Neb. Sup. Ct. R. 6-330(A)

As amended through November 11, 2024

Section 6-330(A) - [Effective 1/1/2025] Interstate Depositions and Discovery

(a) Definitions. In this rule:

(1) "Foreign jurisdiction" means a state other than this state.

(2) "Foreign subpoena" means a subpoena issued in a civil proceeding under authority of a court of record of a foreign jurisdiction.

(3) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

(4) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, or any territory or insular possession subject to the jurisdiction of the United States.

(5) "Subpoena" means a document, however denominated, issued under authority of a court of record that commands a person to:

(A) testify at a deposition;

(B) produce and permit the party serving the subpoena to inspect, copy, test, or sample the following items that are within the scope of Rule 26(b) and in the possession, custody, or control of the person:

(i) any designated documents or electronically stored information - including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations - stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding person into a reasonably usable form; or

(ii) any designated tangible things; or

(C) permit entry onto designated land or other property possessed or controlled by the person when such entry is within the scope of Rule 26(b) so that the party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.

(b) Issuance of Subpoena. To request issuance of a subpoena under this rule, a party must submit to the clerk of the district court for the county in which discovery is sought to be conducted a Request for the Issuance of a Nebraska Subpoena for a Proceeding in a Foreign Jurisdiction. The content of the request must be substantially the same as the content of the form in the Appendix to this rule, and shall include the name and address of the person on which the subpoena shall be served, and the method of service provided by Neb. Rev. Stat. §§ 25-1223(9), 25-1226(1), and/or 25-1228(2).

The party must attach to the request (1) a foreign subpoena for each person to be served and (2) a list of the names, addresses, telephone numbers, and email addresses of all counsel of record and self-represented parties in the proceeding to which the subpoena relates. The party must also pay to the clerk of the district court a fee of $75 for each subpoena issued. If the clerk re-issues a subpoena, an additional $75 fee must be paid.

The clerk must remit the fee to the State Treasurer for credit to the Nebraska Supreme Court's Counsel for Discipline Cash Fund not later than the 15th day of the month following the calendar month in which the fee was received.

When a party submits a foreign subpoena to a clerk of a district court in this state, the clerk, in accordance with the district court's procedure, must promptly issue a subpoena for service upon the person to which the foreign subpoena is directed.

A subpoena issued under this rule must:

(1) include as an attachment a copy of the list required by this subsection;

(2) accurately incorporate the time, place, and method of the discovery requested in the foreign subpoena; and

(3) if the subpoena commands the person to produce designated documents, electronically stored information, or tangible things, the subpoena must either accurately incorporate the commands from the foreign subpoena or attach the foreign subpoena and state that the person must produce the documents, information, or things designated in the attached foreign subpoena.

(c) Service of Subpoena. A deposition subpoena issued by a clerk of court under this rule must be served in compliance with Neb. Rev. Stat. § 25-1226(1) and the return made in compliance with § 25-1228(1). A subpoena for discovery from a nonparty without a deposition must be served and the return must be made in compliance with Rule 34(A)(d)(5)-(6).

(d) Deposition, Production, and Entry Upon Land. The statutes and rules of this state, including the Nebraska Court Rules of Discovery in Civil Cases, apply to subpoenas issued and discovery conducted pursuant to this rule.

(e) Appearance, Certification and Acknowledgment.

(1) A request for the issuance of a subpoena or engaging in discovery pursuant to such a subpoena does not constitute an appearance in the courts of this state or the unauthorized practice of law in this state.

(2) By submitting a request for a subpoena, attorneys or self-represented parties certify that the foreign subpoena was properly issued under the laws or rules of the foreign jurisdiction. By submitting a request for a subpoena, attorneys who are not admitted to practice in Nebraska further certify that they are admitted to practice in the foreign jurisdiction in which the proceeding is pending and that they have not been disbarred or suspended from practice in any jurisdiction.

(3) By submitting a request for a subpoena, attorneys or self-represented parties acknowledge that the district court has jurisdiction to impose sanctions on them for false certifications made in obtaining the subpoena and for any conduct related to the subpoena that violates the Nebraska Court Rules of Discovery in Civil Cases.

(f) Motions. A motion for a protective order or to enforce, quash, or modify a subpoena issued by a clerk of court under this rule must comply with the statutes and rules of this state and must be filed as a civil action in the district court for the county in which the discovery is to be conducted. Such a motion may be filed or opposed only by an attorney admitted to practice in this state or by a self-represented individual.

Neb. Sup. Ct. R. 6-330(A)

Adopted January 27, 2021, effective 2/16/2021; amended November 13, 2024, effective 1/1/2025.

COMMENTS TO § 6-330(A)

[1] The rule was promulgated pursuant to the authority granted to the Supreme Court by Neb. Rev. Stat.§ 25-1237 and is modeled on the Uniform Interstate Depositions and Discovery Act drafted by the National Conference of Commissioners on Uniform State Laws. The purpose of the rule is to provide a simple, uniform, and efficient procedure under which a party to a civil proceeding pending in a foreign jurisdiction can have a subpoena issued in Nebraska to obtain discovery for the foreign proceeding. For purposes of this rule, the term "foreign jurisdiction" means the courts of another state, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, and the territories of the United States. It does not include another country.

[2] The act of the clerk of the district court in issuing the subpoena is administrative. In effect, the clerk reissues the foreign subpoena as a Nebraska subpoena and assigns the matter a number. The only documents that need to be presented to the clerk are the request, the foreign subpoena, a list of counsel and unrepresented parties, and the required fee. Although the rule does not require the requesting party to submit a draft Nebraska subpoena, the party may choose to do so in order to expedite the process.

[3] It is not the responsibility of the clerk to ensure that the foreign subpoena was properly issued under the laws or rules of the foreign jurisdiction. It is instead the responsibility of the requesting lawyer or self-represented party. The lawyer or self-represented party must certify in the request that the foreign subpoena was properly issued. A false certification may result in the imposition of sanctions under subpart (e) of this rule. Sanctions should not be imposed, however, if the foreign subpoena was improperly issued as a result of a reasonable, good faith mistake.

[4] A lawyer admitted in a foreign jurisdiction does not need to retain local counsel or be admitted pro hac vice in order to have the subpoena issued. The request for the issuance of the subpoena does not constitute the unauthorized practice of law in this state. The same is true of taking a deposition or obtaining other discovery pursuant to the subpoena. See Neb. Ct. R. of Prof. Cond. § 3-505.5(c)(2); Neb. Ct. R. of Prof. Cond. § 3-505.5(c)(2), Comment [10].

[5] During a deposition, lawyers may sometimes seek a telephonic ruling from the court on objections or instructions not to answer. Lawyers may not do so during a deposition taken pursuant to this rule unless the lawyers are all admitted to practice before the court from which the ruling is sought.

[6] Nebraska law applies to discovery undertaken pursuant to this rule. That means that Nebraska's procedural, evidentiary, and conflicts law apply. Nebraska has a significant interest in protecting its residents from any unreasonable or unduly burdensome discovery requests when they become targets of discovery requests for actions pending in a foreign jurisdiction. This interest is best served by requiring that any discovery motions be decided under the laws of Nebraska and that all motions that directly affect the person from whom discovery is sought must be filed in Nebraska.

[7] Motions that affect only the parties to the action can be made in the foreign jurisdiction. For example, any party can apply for an order in the foreign jurisdiction to bar the deposition of a Nebraska deponent on grounds of relevance. That motion should be made and ruled on before the deposition subpoena is ever presented to the clerk of the district court in this state.