO)
Defamation; Business Disparagement
Defamation by Libel
Defamation by Slander
False Advertising; Lanham Act Violation; Unfair Competition
False Designation of Origin, Description, and Dilution; Lanham Act Violation; Unfair Competition
False Light, Disclosure of; Invasion of Privacy
Fraud (Intentional Misrepresentation)
Fraud; Promise Without Intent To Perform
Fraud In The Inducement
Interference With Contractual Relations
Interference With Prospective Economic Advantage or Prospective Contractual Relationship
Misappropriation of Trade Secrets; Uniform Trade Secrets Act Violation; NRS Chapter 600A
Prima Facie Tort
Promissory Estoppel; Equitable Estoppel
Quantum Meruit; Quasi Contract; Unjust Enrichment
Receiver, Appointment of
Nevada State Forms
The elements of the prima facie tort are:
- an intentional, otherwise lawful act by the defendant;
- an intent to injure the plaintiff;
- injury to the plaintiff;
- action does not give rise to any other recognized tort;
- absence of justification, or insufficient justification for the defendant’s actions;
- causation; and
Compelling Identification of Previously Bates Stamped Documents in Response to Discovery Requests
Opposing counsel responded to my interrogatories and requests for production of documents by stating that the responsive documents are among “all documents filed thus far in this case, and bates stamped 0001-3974.” Unfortunately, even after an effort to meet and confer (including sharing with counsel the law included in this article), counsel refused to identify which of the bates stamped documents related to each individual interrogatory response, etc. I was forced to file a motion and seek sanctions for having to do so. This article contains the caselaw included in that persuasive motion.
The Rules of Civil Procedure provide a means by which a party can seek an order compelling answers to interrogatories or production of documents that an opposing party has failed to disclose in response to timely discovery requests. Rule 37(a)(3)(B). Further, “an evasive or incomplete disclosure, answer or response is to be treated as a failure to disclose, answer or respond.” Rule 37(a)(4).
NRCP 37(a) authorizes the Court to issue orders compelling discovery when a party fails to respond to a request for production of documents submitted under NRCP 34. See Fire Ins. Exchange v. Zenith Radio Corp., 103 Nev. 648, 650, 747 P.2d 911, 913 (1987). NRCP 34 is limited to matters within the scope of NRCP 26(b), which permits the discovery of non-privileged material relevant to the claim or defense of any party. See NRCP 26(b) and 34(a); State ex rel. Tidvall v. Eighth Judicial Dist. Court, 91 Nev. 520, 527, 539 P.2d 456, 460 (1975).
Under EDCR 7.60(b)(4), the Court may impose “any and all sanctions which may, under the facts of the case, be reasonable, including the imposition of fines, costs or attorney’s fees when an attorney or a party without just cause . . . [f]ails or refuses to comply with these rules.” Moreover, NRCP 37(a)(4) requires the offending party to reimburse reasonable attorney fees and other expenses incurred in bringing a motion to compel, since the wrongful conduct (failure to respond and/or failure to completely and accurately respond to discovery requests) necessitated the expenditure of fees. One can only avoid such payment only if she can show that her failure was “substantially justified or that other circumstances make an award of expenses unjust.” NRCP 37(a)(4).
Where a party has already disclosed documents and Bates stamped them, courts have routinely rejected the notion that they may simply list in their interrogatory answer, the bates stamped range of all previously-disclosed documents. Such a response constitutes an evasive and incomplete response which is treated as a failure to respond to a valid discovery request. Buchanan v. Las Vegas Metro. Police Dep’t, 2012 WL 1640516, *1 (D. Nev. May 9, 2012) (citing USF Ins. Co. v. Smith’s Food and Drug Center, Inc., 2011 WL 2457655 at *3 (D. Nev. 2011)). A discovering party is “entitled to know which documents are responsive to which responses.” Queensridge Towers, LLC v. Allianz Glob. Risks US Ins. Co., 2014 WL 496952, *6 (D. Nev. Feb. 4, 2014). Accordingly, courts require parties to “supplement [her] responses to indicate which of the previously disclosed documents are responsive to each request for production.” Buchanan, 2012 WL 1640516 at *1; see also Wilson v. Greater Las Vegas Ass’n of Realtors, No. 214CV00362APGNJK, 2016 WL 1734082, at *3–4 (D. Nev. May 2, 2016); Koninklijke Philips Elecs. N.V. v. KXD Tech., Inc., No. 2:05CV01532RLH-GWF, 2007 WL 879683, at *4 (D. Nev. Mar. 20, 2007).
An account stated is “a writing which exhibits the state of account between parties and the balance owing from one to the other, and when it assented to… becomes the new contract.” See Gardner v. Watson, 170 cal. 570, 574 (1915).
An account stated claim has three elements:
- previous transactions between the parties establishing the relationship of debtor and creditor;
- an agreement between the parties, express or implied, on the amount due from the debtor to the creditor; and
- a promise by the debtor, express or implied, to pay the amount due.
Good news! The Nevada Supreme Court has finally approved the amendments to the Eighth Judicial District Court Rules (“EDCR”). The proposed amendments were sent to the Court on July 12, 2019 and approved on November 27, 2019 by the Order. The Order is effective January 1, 2020.
While all practitioners should carefully read the rules and their amendments, here are some of the highlights from the amendments:
Deadlines regarding motion practice are as follows:
- 2.20(d) – Joinders must be filed within 7 days after service of a motion
- 2.20(e) – An Opposition or Notice of Nonopposition must be filed within 14 days after service of the motion or 5 days after service of a joinder
- 2.20(g) – a Reply may be filed no later than 7 days before the matter is set for hearing, or 7 days after service of an opposition if a hearing has not been requested or set by the court
EDCR 1.90 Caseflow Management
- 1.90(b)(3) – District Court Judges, not the Discovery Commissioner, issue scheduling orders
- 1.90(b)(4) – Cases must be set for trial no later than 6 months after the close of discovery
EDCR 2.20 Motions; Contents; responses and replies; calendaring a fully briefed matter
- all motions must include the designation “Hearing Requested” or “Hearing Not Requested” in the caption of the first page “directly below the Case Number and Department Number.”
- Motions filed with the designation “Hearing Not Requested” will be set for a decision on the court’s “Chambers” calendar unless the court orders or an adverse party makes a request for a hearing. And adverse party may make such a request by including the designation “Hearing Requested” in the caption on the first page of the opposition “directly below the Case Number and Department Number.”
- Motions to be heard by a Discovery Commissioner must include the designation “Discovery Hearing Requested” in the caption of the first page of the motion “directly below the Case Number and Department Number.”
