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Nevada Rules of Civil Procedure

Rule 16.1. Mandatory Pretrial Discovery Requirements

(a)     Required Disclosures.

(1)     Initial Disclosure.

(A)  In General. Except as exempted by Rule 16.1(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:

(i)   the name and, if known, the address and telephone number of each individual likely to have information discoverable under Rule 26(b), including for impeachment or rebuttal, identifying the subjects of the information;

(ii)   a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, including for impeachment or rebuttal, and, unless privileged or protected from disclosure, any record, report, or witness statement, in any form, concerning the incident that gives rise to the lawsuit;

(iii)    when personal injury is in issue, the identity of each relevant medical provider so that the opposing party may prepare an appropriate medical authorization for signature to obtain medical records from each provider;

(iv)     a computation of each category of damages claimed by the disclosing party—who must make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and

(v)       for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment and any disclaimer or limitation of coverage or reservation of rights under any such insurance agreement.

(B)    Proceedings Exempt From Initial Disclosure. The following proceedings are exempt from initial disclosure:

(i)    an action within the original, exclusive jurisdiction of the family court, irrespective of whether the district court actually has a separate family court or division;

(ii)      an action filed under NRS Title 12 or 13;

(iii)      an appeal from a court of limited jurisdiction;

(iv)       an action for review on an administrative record;

(v)         a forfeiture action in rem arising from a statute;

(vi)     a petition for habeas corpus or any other proceeding to challenge a criminal conviction or sentence;

(vii)      an action to enforce or quash an administrative summons or subpoena;

(viii) a proceeding ancillary to a proceeding in another court;

(ix)      an action to enforce an arbitration award; and

(x)       any other action that is not brought against a specific individual or entity.

(C)     Time for Initial Disclosures—In General. A party must make the initial disclosures at or within 14 days after the parties’ Rule 16.1(b) conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in this action and states the objection in the Rule 16.1(c) case conference report. In ruling on the objection, the court must determine what disclosures, if any, are to be made and must set the time for disclosure.

(D)     Time for Initial Disclosures—For Parties Served or Joined Later. A party that is first served or otherwise joined after the Rule 16.1(b) conference must make the initial disclosures within 30 days after filing an answer or a motion under Rule 12, unless a different time is set by stipulation or court order.

(E)       Basis for Initial Disclosure; Unacceptable Excuses. A party must make its initial disclosures based on the information then reasonably available to it. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party’s disclosures or because another party has not made its disclosures.

(2)     Disclosure of Expert Testimony.

(A) In General. In addition to the disclosures required by Rule 16.1(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under NRS 50.275, 50.285, and 50.305.

(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report—prepared and signed by the witness—if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony. The report must contain:

(i)     a complete statement of all opinions the witness will express, and the basis and reasons for them;

(ii)     the facts or data considered by the witness in forming them;

(iii)        any exhibits that will be used to summarize or support them;

(iv)     the witness’s qualifications, including a list of all publications authored in the previous ten years;

(v)       a list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition; and

(vi)    a statement of the compensation to be paid for the study and testimony in the case.

(C)   Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure must state:

(i)   the subject matter on which the witness is expected to present evidence under NRS 50.275, 50.285, and 50.305;

(ii)   a summary of the facts and opinions to which the witness is expected to testify;

(iii)    the qualifications of that witness to present evidence under NRS 50.275, 50.285, and 50.305, which may be satisfied by the production of a resume or curriculum vitae; and

(iv)    the compensation of the witness for providing testimony at deposition and trial, which is satisfied by production of a fee schedule.

(D)    Treating Physicians.

(i)   Status. A treating physician who is retained or specially employed to provide expert testimony in the case, or whose duties as the party’s employee regularly involve giving expert testimony on behalf of the party, must provide a written report under Rule 16.1(a)(2)(B). Otherwise, a treating physician who is properly disclosed under Rule 16.1(a)(2)(C) may be deposed or called to testify without providing a written report. A treating physician is not required to provide a written report under Rule 16.1(a)(2)(B) solely because the physician’s testimony may discuss ancillary treatment, or the diagnosis, prognosis, or causation of the patient’s injuries, that is not contained within the physician’s medical chart, as long as the content of such testimony is properly disclosed under Rule 16.1(a)(2)(C)(i)-(iv).

