This is a guest post from Zia Akhtar – LLB (Lon) LLM (Lon) Grays Inn Phd law Sussex

Introduction

The expertise of litigation lawyers comes equipped with the knowledge of  written pleadings, the responsibilities of the pleader; the form and structure of skeleton argument; relevancy and details;  specification and how much should be specified; pleading facts and not the evidence which is a necessary distinction; the principle of fair notice; the weaker alternative rule; admissions; the incorporation of documents; the test for summary decree; and notes that form basis of preliminary pleas.

In the US the pleadings require  practice- and court-tested state and federal forms, checklists, and timetables needed for every stage of a case. This includes commentary and “how to” guidance, plus statutory and procedural rules references. It also covers notices, complaints, petitions, declarations, summonses, demurrers, answers, counterclaims, cross-complaints, interrogatories, replies, motions, affidavits, stipulations, bills of particulars, subpoenas, orders, writs, jury instructions, findings of fact, judgments, bonds, decrees, etc. These are arranged alphabetically by titles and includes indexes organized by topic and fact word and contains cross-references to other relevant materials.

The States have their own Codes of civil procedure and in discovery the rules mirror that of the Federal Rules of Civil Procedure.  (“FRCP”), and there has been in Nevada there has been recent reform that may be an example to other states.  The State jurisdiction of Nevada has a framework for pleadings from March 2019 that will align with the FRCP and it will discourage extensions of Discovery deadlines and trial continuousness. 

The exchange of information by the parties in the US has an established framework that is based on an American-style discovery system. The information to the court and other parties is provided through sworn answers to interrogatories, sworn testimony at a deposition, or production of all relevant documents, the pleadings provide the necessary information, at substantially less cost in time and money. The pursuers plead in considerable detail their version of facts; the defenders respond in kind and all that is required is complete openness, and both parties will be informed of the other party’s case.

This article considers the pleadings that concern civil litigation, such as in personal injury, or other forms of tort based action. The Nevada State Rule of Civil Procedure Rule (NRCP)16.1 and its scope is discussed at length including the mandatory discovery process. The FRCP is a framework of laws that impact on State laws and Nevada has adopted in its new framework some of its procedures.  The rules that also impact on discovery will be examined in order to evaluate their objective in the civil litigation process.    

1.

Mandatory disclosure of documents   

The relationship between pleading and proof is an art form and this is a fine distinction that has to be revealed at the right time at the trial. In the US the private lawsuits by individuals are the primary means by which the civil law is enforced. The rules favour those who have greater information at the outset of litigation and the early draft of pleadings will provide  the party with the initiative in the proceedings at court.

There is  mandatory discovery process in a Nevada personal injury case and it is covered by the Nevada Rules of Civil Procedure rule 16.1 that requires certain disclosures from both parties. This is part of the  compulsory pretrial discovery process and there are several categories of information that need to be disclosed under the stipulated discovery process in the State.  

The types of required discovery include witnessesand the names need to be stated ofevery person in the trial who may have information about the case.  Their details have to be disclosed even if the witness is not favourable and the rule requires a copy and a description of documents and other tangible items that are in the possession or control of the claimant. It does not matter whether they intend to use the exhibit at trial or not. Rule 16.1(a)(1)(B) requires the provision of copies of any discoverable items under rule 26(b).

There must be documentation of the computation of damages and how this amount was arrived at by the claimant. It’s also mandatory to include supporting documentation that will provide any further information to support the compensation claim. If there is an insurance policy that is relevant to the case then the other party should receive a copy ,for example, a car insurance policy may be relevant to a car accident claim needs production. If the party is using an expert witness in the case, there are special disclosure requirements and the expert must create a summary of their opinion. They must provide biographical information such as their qualifications, the remuneration and publications they have authored in the last ten years and a list of other cases they have worked on in the previous four years.

To make a rule 16.1 disclosure, the pleadings must be formally served to the other side with the documents and posted first-class mail to the party or their attorney by. There are other ways to provide service that are listed in NRCP rule 5.  The party must also prepare a document for the court called a proof of service which verifies and creates a record and certification that that the mandatory disclosures have been completed.  

2.

New rules for discovery

The NRCP Committee have devised new rules of Civil Procedure that have a framework which will expedite Discovery and prevent open ended trials. The new rules incorporate principles from the FRCP. These were first adopted by order of the Supreme Court on December 20, 1937, transmitted to Congress on January 3, 1938, and effective September 16, 1938. These were amended in 1  December 2018 and they govern civil proceedings in the United States district courts. Their purpose is “to secure the just, speedy, and inexpensive determination of every action and proceeding.” (FRCP. Part 1) The disclosure and discovery process is set out in Title V and covers Rules 26 – Rule 34.

The NRCP  reforms in since March 2019 have made substantial changes to the discovery process. The Nevada Supreme Court’s Nevada Rules of Civil Procedure Committee  completed an exhaustive review resulting in changes to the NRCP, the Nevada Rules of Appellate Procedure (NRAP), and the Nevada Electronic Filing and Conversion Rules (NEFCR). These new rules take precedence over all local rules or district court rules and has gone into effect and its purpose is to integrate the FRCP and to impose deadlines for  conclusion of court cases within reasonable times.

The changes provide a waiver of service; alternative service; computing time; jurisdictional statement; retention of Roes and Does pleading: mandatorydisclosures:Federal Proportional discovery; depositions; interrogatories; producing documents; subpoenas; and summary judgment; and offers of judgment.

The most important provisions are in Rule 4.4 that 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 8(a)(1) now requires that complaints contain a FRCP 8(a)(1)-style statement of the court’s jurisdiction to hear the matter. Rule 10 retains the litigants practice in Nevada of suing fictitiously-named defendants and amending later once the identity is known in the case. The Rule 16 (1) is amended by the addition of an Attendance at the Early Case Conference (“ECC”) note that may be by phone, skype, etc . This is now becomes a category of mandatory disclosure if the party intends to use it to support its claims or defenses, including impeachment. The Rule also changes text of Rule 16.1(a)(2) by 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.

Rule 26 is on proportionality and wholly adopts the Federal standard allowing discovery proportional to the needs of the case, considering its importance, the amount in dispute and the parties’ resources, burden, etc.  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. 

The Rule as amended preserves the Coyote Springs Inv LLC v 8 th Judicial District Court ruling in the Supreme Court of Nevada (2015( 64623) that the attorney-client privilege would not be covered by a private conference during recess where the law firm did not make a prompt sufficient record of the meeting and therefore privilege will not attach to such deliberations.

Rule 56 on Summary Judgment adopts FRCP 56 on motion for judgment or potential summary judgment, but retains the “shall” in “[t]he court shall grant summary judgment if the movant (the litigant who applies to or petitions a judge for a ruling in their favour) show that there is no genuine dispute as to any material fact . . .”. However, former Rule 56(f) is now 56(d) that 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 does not specifically address the same.

Conclusion

The NRCP that have been implemented by the Supreme Court of Nevada will require the modification of the standard text in the briefs from clients, reform of the calendaring system because of deadlines and revaluation of the discovery and settlement strategies. The exhaustive changes largely duplicate the FRCP while retaining the Nevada centric provisions. The court has made minor changes to most of the rules while overhauling some of the other rules in the discovery process.