EDCR 2.20(h) – A courtesy copy of the motion, all related briefing, affidavits, and exhibits shall be delivered “to the appropriate department” by “the movant” for any contested matter at least 7 days prior to the date of the hearing
- If no hearing is set, the materials must be delivered “after the time for filing of the last briefing paper has run.” No other deadline is provided, but the logical conclusion is that the matter will not be decided until the courtesy copy is delivered
- The rule does not require the parties opposing the matter to provide briefing, leading to a possible interpretation that the movant is responsible to provide the above-required material for all of the parties
- Further, since a Reply brief may be due 7 days prior to a hearing, the courtesy copy must be delivered on that same date, meaning parties must be careful not to file a reply after hours if they cannot deliver a copy at the same time
EDCR 2.34 Discovery disputes; conferences; motions; stays.
- 2.34(f)(1) – A party may object to a commissioner’s report and recommendation within 14 days after being served with a report
- 2.34(f)(1) – Points and authorities are not required for filing an objection to a commissioner’s report and recommendation but may be filed
- 2.34(f)(1) – If a party files points and authorities, any other party may file and serve responding points and authorities within 7 days after being served with the objections
- 2.34(f)(2) – Upon receipt of a commissioner’s report, any objections, and any response, the District Court shall: (1) affirm, reverse, or modify the ruling without a hearing; (2) set the matter for a hearing; or (3) remand the matter to the commissioner for reconsideration or further action
- 2.34(g) – A party submitting matters for in camera review by the commissioner must provide a copy of the same without redactions and a set with proposed redactions
EDCR 7.20(d) – any document filed after the complaint shall refer to the first party on each side and may refer generally to the other parties.
|ABC, LLC, et. al.
FBH, Inc. et. al.
| Case No.:
|And related matters|
- Present the court with competent witness (witness has the mental capacity, and the ability to perceive, remember, and testify in an understandable manner)
- The witness must testify from his or her personal knowledge
- Mark the desired Exhibit with the clerk. “Your Honor, may I have permission to approach the Clerk for the purpose of marking this document as proposed Exhibit 12?”
- Provide a copy to opposing counsel (unless pre-marked and agreed to, which you should always attempt) “Your Honor, may the record reflect that I am handing a copy of proposed Exhibit 12 to Defense Counsel?”
- Ask for permission to approach the witness, “Your Honor, may I approach the witness?”
- Record the fact that the witness has the proposed exhibit, “Your honor, may the record reflect that I have handed the witness what has been marked as Exhibit 12 for identification purposes?”;
- Have the witness identify the document
- “Do you recognize Exhibit 12?”
- “What is it?”
- “Is that your signature on the 4th page of Exhibit 12?
- Ask the court to admit the evidence. “Your honor, we move for the admission of Exhibit 12 into evidence”
- Now that the document has been admitted, seek relevant testimony about the document. “Now, turning to the second paragraph on page one of Exhibit 12, why did . . . ”
Does it meet the test?
- Competent witness (FRE 602; NRS 50.025)
- Relevant evidence (FRE 401; NRS 48.015): tendency to make a fact more or less probable
- Admissible evidence (FRE 402; NRS 48.025): personal knowledge and the witness saw, felt, touched, or experienced it
- Tested for hearsay? (FRE 801-805; NRS 51.045-51.096)
- Authentication (FRE 901/902; NRS 52.015-52.165)
There are few circumstances in which the law requires that a party must file a complaint under oath. The requirement is called “verification.” NRS 15.010 requires that where verification is required, a pleading shall contain “the affidavit of the party shall state that the same is true of the party’s own knowledge, except as to the matters which are therein stated on the party’s information and belief, and as to those matters that the party believes it to be true.” The affidavit may be in substantially the following form and need not be subscribed before a notary public:
Under penalties of perjury, the undersigned declares that he or she is the ………………………….. (plaintiff, defendant) named in the foregoing ………………………….. (complaint, answer) and knows the contents thereof; that the pleading is true of his or her own knowledge, except as to those matters stated on information and belief, and that as to such matters he or she believes it to be true.
The law requires a verified complaint in the following circumstances:
- A derivative action by a shareholder against a corporate entity. NRCP 23.1
- A petition to perpetuate testimony prior to filing a suit. NRCP 27(a)(1)
- A petition for an ex parte temporary restraining order. NRCP 65(b)(1)
- Petition for eminent domain, or public taking. NRS 37.060
- Complaint for adverse possession. NRS 40.090
- Quiet Title. NRS 40.090; 40.091
- Eviction. NRS 40.370
- Petition to establish the termination of a life estate. NRS 40.515
- Petition for the termination of the interest of a deceased person in real property. NRS 40.525
- Compromise the claim of a minor. NRS 41.200
- Petition to determine and establish facts relative to vital statistics. NRS 41.220
- Petition for a name change. NRS 41.270
- Emancipation of a minor. NRS 41.295
- Complaint by shareholder against corporation or association to enforce secondary rights. NRS 41.520
- Divorce. NRS 125.020
- Expedited relief for unlawful removal or exclusion of tenant from premises. NRS 118A.390
A motion in limine (Latin: [ɪn ˈliːmɪˌne]; “at the start”, literally, “on the threshold”) is a motion filed for the purpose of making an evidentiary decision outside the presence of the jury and before trial begins. There are generally two types of motions in limine in a civil setting. The first is to procure a definitive ruling on the admissibility of certain evidence, often on the basis that the evidence is prejudicial, irrelevant, or otherwise inadmissible. Born v. Eisenman, 114 Nev. 854, 962 P.2d 1227 (1998). The second is a prophylactic Motion that seeks to prevent counsel for the other party from mentioning inadmissible evidence or limiting the use of the evidence. NRS 47.080.
The use of a motion in limine is not specifically authorized by NRCP, but it is authorized by EDCR 2.47 after counsel has made a good faith effort to “meet and confer” and resolve the matter prior to filing the motion. Further, the Nevada Supreme Court approved the practice in State ex. Rel. Dept. of Highways v. Nevada Aggregates & Asphalt Co., 92 Nev. 370, 551 P.2d 1095 (1976). Trial judges are authorized to rule on motions in limine pursuant to their inherent authority to manage trials. See Luce v. U.S., 469 U.S. 38, 41 n.4 (1984) (citing Fed. R. Evid. 103(c) (providing that trial should be conducted so as to “prevent inadmissible evidence from being suggested to the jury by any means”)) (as cited by Demaree, Lindsay and Hostetler, Jennifer K., Making the Most of Motions In Limine, COMMUNIQUÉ (April 2014, Vol. 35, No. 4).
Consider filing a motion in limine to exclude certain testimony or witness, to exclude evidence, publicity, obtain approval of demonstrative exhibits, PowerPoint presentations, to declare a witness unavailable, and to determine which portions of testimony are to be read to the jury, etc.