(ii) Change in Status. A treating physician will be deemed a retained expert witness subject to the written report requirement of Rule 16.1(a)(2)(B) if the party is asking the treating physician to provide opinions outside the course and scope of the treatment provided to the patient.

(iii) Disclosure. The disclosure regarding a non- retained treating physician must include the information identified in Rule 16.1(a)(2)(C), to the extent practicable. In that regard, appropriate disclosure may include that the physician will testify in accordance with his or her medical chart, even if some records contained therein were prepared by another healthcare provider.

(E)     Time to Disclose Expert Testimony.

(i)   A party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order otherwise, the disclosures must be made:

(a) at least 90 days before the discovery cut-off date; or

(b)   if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 16.1(a)(2)(B), (C), or (D), within 30 days after the other party’s disclosure.

(ii)   The disclosure deadline under Rule 16.1(a)(2)(E)(i)(b) does not apply to any party’s witness whose purpose is to contradict a portion of another party’s case in chief that should have been expected and anticipated by the disclosing party, or to present any opinions outside of the scope of another party’s disclosure.

(F)     Supplementing the Disclosure.

(i)   In General. The parties must supplement these disclosures when required under Rule 26(e).

(ii)    Non-Retained Experts. A non-retained expert, who is not identified at the time the expert disclosures are due, may be subsequently disclosed in accordance with Rule 26(e). In general, the disclosing party must move to reopen the discovery deadlines or otherwise seek leave of court in order to supplementally disclose a non-retained expert. However, supplementation may be made without first moving to reopen the expert disclosure deadlines or otherwise seeking leave of court, if such disclosure is made:

(a)     in accordance with Rule 16.1(a)(2)(C);

(b)   within a reasonable time after the non- retained expert’s opinions become known to the disclosing party; and

(c)     not later than 21 days before the close of discovery.

(3)    Pretrial Disclosures.

(A)   In General. In addition to the disclosures required by Rule 16.1(a)(1) and (2), a party must provide to the other parties and promptly file the following information about the evidence that it may present at trial, including impeachment and rebuttal evidence:

(i)   the name and, if not previously provided, the address and telephone number of each witness—separately identifying those the party expects to present, those witnesses who have been subpoenaed for trial, and those it may call if the need arises;

(ii)    the designation of those witnesses whose testimony the party expects to present by deposition and, if not taken stenographically, a transcript of the pertinent parts of the deposition; and

(iii)     an identification of each document or other exhibit, including summaries of other evidence—separately identifying those items the party expects to offer and those it may offer if the need arises.

(B)      Time for Pretrial Disclosures; Objections.

(i)     Unless the court orders otherwise, these disclosures must be made at least 30 days before trial.

(ii)     Within 14 days after they are made, unless the court sets a different time, a party may serve and promptly file a list of the following objections:

(a)     any objections to the use under Rule 32(a) of a deposition designated by another party under Rule 16.1(a)(3)(A)(ii); and

(b)     any objection, together with the grounds for it, that may be made to the admissibility of materials identified under Rule 16.1(a)(3)(A)(iii).

(iii)     An objection not so made—except for one under NRS 48.025 and 48.035—is waived unless excused by the court for good cause.

(4)    Form of Disclosures. Unless the court orders otherwise, all disclosures under Rule 16.1(a) must be in writing, signed, and served.

(b) Early Case Conference; Discovery Plan. Except as otherwise stated in this rule, all parties who have filed a pleading in the action must participate in an early case conference.

(1) Exceptions. Parties are not required to participate in an early case conference if:

(A)    the case is exempt from the initial disclosure requirements under Rule 16.1(a)(1)(B);

(B)      the case is subject to arbitration under Rule 3(A) of the Nevada Arbitration Rules (NAR) and an exemption from arbitration under NAR 5 has been requested but not decided by the court or the commissioner appointed under NAR 2(c);

(C)    the case is in the court-annexed arbitration program;

(D)   the case has been through arbitration and the parties have requested a trial de novo under the NAR;

(E)     the case is in the short trial program; or

(F)    the court has entered an order excusing compliance with this requirement.

(2)    Timing.

