The Nevada Supreme Court calls its changes to the 2019 Nevada Rules of Civil Procedure (“NRCP”) “exhaustive.” Although the changes do not take effect until March 1, 2019, since they are so comprehensive, a complete read would be advisable for all practitioners. The amended rules (with the committee’s explanatory notes) are available in this post; a red-lined PDF version can be found here. The amendments largely bring our rules into alignment with the Federal Rules of Civil Procedure (“FRCP”), while retaining some Nevada-centric practices. Those familiar with the FRCP may find the version of NRCP red-lined against FRCP a most helpful document. The changes are too many to summarize here, but I have noted some which may impact civil practice the most regularly. They are presented in numerical order. For a table of the new deadlines and due dates, here.
Rule 4.1 Waiver of Service:
Rule 4.1 incorporates the federal waiver of service rule, and without FRCP 4(d)(2)’s penalty provision. I’m uncertain what the rule committee intended, but the lack of penalty would seem to result in a defendant merely taking the full 30 days to delay the matter, refuse to waive service, and force the plaintiff to serve the old fashioned way, costing time and money. I have reached out a member of the committee to get a better understanding of the intention and how practitioners can comply with Rule 4.1(a)(1)(4), which requires that the notice contain a discussion of the consequences of failing to waive service. See the Official Form here.
[1.28.19 EDIT]: On 1.25.19, the Supreme Court issued an amendment to ADKT 522 which addresses this concerns and adds the federal-style penalties into the rule. The amendment also alters the official form. A copy of the Order can be found here.
Rule 4.4 Alternative Service:
Rule 4.4 is modeled after an Arizona rule, allowing the judge maximum flexibility to order service by any means that is likely to result in a defendant being given a reasonable opportunity to respond. It sets out new requirements for a motion to serve by publication and allows the court to designate whether publication should be in Nevada or elsewhere, and even allows for substitute service by social media.
Rule 6 Computing Time:
- The rule adopts FRCP 6(a) and does away with the “business” day verses “calendar” day distinction that used to exist in the NRCP.
- All deadlines are now calculated in calendar days, no matter length of time allowed.
- To compensate, the rules enlarge the time for responding to most items for which the business days calculation used to apply; the court adopted dates in multiples of 7 for ease of figuring the time period given for a response in terms of the number of weeks. Generally, the chart below applies:
|Former amount of time allowed||New amount of time allowed|
|5 days or fewer||7 days|
|6-15 days||14 days|
|16-20 days||21 days|
- Further, the former NRCP rule giving an additional 3 days for service by mail and by electronic means has been altered. For service by mail, the new rule adds 3 days, but no additional time is added for items served by electronic means.
- So if we serve a motion on a Friday with a 7 day response, under the new rule, the opposition is due the next Friday.
Rule 8 Jurisdictional Statement:
Rule 8(a)(1) now requires that complaints contain a FRCP 8(a)(1)-style statement of the court’s jurisdiction to hear the matter. [3.1.19 EDIT]: See the article below for sample jurisdictional statements.
Rule 10 Retention of Roe and Doe Pleading:
The Nevada practice of suing fictitiously-named defendants and amending later once the identity is known is retained in the new rule.
Rule 16.1 Mandatory Disclosures:
- Adds ESI as a category of mandatory disclosure if the party intends to use it to support its claims or defenses, including impeachment.
- The Rule also changes language of Rule 16.1(a)(2) making clear that an expert report must contain “the facts or data considered by the witness in forming” opinions, and not the former “the data or other information considered by the witness”, thus avoiding the argument that drafts and correspondence between an expert and counsel are subject to disclosure.
- Requirement to discuss ESI preservation and trade secret preservation at the 16.1 conference
- Attendance at the Early Case Conference (“ECC”) may be by phone, skype, etc. There is no more requirement that an ECC be held in person.
Rule 26 Federal Proportional discovery:
Rule 26 wholly adopts the Federal standard allowing discovery proportional to the needs of the case, considering the importance of the case, the amount in controversy, the parties’ resources, burden, etc. For more on our obligations under the Rule 26 proportionality standard, see this post
Rule 30 Depositions:
Rule 30 limits the number of depositions to 10 (not counting custodian of record depositions). It also limits depositions to 7 hours on the record. Rule 30 as amended retains the Coyote Springs ruling that the attorney-client privilege does not attach to conversations during a convenience break in a deposition.
Rule 33 Interrogatories:
Rule 33 adopts the federal rule but keeps the number of allowed interrogatories at 40.
Rule 34 Producing Documents:
Rule 34 contains a special carve-out for Electronically Stored Information (“ESI”) to the general requirement that a responding party must designate which documents respond to each document request. The responding party must either specify the records in enough detail to allow the requesting party to locate them by category or organize and label the records to correspond to the requests.
[3.7.19 EDIT]: Boilerplate objections are no longer allowed, as is made clear by the amendments to Rule 34. Rule 34(b)(2)(B) and Rule 33 require that when objecting to a request, one must “state the ground for objecting to the request, with specificity, including the reasons.” Emphasis added. “By creating meaningful disincentives to the use of boilerplate objections, courts are using the Rule 34 amendments to strike at the core of the culture of discovery paranoia that has made boilerplate objections so pervasive.” The Sedona Conference Federal Rule of Civil Procedure 34(b)(2) Primer: Practice Pointers for Responding to Discovery Requests, The Sedona Conference Journal (2018).
Rule 36 Requests for Admission:
Rule 36 allows 40 requests for admission.
Rule 45 Subpoenas:
- A party issuing a subpoena seeking documents, ESI, or tangible things must give all parties 7 days’ notice before serving it on the person to whom it is issued; this notice is designed to give parties an opportunity to object and obtain a protective order if necessary before the subpoena is served.
- One must object and file a motion for protective order for any subpoena to a non-party if the subpoena requires the disclosure of confidential or other protected matters. Otherwise, the subpoena may be served.
- An objection and motion for protective order not based on privilege, confidentiality, or work product, etc., does not automatically stay the service of a subpoena.
- 45(c)(2)(A)(11) requires prompt disclosure to all parties, of all documents produced by a third-party pursuant to a subpoena duces tecum.
Rule 56 Summary Judgment:
- Rule 56 adopts FRCP 56, but retains the “shall” in “[t]he court shall grant summary judgment if the movant show that there is no genuine dispute as to any material fact . . .”
- Former Rule 56(f) is now 56(d) and allows the court discretion in granting the request. The notes make clear that an affidavit is still required for an application even though the rule doesn’t specifically address the same.
Rule 68 Offer of Judgment:
When multiple offers are given, the penalties run from the earliest offer in time that is more favorable than the judgment. This encourages settlement by allowing follow-up offers and allowing penalties from the time of whichever offer is more favorable than the result at trial. The rule abrogates Albios v. Horizon Communities decision regarding the treatment of multiple offers.
How Do I Deal with Conflicts Between EDCR and NRCP?
See this article