NOTICE OF COMMENT PERIOD The Nebraska Supreme Court

NOTICE OF COMMENT PERIOD

The Nebraska Supreme Court Committee on Practice and Procedure

proposed amendments to Chapter 6, Article 3, Nebraska Court Rules of Discovery

in Civil Cases. Along with the proposed amendments, Professor John P. Lenich,

Reporter for Civil Procedure, has provided A Discussion of the Proposed Court

Rules of Discovery in Civil Cases as a resource when reviewing the proposed

amendments.

The Nebraska Supreme Court invites interested persons to comment on the

proposed rule amendments. Anyone desiring to submit a public comment for the

Supreme Court’s consideration should do so via email to

erika.schafer@nejudicial.gov, with the following text listed in the email subject

line: Chapter 6, Article 3 Discovery Rules. Comments will be accepted through

May 31, 2024.

The full text of the proposed amendments is available below. To obtain a

paper copy, please call the Clerk’s Office at 402-471-3731.

- 1 -

CHAPTER 6: TRIAL COURTS

. . . .

Article 3: Nebraska Court Rules of Discovery in Civil Cases

. . . .

§ 6-326. General provisions governing discovery.

(a) Discovery Methods and Sequence.

(1) Discovery Methods. Parties may obtain discovery by one or more of the following

methods: required disclosures; depositions by upon oral examination or written questions;

written interrogatories to parties; requests for producing production of documents,

electronically stored information, and tangible or things or permission to enter upon

entering onto land or other property for inspection and other purposes; subpoenas

commanding nonparties to produce documents, electronically stored information, and

tangible things or allowing entry onto land for inspection and other purposes; physical

and mental examinations; and requests for admission. Unless the court orders otherwise

under subdivision (c) of this rule, the frequency of use of these methods is not limited.

(2) Sequence. Unless the parties stipulate or the court orders otherwise for the parties’

and witnesses’ convenience and in the interests of justice:

(A) methods of discovery may be used in any sequence; and

(B) discovery by one party does not require any other party to delay its discovery.

(b) Discovery Scope of Discovery and Limits. Unless otherwise limited by order of the

court in accordance with these rules, the scope of discovery is as follows:

(1) Scope in In General. Parties may obtain discovery regarding any nonprivileged

matter, not privileged, which that is relevant to the subject matter involved in the pending

action, whether it relates to the claim or defense of the party seeking discovery or to the

claim or defense of any other party., including the existence, description, nature, custody,

condition, and location of any books, documents, or other tangible things and the identity

and location of persons having knowledge of any discoverable matter. It is not a ground

for objection that the information sought will be inadmissible at the trial if the

- 2 -

information sought appears reasonably calculated to lead to the discovery of admissible

evidence.

(2) Insurance Agreements. A party may obtain discovery of the existence and contents

of any insurance agreement under which any person carrying on an insurance business

may be liable to satisfy all or part or all of a possible judgment which may be entered in

the action or to indemnify or reimburse for payments made to satisfy the judgment. A

party may also obtain through an interrogatory whether an insurance business is disputing

the agreement’s coverage of the claim. Information concerning the insurance agreement

is not by reason of disclosure admissible in evidence at trial. For purposes of this subpart

paragraph, an application for insurance is shall not be treated as part of an insurance

agreement.

(3) Trial Preparation: Work Product Materials.

(A) Documents and Tangible Things. Subject to the provisions of subdivision (b)(4) of

this rule, a party may obtain discovery of Ordinarily, a party may not discover documents

and tangible things otherwise discoverable under subdivision (b)(1) of this rule and that

are prepared in anticipation of litigation or for trial by or for another party or by or for

that other party's its representative (including his or her the other party’s attorney,

consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(c)(4), those

materials may be discovered if:

(i) they are otherwise discoverable under Rule 26(b)(1); and

(ii) the party shows that only upon a showing that the party seeking discovery has

substantial need of the materials in the preparation of his or her to prepare its case and

that he or she is unable cannot, without undue hardship, to obtain their the substantial

equivalent of the materials by other means.

(B) Protection Against Disclosure. If the court orders In ordering discovery of those

such materials when the required showing has been made, the court shall it must protect

against disclosure of the mental impressions, conclusions, opinions, or legal theories of a

party’s an attorney or other representative of a party concerning the litigation.

the showing required by Rule(b)(3)(A), obtain the person’s own previous A party may

obtain without the required showing a statement concerning about the action or its subject

matter. previously made by that party. Upon request, a person not a party may obtain

- 3 -

without the required showing a statement concerning the action or its subject matter

previously made by that person. If the request is refused, the person may move for a court

order., and The provisions of Rule 37(a)(5)(4) apply applies to the award of expenses.

incurred in relation to the motion. For purposes of this paragraph, a statement previously

made is (A) a written statement signed or otherwise adopted or approved by the person

making it, or (B) a stenographic, mechanical, electrical or other recording, or a

transcription thereof, which is a substantially verbatim recital of an oral statement by the

person making it and contemporaneously recorded.

(i) A previous statement is a person’s nonprivileged recounting of what the person did,

saw, heard, or knows about a matter and that is (1) recorded by audio, audiovisual, or

stenographic means, (2) handwritten by the person, or (3) in a written or electronic form

and signed by the person.

(ii) Deposition testimony is not a previous statement for purposes of this subpart.

(4) Claiming Privilege or Protection. When a party withholds information otherwise

discoverable by claiming that the information is privileged or subject to protection as

work product, the party must:

(A) expressly make the claim; and

(B) describe the nature of the documents, communications, or tangible things not

produced or disclosed – and do so in a manner that, without revealing information itself

privileged or protected, will enable other parties to assess the claim.

(5) Waiver of Privileges or Protections. The following apply to documents that are

produced in discovery, whether in response to a discovery request or pursuant to a

disclosure obligation.

(A) The production of a privileged or protected document does not operate as a waiver

of the privilege or protection if the production was inadvertent, the claimant took

reasonable steps under the circumstances to prevent the inadvertent disclosure of

privileged or protected documents, and the claimant promptly took reasonable steps

under the circumstances to rectify the error of producing the document, including, if

applicable, following subpart (B) of this rule.

(B) If a document produced in discovery is subject to a claim of privilege or protection,

the claimant may notify any recipient party of the claim and the basis for it. After being

- 4 -

notified, a recipient must promptly return, sequester, or destroy the specified document

and any copies it has; must not use or disclose the document or its contents until the

claim is resolved; must take reasonable steps to retrieve the document if the recipient

disclosed it before being notified; and may promptly present the document to the court

under seal for a determination of the claim. The claimant must preserve the document

until the claim is resolved. Either the claimant or recipient may seek to have the claim

resolved by filing a motion pursuant to Rule 26(d) in the court in which the action is

pending.

that the lawyer knows or reasonably should know is subject to a claim of privilege or

protection and also knows or reasonably should know was inadvertently produced must

promptly notify the party who produced the document.