(A)   In General. The early case conference must be held within 30 days after service of an answer by the first answering defendant. All parties who have served initial pleadings must participate in the first case conference. If a new party serves its initial pleading after the first case conference, a supplemental case conference must be held within 30 days after service by any party of a written request for a supplemental conference; otherwise, a supplemental case conference is not required.

(B)   Continuances. The parties may agree to continue the time for the early case conference or a supplemental case conference for an additional period of not more than 90 days. The court, for good cause shown, may also continue the time for any case conference. Absent compelling and extraordinary circumstances, neither the court nor the parties may extend the time for the early case conference involving a particular defendant to a date more than 180 days after service of the first answer by that defendant.

(3)   Attendance. A party may attend the case conference in person or by using audio or audiovisual transmission equipment that permits all those appearing or participating to hear and speak to each other, provided that all conversation of all parties is audible to all persons participating. The court may order the parties or attorneys to attend the conference in person.

(4)      Responsibilities.

(A)     Scheduling. Unless the parties agree or the court orders otherwise, the plaintiff is responsible for designating the time and place of each conference.

(B)      Content. At each conference, the parties must do the following:

(i)     consider the nature and basis of their claims and defenses;

(ii)    consider the possibilities for a prompt settlement or resolution of the case;

(iii)      make or arrange for the disclosures required by Rule 16.1(a)(1);

(iv)     disclose the name of each relevant medical provider for each person whose injury is in issue and provide an appropriate signed medical authorization to obtain medical records from each provider, unless an authorization has been given under Rule 16.1(a)(l)(A)(iii);

(v)       discuss any issues about preserving and producing discoverable information, including electronically stored information;

(vi)     discuss any issues concerning disclosure of trade secrets or other confidential information and whether the parties agree on the need for and form of a confidentiality order or if a motion for a protective order under Rule 26(c) will be necessary to resolve such issues; and

(vii)      develop a proposed discovery plan under Rule 16.1(b)(4)(C).

(C)      Discovery Plan. The discovery plan must state the parties’ views and proposals on:

(i)     what changes should be made in the timing, form, or requirement for disclosures under Rule 16.1(a), including a statement as to when disclosures under Rule 16.1(a)(1) were made or will be made;

(ii)     the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues;

(iii)     any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced;

(iv)      any issues about claims of privilege or of protection as trial-preparation materials, including—if the parties agree on a procedure to assert these claims after production—whether to ask the court to include their agreement in an order;

(v)        what changes should be made in the limitations on discovery imposed under these rules and what other limitations should be imposed;

(vi)     any other orders that should be entered by the court under Rule 26(c) or under Rule 16(b) and (c); and

(vii)      an estimated time for trial.

(c)     Case Conference Report.

(1)      In General.

(A)    Joint or Individual Report. Within 30 days after each case conference, the parties must file a joint case conference report, or if the parties are unable to agree upon the contents of a joint report, each party must serve and file an individual case conference report.

(B)      After Supplemental Case Conference. After a supplemental case conference, the parties must supplement, but need not repeat, the contents of former reports. Notwithstanding the filing of a supplemental case conference report, deadlines set forth in an existing scheduling order remain in effect unless the court modifies the discovery deadlines.

(C) After Court-Annexed Arbitration. Unless otherwise ordered by the court, parties to any case in which a timely request for a trial de novo is filed after arbitration need not hold a further in-person conference, but must file a joint case conference report within 60 days from the date that the request for trial de novo is filed. The report must be prepared by the party filing the request for the trial de novo, unless otherwise stipulated or ordered.

(2)    Content. Whether a case conference report is filed jointly or individually, it must contain:

(A)   a brief description of the nature of the action and each claim for relief or defense;

(B)    a brief statement of whether the parties did or did not consider settlement and whether settlement of the case may be possible;

(C)    a proposed plan and schedule of any additional discovery under Rule 16.1(b)(4)(C);

(D)     a written list of names exchanged under Rule 16.1(a)(l)(A)(i);

(E)    a written list of all documents provided at or as a result of the case conference under Rule 16.1(a)(l)(A)(ii);

(F)     a written list of the medical providers identified under Rule 16.1(a)(l)(A)(iii);