The Federal Arbitration Act (“FAA”), which has been the law in the United States since 1925, preempts any state law that disfavors the ability of two parties to contractually bind themselves to arbitrate a dispute. Since 2013, Nevada law has required that any contract containing an arbitration provision must include a “specific authorization for the provision which indicates that the person has affirmatively agreed to the provision”. Not surprisingly, the Nevada Supreme Court recently held that the Nevada law is preempted by the FAA. (For an overview of the FAA, see this post)
MMAWC (then doing business as the World Series of Fighting) and its affiliates (collectively “MMAWC”), together with the Zion Wood Obi Wan Trust and its affiliates (collectively “Zion Wood”), were involved in litigation that resolved by negotiated settlement agreement. That settlement agreement incorporated and restated portions of two other agreements, including a requirement that any dispute between the parties be resolved by litigation. Zion Wood alleged that MMAWC breached the settlement agreement and sued. MMAWC, LLC v. Zion Wood Obiu Wan Trust, 135 Nev. Adv. Op. 38, __ P.3d __ (Sep. 5, 2019).
MMAWC filed a motion to dismiss the suit and to compel arbitration pursuant to the incorporated arbitration clause. The Honorable Nancy L. Allf denied the motion on the basis that the arbitration clause failed to include the “specific authorization” required by NRS 597.995 and was therefore unenforceable. MMAWC appealed.
In coming to its decision, the Nevada Supreme Court relied heavily on Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 683, 687, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996), which explained “that under the FAA. courts may not ‘invalidate arbitration agreements under state laws applicable only to arbitration provisions,’ as Congress has ‘precluded [s]tates from singling out arbitration provisions for suspect status’ and requires arbitration provisions to be placed on ‘the same footing as other contracts.’” The Court concluded that NRS 597.995 similarly imposes a special requirement on arbitration clauses that is not applicable to other contracts, “it singles out arbitration provisions as suspect and violates the FAA.” The Court therefore held the FAA preempts NRS 597.995.
For some history on this statute, see Is Your Arbitration Agreement Enforceable in Nevada? and Is Your Arbitration Agreement Void, or Enforceable in Nevada?
What is a Notice of Breach and Opportunity to Cure?
Many contracts contain a clause requiring a notice of default and opportunity to cure prior to filing suit or demanding arbitration. For a contract with such a clause, before an action can be taken, the party claiming the other has breached an agreement must: 1) send a notice describing the way(s) in which the party is in default of the agreement; 2) provide an opportunity to cure the default; 3) wait the ascribed period of time for the defaulted party to cure; and 4) file suit or demanding arbitration only if the other party fails to cure its default.
“The common meaning of ‘cure’ is to remedy, restore, remove, or rectify … and as the term relates to defaults, ‘cure’ means to restore matters to the status quo ante.” The object of a notice of breach and opportunity to ‘cure’ is to give a party another chance to perform substantially and a second chance to perform according to the contract. The cure requires performance to the level of substantial performance under the contract.
Fairness dictates that the opportunity to “cure” be more than illusory. A party must be given time and a real opportunity to cure prior to termination. “The right of a breaching party to be given an opportunity to cure its alleged material breach is an ancient equitable principle intended to: (1) prevent forfeiture by termination; (2) allow the breaching party to mitigate damages, (3) avoid similar future deficiencies in performance, and (4) promote the informal settlement of disputes.” In fact, where a party is not given more than an illusory opportunity to cure, there is no breach.
In a contract with a cure requirement, the opportunity to actually cure the default is essential to the contract. Therefore, when one party prevents another from performing an essential task under an Agreement—like the cure—the other party is excused from performing. The opportunity to cure becomes illusory and unattainable, and the complaining party may not maintain an action for breach for its own failure to allow the other to perform.
 Matter of Clark, 738 F.2d 869, 871 (7th Cir. 1984).
 8 Catherine M.A. McCauliff, Corbin on Contracts, § 36.7 at 349 (1999).
 See Restatement Second, Contracts § 241; II Farnsworth on Contracts §§ 8.17, 8.18 (2d ed 1998).
 5 Bruner & O’Connor Construction Law § 18:15 Principle Of Cure And Its Implications Upon Materiality (June 2016).
 Burras v. Canal Const. and Design Co., 470 N.E.2d 1362, 1367 (Ind. Ct. App. 1st Dist. 1984) (because the subcontractor “was not given an opportunity to remedy any alleged defects, any incidence of defective performance did not constitute a breach of the construction contract”).
 Chamani v. Mackay, 124 Nev. 1457, 238 P.3d 800 (2008) (citing Cladianos v. Friedhoff, 69 Nev. 41, 45–46, 240 P.2d 208, 210 (1952)).
Jay Young has published the third edition of his popular Nevada State Court Litigation Checklist. The third edition not only reflects recent changes to the Nevada Rules of Civil Procedure, but also includes a new chapter on Alternative Dispute Resolution, as well as the elements of hundreds of causes of action, defenses, and remedies. The book contains over 275 pages of helpful practice hints for new and seasoned attorneys alike. Many claim that Young’s Checklist belongs in every litigator’s library. A sneak peak at its contents is included below.
Some praise for the checklist includes:
“An essential guide to state court practice for the newly admitted Nevada lawyer, and insight of traps-for-the-unwary for all other lawyers, Jay Young’s new checklist for state court litigation goes beyond expectations by offering helpful examples of the documents a lawyer needs to create the client relationship through the conclusion of a litigation matter,”
Von Heinz, Esq.
“Jay Young’s Litigation Checklist is an invaluable tool for any litigator. What might otherwise take a careful practitioner many years of trial and error to learn and master, Jay has managed to simplify in an easy-to- understand “soup to nuts” checklist. Not only does this checklist significantly shorten the learning curve for young litigators, it will also help even experienced lawyers avoid costly mistakes. This ideal combination of practical and technical advice will tremendously aid litigation partners in training associates. Jay’s checklist will be a must-read for the litigators in our firm.”
Nicholas Santoro, Esq.
“Mr. Young’s Guide to Nevada Rules of Evidence; Guide to Nevada Evidentiary Objections; and Nevada State Court Litigation Check List are geared specifically to Nevada practitioners and are useful books to anyone who is litigating or trying cases in Nevada state courts, I would recommend that anyone who is trying cases in Nevada state courts have these materials in his library.”
Steven M. Burris, Esq.
Frustration of Purpose Defense
The doctrine of commercial frustration applies to discharge a party’s contractual obligation when “[p]erformance remains possible but the expected value of performance to the party seeking to be excused has been destroyed by a fortuitous event, which supervenes to cause an actual but not literal failure of consideration.” Graham v. Kim, 111 Nev. 1039, 899 P.2d 1122 (1995) (quoting Lloyd v. Murphy, 25 Cal.2d 48, 153 P.2d 47, 50 (1944)). The doctrine of commercial frustration does not apply to relieve party of contractual obligation, where contingency affecting expected value of party’s performance is one which party should have foreseen, and for which he should have provided. Id.