(4) Trial Preparation: Experts. Discovery of facts known and opinions held by experts

otherwise discoverable under the provisions of subdivision (b)(1) of this rule and

acquired or developed in anticipation of litigation or for trial may be obtained only as

follows:

(A)(i) A party may through interrogatories require any other party to identify each

person whom the other party expects to call as an expert witness at trial, to state the

subject matter on which the expert is expected to testify, and to state the substance of the

facts and opinions to which the expert is expected to testify and a summary of the

grounds for each opinion.

(ii) Upon motion, the court may order further discovery by other means, subject to such

restrictions as to scope and such provisions, pursuant to subdivisions (b)(4)(C) of this

rule, concerning fees and expenses as the court may deem appropriate.

(1) Required Disclosures. A party must disclose to the other parties the identity of any

witness it may use at trial to present evidence under Rules 702, 703, or 705 of the

Nebraska Evidence Rules. Unless the court orders otherwise, the disclosure must be in

writing, signed, and served.

(A) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or

ordered by the court, this disclosure must be accompanied by a written report – prepared

and signed by the witness – if the witness is one retained or specially employed to

- 5 -

provide expert testimony in the case or one whose duties as the party’s employee

regularly involve giving expert testimony.

The report must contain:

(i) a complete statement of all opinions the witness will express and the basis and

reasons for them;

(ii) the facts or data considered by the witness in forming them;

(iii) any exhibits that will be used to summarize or support them;

(iv) a list of each publication within the scope of Nebraska Evidence Rule 803(17) on

which the witness intends to rely for any opinion;

(v) the witness’ qualifications to present evidence under Nebraska Evidence Rules 702,

703, or 705, which may be satisfied by the production of a resume or curriculum vitae

and a list of any publications authored by the witness within the last 10 years that are not

listed in the resume or curriculum vitae;

(vi) the title, court, and 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

(vii) a statement of the compensation to be paid for the witness’ work and testimony in

the case, which may be satisfied by production of a fee schedule.

(B) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or

ordered by the court, if the witness is not required to provide a written report, the

disclosure must:

(i) state the subject matter on which the witness is expected to present evidence under

Nebraska Evidence Rules 702, 703, or 705;

(ii) provide a summary of the facts and opinions to which the witness is expected to

testify;

(iii) state the qualifications of the witness to present evidence under Nebraska Evidence

Rules 702, 703, or 705, which may be satisfied by the production of a resume or

- 6 -

curriculum vitae and a list of any publications authored by the witness within the last 10

years that are not listed in the resume or curriculum vitae; and

(iv) state the compensation to be paid to the witness for providing testimony at a

deposition or trial, which may be satisfied by production of a fee schedule.

or specially employed to provide expert testimony in the case, or whose duties as the

party’s employee regularly involve giving expert testimony on behalf of the party, must

provide a written report under Rule 26(c)(1)(A). Otherwise, a treating physician who is

properly disclosed under Rule 26(c)(1) may be deposed or called to testify without

providing a written report.

(i) A treating physician is not required to provide a written report under Rule

26(c)(1)(A) solely because the physician’s testimony may discuss ancillary treatment, or

the diagnosis, prognosis, or causation of the patient’s injuries, that is not contained within

the physician’s medical chart, as long as the content of such testimony is properly

disclosed under Rule 26(c)(1)(B)(i)-(iv).

(ii) A treating physician will be deemed a retained or specially employed expert witness

subject to the written report requirement of Rule 26(c)(1)(A) if the party is asking the

treating physician to provide opinions outside the course and scope of the treatment

provided to the patient.

(iii) The disclosure regarding a non-retained or specially employed treating physician

must include the information identified in Rule 26(c)(1)(B), to the extent practicable. If

the treating physician will testify in accordance with the party’s medical chart, it is

sufficient to state that the physician will do so even if some of the records contained

therein were prepared by another healthcare provider.

(2) Time to Disclose Expert Testimony. A party must make these disclosures at the

times and in the sequence that the court orders. Absent a stipulation or a court order, the

disclosures must be made:

(A) within 180 days after the first responsive pleading was served; or

(B) if the evidence is intended solely to contradict or rebut evidence on the same

subject matter by another party under Rule 26(c)(1), within 45 days after the other party’s

disclosure.

- 7 -

(3) Supplementing the Disclosure. The parties must supplement these disclosures when

required under Rule 26(e).

(4) Work Product Protection.

(A) Draft Reports or Disclosures. Rule 26(b)(3)(A) and (B) protect drafts of any report

or disclosure required under Rule 26(c)(1), regardless of the form in which the draft is

recorded.

(B) Communications Between a Party’s Attorney and Expert Witnesses. Rules

26(b)(3)(A) and (B) protect communications between the party’s attorney and any

witness required to provide a report under Rule 26(c)(1), regardless of the form of the

communications, except to the extent that the communications:

(i) relate to compensation for the expert’s study or testimony;

(ii) identify facts or data that the party’s attorney provided and that the expert

considered in forming the opinions to be expressed; or

(iii) identify assumptions that the party’s attorney provided and that the expert relied on

in forming the opinions to be expressed.

(5) Deposition of an Expert Witness. A party may depose any person who has been

identified as an expert whose opinions may be presented at trial. If Rule

26(c)(1)(A) requires a report from the expert, the deposition may be conducted only after

the report is provided.

(B) (6) Discovery from a Consulting Expert. Ordinarily, a A party may not discover the

identity of facts known or opinions held by an expert who has been retained or specially

employed by another party in anticipation of litigation or to prepare preparation for trial

and who is not expected to be called as a witness at trial except, only as provided in Rule

35(b). But a party may discover the identity of such an expert on a showing of good cause

and may discover facts known or opinions held by such an expert on or upon a showing

of exceptional circumstances under which it is impracticable for the party seeking

discovery to obtain facts or opinions on the same subject by other means.

that the party seeking discovery:

- 8 -

(A) pay the expert a reasonable fee for time spent in responding to discovery under

Rule 26(c)(5) or (6), which does not include time spent preparing for a deposition

subdivisions (b)(4)(A)(ii) and (b)(4)(B) of his rule of this rule; and

(ii) (B) with respect to for discovery under Rule 26(c)(6), obtained under

subdivision (b)(4)(A)(ii) of this rule the court may require, and with respect to discovery

obtained under subdivision (b)(4)(B) of this rule the court shall require, the party seeking

discovery to also pay the other party a fair portion of the fees and expenses it reasonably

incurred by the latter party in obtaining the expert’s facts and opinions from the expert.

