On December 12, 2001, the Nebraska Supreme Court adopted the following rule amendments to Neb. Ct. R. of Discovery:
NEBRASKA DISCOVERY RULES FOR ALL CIVIL CASES
Rule 26. General Provisions Governing Discovery.
(g) Filing of Discovery Materials. Discovery materials that do not require action by the court shall not be filed with the court. All such materials, including notices of deposition, depositions, certificates of filing a deposition, interrogatories, answers and objections to interrogatories, requests for documents or to permit entry upon land and responses or objections to such requests, requests for admissions and responses or objections to such requests, subpoenas for depositions or other discovery and returns of service of subpoenas, and related notices shall be maintained by the parties.
Discovery materials shall be filed with the court only when ordered by the court or when required by law. If the original of a deposition is not in the possession of a party who intends to offer it in evidence at a hearing, that party may give notice to the party in posssession of it that the deposition will be needed at the hearing. Upon receiving such notice the party in possession of the deposition shall either make it available to the party who intends to offer it or produce it at the hearing.
Comments to Rule 26
26(g) This rule has been adopted because the routine filing of discovery material has unnecessarily overcrowded court files. Parties are now required to keep possession of the discovery material and file it only upon court order or when required by law. Discovery materials used to support or resist a motion for summary judgement shall not be filed separately; statute 25-1332 (Amended 2001) makes clear that the court may consider them only if they are admitted as evidence.
Rule 30. Depositions Upon Oral Examination.
(f) Certification; Delivery; Storage.
(1) The officer shall certify on the deposition that the witness was truly sworn by him or her and that the deposition is a true record of the testimony of the witness. Unless otherwise ordered by the court, he or she shall then deliver the depositon to the party taking the deposision, who must store it under conditions that will protect it against loss, destruction, tampering, or deterioration.
COMMENTS TO RULE 30
30(f) The former Nebraska statute was Neb. Rev. Stat. 25-1267.26 (Repealed 1982). Additional language from the federal rule provides a procedure for handling documents and things produced during a deposition. The deposition will not be filed with the court but will be sent to the party taking the deposition. Subsection (f)(3) requires notice to other parties that the deposition has been received; Rule 26(g) provides that a certificate of completion will not be filed with the court. The party taking the deposition will have to preserve the original in order to be able to file it when required to do so under Rule 26(g).
34A. Discovery from a Nonparty without a Deposition.
(1) Scope. Any party may, by subpoena without a deposition:
(A) require the production for inspection and copying of designated books, papers, documents, or tangible things (including writings, drawings, graphs, charts, photographs, phono-records, and other data compilations from which information can be obtained, translated if necessary by the owner or custodian into reasonably usable form) that are in the possession, custody, or control of a person who is not a party and within the scope of Rule 26(b); or
(B) obtain entry upon designated land or other property within the scope of Rule 26(b) that is in the possession or control of a person who is not a party for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated objet or operation thereon.
(2) Notice. A party intending to serve a subpoena pursuant to this rule shall give notice in writing to every other party to the action at least 10 days before the subpoena will be issued. The notice shall state the name and address of the person who will be subpoenaed, the time and place for production or inspection, and that the subpoena will be issued on or after a stated date. A designation of the materials sought to be produced shall be attached to or included in the notice.
Such notice may be given by a party other than a plaintiff at any time. Such notice may not be given by a plaintiff until the time at which Rule 30(a) would permit a plintiff to take a deposition.
(3) Issuance. A subpoena may be issued pursuant to this rule, either by a request to the clerk of the court or by an attorney authorized to do so by statute, at any time after all parites have been given the notice required by subsection (2). The subpoena shall identify all parties who were given notice that it would be issued and the date upon which each of them was given notice. A subpoena pursuant to this rule shall include or be accompanied by a copy of this rule.
(4) Time, manner, and return of service. A subpoena pursuant to this rule shall be served either personally by any person not interested in the action or by registered or certified mail not less than 10 days before the time specified for compliance. The person making personal service shall make a return showing the manner of service to the party for whom the subpoena was issued.
(b) Protection of Other Parties.
(1) Objection Before Issued. Before the subpoena is requested or issued any party may serve a written objectin on the party who gave notice that it would be issued. The objection shall specifically identify any intened production or inspection that is protected by an applicable privilege, that is not within the scope of discovery, or that would be unreasonably intrusive or oppressive to the party. No subpoena shall demand production or inspection of any material or premises identified in the objection. If the objection specifically objects that the person served with the subpoena should not have the option to deliver or mail copies of documents or things directly to a party, the subpoena shall not be issued unless all parties to the lawsuit mutually agree on the method for delivery of the copies.
(2) Order. The party who gave notice that a subpoena would be issued may apply to the court in which the action is pending for an order with respect to any discovery for which another party has served a written objection. Upon hearing after notice to all parites the court may order that the subpoena be issued or not issued or that discovery proceed in a different manner, may enter any protective order authorized by Rule 26(c), and may award expenses as authorized by Rule 37(a)(4).
(3) Protective Order. After a subpoena has been issued any party may move for a protective order under Rule 26(c).
(c) Protection of the Person Served with a Subpoena.
(1) Avoiding Burden and Expense. A party or an attorney who obtains discovery pursuant to this rule shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court by which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings of the person subject to the subpoena and reasonable attorney fees.
(2) Responding to the Subpoena.
(A) A person served with a subpoena pursuant to this rule shall permit inspection and copying either where the documents or tangible things are regularly kept or at some other reasonalbe place designated by that person. If the subpoena states that the person served has an option to deliver or mail legible copies of documents or things instead of inspection, that person may condition the preparation of the copies on the advance payment of the reasonable cost of copying.
(B) A person served with a subpoena pursuant to this rule may, within 10 days after service of the subpoena, serve upon the party for whom the subpoena was issued a written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party for whom the subpoena was issued shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. If an objection has been made, the party for whom the subpoena was issued may, upon notice to all other parties and the person served with the subpoena, move at any time in the district court in the county in which the subpoena is served for an order to compel compliance with the subpoena. Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from complying with the command.
(3) Protections. On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it:
(A) fails to allow reasonable time for compliance,
(B) requires disclosure of privileged or other protected matter and no exception or waiver appplies, or
(C) subjects a person to undue burden.
(d) Duties in Responding to Subpoena.
(1) Production. A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.
(2) Objection. When information subject to a subpoena is withheld on an objection that it is privileged, not within the scope of discovery, or otherwise protected from discovery, the claim shall be made expressly and shall be supported by a 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.
(1) Copies. If the party for whom the subpoena was issued creates or obtains copies of documents or things, that party shall make available a duplicate of such copies at the request of any other party upon advance payment of the reasonable cost of making the copies.
(2) Inspection. If a notice of intent to serve a subpoena designates that the subpoena will require entry upon land or other property for the purposes permitted by subsection (1)(B), any other party shall, upon request to the party who gave the notice, be named in the subpoena as also attending at the same time and place.
COMMENT TO RULE 34A
Authority to issue a subpoena pursuant to this rule is governed by Neb. Rev. Stat. 25-1273 (Supp. 2001). The procedure is similar to the practice for nonparty nondepositin discovery under Fed. R. Civ. P. 45, with certain topics such as the time of prior notice and coordination of the disclosure more specifically defined. This procedure is optional, so a party may elect to use a deposition or any other availabel discovery procedure instead.
NEBRASKA DISCOVERY RULES FOR ALL CIVIL CASES
NEBRASKA DISCOVERY RULES FOR ALL CIVIL CASES
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