Introduction

Nebraska attorneys involved in civil litigation were given a new tool for discovery on December 12, 2001, with the prmulgation of new Discovery Rule 34A as adopted by the Nebraska Supreme Court. Under this new rule a formal procedure now exists to obtain nonparty premises without the use of a deposition.
Prior to the adoption of Rule 34A, the only formal means, and thus the only legally enforceable means, of obtaining documents from a nonparty was a Rule 30 oral deposition requiring a witness to appear before a certified court reporter to produce the desired records for inspection and copying.
Due to the expense and formality of a Rule 30 oral deposition, an informal but not legally enforceable method of obtaining records from nonparties was developed over the past several years through the informal consent of the practicing bar. The basis for the procedure was basically an informal agreement to do so among the members of the practicing bar in reliance on Rule 29 that the parties could by stipulation agree to "any manner" for the taking of depositions. The usual procedure was to send out a notice to take recordsdeposition with a subpoena issued by a notary advising the producing witness they could mail in the requested records. Relying on the notice requirements of Rule 30(b) the informal procedure implicitly relied on the issuing attorney providing notice of the subpoena to opposing counsel and an opportunity to request a copy of the documents produced.
The increasingly widespread use of this informal system and certain abuses associated with it led to the study and consideration by the Supreme Court Committee on Practice and Procedure of a totally new rule that would permit civil litigants to formally obtain nonparty documents or inspections without a deposition while protecting the rights of the opposing party and producing witnesses to notice and an opportunity to object in particular some litigants were obtaining records through a subpoena or notice to take records deposition issued by a notary public working at the law firm without providing notice to the oppsoing party, even in some circumstances doing so without a lawsuit having been filed.

The Proposed Solution

The Supreme Court Committee on Practice and Procedure initially considered a draft rule prepared by the Committee Reporter, UNL Professor Roger W. Kirst. After discussion, review and revision the Committee prepared a recommended rule change for the Court's consideration. The Supreme Court published the proposed Rule in the advance sheets and in the September 2001 issue of The Nebraska Lawyer inviting comments no later than September 24, 2001. As a result of public comment the final rule as adopted effective December 12, 2001, shortens the notice periods from 14 days to 10 days reflecting the desire of the practicing bar for a more time efficient procedure.
The Committee recognized that the Legislature has delegated the making of rules of procedure for discovery in civil cases to the Supreme Court (25-1273.01 Neb.Rev.Stat.LB716, Laws 1981), but has reserved the provisions regarding issuance and service of subpoenas to the Legislature and statutory enactment (i.e. 25-1223-228 Neb.Rev.Stat.). The approach of the Committee was to work within that existing framework.
Thus, the first step was the enactment of 25-1273 (LB489, Laws 2001), which provides that when the discovery rules promulgated by the Supreme Court authorize discovery from a nonparty without a deposition, a supboena may be issued by the clerk of the court or by an attorney as an officer of the court issuing such subpoena on behalf of the court. Then, the second half of the procedure proposed by the Committee was Discovery Rule 34A, wherein the Supreme Court adopted a discovery rule providing for the production o documents and inspection of premises from a nonparty through a subpoena issued either by the clerk of the court or by the attorney involved in the action.
Rule 34A is the result of this process. It provides a simplified yet orderly procedure to obtain documents or inspection of premises from a nonparty through a subpoena issued by counsel, while affording both the opposing party and the producing entity a reasonable opportunity for notice and the opportunity to object to any subpoena deemed outside the proper scope of discovery.

How Rule 34A Works

Any party may now subpoena records without a deposition. this may include requiring the production for inspection and copying of designated books, papers, documents, or tangible things such a swritings, drawings, graphs, charts, photogaphs, phono-records, and other data compilations from which information can be obtained, so long as all such requested items are within the general scope of discovery set forth in Rule 26 (b), Rule 34A (a) (1) (A).

The procedure is to serve a written notice to every other party to the action at least 10 days before the subpoena will be issued. the notice must state the name and address of the person who will be subpoenaed, the time and place for production or inspection, and a notice that the subpoena will be issued on or after a stated date. A designation of the materials sought to be produced must be attached to or included in the notice. Rule 34A (a) (2).

The purpose of this notice is to give opposing counsel the opportunity to object to the requested subpoena, which he or she may do by filing an objection within the 10-day period before the subpoena is issued. The objection shall specifically identify the portion of the records request that is objectionable. The only available grounds for an objection are an applicable privilege, that not within the scope of discovery, or that the request would be unreasonably intrusive or oppressive to the party. A subpoena can still be issued for items not objected to pending hearing and court ruling on the objected portion. Another basis for objection is the method or means by which particular documents or things are to be delivered or the method for delivery of copies. Rule 34A (b) (1). It then is up to the party who issued the NOtice to apply to the Court for an Order allowing the subpoena to be issued. Rule 34A (b) (2).

After a subpoena has been issued, any party may move for a protective order under Rule 26 (c), Rule 34A (b) (3).

Once the ten days expire without objection or the court has ruled on any objection, the requesting party can then issue the subpoena to the entity or individual upon whom the subpoena is to be served. A significant change under Rule 34 is that the subpoena for records may be issued by either the Clerk of the Court, "or by an attorney authorized to do so by statute." Neither Court Reporeters nor Notary Publics issue the new Rule 34A subpoenas. Rule 34A (a) (3) and 25-1273 Neb.Rev.Stat. (Reissue 2001).

