Prairie Banniste Winter 2025

EFFECTIVE NOW

NEBRASKA ADOPTS IMPORTANT DISCOVERY CHANGES—EVEN TO PENDING CASES

On November 13, 2024, the Nebraska Supreme Court adopted comprehensive amendments to the Nebraska Court Rules of Discovery in Civil Cases, effective January 1, 2025. If you have practiced in Federal Court or Iowa State Court, you will see similarities. These changes impact various aspects of discovery, including methods, scope, expert disclosures, and sanctions. The amendments apply to cases filed after January 1, 2025, and there is a presumption that they also apply to cases pending on that date. (The court may exercise discretion if application of the new rules would be impracticable, unreasonable or unjust). Here are the key updates to know.

GENERAL PROVISIONS GOVERNING DISCOVERY (§ 6-326)

Discovery Methods has now been expanded to include mandatory disclosures.

Also, our discovery rules are now modified, adopting proportionality as a ground for seeking protective orders. Several years ago, the federal rules implemented a proportionality rule for discovery requests. Nebraska now allows a party to resist discovery and seek a protective order, if the party feels the discovery requests are burdensome.

A brief overview of the proportionality principle indicates that, [T]he court considers “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.” The party resisting discovery on proportionality grounds still bears the burden to support its objections. … The practical effect of the rule is that both parties must typically provide information pertinent to the proportionality analysis. … This is because [a] party claiming undue burden or expense ordinarily has far better information — perhaps the only information — with respect to that part of the determination. A party claiming that a request is important to resolve the issues should be able to explain the ways in which the underlying information bears on the issues as that party understands them. The court’s responsibility, using all the information provided by the parties, is to consider these and all the other factors in reaching a case-specific determination of the appropriate scope of discovery. …

“No single factor is designed to outweigh the other factors in determining whether the discovery sought is proportional, and all proportionality determinations must be made on a case-by-case basis.”

Ad Astra Recovery Servs. v. Heath, No. 18-1145-JWB-ADM, 2019 U.S. Dist. LEXIS 160898, at 12-14 (D. Kan. Sep. 18, 2019) (Citations omitted).

Parties claiming material is protected by a privilege must expressly make the claim, and describe the nature of withheld documents to enable assessment of privilege claims. (Rule 26(b)(4)).

The new rules also address inadvertent disclosure of privileged materials. A party disclosing must notify the other side and request the documents back. The privilege is not waived. A party receiving materials the party knows or should know is privileged, should notify the disclosing party and return the material.

DISCOVERY FROM EXPERTS (§ 6-326(C))

The court has now adopted a mandatory expert disclosure process. Parties must disclose expert witnesses and provide detailed, signed reports for retained experts. Treating physicians are not required to provide written reports unless testifying outside the scope of treatment.

The report must include a complete statement of all opinions and the reasons for them; facts and data considered; any exhibits that will be used to summarize or support them; a list of publications the expert will rely upon; a curriculum vitae or a list of qualifications for the expert; and the “title, court, case number of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition, performed an independent medical examination, or otherwise provided evidence as an expert, and for each such case, the party who retained the witness;” and a statement of the compensation to be paid.

Disclosure of expert testimony is now tied to the pleadings. Disclosures must be made by both parties within 180 days after the first responsive pleading or 45 days after another party’s disclosure if intended to rebut.

Draft reports and communications between attorneys and experts are protected, except as to compensation, facts relied upon, and any assumptions the retaining attorney provided.

If the witness is of a type who is not required to provide a report by rule, the party’s disclosure of that witness must state the subject matter on which the witness will testify; provide a summary of the facts and opinions; state the qualifications of the witness or provide a c.v.; and state the compensation to be paid.

A treating physician retained specifically to provide expert testimony, must provide a written report under Rule 26(c)(1)(A). The committee notes to the new rule discuss treating physicians who will testify about causation. Are these “experts” under the “reports” rule, or just under the “disclosure” rule? The comments clarify that “a treating physician is not required to provide a written report solely because the physician’s testimony may discuss ‘the diagnosis, prognosis, or causation of the patient’s injuries.’”

However, note carefully that if the treating physician is asked to provide opinions outside the course and scope of the treatment provided (or causation of the injuries necessitating the treatment) then the treating physician falls under the category of an expert requiring a report. Thought should be given to the possibility that a report may be required, if the expert is going to provide rebuttal opinions, addressing the conclusions of defendants paid medical examiner.

Discovery responses must be supplemented or corrected in a timely manner if the party learns that the original disclosure is no longer complete or correct. Importantly, this duty also extends to any expert who is required by rule to provide a report, the party is required to supplement disclosures regarding information in the report and testimony given during the expert’s deposition.

DEPOSITIONS (§ 6-330)

Depositions can be taken in person, by videoconferencing, by telephone, or a combination of these methods, without leave of court.

In the case of a deposition of an organization, the parties must confer in good faith about the matters for examination. The hope is that the discussion will lead to a clarification of topics to be discussed and better allow the organization to identify and designate the person or persons who will testify.

The rules now make clear that a person can not be excluded from attending the deposition of another witness, just because that person may be deposed later. The rule makes clear, if a party wishes to exclude anyone from attending, the requesting party must get a protective order.