(1) In General. Upon motion by a A party or by the other person from whom discovery

is sought, and for good cause shown, may move for a protective order in the court in

which the action is pending. or alternatively, on matters relating to a deposition, the

district court in the district where the deposition is to be taken, The motion must include a

certification that the movant has in good faith conferred or attempted to confer with other

affected parties in an effort to resolve the dispute without court action. The court may, for

good cause, issue an make any order which justice requires to protect a party or person

from annoyance, embarrassment, oppression, or undue burden or expense, including one

or more of the following:

(1) that (A) forbidding the disclosure or discovery not be had;

(2) that the discovery may be had only on specified (B) specifying terms and

conditions, including a designation of the time or place or the allocation of expenses, for

the disclosure or discovery;

(3) that the discovery may be had only by (C) prescribing a discovery method of

discovery other than the one that selected by the party seeking discovery;

(4) that (D) forbidding inquiry into certain matters not be inquired into, or limiting that

the scope of disclosure or the discovery be limited to certain matters;

(5) that discovery be conducted with no one present except (E) designating the persons

who may be present while the discovery is conducted designated by the court;

- 9 -

(6) (F) requiring that a deposition after being be sealed be and opened only on court by

order of the court;

(7) (G) requiring that a trade secret or other confidential research, development, or

commercial information not be disclosed revealed or be revealed disclosed only in a

specified designated way; and

(8) (H) requiring that the parties simultaneously file, serve, or deliver specified

documents or information in a specified way, to be revealed or accessed only as under

seal with access only as directed by the court directs.

(2) Denying or Limiting Discovery. The court may issue a protective order denying or

limiting discovery if the court determines that:

(A) the discovery sought is unreasonably cumulative or duplicative, or can be obtained

from some other source that is more convenient, less burdensome, or less expensive;

(B) the party seeking discovery has had ample opportunity to obtain the information by

discovery in the action; or

considering the needs of the case, the amount in controversy, the parties’ resources, the

importance of the issues at stake in the action, and the importance of the discovery in

resolving the issues.

(3) Ordering Discovery. If the a motion for a protective order is denied in whole or in

part, the court may, on just such terms and conditions as are just, order that any party or

person provide or permit discovery.

(4) Awarding Expenses. The provisions of Rule 37(a)(4)(5) applies apply to the award

of expenses incurred in relation to the motion.

(d) Sequence and Timing of Discovery. Unless the court upon motion, for the

convenience of parties and witnesses and in the interests of justice, orders otherwise,

methods of discovery may be used in any sequence and the fact that a party is conducting

discovery, whether by deposition or otherwise, shall not operate to delay any other

party’s discovery. [Note: stylistic changes made and content moved to Rule 26(a)(2)].

(e) Supplementation of Supplementing Disclosures and Responses.

- 10 -

(1) In General. A party who has made a disclosure under Rule 26(c) – or who has

responded to an interrogatory, request for production, or a request for admission –

discovery with a response that was complete when made is under no duty to must

supplement his or her or correct its disclosure or response to include information

thereafter acquired, except as follows:

(A) in a timely manner if the party learns that in some material respect the disclosure or

response is incomplete or incorrect, and if the additional or corrective information has not

otherwise been made known to the other parties during the discovery process or in

writing; or

(B) as ordered by the court.

(2) Expert Witness. For an expert whose report must be disclosed under Rule

26(c)(1)(A), the party’s duty to supplement in a timely manner extends both to

information included in the report and to information given during the expert’s

deposition.

(1) A party is under a duty seasonably to supplement his or her response with respect to

any question directly addressed to

(A) the identity and location of persons having knowledge of discoverable matters, and

(B) the identity of each person expected to be called as an expert witness at trial, the

subject matter on which he or she is expected to testify, and the substance of his or her

testimony.

(2) A party is under a duty seasonably to amend a prior response if he or she obtains

information upon the basis of which

(A) he or she knows that the response was incorrect when made, or

(B) he or she knows that the response though correct when made is no longer true and

the circumstances are such that a failure to amend the response is in substance a knowing

concealment.

(3) A duty to supplement responses may be imposed by order of the court or by

agreement of the parties.

- 11 -

(f) Filing and Service of Discovery Materials Documents. Rule § 6-1105 governs the

filing and service of discovery materials. Except as otherwise ordered by the court, every

discovery document and every motion relating to discovery and response thereto required

to be served upon a party shall be served upon each of the parties not in default for failure

to appear.

(g) Access to Deposition for Use at Hearing 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 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. Upon On receiving

such notice, the party in possession of the deposition shall must either make it available

to the party who intends to offer it or produce it at the hearing.

. . . .

§ 6-327. Depositions to perpetuate testimony before action or pending appeal.

(a) Before an Action Is Filed.

(1) Petition. A person who wants desires to perpetuate his or her own testimony or that

of another person regarding about any matter that may be cognizable in a any court of

this state may file a verified petition verified by affidavit of the petitioner or his or her

attorney in the district court of the county where in the district of the residence of any

expected adverse party resides. The petition must ask for an order authorizing the

petitioner to depose the named persons in order to perpetuate their testimony. The

petition must shall be titled entitled in the petitioner’s name of the petitioner and must

shall show:

- 12 -

(A) (i) that the The petitioner expects to be a party to an action cognizable in a court of

this state but is cannot presently unable to bring it or cause it to be brought;

(B) (ii) the subject matter of the expected action and the petitioner’s his or her interest

in the action therein;

proposed testimony and the his or her reasons for desiring to perpetuate it;

(D) (iv) the names or a description of the persons whom the petitioner he or she expects

to will be adverse parties and their addresses, so far as known; and

(E) (v) the name, address, and expected names and addresses of the persons to be

examined and the substance of the testimony of each deponent which he or she expects to

elicit from each, and shall ask for an order authorizing the petitioner to take the

depositions of the persons to be examined named in the petition, for the purpose of

perpetuating their testimony.

(2) Notice and Service. At least 21 days before the hearing date, the The petitioner must

shall thereafter serve a notice upon each person named in the petition as an each expected

adverse party, together with a copy of the petition and a notice, stating that the petitioner

will apply to the court, at a time and place named therein, for the order described in the

petition. At least twenty days before the date of the hearing. The the notice may shall be

served in the manner provided for service of a summons. If; but if such service cannot be

made with due reasonable diligence be made upon on an expected adverse party named in

the petition, the court may shall order service be made by publication in the manner

provided in Rule 30(b)(3) Rule 30(b)(1)(D),.

(3) Appointment of Attorney or Guardian. The court must and shall appoint, for persons

not served in the manner provided for service of summons, an attorney who shall to

represent them, and, in case they are not otherwise represented, shall an expected adverse

party and to cross-examine the deponent if the expected adverse party is served in the

manner provided in Rule 30(b)(3) and is not otherwise represented. The court must

appoint a guardian ad litem for If any expected adverse party who is a minor or

incompetent the provisions of Neb. Rev. Stat. § 25-309 shall apply.