Impossibility of Performance
Impossibility of performance is a defense to breach of contract or excuse of non-performance for events that occur after a contract is entered into. Mere unexpected difficulty, expense, or hardship involved in the performance of a contract does not excuse performance. Where the difficulty or obstacle does not make performance objectively impossible, and that the personal inability of a promisor to perform (frequently designated as subjective impossibility, being impossibility which is personal to the promisor and does not inhere in the nature of the act to be performed) does not excuse nonperformance of the contractual obligation. 84 A.L.R.2d 12, Modern status of the rules regarding impossibility of performance as defense in action for breach of contract (2005).
In Nebaco, Inc. v. Riverview Realty Co., the Nevada Supreme Court determined that one who contracts to render a performance for which government approval is required, assumed duty of obtaining such approval and risk of its refusal is on him. 87 Nev. 55, 57-58, 482 P.2d 305, 307. Nebaco sought to set aside its obligations under a lease executed with Riverview Realty on the ground that performance became impossible because improvement contingent upon approval by a bank authority was denied. The lease specified that Nebaco would have a period of time to obtain interim or long-term financing for the improvements. If Nebaco failed to terminate the lease prior to the deadline or when it obtained financing the lease termination option expired. The Court concluded that termination of the lease rested upon the inability to obtain the required permission of the banking authority, not upon failure to obtain financing. The doctrine of impossibility becomes unavailable because the contingency which arose should have been foreseen.
Generally, the defense of impossibility of performance is available to promisor where his performance is made impossible or highly impractical by occurrence of unforeseen contingencies, but if the unforeseen contingency is one which the promisor should have foreseen, and for which he should have provided, the defense is unavailable to him. Id. at 57. Although, the Court did qualify that if the foreseeable consequence is provided for in the contract, its occurrence does provide an excuse for non-performance. Id. at 57 (citing Williston on Contracts s. 1968 (1938)). The distinction here involved the fact that the lease specified financing as a contingency and not approval by the banking authority. Id. at 57.
Impossibility is a doctrine of contract interpretation. W.R. Grace and Co. v. Local Union 759, Intern. Union of United Rubber, Cork, Linoleum and Plastic Workers of America, 103 S.Ct. 2177 (1983). Foreseeability of impossibility of performance is generally a relevant but not dispositive factor in determining applicability of impossibility defense. There is no reason to look further when risk was foreseen to be more than minimally likely, goes to the central purpose of the contract, and can easily be allocated in different manner had parties chosen to do so. U.S. v. Winstar Corp., 116 S.Ct. 2432 (1996).
In the linked blog post below, Howard & Howard‘s Mike Braun explains a recent decision where a court denied an employer’s request for a preliminary injunction against the company’s former President and its IT manager who took flash drives with company information (containing the company’s vendors and suppliers list, sales data, pricing and cost information, and profit margins), then went to work for a competitor.
The Court found that the employer failed to take adequate steps to protect its supposed trade secrets and was therefore not entitled to protection under the law. According to Braun, the case acts as “a virtual checklist of the steps a company should consider if it wants its important information to be treated as a trade secret.”
As this article suggests, if you want others to treat your information as a trade secret, you have to treat it like a trade secret, by:
- Using a confidentiality agreement;
- Clearly identify confidential information;
- Train your employees to treat the information as confidential;
- Restrict access to confidential information; and
- Address confidential information when employees terminate employment
What Constitutes a Material Breach of Contract?
In Nevada, to prevail on a claim for breach of contract action must show (1) the existence of a valid contract, (2) a breach by the defendant, and (3) damage as a result of the breach. For a breach of contract to be material, it must go to the root or essence of the agreement between the parties, or be one which touches the fundamental purpose of the contract.
Stated another way, it is a breach which is so substantial or fundamental as to defeat the object or purpose of the entire transaction, or make it impossible for the other party to perform under the contract. In Nevada, material breach of contract “depends on the nature and effect of the violation in light of how the particular contract was viewed, bargained for, entered into, and performed by the parties” (more…)
Most questions regarding the enforceability of arbitration obligations begin with the Federal Arbitration Act, 9 U.S.C. §1 et seq. (the “FAA”), which governs the enforcement of arbitration agreements. 9 U.S.C. §§ 1-2; Prima Paint Corp. v. Flood & Conklin Mfg. Co., 398 U.S. 395, 402 (1967). The FAA was signed into law in 1925 and governs the enforcement of arbitration agreements, but does not require that the parties or the arbitrator hold the matter in confidence.
Nevada Revised Statutes, Chapter 38 is Nevada’s version of the Uniform Arbitration Act of 2000. While it allows an arbitrator to issue a protective order against the disclosure of confidential and trade secret information (NRS 38.233(5)), it is silent on the issue of whether the parties to an arbitration or their arbitrator must keep the fact of the arbitration or its result a secret. (more…)
The undersigned party hereby consents to service of documents by electronic means as designated below in accordance with Rule 5(b)(2)(E) of the Nevada Rules of Civil Procedure.
Documents served by electronic means must be transmitted to the following person(s):
Facsimile transmission to the following facsimile number(s):
Electronic mail to the following email address(es):
Attachments to email must be in the following format(s):
Other electronic means (specify how the documents must be transmitted)
The undersigned party also acknowledges that this consent does not require service by the specified means unless the serving party elects to serve by that means.
Dated this __________ day of _______________, 20_____.
Attorney for Consenting Party
or Consenting Party
Fax number: ________________________
Email address: ______________________
[Added; effective March 1, 2019.]
Form 2. Rule 4.1 Waiver of Service of Summons
(Attorney or Plaintiff Information)
Waiver of Service of Summons under Rule 4.1 of the Nevada Rules of Civil Procedure
To (name the plaintiff’s attorney or the self-represented plaintiff):
I have received your request to waive service of a summons in this lawsuit along with a copy of the complaint, two copies of this waiver form, and a prepaid means of returning one signed copy of the form to you.
I, or the entity I represent, agree to save the expense of serving a summons and complaint in this lawsuit.
I understand that I, or the entity I represent, will keep all defenses or objections to the lawsuit, the court’s jurisdiction, and the venue of the lawsuit, but that I waive any objections to the absence of a summons or of service.
I also understand that I, or the entity I represent, must file and serve an answer or a motion under Rule 12 of the Nevada Rules of Civil Procedure within 60 days from _____________________, the date when this request was sent (or 90 days if it was sent outside the United States). If I fail to do so, a default judgment will be entered against me or the entity I represent.
(Signature of the attorney or unrepresented party)
[Added; effective March 1, 2019.]
Many civil cases involve multiple parties and multiple causes of action. Frequently, however, just one or few causes of action are central to the dispute. Others are either plead in the alternative or out of an abundance of caution. How can a party appeal a decision as to just one cause of action, when others remain? Shouldn’t an appeal only lie after the entire case proceeds through judgment? NRCP 54(b) provides the answers:
When an action presents more than one claim for relief — whether as a claim, counterclaim, crossclaim, or third-party claim — or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.