(G)     a statement of the damages computations disclosed under Rule 16.1(a)(l)(A)(iv);

(H)     a written list of the insurance agreements disclosed under Rule 16.1(a)(l)(A)(v);

(I)        a written list of experts disclosed under Rule 16.1(a)(2), and a statement indicating whether the identified experts will provide or have provided expert reports;

(J)     a statement identifying any issues about preserving discoverable information;

(K)     a statement identifying any issues about trade secrets or other confidential information, and whether the parties have agreed upon a confidentiality order or whether a Rule 26(c) motion for a protective order will be made;

(L)      a calendar date on which discovery will close;

(M)     a calendar date, not later than 90 days before the close of discovery, beyond which the parties are precluded from filing motions to amend the pleadings or to add parties unless by court order;

(N)      a calendar date by which the parties will make expert disclosures under Rule 16.1(a)(2), with initial disclosures to be made not later than 90 days before the discovery cut-off date and rebuttal disclosures to be made not later than 30 days after the initial disclosure of experts;

(O)      a calendar date, not later than 30 days after the discovery cut-off date, by which dispositive motions must be filed;

(P)        an estimate of the time required for trial; and

(Q)       a statement as to whether a jury demand has been filed.

(3)    Objections. Within 7 days after service of any case conference report, any other party may file a response in which it objects to all or a part of the report or adds any other matter that is necessary to properly reflect the proceedings that occurred at the case conference.

(d)    Automatic Referral of Discovery Disputes. Where available or unless otherwise ordered by the court, all discovery disputes (except those presented at the pretrial conference or trial) must first be heard by the discovery commissioner under Rule 16.3.

(e)    Failure or Refusal to Participate in Pretrial Discovery; Sanctions.

(1)   Untimely Case Conference. If the conference described in Rule 16.1(b) is not held within 180 days after service of an answer by a defendant, the court, on motion or on its own, may dismiss the case as to that defendant, without prejudice, unless there are compelling and extraordinary circumstances for a continuance beyond this period. This provision does not apply to a defendant who serves its answer after the first case conference, unless a party has served a written request for a supplemental conference in accordance with Rule 16.1(b)(2)(A).

(2)   Untimely Case Conference Report. If the plaintiff does not file a case conference report within 240 days after service of an answer by a defendant, the court, on motion or on its own, may dismiss the case as to that defendant, without prejudice. This provision does not apply to a defendant who serves its answer after the first case conference, unless a party has served a written request for a supplemental conference in accordance with Rule 16.1(b)(2)(A).

(3)   Other Grounds for Sanctions. If an attorney fails to reasonably comply with any provision of this rule, or if an attorney or a party fails to comply with an order entered under Rule 16.3, the court, on motion or on its own, should impose upon a party or a party’s attorney, or both, appropriate sanctions in regard to the failure(s) as are just, including the following:

(A)    any of the sanctions available under Rules 37(b) and 37(f); or

(B)   an order prohibiting the use of any witness, document, or tangible thing that should have been disclosed, produced, exhibited, or exchanged under Rule 16.1(a).

(f)   Complex Litigation. In a potentially difficult or protracted action that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems, the court may, upon motion and for good cause shown, waive any or all of the requirements of this rule. If the court waives all the requirements of this rule, it must also order a conference under Rule 16 to be conducted by the court.

(g)   Self-Represented Litigants. The requirements of this rule apply to any self-represented party.

Advisory Committee Note—2019 Amendment

Subsection (a). Rule 16.1(a) borrows language but differs in key respects from its federal counterpart, FRCP 26(a). Rule 16.1(a)(l)(A)(i) retains Nevada’s initial disclosure requirement as to witnesses, which is broader than the federal rule in that it reaches witnesses with knowledge relevant to impeachment or rebuttal. Rule 16.1(a)(l)(A)(ii) incorporates language from the federal rule requiring that a party disclose materials that it may use to support its claims or defenses. However, the disclosure requirement also includes any record, report, or witness statement in any form, including audio or audiovisual form, concerning the incident that gives rise to the lawsuit. The initial disclosure requirement of a “record” or “report” under Rule 16.1(a)(l)(A)(ii) includes but is not limited to: incident reports, records, logs and summaries, maintenance records, former repair and inspection records and receipts, sweep logs, and any written summaries of such documents. Documents identified or produced under Rule 16.1(a)(l)(A)(ii) should include those that are prepared or exist at or near the time of the subject incident. The reasonable time required for production of such documents will depend on the facts and circumstances of each case. A party who seeks to avoid disclosure based on privilege must provide a privilege log.

