Neb. Sup. Ct. R. 6-326
If the original of a deposition is not in the possession of a party who intends to offer it as evidence at a hearing, that party may give notice to the party in possession of it that the deposition will be needed at the hearing. On receiving such notice, the party in possession of the deposition must either make it available to the party who intends to offer it or produce it at the hearing.
Neb. Sup. Ct. R. 6-326
COMMENTS TO § 6-326
[1] Section 6-326 is the keystone of the discovery rules. Among other things, the rule governs the scope of discovery, the work product protection, the methods for obtaining discovery from experts, the grounds for a protective order, and the duty to supplement discovery disclosures and responses.
[2] Subpart (b)(1) governs the scope of discovery and is modeled on a pre-2015 version of Rule 26(b)(1) of the Federal Rules of Civil Procedure. In 2015, Federal Rule 26(b)(1) was amended to incorporate proportionality into the standard for discovery. Federal Rule 26(b)(1) currently provides that information is discoverable if it is relevant and proportional to the needs of the case. The 2024 Amendments incorporated the concept of proportionality into Nebraska § 6-326 but did so in a different way. Rather than being part of the standard for discovery, proportionality is a ground for seeking a protective order to deny or limit discovery pursuant to subpart (d)(2).
[3] The original version of subpart (b)(1) included examples of discoverable information such as the existence of documents and the identity of persons having knowledge of discoverable matters. Although the examples may have been helpful when the rule was promulgated in 1982, they are now so well known that there is no longer a good reason to keep them in the rule. Therefore, the examples were deleted by the 2024 Amendments. It should be underscored, however, that their deletion should not be construed as altering the scope or methods of discovery.
[4] Subpart (b)(2) allows parties to discover insurance agreements that may cover all or part of a possible judgment. Having access to the agreements can be helpful in making and evaluating settlement offers. Knowing whether coverage is disputed can also be helpful. Therefore, the 2024 Amendments added a provision that allows a party to serve an interrogatory asking if coverage is disputed. The provision, however, does not allow a party to discover the grounds for any such dispute. If the coverage dispute status changes, the party answering the interrogatory should supplement its answer pursuant to subpart (e).
[5] Subpart (b)(3) addresses the work product protection and allows a person to obtain a copy of the person's previous statement. The 2024 Amendments rewrote the definition of a previous statement to make the definition easier to understand and to exclude deposition testimony. The reason for the exclusion is to prevent a person who is unwilling to pay the reporter for a copy of the deposition from obtaining a copy for free from the party who took the deposition.
[6] Subpart (b)(4) was added by the 2024 Amendments to address what a party must do if the party withholds documents on the basis of a privilege or the work product protection. The subpart is modeled on Rule 26(b)(5) of the Federal Rules of Civil Procedure and requires a party to describe the documents in a manner that will allow the other parties to assess the claim that the documents are privileged.
[7] The nature of the description will vary with the privilege because different privileges have different elements. For example, the description for the attorney-client privilege will normally include the identities of the persons who prepared and received the document, the subject matter of the document, the date of the document, and the basis for the assertion of the privilege. In other words, the description will normally include the information listed in the Supreme Court's decision in Greenwalt v. Wal-Mart Stores, 253 Neb.32 (1997).
[8] But there may be situations in which it would be burdensome or unnecessary for a party to provide a description for each individual document. In those situations, a party may instead provide a description by categories of documents. Providing such a description may be appropriate when there is a large number of documents of the kind that are almost always privileged or protected - for example, email communications between in-house and outside counsel.
[9] Rule 511 of the Nebraska Rules of Evidence addresses the waiver of a privilege by voluntary disclosure. The rule, however, does not address the issue of whether a privilege or protection is waived by the inadvertent disclosure of documents in discovery. Subpart (b)(5) was added in 2024 to address the issue. The subpart is modeled on Rule 502(b) of the Federal Rules of Evidence. But there are differences. Subpart (b)(5) applies to all privileges while Federal Rule 502 only applies to the attorney-client privilege.
[10] Subpart (b)(5)(A) provides that disclosure is not a waiver of a privilege or protection if three requirements are met. First, the disclosure must have been inadvertent. This requirement focuses on whether the disclosure was unintentional. Second, the disclosure occurred even though the producing party took reasonable steps to prevent the disclosure. This requirement focuses the procedures that the party used to review documents and to withhold privileged or protected documents. Third, the producing party took reasonable steps to correct its mistake. This requirement focuses on what the party did after it learned that it had mistakenly produced the documents.
[11] One step that the producing party may take to correct its mistake is to notify the receiving party that privileged or protected documents were inadvertently produced. Subpart (b)(5)(B) addresses what the receiving party must do if it receives such notice and makes it clear that either party can file a motion for a protective order if they disagree on whether the privileged or protection applies.
[12] Notice is sometimes a two-way street. If the lawyer for the receiving party knows or should know that a document was inadvertently produced, the lawyer has an ethical obligation to notify the person who produced the document. The obligation is stated in subpart (b)(5) and reflects the obligation imposed by § 3-504.4(b) of the Nebraska Rules of Professional Responsibility.
