Supreme Court Amends NRCP 30 & 34

On December 19, 2013 the Supreme Court of Nevada issued an order amending NRCP 30 and 34. These amendments take effect March 1, 2014. This order in ADKT 0487 partially disposes of a multitude of proposed changes to Nevada’s discovery rules. ADKT 0487 remains open, meaning other changes are still possible in the future.

Changes to NRCP 30

The amendments to NRCP 30 are limited to subsection (d). It presently reads:

(d) Motion to Terminate or Limit Examination.
(1) Any objection during a deposition shall be stated concisely and in a nonargumentative and nonsuggestive manner. A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion under paragraph (3).
(2) If the court or discovery commissioner finds that any impediment, delay, or other conduct has frustrated the fair examination of the deponent, it may impose upon the persons responsible an appropriate sanction, including the reasonable costs and attorney’s fees incurred by any parties as a result thereof.
(3) At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the court in the district where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in Rule 26(c). If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion

As of March 1, 2014 it will read as follows:

(d) Duration; Sanction; Motion to Terminate or Limit
(1) Duration.
Unless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours. The court or discovery commissioner must allow additional time consistent with Rule 26(b)(2) if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination. Instructing a deponent not to answer shall only be allowed when necessary to preserve a privilege, to enforce a limitation directed by the court, or to file a motion under paragraph (3).
(2) Sanction. The court may impose an appropriate sanction – including the reasonable expenses and attorney’s fees incurred by any party – on a person who impedes, delays, or frustrates the fair examination of the deponent.
(3) Motion to Terminate or Limit.
(A) Ground and Procedure.
At any time during a deposition, the deponent or a party may move to terminate or limit it on the grounds that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. The motion may be filed in the court where the action is pending or, if the action is pending out of the state, where the deposition is taken. If the objecting deponent or party so demands, the deposition must be suspended for the time necessary to obtain an order.
(B) Order. The court may order that the deposition be terminated or may limit its scope and manner as provided in Rule 26(c). If terminated, the deposition may be resumed only by order of the court where the action is pending.
(C) Award of Expenses. Rule 37(a)(4) applies to the award of expenses incurred in relation to the motion.

Other than reorganizing the rule to virtually match FRCP 30(d), there are two substantive changes. The first is Nevada’s adoption of a limit to the duration of depositions. This limit is mirrors the current federal limit. I anticipate for the majority of Nevada lawyers, this change should have little impact upon your practice. If you cannot complete the majority of depositions in less than seven hours then something is very wrong. The rule also provides that the parties may stipulate to waive the limit or the court may order it waived for a particular case. I suspect for highly complex cases like the Venetian and CityCenter lien litigation, waiver would occur.

During the public comment period, I heard one particular concern about the duration limit from a lawyer who primarily litigates in federal court under a similar limit. She noted certain deponents were aware of the time limit and attempted to drag the deposition out so as to limit questioning. My response was if that happens bring a motion, but remember a transcript may not show that the deponent twiddled his thumbs for 45 seconds before answering each question unless the court reporter adds time stamps. Video depositions may be necessary if you believe this will become an issue.

The second change is a deletion that I argued against. NRCP 30(d) no longer requires that “[a]ny objection during a deposition shall be stated concisely and in a nonargumentative and nonsuggestive manner.” This deletion was necessary to make NRCP 30(d) match FRCP 30(d). In federal court, however, the language still appears in FRCP 30(c)(2). ADKT 0487 did not amend NRCP 30(c), so this language has simply been deleted.

I argued against deleting this objection language because case reporters are overrun by decisions documenting improper objections and how they impede fair questioning. This blog is full of posts on that very topic and there are plenty of lawyers locally who already ignore this rule. I lost this argument, so what does this deletion mean?

I suspect there will be a number of attorneys locally who will interpret this deletion to mean they can object however they want at depositions and generally create havoc. Alarmists may claim the Supreme Court of Nevada has opened the floodgates to rampant, improper deposition objections. I believe this literal reading of the deletion is overly simplistic.

Again, there is overwhelming authority as to what is and is not an appropriate manner to object during a deposition. I suspect NRCP 30(d)(2) will be interpreted as the catch-all provision to regulate objections. The theme that ties together case law concerning deposition objections is that improper objections impede, delay, and/or frustrate the fair examination of the deponent. This impede, delay or frustrate language is still located in NRCP 30(d)(1) and (2). As already noted in prior posts, improper objections that impede the examination are basis to terminate the deposition and move for an order, such as contemplated by NRCP 30(d)(3)(A).

In summary, there are some that might argue this deletion is substantive. I believe it is meaningless and that those who wish to test this theory run the risk of significant sanctions if they are wrong.

Changes to NRCP 34

With two minor exceptions, the Supreme Court simply amended NRCP 34 to conform with FRCP 34. This means Nevada will now handle e-discovery in the same manner as federal courts are currently operating; for better or worse.

The second difference concerns objections. FRCP 34(b)(2)(C) states only that “[a]n objection to part of a request must specify the part and permit inspection of the rest. The new NRCP 34(b)(2)(C) states “[a]n objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.” I appreciate the Supreme Court’s modification as frequently I receive objections but no information as to whether documents responsive to the request exist but are being withheld.

The final difference is that NRCP 34 retained subsection (d) concerning the expenses of copying. FRCP 34 does not currently contain an equivalent provision.