NRCP 26

General Provisions Governing Discovery

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Rule 26. General Provisions Governing Discovery

 (a) Discovery Methods. At any
time after the filing of a joint case conference report, or not sooner than 14
days after a party has filed a separate case conference report, or upon order
by the court or discovery commissioner, any party who has complied with Rule
16.1(a)(1), 16.2, or 16.205 may obtain discovery by any means permitted by
these rules.

 (b) Discovery Scope and Limits.

 (1) Scope. Unless
otherwise limited by order of the court in accordance with these rules, the
scope of discovery is as follows: Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claims or defenses and
proportional to the needs of the case, considering the importance of the issues
at stake in the action, the amount in controversy, the parties’ relative access
to relevant information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit. Information within this scope of
discovery need not be admissible in evidence to be discoverable.

 (2) Limitations.

 (A) Frequency. The
court may alter the limits in these rules on the number of depositions and
interrogatories, the length of depositions under Rule 30, or the number of
requests under Rule 36.

 (B) Electronically Stored
Information. A party need not provide discovery of
electronically stored information from sources that the party identifies as not
reasonably accessible because of undue burden or cost. On motion to compel
discovery or for a protective order, the party from whom discovery is sought
must show that the information is not reasonably accessible because of undue
burden or cost. If that showing is made, the court may nonetheless order
discovery from such sources if the requesting party shows good cause,
considering the limitations of Rule 26(b)(2)(C). The court may specify
conditions for the discovery, including costs of complying with the court’s
order.

 (C) When Required. On
motion or on its own, the court must limit the frequency or extent of discovery
otherwise allowed by these rules or by local rule if it determines that:

 (i) the discovery
sought is unreasonably cumulative or duplicative, or can be obtained from some
other source that is more convenient, less burdensome, or less expensive;

 (ii) the party seeking
discovery has had ample opportunity to obtain the information by discovery in
the action; or

 (iii) the proposed
discovery is outside the scope permitted by Rule 26(b)(1).

 (3) Trial Preparation: Materials.

 (A) Documents and Tangible
Things. Ordinarily, a party may not discover documents and
tangible things that are prepared in anticipation of litigation or for trial by
or for another party or its representative (including the other party’s
attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to
Rule 26(b)(4), those materials may be discovered if:

 (i) they are otherwise
discoverable under Rule 26(b)(1); and

 (ii) the party shows
that it has substantial need for the materials to prepare its case and cannot,
without undue hardship, obtain their substantial equivalent by other means.

 (B) Protection Against
Disclosure. If the court orders discovery of those materials,
it must protect against disclosure of the mental impressions, conclusions,
opinions, or legal theories of a party’s attorney or other representative
concerning the litigation.

 (C) Previous Statement. Any
party or other person may, on request and without the required showing, obtain
the person’s own previous statement about the action or its subject matter. If
the request is refused, the person may move for a court order, and Rule
37(a)(5) applies to the award of expenses. A previous statement is either:

 (i) a written statement
that the person has signed or otherwise adopted or approved; or

 (ii) a contemporaneous
stenographic, mechanical, electrical, or other recording—or a transcription of
it—that recites substantially verbatim the person’s oral statement.

 (4) Trial Preparation: Experts.

 (A) Deposition of an Expert Who
May Testify. A party may depose any person who has been
identified as an expert whose opinions may be presented at trial. If a report
from the expert is required under Rule 16.1(a)(2)(B), 16.2(e)(3), or
16.205(e)(3), the deposition may not be conducted until after the report is
provided.

 (B) Trial-Preparation Protection
for Draft Reports or Disclosures. Rule 26(b)(3) protects
drafts of any report or disclosure required under Rule 16.1(a), 16.2(d) or (e),
16.205(d) or (e), or 26(b)(1), regardless of the form in which the draft is
recorded.

 (C) Trial-Preparation Protection
for Communications Between a Party’s Attorney and Expert Witnesses. Rule
26(b)(3) protects communications between the party’s attorney and any witness
required to provide a report under Rule 16.1(a), 16.2(d) or (e), or 16.205(d)
or (e), regardless of the form of the communications, except to the extent that
the communications:

 (i) relate to
compensation for the expert’s study or testimony;

 (ii) identify facts or
data that the party’s attorney provided and that the expert considered in
forming the opinions to be expressed; or

 (iii) identify
assumptions that the party’s attorney provided and that the expert relied on in
forming the opinions to be expressed.

 (D) Expert Employed Only for
Trial Preparation. Ordinarily, a party may not, by
interrogatories or deposition, discover facts known or opinions held by an
expert who has been retained or specially employed by another party in
anticipation of litigation or to prepare for trial and who is not expected to
be called as a witness at trial. But a party may do so only:

 (i) as provided in Rule
35(b); or

 (ii) on showing
exceptional circumstances under which it is impracticable for the party to
obtain facts or opinions on the same subject by other means.

 (5) Claiming Privilege or Protecting
Trial Preparation Materials.

 (A) Information Withheld. When
a party withholds information otherwise discoverable by claiming that the
information is privileged or subject to protection as trial-preparation
material, the party must:

 (i) expressly make the
claim; and

 (ii) describe the
nature of the documents, communications, or tangible things not produced or
disclosed—and do so in a manner that, without revealing information itself
privileged or protected, will enable other parties to assess the claim.