[13] Prior to 2024, § 6-326 provided that parties could obtain discovery about expert witnesses by serving an interrogatory and could not depose an expert unless they obtained a court order or stipulation. The 2024 Amendments replaced those provisions with disclosure requirements modeled on Rule 26(a)(2) of the Federal Rules of Civil Procedure.
[14] The disclosure requirements are stated in subpart (c)(1). A party must disclose the identity of any expert witness that it may use at trial. Furthermore, a party must disclose information about the expert and the expert's expected testimony. The content and form of the information depends on whether the expert was retained or specially employed to provide expert testimony.
[15] A retained or specially employed expert is one who will testify about facts the expert learned and opinions the expert developed for purposes of the litigation. In addition to disclosing the identity of such an expert, the party must provide a signed report from the expert that contains the information listed in subpart (c)(1)(A). Most (but not all) of the information corresponds to information required by Federal Rule 26(a)(2). The report must be "detailed and complete" and state "the testimony the witness is expected to present during direct examination, together with the reasons therefor." Fed. R. Civ. P. 26, Advisory Committee Notes on the 1993 Amendment.
[16] Some experts will testify about facts they learned and opinions they developed for purposes other than the litigation. For example, a treating physician may learn facts and form opinions for the purpose of treating the plaintiff's injuries. These kinds of experts - who are sometimes called "actor experts" - are not required to prepare a written report. The party who plans to use such an expert at trial must disclose the information listed in subpart (c)(1)(B).
[17] One of the issues that has divided the federal courts is whether a treating physician who testifies about causation should be classified as a retained or specially retained expert and therefore required to provide a signed report. Subpart (c)(1)(C)(ii) resolves the issue for the Nebraska courts by stating 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."
[18] Subpart (c)(2) addresses when the required disclosures must be made. Subpart (c)(2)(A) provides that disclosures must be made at the times and in the sequence the court orders. It would be helpful to all concerned if the court issued such an order. In terms of the sequence, the order could require the parties to make their disclosures at the same time or at different times - for example, the order could require the party with the burden of proof to make its disclosures first. If the court does not issue such an order, the parties may stipulate when their respective disclosures must be made. If there is no court order or stipulation, then the parties must make their disclosures by the times specified in subpart (c)(2)(B).
[19] To work effectively with a retained or specially employed expert, an attorney must be able to review drafts and to communicate with the expert without worrying about whether every draft and every communication is discoverable. Subpart (c)(4)(A) provides that the work product protection applies to draft reports and draft disclosures.
[20] Subpart (c)(4)(B) provides that the work product protection applies to communications between an attorney and a retained or specially employed expert. There are three exceptions, however. Those exceptions are set out in subpart (c)(4)(B)(i)-(iii). By its terms, subpart (c)(4)(B) is limited to an attorney's communications with a retained or specially employed expert. It does not cover communications with an actor expert.
[21] Subpart (c)(5) provides that a party may depose an expert witness. Because the report may help to focus the questioning or to eliminate the need for a deposition, an expert from whom a report is required may only be deposed after the report is provided.
[22] If a party deposes an expert witness, the party must normally pay the expert a reasonable fee for responding to discovery. Subpart (c)(7) makes it clear, however, that the fee does not include time spent preparing for the deposition. Prior to 2024, the rule contained a provision that gave courts the discretion to require the deposing party to pay a portion of the fees that the opposing party paid the expert. The provision was based on the assumption that depositions of testifying experts were the exception rather than the norm. The provision was deleted in 2024 because the assumption is no longer valid. Subpart (c)(5) now allows a party to depose testifying expert without a court order or stipulation.
[23] Subpart (d) addresses protective orders. Like a party filing a motion to compel pursuant to § 6-337(a), a party filing a motion for a protective order must first attempt to resolve a discovery dispute informally. Because the judge presiding over a case is in the best position to rule on discovery motions, all motions for a protective order - including those related to a deposition - must be filed in the court in which the action is pending.
[24] Rule 26(b) of the Federal Rules of Civil Procedure contains a provision that addresses the discovery of electronically stored information from sources that a party identifies as not reasonably accessible. Section 6-326 does not contain a comparable provision because the issue can be addressed on a motion for a protective order pursuant to subpart (d)(2).
[25] Subpart (e) specifies the circumstances under which a party must supplement an earlier disclosure or discovery response. The subpart was amended in 2024 so that it more closely follows the wording of Rule 26(e) of the Federal Rules of Civil Procedure. As amended, the subpart requires a party to supplement its earlier disclosure or response in a timely manner. In other words, a party is required to supplement its earlier disclosure or response within a reasonable time of acquiring the new information.
[26] The 2024 Amendments consolidated the filing and service requirements for pleadings, motions, and discovery documents in § 6-1105. As a result, the provisions in § 6-326 that previously discussed the filing and service requirements have been replaced with a cross-reference to § 6-1105. The cross-reference appears in subpart (f).
[27] Subpart (h) was added in 2024 to address the issue of whether rule amendments apply to cases pending on the effective date of the amendment. The subpart creates a presumption that an amendment applies to pending cases but gives trial courts the discretion not to apply the amendment to a pending case if it would be impracticable, unreasonable, or unfair to do so. Trial courts, however, do not have the same discretion in cases filed on or after the effective date. The first sentence of subpart (h) makes it clear that the amendment applies to those cases.