(4) (3) Order and Examination. If the court is satisfied that perpetuating the

perpetuation of the testimony may prevent a failure or delay of justice, the court must

issue it shall make an order that designates or describes designating or describing the

- 13 -

persons whose depositions may be taken, specifies and specifying the subject matter of

the examinations, examination and states whether the depositions shall will be taken upon

by oral examination or by written questions. The depositions may then be taken under in

accordance with these rules,; and the court may issue make orders like those authorized

of the character provided for by Rules 34 and 35. For the purpose of applying these rules

to depositions for perpetuating testimony, each A reference in these rules therein to the

court where an in which the action is pending means, for purposes of this rule, shall be

deemed to refer to the court where in which the petition for the such deposition was filed.

(5) (4) Use of Deposition. If a A deposition to perpetuate testimony is taken under these

rules or if, although not so taken, it would be admissible in evidence in the courts of the

state in which it is taken, it may be used under Rule 32(a) in any later-filed action in this

state involving the same subject matter if the deposition either was taken under these

rules or, if not so taken, would be admissible in evidence in the federal or state court that

authorized it to be taken subsequently brought in a district court in this state, in

accordance with the provisions of Rule 32(a)

(b) Pending Appeal.

(1) In General. If an appeal has been taken from a judgment, a party may file a motion

in the appellate court for leave to depose witnesses to perpetuate their testimony for use

in the event the action is remanded for further proceedings after an appeal. of a district

court, the appellate court, upon motion filed therein and notice and service thereof as if

the action was pending in the district court, may remand the motion to the district court

for consideration and ruling, may itself overrule the motion, or, if the appellate court

finds that the perpetuation of the testimony is proper to avoid failure or delay of justice,

may itself enter an order allowing the depositions to be taken and may make orders of the

character provided for by Rules 34 and 35, and thereupon the depositions may be taken

and used in the same manner and under the same conditions as are prescribed in these

rules for depositions taken in actions pending in the district court.

(2) Motion. The motion must shall show:

(A) (1) the name, address, names and addresses of persons to be examined and the

expected substance of the testimony of each deponent which he or she expects to elicit

from each; and

(B) (2) the reasons for perpetuating their the testimony.

- 14 -

(3) Court Order. The appellate court may itself rule on the motion or, while retaining

jurisdiction of the appeal, remand the motion for a ruling by the court that rendered the

judgment. If the court ruling on the motion finds that perpetuating the testimony may

prevent a failure or delay of justice, the court must permit the depositions to be taken and

may issue orders like those authorized by Rules 34 and 35. The depositions may be taken

under Rule 30 or 31 and used under Rule 32, just like other depositions in a pending

action.

entertain an action to perpetuate testimony.

. . . .

§ 6-328. Persons before whom depositions may be taken.

(a) Within the United States.

(1) Within this State. Within this Sstate, a deposition must depositions may be taken

before an officer authorized a judge or clerk of the Supreme Court or district court, a

county judge, clerk magistrate, notary public, or any person appointed by the court in

which the action is pending. A person so appointed has power to administer oaths by the

law of this state and take testimony.

(2) (b) Elsewhere Within the United States. Within other states of the United States or

within a territory or insular possession subject to the jurisdiction of the United States, a

deposition must depositions may be taken before:

(A) an officer authorized to administer oaths either by federal law the laws of the

United States or by the law in of the place of where the examination; is held, or before

(B) a person appointed by the court in which the action is pending. A person so

appointed has power to administer oaths and take testimony.

(3) Definition of Officer. The term “officer” in Rules 30, 31, and 32 includes a person

appointed by the court under this rule or designated by the parties under Rule 29(a).

(b) (c) In a Foreign Country Countries.

- 15 -

(1) In General. A deposition In a foreign country, depositions may be taken in a foreign

country:

(A) under an applicable treaty or convention;

(B) under a letter of request, whether or not captioned a “letter rogatory”;

or by the law in the place in which the of examination; is held, either by the law thereof

or by the law of the United States, or

(D) (2) before a person commissioned by the court, and a person so commissioned shall

have the power by virtue of his or her commission to administer any necessary oath and

take testimony. , or

(3) pursuant to a letter rogatory.

(2) Issuing a Letter of Request or a Commission. A commission or a letter of request, a

commission, or both may rogatory shall be issued:

(A) on application and notice appropriate terms after an application and notice of it; and

(B) without a showing that taking the deposition in another that are just and

appropriate. It is not requisite to the issuance of a commission or a letter rogatory that the

taking of the deposition in any other manner is impracticable or inconvenient; and both a

commission and a letter rogatory may be issued in proper cases.

(3) Form of a Request, Notice, or Commission. When a letter of request or any other

device is used according to a treaty or convention, it must be captioned in the form

prescribed by that treaty or convention. A notice or commission may designate the person

before whom the deposition is to be taken either by name or descriptive title. A letter of

request rogatory may be addressed “To the Appropriate Authority in [here name the

country].” A deposition notice or a commission must designate by name or descriptive

title the person before whom the deposition is to be taken.

(4) Letter of Request – Admitting Evidence. Evidence obtained in response to a letter of

request rogatory need not be excluded merely because for the reason that it is not a

verbatim transcript, because or that the testimony was not taken under oath, or because of

- 16 -

or for any similar departure from the requirements for depositions taken within the

United States under these rules.

(d) (c) Disqualification for Interest. The officer before whom the A deposition is must

not be taken and the before a person recording the testimony shall not be a who is any

party’s relative, employee, or attorney; who is related to or employed by any party’s of

any of the parties, nor a relative or employee of such attorney,; or is nor financially

interested in the action.

(e) Depositions for Use in Other Jurisdictions. Rule 30A applies when the deposition of

any person is to be taken in this state for use in proceedings in another state. When the

deposition of any other person is to be taken in this state for use in proceedings in another

country, witnesses may be compelled to appear and testify in the same manner and by the

same process and proceedings as may be employed for the purpose of taking testimony in

proceedings pending in this state. The district court for the county where the deponent is

found may make such orders as could be made if the deposition were intended for use in

this jurisdiction, having due regard for the laws and rules of the other country.

. . . .

§ 6-329. Stipulations regarding about discovery procedure.

Unless the court orders otherwise, the parties may stipulate, by a written or otherwise

recorded stipulation, that:

(a) (1) Provide that depositions a deposition may be taken before any person, at any

time or place, upon on any notice, and in any manner specified – in which event it and

when so taken may be used in the same way as any other deposition; like other

depositions, and

(b) (2) Modify the procedures provided by these rules for other methods of discovery

other procedures governing or limiting discovery be modified – but a stipulation

extending the time for any form of discovery must have court approval if it would

interfere with the time set for completing discovery, for hearing a motion, or for trial.

. . . .

§ 6-330. Depositions by upon oral examination.

- 17 -

(a) When and How Depositions May Be Taken.

(1) Without Leave. After commencement of the action, a any party may, by oral

questions, depose any person, take the testimony of any person, including a party, by

deposition upon oral examination without leave of court except as provided in Rule

30(a)(2). The deponent’s attendance may be compelled by subpoena. Leave of court,

granted with or without notice, must be obtained only if the plaintiff seeks to take a

deposition prior to the expiration of thirty days after service of summons, except that

leave is not required:

(1) If a defendant has served a notice of taking a deposition or otherwise sought

discovery, or

(2) If special notice is given as provided in subdivision (b)(2) of this rule.