Though the text may appear a bit confusing at first glance, the Rule’s purpose informs us. Rule 54(b) was designed to promote judicial economy by limiting piecemeal appellate review of issues within a case, while simultaneously imposing a standard to determine when appellate review is appropriate though the case has not proceeded to judgment.
Generally, appellate courts disfavor piecemeal review of issues within a case. And for good reason; it takes time, effort, and resources to hear an appeal, and appellate courts do not wish to hear individual appeals related to each decision by the district court in a matter. More importantly, the appellate court lacks jurisdiction to hear an appeal where there is no final judgment in the underlying litigation.
Rule 54(b) certification is a determination from the district court that although the order or judgment under appeal disposes of fewer than all claims in the case, it is otherwise final, and that no just reason for delay exists for the appellate court to review the order. Absent 54(b) certification, the appellate court lacks jurisdiction to hear the appeal, and the appeal will be dismissed. See First Western Sav. & Loan Ass’n v. Steinberg, 89 Nev. 582 (1973).
But how does one obtain 54(b) certification? Like most things, a party must move in the district court for Rule 54(b) certification. The district court cannot grant certification unless it is warranted and meets the necessary requirements discussed below. See Taylor Const. Co. v. Hilton Hotels Corp., 100 Nev. 207 (1984). “The district court does not have the power, even when a motion for certification is unopposed, to transform” an inappropriate interlocutory order “into a final judgment.” Id.
To obtain Rule 54(b) certification, the order or judgment must dispose of either an entire claim or all claims against one party. For example, the denial of a motion for summary judgment is not capable of 54(b) certification because the denial neither disposes of an entire claim nor all claims against a single party. See id. An order granting a motion to dismiss is certifiable under NRCP 54(b), as it operates to dismiss an entire claim, but fewer than all claims in the action. See State v. AAA Auto Leasing & Rental, Inc., 93 Nev. 483 (1977).
Next, the district court must “expressly determine that there is no just reason for delay.” NRCP 54(b). The court need not provide any findings of fact or reasoning to support its determination that there is no reason for delay. See Mallin v. Farmers Ins. Exchange, 106 Nev. 606 (1990). Though this sentence seems rather conclusory, that is all that is required.
NRCP 54(b) serves as a buffer against appeals being taken from interlocutory orders, and imposes a requirement on the district court to certify that its order is final and reviewable. Failure to seek 54(b) certification when claims or parties remain in the district court proceeding will certainly be fatal to your appeal. Save yourself time, and your client’s money. Apply NRCP 54(b) the next time you wish to appeal a district court’s order.
The Randall Kiser Study, released in the Journal of Empirical Legal Studies, found that parties who reject the last and best offer at mediation overwhelmingly regret the decision. The study surveyed thousands of cases in California and New York over a five-year period. It found that plaintiffs who rejected the last settlement offer and proceeded to trial do worse a whopping 61% of the time, while defendants did worse than their last offer 24% of the time. In only 15% of the cases did both sides obtain a better result at trial.
All is not good news for defendants, however. Although they seem to do better at predicting outcomes, the 24% of the time they are wrong ends up being much more costly to them. Defendants who fail to do better than the Plaintiff’s last demand, ended up with a verdict that was on average $1.1 Million more than the Plaintiff’s last demand. On the other hand, plaintiffs received on average $43,000 less than the last offer given before trial.
Mediators assist often entrenched parties who each have a greater belief in the value of their position than they ought to have, to reach a middle position. The uncertainty of a litigated outcome alone justifies considering alternatives to a litigated result. Every experienced and honest litigator can point to cases they won when they didn’t think they had a chance winning. They can also point to times when if there was any justice, they would have won, but lost. There simply is no way to accurately predict with certainty the outcome of a litigated case whether decided by a judge, a jury, or an arbitrator.
Some studies suggest that 95% or more of lawsuits settle rather than go to trial. Assuming that is true, your case seems destined to settle; therefore, why not resolve it now rather than later? Doing so may save time, aggravation, stress, and money. That said, mediation will not be an easy process. At times, you may feel uncomfortable, pressured, and perhaps even emotional. If the process were easy, the parties wouldn’t need a mediator’s assistance to settle the matter. A mediated result gives you certainty without the risk of litigation.
In many states, courts will enforce a written promise that one will not compete with another party to the agreement, such as a key executive promising not to compete with her employer if she leaves the company. What would happen if the executive left the company, then helped someone else to compete with the executive’s former company? Courts can keep the executive from continuing to compete by enjoining the activity, but what can be done about the party who has no agreement (“the non-signatory”) with the company? Can a court enjoin the non-signatory from competing with the company? The answer is yes.
A court may enjoin someone one who does not sign a non-compete covenant when the non-signatory “breaches the covenant in active concert with the principal party enjoined and with knowledge of the covenant.” Las Vegas Novelty, Inc. v. Fernandez, 106 Nev. 113, 116-117 (1990) (citing McCart v. H & R Block, Inc., 470 N.E.2d 756 (Ind.Ct.App. 1984)). The plain language of NRCP 65(d) further supports the notion, as it requires an injunction to bind the parties, as well as their agents and any other persons participating or acting in concert with the parties. See NRCP 65(d).
Enjoining a non-signatory preserves the purposes of the covenant; otherwise, permitting someone to intentionally end-run around a non-competition provision essentially renders that provision useless. See Day Cos. V. Patat, 440 F.2d 1343 (5th Cir. 1971), cert. denied, 404 U.S. 830, 92 S.Ct. 71, 30 L.Ed.2d 59 (reasoning a non-signatory to a covenant will be bound because a covenantor will not be allowed to do through others what he or she could not do directly); H&R Block Tax Servs., LLC v. Strauss, 2015 WL 470644, at *6 (N.D.N.Y. Feb. 4, 2015) (enjoining non-signatories where evidence showed the non-signatories were acting in active concert with the covenantor); Dad’s Properties, Inc. v. Lucas, 545 So.2d 926 (Fla. Dist. Ct. App. 1989) (even though wife was the sole owner of competing business, she was properly enjoined from competing because she was aiding and abetting her husband to violate his covenant).
Accordingly, those “who benefit from the covenantor’s relationship with a competing business must abide by the same restrictive covenant agreed to by the covenantor.” Tantopia Franchising Co., LLC v. W. Coast Tans of PA, LLC, 918 F.Supp.2d 407, 416–17 (E.D.Pa.2013) (citing Total Car Franchising Corp. v. L & S Paint Works, Inc., 981 F.Supp. 1079, 1082 (N.D.Tenn.1997) (not only covenantor and new company bound but also his “servants or agents and those acting in collusion or combination with him”). The lesson here is that people who have a covenant not to compete should not try to nevertheless compete through a straw person. Both could end up as defendants in a very expensive lawsuit.
PERSONAL INJURY FREQUENTLY ASKED QUESTIONS
I Was Injured In An Accident. What Should I do?