 (B) Information Produced. If
information produced in discovery is subject to a claim of privilege or of
protection as trial-preparation material, the party making the claim may notify
any party that received the information of the claim and the basis for it.
After being notified, a party must promptly return, sequester, or destroy the
specified information and any copies it has; must not use or disclose the
information until the claim is resolved; must take reasonable steps to retrieve
the information if the party disclosed it before being notified; and may
promptly present the information to the court under seal for a determination of
the claim. The producing party must preserve the information until the claim is
resolved.

 (c) Protective Orders.

 (1) In General. A
party or any person from whom discovery is sought may move for a protective
order in the court where the action is pending—or as an alternative on matters
relating to an out-of-state deposition, in the court for the judicial district
where the deposition will be taken. The motion must include a certification
that the movant has in good faith conferred or attempted to confer with other
affected parties in an effort to resolve the dispute without court action. The
court may, for good cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense, including one
or more of the following:

 (A) forbidding the disclosure or
discovery;

 (B) specifying terms, including time
and place or the allocation of expenses, for the disclosure or discovery;

 (C) prescribing a discovery method other
than the one selected by the party seeking discovery;

 (D) forbidding inquiry into certain
matters, or limiting the scope of disclosure or discovery to certain matters;

 (E) designating the persons who may
be present while the discovery is conducted;

 (F) requiring that a deposition be
sealed and opened only on court order;

 (G) requiring that a trade secret or
other confidential research, development, or commercial information not be
revealed or be revealed only in a specified way; and

 (H) requiring that the parties
simultaneously file specified documents or information in sealed envelopes, to
be opened as the court directs.

 (2) Ordering Discovery. If
a motion for a protective order is wholly or partially denied, the court may,
on just terms, order that any party or person provide or permit discovery.

 (3) Awarding Expenses. Rule
37(a)(5) applies to the award of expenses.

 (d) Sequence of Discovery. Unless
the parties stipulate or the court orders otherwise for the parties’ and
witnesses’ convenience and in the interests of justice:

 (1) methods of discovery may be used in
any sequence; and

 (2) discovery by one party does not
require any other party to delay its discovery.

 (e) Supplementing Disclosures and Responses.

 (1) In General. A
party who has made a disclosure under Rule 16.1, 16.2, or 16.205—or responded
to a request for discovery with a disclosure or response—is under a duty to
timely supplement or correct the disclosure or response to include information
thereafter acquired if the party learns that in some material respect the
information disclosed is incomplete or incorrect and if the additional or
corrective information has not otherwise been made known to the other parties
during the discovery process or in writing.

 (2) Expert Witness. With
respect to testimony of an expert from whom a report is required under Rule
16.1(a)(2)(B), 16.2(e)(3), or 16.205(e)(3), the duty extends both to
information contained in the report and to information provided through a
deposition of the expert. Any additions or other changes to this information
must be disclosed by the time the party’s disclosures under Rule 16.1(a)(3),
16.2(f), or 16.205(f) are due.

 (f) Form of Responses. Answers
and objections to interrogatories or requests for production must identify and
quote each interrogatory or request for production in full immediately
preceding the statement of any answer or objections thereto. Answers, denials,
and objections to requests for admission must identify and quote each request
for admission in full immediately preceding the statement of any answer,
denial, or objection thereto.

 (g) Signing of Disclosures, Discovery
Requests, Responses, and Objections.

 (1) Signature Required; Effect of
Signature. Every disclosure and report made under Rules 16.1,
16.2, and 16.205, other than reports prepared and signed by an expert witness,
and every discovery request, response, or objection must be signed by at least
one attorney of record in the attorney’s own name—or by the party personally,
if self-represented—and must, when available, state the signer’s physical and
email addresses, and telephone number. By signing, an attorney or party
certifies that to the best of the person’s knowledge, information, and belief
formed after a reasonable inquiry:

 (A) with respect to a disclosure, it
is complete and correct as of the time it is made; and

 (B) with respect to a discovery
request, response, or objection, it is:

 (i) consistent with
these rules and warranted by existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing law, or for establishing new law;

 (ii) not interposed for
any improper purpose, such as to harass, cause unnecessary delay, or needlessly
increase the cost of litigation; and

 (iii) neither unreasonable
nor unduly burdensome or expensive, considering the needs of the case, prior
discovery in the case, the amount in controversy, and the importance of the
issues at stake in the action.

 (2) Failure to Sign. Other
parties have no duty to act on an unsigned disclosure, request, response, or
objection until it is signed, and the court must strike it unless a signature
is promptly supplied after the omission is called to the attorney’s or party’s attention.

 (3) Sanction for Improper Certification. If
a certification violates this rule without substantial justification, the
court, on motion or on its own, must impose an appropriate sanction on the
signer, the party on whose behalf the signer was acting, or both. The sanction
may include an order to pay the reasonable expenses, including attorney fees,
caused by the violation.

 (h) Demand for Prior Discovery. If
a party makes a written demand for disclosures or discovery that took place
before the demanding party became a party to the action, whether under Rule
16.1 or 26, each party who has previously made disclosures or responded to a
request for admission or production or answered interrogatories must make
available to the demanding party each document in which the disclosures and
responses to discovery are contained for inspection and copying, or furnish the
demanding party a list identifying each such document by title. Upon further
demand from the demanding party, at the expense of the demanding party, the
recipient of such demand must furnish a copy of any listed discovery disclosure
or response specified in the demand or, in the case of document disclosure or
request for production, must make available for inspection by the demanding
party all documents and things previously produced. Further, each party who has
taken a deposition must make a copy of the transcript available to the
demanding party at its expense.

 [Amended; effective March 1, 2019.]

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