The attendance of witnesses may be compelled by subpoena. The deposition of a person

confined in prison may be taken only by leave of court on such terms as the court

prescribes.

(2) With Leave. Leave of court is required if:

(A) the plaintiff seeks to take the deposition within 30 days after service of the

summons, unless

(i) the parties stipulate that the deposition may be taken,

(ii) the defendant has served a deposition notice in the action, or

(iii) the plaintiff certifies in the notice, with supporting facts, that the deponent is

expected to leave the State of Nebraska and be unavailable for examination in the State

after that time;

(B) the deponent has already been deposed in the action and the deponent and the other

parties do not stipulate that the deponent may be deposed again; or

(3) How Taken. Unless the court orders otherwise, a deposition may be taken in person,

by videoconferencing, by telephone, or by a combination of these methods. The parties

- 18 -

may stipulate or the court may on motion order that a deposition be taken by other

methods that provide contemporaneous verbal or verbal-and-visual interaction among the

participants and ensure preservation of an accurate record.

(4) Attendance by Different Method. Any party may notify the other parties, including

the party taking the deposition, that the party will attend the deposition through a

different method than the one stated in the notice. The party must notify the other parties

within a reasonable time of the date of the deposition. The court may enter an order

pursuant to Rule 26(d) specifying the method by which parties may attend a deposition.

(b) Notice of the Deposition; Other Formal Requirements. Examination: General

Requirements; Special Notice; Recording; Interpreters; Production of Documents and

Things; Deposition of Organization; Officer’s Duties.

(1)(A) In General. A party who intends to depose a desiring to take the deposition of

any person upon by oral questions must examination shall give reasonable written notice

in writing to every other party to the action.

(A) The notice must shall state the time and place for taking the deposition and the

deponent’s name and address of each person to be examined, if known. , and if If the

name is unknown not known, the notice must provide a general description sufficient to

identify the person him or her or the particular class or group to which the person he or

she belongs.

(B) The notice must state the date and time of the deposition and how it will be taken. If

the deposition will be taken in person, the notice must state the place of the deposition. If

the deposition will be taken by videoconferencing, the notice must state the name of the

software and either include a link for the deposition or state that a link will be provided to

the deponent and to every other party within a reasonable time before the deposition.

address (if any) of the party taking the deposition or if the party is represented, the party’s

attorney.

(D) If it is known that an interpreter will be used, the notice shall must state that an

interpreter will be used and must also shall state the language that will be interpreted or

the type of interpretation (e.g., sign language). If it is unknown whether an interpreter

may be necessary, the notice shall must include the following advisory statement: “If you

are a person who is deaf, hard of hearing, or unable to communicate in the English

- 19 -

language, you should contact as soon as possible the attorney or the party whose name is

stated in this notice or subpoena and let that attorney or party know that you will need the

help of an interpreter to understand and answer questions during the deposition.”

(B)(E) If a subpoena is to be served on the deponent person to be examined, the

subpoena shall must contain the same information required by subdivision (A) of this

rule. The Rule 30(b)(1)(D), except that the advisory statement required by subdivision

(A) may be omitted from the notice if it is included in the subpoena.

(2) Producing Documents.

(C)(1) (A) The notice to a party deponent may be accompanied by a request under Rule

34 to produce documents and tangible things at the deposition. If a subpoena duces tecum

is to be served on the deponent pursuant to Neb. Rev. Stat. § 25-1224 and Rule

34A(a)(3), person to be examined, the designation of the materials designated for

production, as set out in to be produced pursuant to the subpoena, shall must be listed

attached to or included in the notice or in an attachment. If the subpoena is served on a

party deponent, the time for compliance may not be shorter than the time specified in

Rule 34(2)(A).

(B) If any of the materials are in a language other than English, the deponent must

person on whom the subpoena duces tecum is served shall promptly notify the party

serving the subpoena of the language(s). The party serving the subpoena must shall then

promptly notify every other party to the action of the language(s).

(2) The notice to a party deponent may be accompanied by a request made in

compliance with Rule 34 for the production of documents and tangible things at the

taking of the deposition. The procedure of Rule 34 shall apply to the request.

(D) (3) Unknown Parties. When the party against whom the deposition is to be used is

unknown or is one whose whereabouts cannot be ascertained, the party he or she may be

notified of the taking of the deposition by publication or by any manner that is approved

by the court and reasonably calculated under the circumstances to provide the party with

actual notice. The publication must be made once in some newspaper printed in the

county where the action is pending, or if there is no such newspaper, then if there be any

printed in such county, and if not, in some newspaper that is printed in the State of

Nebraska and has this state of general circulation in that county. The publication must

contain all the information that is required in a written notice and must be made at least

10 days prior to the deposition. Publication may be proved in proven in the manner

- 20 -

prescribed in Neb. Rev. Stat. § 25-520. Before publication, a copy of the written notice

shall must be filed with the court in which the action is pending.

(2) Leave of court is not required for the taking of a deposition by plaintiff if the notice:

(A) States that the person to be examined is about to go out of the State of Nebraska

and will be unavailable for examination in the State of Nebraska unless his or her

deposition is taken before expiration of the thirty-day period, and

(B) Sets forth facts to support the statement.

The plaintiff’s attorney shall sign the notice, and his or her signature constitutes a

certification by him or her that to the best of his or her knowledge, information, and

belief the statement and supporting facts are true.

If a party shows that when he or she was served with notice under subdivision (b)(2) he

or she was unable through the exercise of diligence to obtain counsel to represent him or

her at the taking of the deposition the deposition may not be used against him or her.

(3) The court may for good cause shown enlarge or shorten the time for taking the

deposition.

(4) Method of Recording.

(A) Method Stated in the Notice. The notice required by subdivision (1) shall must state

the method for recording the testimony. means by which the testimony will be recorded

and preserved. The court may make any order necessary to assure that the record of the

testimony will be accurate and trustworthy (A) Unless the court orders otherwise,

testimony may be recorded by audio, audiovisual, or stenographic means, or any

combination of those means. The noticing party bears the cost of the recording means

methods specified in the notice.

(B) Additional Method. With prior notice to the deponent and other parties, any party

or the deponent may designate another method means of recording the testimony in

addition to the method means specified in the original notice. The additional recording

must shall be made by the officer personally or by someone acting in the presence of and

under the direction of the officer. The party or deponent who designates another method

means bears the cost of the additional record or transcript unless the court orders

- 21 -

otherwise. Absent a stipulation of the parties, no other recordings of the testimony may

be made.

(5) Interpreter Required; Payment; Certification. If the deponent is a person who is

deaf, hard of hearing, or unable to communicate the English language as defined in Neb.

Rev. Stat. § 25-2402, an interpreter must be used to interpret the questions and answers.