The subpoena must contain or be accompanied with a copy of Rule 34A. It must identify all parties who were given prior notice that the subpoena would be issued and must also state the date upon which each of them was given notice. Rule 34A (a) (3). The subpoena shall be served either personally by any person not interested in the action or by Registered or Certified Mail. In either event, the subpoenamust be served not less than ten days before the time specified for compliance. Return of Service is required. Rule 34A (a) (4).

The purpose of the ten-day minimum response time is that the person served with the subpoena may, within ten days after service of the subpoena, serve upon the issuing partya written objection. Rule 34A (c) (2) (B). If an objection is made, the issuing party is not entitled to inspect or receive copies of the materials or inspect the premises except pursuant to an Order of the Court after Notice and Hearing requested by the issuing party Rule 34A (c) (2) (B). The witness or entity subpoenaed may condition the preparation of any copies on the advanced payment of the reasonable cost of copying them. Rule 34A (c) (2) (A).

An entity or individual objecting to production or inspection pursuant to an issued subpoena must specifically state the basis on which the objection is made. Allowable grounds are limited to privilege, not ithin the scope of discovery, or otherwise protected from discovery. The objection must be supported by description of the nature of the documents, communications, or things not produced that is sufficient to enable the party who requested the subpoena to contest the objection. Rule 34A (d) (2).

Practice Considerations

Rule 34A covers both the protection of documents as well as the inspection of premises. Such inspection may be for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon. Rule 34A (a) (1) (B). This greatly expands the ability to inspect premises, which previously was limited to a premise under the control of the opposing party pursuant to a Rule 34A request for entry upon land for inspection.

Rule 34A unequivocally provides that it may only be invoked once a lawsuit is filed. Specifically,a lawsuit must be on file because Rule 34A (a) (2) provides that a party other than a Plaintiff may serve a Notice at any time, but a Plaintiff cannot serve a Rule 34A Notice until the time at which Rule 30 (a) would permit Plaintiff to take a deposition. This provision apears to eliminate any argument that an attorney can issue a subpoena for records upon a non-party prior to the filing of a lawsuit or without notice to the adverse party.

The Rule does not address who the "Adverse Party" is when there is no clear adverse party, such as in an estate processing. The requested party is required to make copies available at the request of any other party upon advance payment of the reasonable cost of making the copies, Rule 34A (e) (1). Similarly, in the case of a requested inspection of premises, the opposing party may request to be present to attend at the same time and place. Rule 34A (3) (2). The parties are also required to take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. Rule 34A (c) (1).

Sample Forms

The Supreme Court has now prescribed the exclusive method of obtaining records and inspections from nonparty witnesses without a deposition. It follows that everyone who has been using the old informal system of records depositions by certified mail is going to have to develop new forms to fit Rule 34A.

Therefore, to assist the practicing bar, sample forms are offered herewith to assist in the process. Anyone wishing an electronic version may request it at schneiderlaw@teknetwork.com where my legal assistant, Jan, will be happy to forward our forms to you by e-mail.

Accompanying this article is a Rule 34A 10-day Notice of Intent to Issue Subpoena.

Also accompanying this article is a sample Rule 34A subpoena requesting medical records. Our office uses the same format but different wording for a work record subpoena, a school record subpoena, and a general "Other records" subpoena.

This article does not repeat a copy of Rule 34A. In order to insure tha ll of our subpoenas contain the required verbatim copy of Rule 34A, we downloaded the rule from the Internet and pasted it into our stock subpoena forms. With appropriate font manipulation we reduced the entire rule and a copy of the statute to two pages.

Given the brod language of Rule 29 allowing parties to mutually agree to discovery procedures, our office also prepared a waiver allowing both sides to agree to waive the 19-day notice requirement. So far, all opposing attorneys to whom we have presented it have accepted this waiver proposal.

Due to the novelty of Rule 34A, we also prepared a cover letter to accompany our Rule 34A subpoenas explaining in lay terms what is going on. We feel this personal touch has assisted us in getting a favorable resposne to our Rule 34A subpoenas.

Finally, be aware that the filing rules have been changed. At the same time that Rule 34A was adopted, the Supreme Court also adopted a nearly completely rewritten Rule 26 (g) regarding the filing of discovery materials. The newly revised Rule 26 (g) now provides that discovery materials that do not require action by the Court shall not be filed with the Court. The rule goes on to clarify this means any type of notice or request or certificate of any kind including subpoenas and returns of service. Instead, these materials "shall be maintained by the parties." Lawyers take heed!!!

Conclusion

The Supreme Court has now provided a standardized formal method to obtain records for premises inspection from nonparties. Hopefully, the civil litigation bar will embrace this new rule to the mutual benefit of all litigants.

"Court reporters have no role in the issuance of 34A subpoenas. If asked to do a record subpoena, a court reporter should still operate under Rule 30 where a copy of the notice for deposition is required and the deponent is subpoenaed for a records deposition. The freelancers were totally confused on the interpretation of the new Rule 34A. Thanks, Sue Wurm"

DISCOVERY RULE 34A
Obtaining Non-party Documents and Inspections Without a Deposition
By Donald D. Schneider
Reprinted from The Nebraska Lawyer April 2002
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