For starters, check yourself for injuries and call the police or ask someone else to call for you if you, your passengers, or occupants of the other vehicle(s) are injured. If you or someone else is seriously injured, try not to move the injured person while waiting for an ambulance. Even if nobody is injured, and regardless of who you think was at fault, call the police so they can issue an accident report. Your insurance company may require it in order to cover damages to your vehicle or to the other vehicle.
Turn on your hazard lights if they are working or put out road flares if you have them. If the vehicles are causing a hazard, consider pulling yours to the side of the road. Otherwise, leave them where they are and get to the side of the road or a safe distance from traffic if you can. (more…)
“Those who cannot remember the past are condemned to repeat it.”
It is the dawn of a new era in Nevada state civil court discovery. The Nevada Supreme Court has adopted the Federal Rules of Civil Procedure-style proportionality standard for determining the appropriate scope of discovery. Gone are the days of discussions over whether discovery is “reasonably calculated to lead to the discovery of admissible evidence.” But is the proportionality standard really new? Or is it just in vogue again? This article discusses cases decided in the Nevada U.S. District Court and elsewhere that should inform how practitioners implement Rule 26 of the Nevada Rules of Civil Procedure. They read as a cautionary tale.
The 2019 amended Rule 26 says:
(b) Discovery Scope and Limits.
(1) Scope. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claims or defenses and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. (more…)
Chief Judge Linda Marie Bell issued Administrative Order 19-03 on behalf of the Eighth Judicial District Court on March 12, 2019. It suspends many Eighth Judicial District Court Rules which are in conflict with the amended NRCP. The purpose of the order is stated:
[f]or the benefit of the bar and to ease confusion until the EJDC amends its local rules to conform to the amended NRCP, NRAP, and NEFCR, the EJDC finds it necessary to suspend or modify certain District Court Rules. Additionally, to the extent any other rule of the Eighth Judicial District Court conflicts with the revised NRCP, NRAP, and NEFCR, the NRCP, NRAP, and NEFCR control.
The Order alters the rules as follows until the EDCR can be amended (the stricken language below is suspended by the Order):
Rule 1.14. Time; judicial days; service by mail.
As of today, counsel filing a complaint in Nevada must provide the court with a “short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support”. NRCP 8(a)(1). A reader inquired what a jurisdictional statement should look like. I gave him some ideas, then promised I would follow up. This is my effort to do that.
If you are familiar with the Federal Rules of Civil Procedure and practice in federal court, this concept is not new to you. But if you only practice in Nevada’s state courts, the concept of providing the court with a jurisdictional statement may take some time. The following is a non-exhaustive list of sample jurisdictional statements that you might find useful when pleading a claim in Nevada. All circumstances vary and you should conduct your own research before determining that any of these apply to your claim.
This Court has jurisdiction over this matter pursuant to Nev. Const. art. VI, § 6, as this Court has original jurisdiction in all cases not assigned to the justices’ courts.
This Court has jurisdiction over this matter pursuant to Nev. Const. art. VI, § 6, as this Court has original jurisdiction over matters involving title to real property.
This Court has jurisdiction over this matter pursuant to Nevada’s Long Arm Statute, NRS 14.065. Nonresident Defendant(s) [INSERT NAME(S)] availed [HIMSELF/HERSELF/ITSELF] of opportunities to conduct business in the State of Nevada, establishing minimum contacts with the forum, and [IS/ARE] therefore subject to personal jurisdiction in Nevada on claim(s) arising out of that contact.
This Court has subject matter jurisdiction over this matter pursuant to NRS 4.370(1), as the matter in controversy exceeds $15,000, exclusive of attorney’s fees, interest, and costs.
This Court has jurisdiction over this matter pursuant to NRS 118C.220, as Plaintiff combines an action for summary eviction of a tenant from commercial premises with a claim to recover contractual damages in an amount in excess of $15,000, exclusive of attorney’s fees, interest, and costs.
This Court has jurisdiction over this matter pursuant to NRS 38.243, as this matter seeks an order confirming an arbitration award and entry of a judgment on the confirmed award.
This Court has jurisdiction over this matter pursuant to NRS 3.0199, as the controversy concerns a matter arising from or relating to the administration of the Humboldt River Decree. Venue is proper in the [SIXTH/ELEVENTH] Judicial District Court pursuant to NRS 3.0199.
This Court has jurisdiction over this matter pursuant to NRS 598A.090, as the controversy concerns violations of the provisions of NRS Chapter 598A for Unfair Trade Practices.
This Court has jurisdiction over this matter pursuant to NRS 78.605, as the controversy seeks the appointment of a trustee or custodian of a dissolved corporation.
This Court has jurisdiction over this matter pursuant to NRS 78.650, as plaintiff(s) hold(s) at least one-tenth of the issued and outstanding stock of [COMPANY NAME], and this matter seeks an injunction or appointment of a receiver over [COMPANY NAME].
This Court has jurisdiction over this matter pursuant to NRS 685B.040, as the controversy concerns violations of the provisions of NRS Chapter 685B.
Rule 86. Effective Dates
(a) In General. These rules and any amendments take effect on the date specified by the Supreme Court. They govern all proceedings:
(1) in actions commenced after the effective date; and
(2) in actions then pending, unless:
(A) the Supreme Court specifies otherwise, or
(B) the court determines that applying them in a particular action would not be feasible or would work an injustice.
(b) Effective Date of Amendments. The Nevada Rules of Civil Procedure became effective January 1, 1953. Subsequent amendments have been as follows:
(1) Amendment of Rules 5(b) and (d), effective January 4, 1954.
(2) Amendment of Rules 11 and 45(d)(1), effective May 15, 1954.
(3) Amendment of Rule 51, effective February 15, 1955.
(4) Amendment of Rules 3, 75(b), and 75(g), effective October 1, 1959.
(5) Amendment of Rules 38(b), 38(d), 65(b), 73(c), and 73(d), effective September 1, 1960.
(6) Amendment of Rules 4(d)(2), 5(a), 5(b), 6(a), 6(b), 7(a), 13(a), 14(a), 15(d), 24(c), 25(a)(1), 25(d), 26(e), 28(b), 30(f)(1), 41(b), 41(e), 47(a), 48, 50(a), 50(b), 50(c), 50(d), 52(b), 54(b), 56(c), 56(e), 59(a), 62(h), 77(c), 86, Forms 22-A and 22-B, 27, 30, 31, and 32, effective March 16, 1964.
(7) Amendment of Rule 86 and Form 31, effective April 15, 1964.
(8) Amendment of Rules 73(c), 73(d)(1), and 86, effective September 15,1965.