Unless the parties stipulate or the court upon for good cause shown orders otherwise, the

noticing party shall must arrange and pay for the interpreter. Unless the parties stipulate

or the court for upon good cause shown orders otherwise, the interpreter must be a

certified or provisionally certified interpreter; however, if the noticing party has made

reasonably diligent efforts to obtain a certified or provisionary certified interpreter and

none are available, the interpreter may be a registered interpreter. A certified interpreter,

a provisionally certified interpreter, and a registered interpreter is one who, pursuant to

Neb. Ct. R. § 6-702(A)-(C), is listed as such in the statewide register of interpreters

published and maintained by the State Court Administrator.

(6) Notice or Subpoena Directed to an Organization. In its notice or subpoena, a A

party may in his or her notice and in a subpoena name as the deponent a public or private

corporation, or a partnership, an or association, a or governmental agency, or other entity

and must describe with reasonable particularity the matters for on which examination is

requested. In that event, the The named organization so named shall must designate one

or more officers, directors, or managing agents, or designate other persons who consent

to testify on its behalf;, and it may set out forth, for each person designated, the matters

on which he or she each person designated will testify. Before or promptly after the

notice or subpoena is served, the serving party and the organization must confer in good

faith about the matters for examination. A subpoena shall must advise a nonparty

organization of its duty to confer with the serving party and to designate each person who

will testify make such a designation. The persons so designated must shall testify about

information as to matters known or reasonably available to the organization. This

subdivision (b)(6) does not preclude taking a deposition by any other procedure

authorized in allowed by these rules.

(7) The parties may stipulate in writing, or the court may upon motion order, that a

deposition be taken by telephone or by other remote means. For the purposes of these

rules, a deposition taken by telephone or by other remote means is taken at the place

where the deponent is to appear to answer questions. Absent a court order or stipulation

of the parties, the officer must be in the same location as the deponent.

(7) (8) Officer’s Duties.

- 22 -

(A) Before the Deposition. Unless the parties stipulate otherwise, a deposition must be

conducted before an officer identified by Rule 28 as a person before whom a deposition

may be taken. The officer must begin the deposition with an on-the-record statement that

includes: (i) the officer’s name and business address; (ii) the date and, time, and place of

the deposition; (iii) how the deposition is being taken and if the deposition is being taken

in person, the place where it is being taken; (iii iv) the deponent’s name; (iv v) the

officer’s administration of the oath or affirmation to the deponent; and (v vi) the identity

and location of all persons present attending the deposition. If the deposition is recorded

stenographically, the officer may include the foregoing information in the transcript

rather than make an on-the-record statement.

(B) Conducting the Deposition; Avoiding Distortion. If the deposition is recorded

nonstenographically, the officer must repeat the items in Rule 30(b)(8)(A)(i)-(iii iv) at the

beginning of each unit of the recording medium. The deponent’s and attorneys’

appearance or demeanor must not be distorted through recording techniques.

that the deposition is complete and must set out any stipulations made by the attorneys

about custody of the transcript or recording and of the exhibits, or about any other

pertinent matters.

(1) Examination and Cross-Examination. The examination Examination and cross-

examination of a deponent witnesses may proceed as they would permitted at the trial

under the provisions of the Nebraska Evidence Rules, except Rules 103 and 615. The

officer before whom the deposition is to be taken shall must put the deponent witness

under oath and, if an interpreter is used, also put the interpreter under oath. The officer

shall must also personally, or by someone acting under his or her direction and in his or

her presence, record the testimony of the witness by the method designated under Rule

30(b)(4)(A). The testimony shall must be recorded by the officer personally or by a

person acting in the presence and under the direction of the officer. in accordance with

subdivision (b)(4) of this rule. If requested by one of the parties, the testimony shall be

transcribed.

(2) Objections. All objections made An objection at the time of the examination –

whether to evidence, to a party’s conduct, to the officer’s the qualifications of the officer

taking the deposition, to the interpreter’s qualifications qualification of the interpreter, or

- 23 -

to the manner of taking the deposition, or to the evidence presented, or to the conduct of

any party, and or to any other aspect of the deposition – must objection to the

proceedings, shall be noted on the record, but the examination still proceeds; the

testimony is taken by the officer upon the deposition. Evidence objected to shall be taken

subject to any objection. the objections. (2) An objection must be stated concisely in a

nonargumentative and nonsuggestive manner. A person may instruct a deponent not to

answer only when necessary to preserve a privilege, to enforce a limitation ordered by the

court, or to present a motion under Rule 30(d)(2).

(3) Participating Through Written Questions. In lieu Instead of participating in the oral

examination, a party parties may serve written questions in a sealed envelope on the party

taking noticing the deposition, who must deliver and he or she shall transmit them to the

officer. The officer must ask the deponent those questions, who shall propound them to

the witness and record the answers verbatim.

(d) Sanction; Motion to Terminate or Limit Examination.

(1) Sanction. The court may impose an appropriate sanction – including reasonable

expenses and attorney fees incurred by any party – on a person who impedes, delays, or

frustrates the fair examination of the deponent.

(2) Motion to Terminate or Limit.

(A) Grounds. At any time during a deposition, the deponent or a party may move to

terminate or limit the deposition on the ground that (1) it is being conducted in bad faith

or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party

or (2) the interpreter is not rendering a reasonably complete and accurate interpretation or

is repeatedly altering, omitting, or adding things, including explanations, to what is

stated. The motion may be filed in the court in which the action is pending. If the

objecting deponent or party so demands, the deposition must be suspended for the time

necessary to obtain an order.

(B) Order. The court may order that the deposition be terminated or may limit its scope

and manner as provided in Rule 26(d c). If terminated, the deposition may be resumed

only by order of the court in which the action is pending. If the objecting deponent or

party so demands, the deposition must be suspended for the time necessary to obtain an

order.

- 24 -

expenses incurred in relation to the motion.

(e) Review; Changes; Waiver; Motion to Suppress.

(1) On request by the deponent or a party before the deposition is completed, the

deponent must be allowed 30 days after being notified by the officer that the transcript or

recording is available in which (a) to review the transcript or recording and (b) if there

are changes in form or substance, to sign a statement listing the changes and the reasons

for making them. The deponent may be allowed more or fewer than 30 days if the parties

stipulate to or the court orders a different number of days. The officer must note in the

certificate required by Rule 30(f)(1) whether a review was requested and, if so, must

attach any changes the deponent makes during the period specified above for review.

(2) All objections to the accuracy of the deposition, including objections to accuracy of

the interpreter's interpretation of the questions or answers, are waived if a request for

review is not made before the deposition is completed or, if a request for review is made,

no changes are submitted to the officer in the time and manner required by subdivision

(1) of this rule and no motion is made pursuant to subdivision (3) of this rule.

(3) If a request for review is made, the deponent or any party may move to suppress the

deposition pursuant to Rule 32(d)(4) on the ground that the deponent was not allowed to

review the transcript or recording as provided in subdivision subpart (1) of this rule or

that the transcription or interpretation of the deposition is inherently inaccurate.

