Civil Bench Bar meetings are a great place for attorneys to learn tips to tighten up their practice. The next Civil Bench-Bar is Sept. 12 at noon in courtroom 10D with great information on how to tap the potential of settlement conferences and overflow, plus other useful topics and Nevada Supreme Court case summaries.
At the August Civil Bench Bar meeting, Discovery Commissioner Bulla offered up some useful tips in preparing for the early case conference and finalizing the case conference report, and engaging in the discovery process.
Her top 10 tips include the following:
1 Discuss at the early case conference how the parties will exchange or distribute electronic discovery.
The parties should take the time to develop search terms for electronically stored information (ESI). Protocols should also be developed to exchange or distribute the information. Such protocols should be included in the case conference report. The parties can also prepare a separate stipulation setting forth ESI protocols. At a minimum, how the parties will handle or exchange the distribution of electronic discovery should be discussed at the early case conference.
Discussion should include a potential stipulation for a claw-back provision, especially if the parties expect they will be exchanging a significant amount of ESI. With a claw-back provision, if the parties inadvertently disclose documents, they can be returned to a party who inadvertently disclosed them. Under state law, Nevada currently does not have a claw-back provision. If the parties decide to have a claw-back provision, the stipulation to the provision should be included in the joint case-conference report.
Deposition issues should be discussed during the early case conference. Discuss the location and timing of depositions. If a deposition is going to take more than one day (seven hours), the parties must stipulate to that. The parties should also discuss alternative methods of taking depositions. Alternative methods may provide an economical or logistical solution for an out-of-state or foreign deposition. Make it clear if depositions will be taken by videoconference, telephone (if appropriate) or Skype. Alternative methods may not always be appropriate, especially if there are a number of documents that have to be discussed.
Proportionality is another important topic. The number of depositions that you need to take in a case should be discussed during the early case conference. Depositions that support claims or defenses should be the focus of your discovery efforts.
Damages should be discussed, particularly special damages. The Plaintiff should define and provide a calculation of special damages (a computation of damages should be provided such as but not limited to medical bills, repair bills – ref: 133 Nevada Supreme Court Advanced Opinion 37 issued June 22, 2017, Pizarro-Ortega vs. Cervantes-Lopez). If the case involves punitive damages, the attorneys should also discuss engaging in early discovery on the punitive claim.
Rule 45 should be discussed. Rule 45 must be used to subpoena witnesses who are not part of the litigation and to obtain documents. If a deposition of prisoner must be taken, a motion is required. A court order for a prisoner’s deposition must be obtained, even if all parties agree.
Have meaningful 2.34 conferences on every discovery dispute before it is brought to the court’s attention. Attorneys are required to have a discussion on disputed issues in person or on the phone. Attorneys cannot rely on staff to have the 2.34 conference.
The timing of expert disclosures should be discussed. Each attorney should have an idea as to whether an initial expert, a rebuttal expert or both will be necessary. There is a simple test for determining whether an expert should be disclosed as an initial expert: If you need to call an expert witness in your case in chief to support your case – this is an initial expert witness and must disclosed as one.
If you’re moving to extend your discovery deadlines that will result in a trial date change, the stipulation must go to the judge. If you are submitting a motion to move the trial date, that motion has to go to the judge. If a motion or stipulation to extend discovery doesn’t impact the trial date, the Discovery Commissioner will hear the motion or review the stipulation.
Provide courtesy copies of motions and exhibits to Discovery. Original signatures are required on both the Report and Recommendations and stipulations. Only originals of Report and Recommendations and stipulations should be submitted to Discovery, copies are unnecessary.
Don’t wait six months to bring a discovery dispute to the attention of the Discovery Commissioner. Timely present your disputes. Make efforts to reduce your disputes to a manageable number by having a meaningful 2.34 conference before filing a motion.