The rule now provides that if a party engages in “misconduct that impedes, delays, or frustrates the fair examination of the deponent,” such as with repeated interruptions, repeated improper objections, or repeatedly instructing the witness not to answer, then the court has discretion to impose sanctions.

If production of documents is requested in connection with a deposition, by document request (Rule 6-334) or by subpoena duces tecum (§ 25-1224), the rule clarifies that the response time for either method is 30 days. This avoids trying to shorten the response time to 14 by using a subpoena for production connected with a deposition.

USING DEPOSITIONS IN COURT PROCEEDINGS (§ 6-332)

The rule clarifies the conditions for use of depositions at trial. Depositions taken by audio, or audiovisual means must be presented in such format to a jury if any party requests. However, this does not apply to the use of deposition testimony used for impeachment purposes only.

Any objection to competency or relevance of any testimony in are waived if not raised during a deposition, if the defect could have been corrected. Also, and new to the rule, if a deposition was recorded by audio or audiovisual means only, the objection is waived by the failure to make the objection to the court before the hearing or trial. Consistent with this, then, the party planning to use the audio or audiovisual format to present testimony at trial, must provide advanced notice to the court and all other parties. If the deposition is recorded only by audio or audiovisual means, the party is required to provide the court with a written transcript of the deposition, for hearings and for trial.

INTERROGATORIES §6-333

Parties are limited to 50 interrogatories (including discreet subparts) unless the court permits more for good cause. The rule does not guide a party on how to count the interrogatories. However, the comments indicate that in interpreting the same rule, federal courts indicate that the interrogatory is counted as a single request if the “subparts are logically or factually subsumed within and necessarily related to the primary question.” (Cite to case omitted).

Upon request, interrogatories must be provided in a readily editable electronic format.

The only significant change to the § 6-333 has to do with objections. The new rule is specifically going after the use of “boilerplate objections.” Now, objections must state specific grounds and reasons for the objection. It is important enough to quote the committee notes here:

[No longer permitted, are] objections that state objections in a conclusory way (for example, “burdensome, oppressive, and irrelevant”) without explaining the specific reasons for the objection. Requiring parties to state the specific reasons for the objection may discourage the parties from making baseless objections and may also help them resolve discovery disputes informally by identifying the specific problems that the objecting party has with the interrogatory.

There are numerous federal cases decrying the use of “boilerplate objections” and instructing lawyers on the requirement to state the grounds and explain the objections. Perhaps one of the more in-depth discussions is found in Liguria Foods, Inc. v. Griffith Labs., Inc., 320 F.R.D. 168, 184 (N.D. Iowa 2017).

REQUESTS FOR PRODUCTION

As with interrogatories, requests must be provided in a readily editable electronic format upon request. And again, objections to production must first be to a specific request (rather than blanket objections) and then state specific grounds and reasons, and indicate if any materials are withheld. This would include withholding of part of a large batch or group of documents. Any objection not stated in a timely manner is waived.

in 30. Failure to make the objections such as relevance or undue burden, within these time frames is deemed a waiver, unless based on a privilege or work product objection.

Parties must now give 14 days’ notice before issuing a subpoena.

PHYSICAL AND MENTAL EXAMINATIONS

The only substantive change to the rule, now requires that proposed examinations must be conducted by suitably licensed or certified examiners. Courts now have the discretion to asses the proposed examiner’s credentials “to ensure that the examiner has the expertise necessary to perform the proposed examination.”

REQUESTS FOR ADMISSION (§ 6-336)

Requests now can not only seek admission of facts, or the application of law to a fact (often improperly used as a basis for objecting to the request), but also now, opinions about either. In addition, requests for the admission to the genuineness of a document are still allowed.

Responding parties must specifically deny each individual request, or explain “in detail” why the matter cannot be admitted or denied.

SANCTIONS (§ 6-337)

Prior to filing a motion to compel, parties must attempt to resolve disputes informally.

A motion for sanctions by a party must include a certification that the moving party has made a good faith effort to confer and cure the discovery defect. The rule now specifically eliminates, as an excuse, any argument that the discovery request was objectionable, unless there is a motion for protective order pending. Courts can impose sanctions on parties, attorneys, and their law firms for failing to comply with discovery orders.

The court has added specific sanctions for failing to preserve electronically stored information, including measures to cure prejudice and severe sanctions for intentional deprivation including presumption that the information was unfavorable, instruction to the jury that they may presume it was unfavorable, or dismissal of the action.

CONCLUSION

Overall, these amendments aim to streamline discovery processes, enhance clarity, and ensure fairness in civil litigation. They bring Nebraska’s discovery rules more in harmony with long-standing and effective federal discovery procedures. Becoming familiar with these changes will help to effectively navigate the updated rules, avoid inadvertent discovery missteps, and even potentially avoid potential sanctions.

For more information on the Rules Changes, John P. Lenich, J.D., from the UNL College of Law, will be presenting on this topic at the MCLE Seminar February 21. Find the full agenda and register at www.nebraskatrial.com .

PRACTICE POINTERS

For more information on the Rules Changes, John P. Lenich, J.D., from the UNL College of Law, will be presenting on this topic at the MCLE Seminar February 21. Find the full agenda and register at www.nebraskatrial.com .