(f) Certification and Delivery by Officer; Exhibits; Copies of the Transcript or

Recording; Notice of Delivery.

(1) Certification and Delivery. The officer shall must certify in writing include in or

attach to the deposition a certificate that the deponent witness was duly sworn by him or

her and that the deposition accurately records the deponent’s is an accurate record of the

testimony of the witness. Unless otherwise ordered by the court orders otherwise, the

officer shall then must promptly deliver the deposition to the party taking the deposition,

who must store it under conditions that will protect it against loss, destruction, tampering,

or deterioration.

(2) Documents and Tangible Things.

- 25 -

(A) Originals and Copies. Documents and tangible things produced for inspection

during the examination of the deponent witness must shall, upon the on a party’s request

of a party, be marked for identification and annexed attached to the deposition. Any party

may inspect and copy them. But if the person who produced them wants to keep the

originals, the person and may be inspected and copied by any party, except that if the

person producing the materials desires to retain them, he or she may:

(A) (i) offer copies to be marked, attached to the deposition, and then used as originals

– after giving for identification and annexed to the deposition and to serve thereafter as

originals if he or she affords to all parties a fair opportunity to verify the copies by

comparing them to comparison with the originals; or

(B) (ii) give all parties a fair offer the originals to be marked for identification, after

giving to each party an opportunity to inspect and copy the originals after they are

marked – them, in which event the materials originals may then be used in the same

manner as if annexed attached to the deposition.

(B) Order Regarding Originals. Any party may move for an order that the originals be

annexed attached to the deposition, pending final disposition of the case.

(2) (3) Copies of the Transcript or Recording. Unless otherwise stipulated by the parties

or ordered by the court, the officer must retain the stenographic notes of a deposition

taken stenographically or a copy of the recording of a deposition taken by another

method. When paid reasonable charges Upon payment of reasonable charges therefor, the

officer shall must furnish a copy of the transcript or recording to any party or to the

deponent.

(3) The party taking the deposition shall give prompt notice to all other parties that it

has been delivered by the officer before whom taken.

(g) Failure to Attend or to Serve Subpoena; Expenses. A party who, expecting a

deposition to be taken, attends in person or by an attorney may recover reasonable

expenses for attending, including attorney fees, if the noticing party failed to:

(1) attend and proceed with the deposition; or

(2) serve a subpoena on a nonparty deponent, who consequently did not attend.

- 26 -

(h) Protective Orders. The deponent or any party may move at any time for an order

pursuant to Rule 26(c d) to limit the dissemination of the deposition, either in whole or in

part, or to limit the persons who may have access to the deposition.

. . . .

§ 6-330(A). Interstate Deposition 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 requires 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 for inspection, copying,

testing, or sampling designated books, papers, documents, tangible things, or

electronically stored information in the possession, custody, or control of the person:; or

(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

- 27 -

(ii) any designated tangible things; or

controlled by that is in the possession or control of 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 shall must be

paid.

The clerk shall 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, shall 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

- 28 -

(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.

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)(a)(4).

(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.

- 29 -

. . . .

§ 6-331. Depositions upon by written questions.

(a) Serving Questions; Notice When a Deposition May be Taken.

(1) Without Leave. After commencement of the action, any A party may, by written

questions, depose take the testimony of any person, including a party, without leave of

court except as provided by Rule 31(a)(2) by deposition upon written questions. The

deponent’s attendance of witnesses may be compelled by a subpoena that contains the

information specified by Rule 30(b)(1)(E). The deposition of a person confined in prison

may be taken only by leave of court on such terms as the court prescribes.

(2) With Leave. A party must obtain leave of court if:

(A) the party is a plaintiff and seeks to serve questions within 30 days after service of

the summons, unless

(i) the parties stipulate that the deposition may be taken; or

(ii) the defendant has served a deposition notice in the action; or

(B) the deponent has already been deposed in the case and the deponent and the parties

do not stipulate that the deponent may be deposed again; or

(3) Service; Required Notice. A party desiring who intends to depose a person by take a

deposition upon written questions must shall serve the questions on them upon every

other party, with a notice stating, if known, (1) The the deponent’s name and address. of

the person who is to answer them, if known, and if If the name is unknown not known,

the notice must provide a general description sufficient to identify the person him or her

or the particular class or group to which he or she the person belongs. The notice must

also state , and (2) The the name or descriptive title and the address of the officer before

whom the deposition will is to be taken.

(3) (4) Interpreter; Required Notice. If an interpreter will be used, the notice must shall

also state that an interpreter will be used and state the language that will be interpreted or

- 30 -

the type of interpretation (e.g., sign language). The provisions of Rule 30(b)(5) governs

govern who may serve as an interpreter.

(5) Questions Directed to an Organization. A deposition upon written questions may be

taken of a public or private corporation, or a partnership, an or association, or a

governmental agency, or other entity may be deposed by written questions in accordance

with the provisions of Rule 30(b)(6).

(6) Questions from Other Parties. Any questions to the person from other parties must

be served on all parties as follows: cross questions, within 14 days after being served with

the notice and direct questions; redirect questions, within 7 days after being served with

the cross-questions; and recross-questions, within 7 days after being served with redirect

questions. Within thirty days after the notice and written questions are served, a party

may serve cross questions upon all other parties. Within ten days after being served with

cross questions, a party may serve redirect questions upon all other parties. Within ten

days after being served with redirect questions, a party may serve recross questions upon

all other parties. The court may, for good cause shown, lengthen enlarge or shorten these

times the time.

(b) Delivery to the Officer; Officer’s Duties. Officer to Take Responses and Prepare

Record. A copy of the notice and copies of all questions served shall be delivered by the

party taking the deposition to the officer designated in the notice, who shall proceed

promptly, in the manner provided by Rule 30(c), (e), and (f), to take the testimony of

the witness in response to the questions and to prepare, certify, and deliver the deposition,

attaching thereto the copy of the notice and the questions received by him or her. The

party who noticed the deposition must deliver to the officer a copy of all the questions

served and of the notice. The officer must promptly proceed in the manner provided in

Rule 30(c), (e), and (f) to:

(1) take the deponent’s testimony in response to the questions;

(2) prepare and certify the deposition; and

(3) send it to the party, attaching a copy of the questions and of the notice.

must notify all other parties when it is completed that it has been delivered by the officer

before whom taken.

- 31 -

. . . .

§ 6-332. Use of Using depositions in court proceedings.

(a) Use of Using Depositions.

(1) In General. At a hearing or trial, all or Any part or all of a deposition, so far as

admissible under the Nebraska Evidence Rules applied as though the witness were then

present and testifying, may be used against any a party on these conditions:

(A) the party who was present or represented at the taking of the deposition or who had

reasonable notice of it; thereof, in accordance with any of the following provisions:

(B) it is used to the extent it would be admissible under the Nebraska Rules of Evidence

if the deponent were present and testifying; and

(1) (2) Any party may use a deposition may be used by any party for the purpose of

contradicting or impeaching to contradict or impeach the testimony given by the of

deponent as a witness, or for any purpose permitted allowed by the Nebraska Evidence

Rules.