(9) Amendment of Rules 4(b), 5(a), 8(a), 12(b), 12(g), 12(h), 13(h), 14(a), 17(a), 18(a), 19, 20(a), 23, 23.1, 23.2, 24(a), 26, 29, 30, 31, 32, 33, 34, 35, 36, 37(a), 37(b), 37(c), 37(d), 41(a), 41(b), 42(b), 43(f), 44(a), 44(b), 44(c), 44.1, 45(d)(1), 47(b), 50(b), 53(b), 54(c), 65(a), 65(b), 65(c), 65.1, 68, 69(a), 77(e), 86(b), and Form 24, effective September 27, 1971.
(10) Amendment of Rules 6 and 81, effective July 1, 1973; the abrogation of Rules 72, 73, 74, 75, 76, 76A, and Form 27, effective July 1, 1973.
(11) Amendment of Rules 1, 4, 5, 6, 8, 9, 10, 11, 13, 14, 15, 16, 16.1, 17, 18, 19, 20, 22, 23, 23.1, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 41, 43, 44, 44.1, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 58, 59, 60, 62, 63, 64, 65, 65.1, 67, 69, 71, 77, 78, 81, and 83 and Forms 3, 19, 31, and the Introductory Statement to the Appendix of Forms, effective January 1, 2005, and the adoption of new Form 33.
(12) Adoption of Rules 4.1, 4.2, 4.3, 4.4, 5.1, 5.2, 62.1, and 71.1, the amendment of all other rules and the introduction to the Appendix of Forms, the deletion of the former forms, and the adoption of Forms 1 through 6, effective March 1, 2019.
Rule 62.1. Indicative Ruling on a Motion for Relief That Is Barred by a Pending Appeal
(a) Relief Pending Appeal. If a timely motion is made for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending, the court may:
(1) defer considering the motion;
(2) deny the motion; or
(3) state either that it would grant the motion if the appellate court remands for that purpose or that the motion raises a substantial issue.
(b) Notice to the Appellate Court. The movant must promptly notify the clerk of the supreme court under NRAP 12A if the district court states that it would grant the motion or that the motion raises a substantial issue.
(c) Remand. The district court may decide the motion if the appellate court remands for that purpose.
Advisory Committee Note—2019 Amendment
This new rule is modeled on FRCP 62.1 and works in conjunction with new NRAP 12A. Like its federal counterpart, Rule 62.1 does not attempt to define the circumstances in which a pending appeal limits or defeats the district court’s authority to act. See FRCP 62.1 advisory committee’s note (2009 amendment). Rather, these rules provide the procedure to follow when a party seeks relief in the district court from an order or judgment that the district court has lost jurisdiction over due to a pending appeal of the order or judgment, consistent with Huneycutt v. Huneycutt, 94 Nev. 79, 575 P.2d 585 (1978), and its progeny.
Rule 16.23. Physical and Mental Examinations of Minors in Family Law Actions
(a) Applicability; Motion; Notice.
(1) This rule governs a physical or mental examination of a minor in family law actions.
(2) When ordering a physical or mental examination of a minor, the court may proceed under this rule or Rule 35. The court’s order must state the court’s reasoning for proceeding under either rule and must include findings as to the best interests of the child.
(3) Upon motion and after notice to all parties and, if the minor is 14 years of age or older, to the minor to be examined, a court may for good cause order an examination of a minor’s mental or physical condition.
(b) Order. The provisions of Rule 16.22(b) apply to orders under this rule.
(c) Recording. In a motion requesting an examination or an opposition thereto, the parties may request that an examination be recorded by audio or audiovisual means. When considering whether to approve a recording, the court may appoint a guardian ad litem for the minor, hold a hearing, or both. The court may grant a request to record the examination if making the recording is in the child’s best interest. Any recording must be provided to the court and placed under seal. On motion, and for good cause, the court may permit distribution of the recording, which must include appropriate restrictions on its release and use.
(1) In General. In a motion requesting an examination or an opposition thereto, the parties may request that an observer be present at the examination. When considering whether to approve a request for an observer, the court may appoint a guardian ad litem for the minor, hold a hearing, or both. The court may grant a request for an observer if the observer’s presence is in the child’s best interest and would not compromise the examination. The observer may not be a party, a party’s attorney, or anyone employed by a party or a party’s attorney. If the minor is of sufficient age and maturity, the court may consider the child’s preference in choosing the observer. The court must approve the observer before the examination, and the observer must not in any way interfere with, obstruct, or participate in the examination.
(2) Parents. If ordered by the court, the parents or guardian of a minor may observe a physical examination, but may not interfere with, obstruct, or participate in the examination.
(e) Examiner’s Report. The examiner’s report and access to it must comply with Rule 16.22(e)(1) and (3)-(6).
(f) Stipulations. Any stipulation for a minor’s examination must comply with Rule 16.22(f).
Advisory Committee Note—2019 Amendment
Rule 16.23 is new and provides alternative procedures to Rule 35 for mental or physical examinations of minors in family law actions.
Rule 16.22. Custody Evaluations in Family Law Actions
(a) Applicability; Motion; Notice.
(1) This rule governs custody evaluations in family law actions.
(2) On motion or on its own, and after notice to all parties, the court may for good cause order a custody evaluation.
(3) The court may specify the individuals to be examined or permit the examiner to do so.
(1) In General. The order must specify the time, place, manner, conditions, and scope of the examination, as well as each examiner who will perform it.
(2) Examiner; Location. An examiner must be suitably licensed or certified. The examination must take place in an appropriate professional setting and in the judicial district in which the case is pending, unless the court orders the examination to occur in a different location.
(3) Persons Examined. The court may require a party to produce for examination a person who is in the party’s custody or under the party’s legal control.
(4) Costs. The court may assign the cost of the examination to one or more parties and may redistribute those costs as appropriate.
(5) Modification. The court, for good cause, may alter the provisions of this rule.
(c) Recording. A custody evaluation may be recorded only by the examiner, who must inform the parties if the examiner elects to record the examination. The examiner must keep the recording confidential. On motion, and for good cause, the court may order that a copy of the recording be provided to the court and placed under seal, be provided to the parties subject to appropriate restrictions upon its release and use, or both.
(d) Observers. The parties may not have an observer present at a custody evaluation.
(e) Examiner’s Report.
(1) Providing the Report to the Court. The examiner must provide a custody evaluation report to the court, and the report must be placed under seal. The court must notify all parties when it receives the report. A party and the party’s attorney may review the report in court, but may not obtain a copy of the report except under Rules 16.22(e)(2) or (3).
(2) Providing the Report to the Parties’ Attorneys. A party’s attorney may obtain a copy of the report, which the attorney must keep confidential and may not distribute without a court order under Rule 16.22(e)(3). The party may review the report if it is obtained by the party’s attorney, but the report must remain in the attorney’s possession and the attorney must not provide a copy of the report to the party without a court order under Rule 16.22(e)(3).
(3) Distribution of the Report. On motion, and for good cause, the court may permit distribution of the report, which must include appropriate restrictions on its release and use.
