Re-Writing Nevada’s Rules of Civil Procedure, Part 6: Cleaning Up Other Rules

There are three other clarifications to the discovery rules I propose, one addition, and one clarification for a trial rule.

The rebuttal expert disclosure deadline.
Locally the working presumption is that rebuttal expert witness disclosures are due by the deadline established in the discovery scheduling order.  Not so.  I may be the only one to notice this, but NRCP 16.1(a)(2)(c)(ii) states “the disclosures shall be made within 30 days after the disclosure made by the other party.”  In other words, if a party discloses an initial expert early, then the deadline to disclose a rebuttal expert is 30 days later and waiting to the deadline in the scheduling order may cause the rebuttal expert to be excluded.

Perhaps NRCP 16.1(a)(2)(c)(ii) should read the disclosures shall be made within 30 days after the disclosure made by the other party the initial expert disclosure deadline.”

NRCP 16.1(a)(3) disclosures.
There are some lawyers who attempt to combine NRCP 16.1(a)(1), (a)(2), and (a)(3) disclosures all into one document by titling the document as a disclosure per all three rules.  This is supremely annoying because each rule has a different scope and purpose.  The point of an (a)(3) disclosure is to identify likely trial witnesses and documents.  Combining an (a)(1) disclosure of everything in the known world with an (a)(3) disclosure only unnecessarily adds documentation to the trial binders and forces the opposing parties to incur unnecessary fees.

NRCP 16.1(a)(3) could read:  In addition to the disclosures required by Rule 16.1(a)(1) and (2), a party must provide to other parties, no sooner than the close of discovery, the following information regarding the evidence that it may present at trial, including impeachment and rebuttal evidence:

I also propose revising NRCP 16.1(a)(3)(B).  It presently requires a “designation of those witnesses whose testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony.”  However, in practical terms this rule requires a party to only list who the witness is.  There is no obligation to provide page/line designations so the opposing parties may evaluate objections and potential counter-designations.  NRCP 16.1(a)(3)(B) could be revised to require a “designation of those witnesses whose testimony is expected to be presented by means of a deposition, page and line designations of the anticipated testimony, and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony.”

Information in the Joint Case Conference Report
I also propose revising some of the required information for a case conference report.  NRCP 16.1(c)(3) requires the report to include a “written list of names exchanged pursuant to subdivision (a)(1)(A) of this rule” and (4) requires a “written list of all documents provided at or as a result of the case conference pursuant to subdivision (a)(1)(B) of this rule.”  Why is this information necessary?  It seems to have no impact whatsoever on the subsequent discovery scheduling order.  If it has no substantive meaning, delete it.

Disclosing Third-Party Litigation Funding
I have lost track of the number of “settlement anticipation” loans that I have come across.  These loans are typically for small amounts but at at least 40% interest.  Even a small loan at that rate can become a large loan very quickly and drastically affect the settlement process.  I have had settlements derailed because of the loans.  So I propose disclosing them under NRCP 16.1(a)(1).  By disclosing their existence, it advances a goal similar to a computation of damages in that it allows defendants to assess their potential exposure and impediments to resolution.  Additional rationale for the change is described in a proposal submitted to the federal courts too.

(E) for inspection and copying as under Rule 34, any agreement under which any person, other than an attorney permitted to charge a contingent fee representing a party, has a right to receive compensation that is contingent on, and sourced from, any proceeds of the civil action, by settlement, judgment or otherwise.

Interpreters
The 2017 Nevada Legislature made changes to the requirements for interpreters. This may effect Rule 43(d).