Rule 16.1(a)(l)(A)(iii) is new. An “appropriate” authorization must comply with the federal Health Insurance Portability and Accountability Act, or HIPAA.

Rule 16.1(a)(1)(B) includes a list of case types that are exempt from the initial disclosure requirements. Family law actions are subject to the mandatory disclosure requirements of Rule 16.2 and Rule 16.205. Probate proceedings are exempted from these requirements as an initial matter; but under NRS 155.170 and 155.180, courts remain free to apply these provisions as they deem appropriate.

Rule 16.1(a)(2) incorporates the federal rule requirement that the report of a retained expert witness disclose “the facts or data considered by the witness” in forming his or her opinions. The former language—“the data or other information considered by the witness”—has been construed broadly by most federal courts to include drafts of expert reports and virtually any communications between counsel and the expert. The new language avoids that result. The 2019 amendments do not abrogate the 2012 drafter’s notes to Rule 16.1.

Rule 16.1(a)(2)(E) has been revised to include cases in which simultaneous disclosure of expert testimony may not be appropriate. In such a case, if the parties are unable to stipulate to the timing of such disclosures, either or both may seek a court order to schedule the disclosures of each expert.

An initial expert may also serve as a rebuttal expert and offer rebuttal opinions so long as those opinions are disclosed at the time of the rebuttal expert disclosure, or as a required supplement in accordance with Rule 26(e)(2).

Unlike its federal counterpart, Rule 16.1(a)(3)(A)(i) retains the requirement that a party’s pretrial disclosures identify those witnesses who have been subpoenaed for trial.

Subsection (b). The amendments reorganize Rule 16.1(b) in the style of the federal rules. Rule 16.1(b)(1) is new, and it specifies the circumstances when a case conference is not required. Rule 16.1(b)(2) contains new provisions addressing the timing of supplemental case conferences. Rule 16.1(b)(3) makes clear that parties are not required to attend a case conference in person, although the court can order attendance. Rule 16.1(b)(4) includes the federal requirements that parties discuss and address issues pertaining to the preservation of discoverable information, including electronically stored information, and issues pertaining to privilege and work-product claims (e.g., inadvertent disclosure).

Subsections (c), (d), (e), and (g). The changes in Rules 16.1(c) and 16.1(e) are stylistic. The amendments relocate the report and recommendation, objection, response, and review sections of the former NRCP 16.1(d) into Rule 16.3. Rule 16.1(g) has been reworded for enhanced clarity.

Drafter’s Notes—2012 Amendment

[Subsection (a)(2)(C)] specifies the information that must be included in a disclosure of expert witnesses who are not otherwise required to provide detailed written reports. A treating physician is not a retained expert merely because the patient was referred to the physician by an attorney for treatment. These comments may be applied to other types of non-retained experts by analogy. In the context of a treating physician, appropriate disclosure may include that the witness will testify in accordance with his or her medical chart, even if some records contained therein were prepared by another healthcare provider. A treating physician is not a retained expert merely because the witness will opine about diagnosis, prognosis, or causation of the patient’s injuries, or because the witness reviews documents outside his or her medical chart in the course of providing treatment or defending that treatment. However, any opinions and any facts or documents supporting those opinions must be disclosed in accordance with [subsection (a)(2)(C)].

About the Author

Jay Young is a Las Vegas, Nevada attorney. His practice focuses on acting as an Arbitrator and Mediator.

Mr. Young can be reached at 702.667.4868 or at jay@h2law.com.

The information provided on this site does not, and is not intended to constitute legal advice. You understand each legal matter should be considered to be unique and subject to varying results. You should not take or refrain from taking action based on any information contained on this website without first consulting legal counsel, as it is not intended to advise you on your particular matter. Further, you understand that no guarantee is given that the information contained herein is an accurate statement of the law at any given point in time, as the law is constantly changing. Please see http://nevadalaw.info/disclaimer

 

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