(4) Contents. The report must be in writing and must set out in detail the examiner’s findings, including diagnoses, conclusions, and the results of any tests.
(5) Request by the Moving Party. After the examiner provides the report to the court, the party who moved for the examination may request—and is entitled to receive—from any party, like reports of all earlier or later examinations of the same condition, which are in the possession of that party. But those reports need not be delivered by a party with custody or control of the person examined if the party shows that it cannot obtain them. Any reports in the care or custody of a court, as specified in this rule, must be sought from that court. The grant of either review or receipt of those reports is subject to the court’s discretion and the conditions in this rule.
(6) Scope. This rule does not preclude obtaining an examiner’s report or deposing an examiner under other rules, unless excluded by this rule.
(f) Stipulations. The parties may, by stipulation approved by the court, agree upon the custody evaluation, the conditions or limitations of the evaluation, and the examiner. This rule applies to any examinations agreed to by stipulation, unless the court approves a stipulation stating otherwise.
Advisory Committee Note—2019 Amendment
Rule 16.22 is new and provides procedures for custody evaluations in family law actions.
Rule 16.215. Child Witnesses in Custody Proceedings
(a) In General. The court must use these procedures and considerations in child custody proceedings. When determining the scope of a child’s participation in custody proceedings, the court should find a balance between protecting the child, the statutory duty to consider the wishes of the child, and the probative value of the child’s input while ensuring to all parties their due process rights to challenge evidence relied upon by the court in making custody decisions.
(1) “Alternative Method.” As used in this rule, “alternative method” is defined as prescribed in NRS 50.520.
(2) “Child Witness.” As used in this rule, “child witness” is defined as prescribed in NRS 50.530.
(3) “Third-Party Outsourced Provider.” As used in this rule, “third-party outsourced provider” means any third party ordered by the court to interview or examine a child outside of the presence of the court for the purpose of eliciting information from the child for the court.
(1) Identifying Witnesses. A party must identify and disclose any potential child witness whom the party intends to call as a witness during the case:
(A) at the time of the case management conference/early case evaluation; or
(B) by filing a Notice of Child Witness if the determination to call a child witness is made after the case management conference/early case evaluation.
(2) Notice of Child Witness. A notice of child witness must be filed no later than 60 days before the hearing in which a child may be called as a witness unless otherwise ordered by the court. Such notice must detail the scope of the child witness’s intended testimony and provide an explanation as to why the child witness’s testimony would aid the trier of fact under the circumstances of the case. Any party filing a notice of child witness must also deliver a courtesy copy of the notice to the court.
(3) Testimony by Alternative Methods. If a party desires to perpetuate the testimony of a child witness by an alternative method, the party must file a Motion to Permit Child Testimony by Alternative Methods, under the Uniform Child Witness Testimony by Alternative Methods Act contained in NRS 50.500 et seq., at the same time as the notice of child witness, or no later than 60 days before the hearing in which the child witness may be called to testify or 14 days after the timely filing of a notice of child witness, whichever period last expires, unless otherwise ordered by the court. The court may also issue an order to show cause why a child witness should not testify by an alternative method or address the issue at any case management conference.
(d) Alternative Methods.
(1) Available Alternative Methods. If the court determines under NRS 50.580 that an alternative method of testimony is necessary, the court must consider the following alternative methods, in addition to any other alternative methods the court considers appropriate under the Uniform Child Witness Testimony by Alternative Methods Act contained in NRS 50.500 et seq.
(A) If all parties are represented by counsel, the court may:
(i) interview the child witness outside of the presence of the parties, with the parties’ counsel present;
(ii) interview the child witness outside of the presence of the parties, with the parties’ counsel simultaneously viewing the interview via an electronic method; or
(iii) allow the parties’ counsel to question the child witness in the presence of the court without the parties present.
(B) Regardless of whether the parties are represented by counsel, the court may:
(i) interview the child witness with no parties present, but allow the parties to simultaneously view the interview via an electronic method if the court determines that the viewing is not contrary to the child’s best interest; or
(ii) have the child witness interviewed by a third- party outsourced provider.
(2) Alternative Method Considerations. In determining which alternative method should be utilized in any particular case, the court should balance the necessity of taking the child witness’s testimony in the courtroom with the parties and attorneys present with the need to create an environment in which the child witness can be open and honest. In each case in which a child witness’s testimony will be taken, the court should consider:
(A) where the testimony will be taken, including the possibility of closing the courtroom to the public or hearing from the child witness on the record in chambers;
(B) who should be present when the testimony is taken, such as both parties and their attorneys, only the attorneys when both parties are represented by counsel, the child witness’s attorney and the parties, or only a court reporter;
(C) how the child witness will be questioned, including whether only the court will pose questions that the parties have submitted, whether the parties or their attorneys will be permitted to cross-examine the child witness, or whether a child advocate or expert in child development will ask the questions in the presence of the court and the court reporter, with or without the parties or their attorneys; and
(D) whether it will be possible to provide an electronic method so that testimony taken in chambers may be heard simultaneously by the parties and their attorneys in the courtroom.
(3) Protections for Child Witness. In taking testimony from a child witness, the court must take special care to protect the child witness from harassment or embarrassment and to restrict the unnecessary repetition of questions. The interviewer must also take special care to ensure that questions are stated in a form that is appropriate given the child witness’s age or cognitive level. The interviewer must inform the child witness in an age-appropriate manner about the limitations on confidentiality and that the information provided to the court will be on the record and provided to the parties in the case. In the process of listening to and inviting the child witness’s input, the interviewer may allow, but should not require, the child witness to state a preference regarding custody or visitation and should, in an age-appropriate manner, provide information about the process by which the court will make a decision.
(e) Due Process Rights. Any alternative method must afford all parties a right to participate in the questioning of the child witness, which, at a minimum, must include an opportunity to submit potential questions or areas of inquiry to the court or other interviewer before the interview of the child witness.
(f) Preservation of Record. Any alternative method of testimony ordered by the court must be preserved by audio or audiovisual recording to ensure that such testimony is available for review for future proceedings.
(g) Review of Record. Any party may review the audio or audiovisual recording of testimony procured from a child witness by an alternative method upon written motion to the court or stipulation of the parties, unless the court finds by clear and convincing evidence that review by a party would pose a risk of substantial harm to the child witness.
(h) Stipulation. The court may deviate from any of the provisions of this rule upon stipulation of the parties. The judicial districts of this state should promulgate a uniform canvass to be provided to the parties to ensure that they are aware of their rights to a full and fair opportunity for examination or cross-examination of a child witness before entering into any stipulation that would permit the interview or examination of a child witness by an alternative method, including a third-party outsourced provider.
(i) Retention of Recordings. Original recordings of an interview or examination of a child witness must be retained by the interviewer for a period of 7 years from the date of their recording, or until 6 months after the child witness emancipates, whichever is later, unless otherwise ordered by the court.