(2) (3) Deposition of a Party, Agent, or Designee. An adverse party may use for any

purpose the The deposition of a party or of anyone who, when deposed, at the time of

taking the deposition was an the party’s officer, director, or managing agent, or a person

designated designee under Rule 30(b)(6) or Rule 31(a)(5) to testify on behalf of a public

or private corporation, partnership or association, or governmental agency which is a

party may be used by an adverse party for any purpose.

(3) (4) Unavailable Witness. A party may use for any purpose the The deposition of a

witness, whether or not a party, may be used by any party for any purpose if the court

finds:

(A) That that the witness is dead; or

(B) That that the witness is at a greater distance more than one hundred miles from the

place of hearing or trial or hearing, or is outside out of the state, or beyond the subpoena

- 32 -

power of the court, unless it appears that the witness’ absence of the witness was

procured by the party offering the deposition; or

infirmity, or imprisonment; or

(D) That that the party offering the deposition has been unable to could not procure the

witness’ attendance of the witness by subpoena; or

(E) That that such exceptional circumstances exist as to make it desirable, – in the

interest of justice and with due regard to the importance of presenting the live testimony

of witnesses orally in open court, – , to allow permit the deposition to be used; or

(F) Upon on motion application and notice prior to the taking of the deposition, that

circumstances exist such as to make it desirable, – in the interest of justice and with due

regard to the importance of presenting the live testimony of witnesses orally in open

court, – to allow permit the deposition to be used.

(5) Limitation on Use; Unavailable Deponent; Party Could Not Obtain an Attorney. A

deposition taken without leave of court under the unavailability provision of Rule

30(a)(2)(A)(iii) must not be used against a party who shows that, when served with the

notice, it could not, despite diligent efforts, obtain an attorney to represent it at the

deposition.

(6) Using Part of a Deposition. (4) If a party offers in evidence only part of a deposition

is offered in evidence by a party, an adverse party may require him or her the offeror to

introduce any other parts that part which ought in fairness to should be considered with

the part introduced, and any party may itself introduce any other parts relevant to the

issues.

(7) Substituting a Party. Substituting a party Substitution of parties does not affect the

right to use a deposition depositions previously taken;.

(8) Deposition Taken in an Earlier Action. A deposition lawfully taken in any federal-

or state court-action may be used in a later ; and when an action has been brought in any

court of the United States or of any state and another action involving the same subject

matter is afterward brought between the same parties, or their representatives or

successors in interest, to the same extent as if all depositions lawfully taken in the former

action may be used in the latter as if originally taken in the later action therefor. A

- 33 -

deposition previously taken may also be used as permitted allowed by the Nebraska

Evidence Rules.

(b) Objections to Admissibility. Subject to the provisions of Rule 28(b) and 32(d)(3)

subdivision (d)(3) of this rule, an objection may be made at a hearing or the trial or

hearing to receiving in evidence the admission of any deposition testimony or part thereof

for any reason which would require the exclusion of the evidence that would be

inadmissible if the witness were then present and testifying; or if the trial court directs,

such objections may be heard and determined prior to trial.

(1) Transcript. Unless the court orders otherwise, a party must:

(A) provide the court with a transcript of any deposition testimony the party offers, but

may provide the court with the testimony in audio or audiovisual form as well; or

(B) if the deposition was not recorded stenographically, provide the court and the other

parties with a transcript of the portions of the deposition requiring a ruling from the court.

(2) Form. On any party’s request, deposition testimony offered in a jury trial for any

purpose other than impeachment must be presented in audio or audiovisual form, if

available, unless the court for good cause orders otherwise.

(3) Notice. A party who may offer a deposition in audio or audiovisual form for any

purpose other than impeachment must give the other parties reasonable written notice

before the hearing or trial and an opportunity to object to use of all or part of the

deposition.

(d) Waiver of Objections Effect of Errors and Irregularities in Deposition.

(1) As to To the Notice. An objection to an error or irregularity All errors and

irregularities in the a deposition notice for taking a deposition are is waived unless

written objection is promptly served upon in writing on the party giving the notice.

(2) To the Officer’s Qualifications. An objection based on As to Disqualification of

Officer. Objection to taking a deposition because of disqualification of the officer before

whom it a deposition is to be taken is waived unless made before the taking of if not

made:

- 34 -

(A) before the deposition begins; or

(B) promptly after the basis for as soon thereafter as the disqualification becomes

known or, could be discovered with reasonable diligence, could have been known.

(3) To the As to Taking of the Deposition.

(A) Objection to Competence or Relevance. An objection to a deponent’s competence –

or to the competence or relevance Objections to the competency of a witness or to the

competency or relevancy of testimony – is are not waived by a failure to make them the

objection before or during the taking of the deposition, unless the ground of the objection

for it is one which might have been corrected obviated or removed if presented at that

time. But if a deposition was recorded by audio or audiovisual means only, the objection

is waived by the failure to make it to the court before the hearing or trial unless the court,

for good cause, excuses the failure. In a deposition recorded and preserved by

nonstenographic means, such objections shall be made to the court before the trial or

hearing, or such objections will be waived unless otherwise ordered by the court.

(B) Objection to an Error or Irregularity. An objection to an error or irregularity Errors

and irregularities occurring at the an oral examination is waived if:

(i) it relates to in the manner of taking the deposition, in the form of a question the

questions or answer answers, in the oath or affirmation, a party’s or in the conduct of

parties, and errors of any kind which or other matters that might have been corrected at

that time; and

(ii) it is not timely made during the deposition. be obviated, removed, or cured if

promptly presented, are waived unless seasonable objection thereto is made at the taking

of the depositions.

question questions submitted under Rule 31 is are waived unless if not served in writing

upon on the party propounding them submitting the question within the time allowed for

serving responsive questions or, if the question is a recross-question, the succeeding cross

or other questions and within 7 ten days after being served with it service of the last

questions authorized.

- 35 -

(4) As to Interpreting, Completing and Returning the Deposition. An objection to how

the interpreter interpreted the questions or answers, how the officer transcribed the

testimony, or how the officer prepared, signed, certified, sealed, endorsed, sent, or

otherwise dealt with the deposition is waived unless a motion to suppress the deposition

is made promptly after the error or irregularity becomes known or, with reasonable

diligence, could have been known.

. . . .

[Committee’s Note: Although the proposed rule and current rule are similar in content,

they are very different in organization. The difference in organization makes impossible

to prepare a useful marked-up version of the current rule because just about everything in

the current rule would be crossed out and just about everything in the proposed rule

would be added in – even though the content was much the same.]

§ 6-333. Interrogatories to Parties.

(a) Availability; Procedures for Use. Any party may serve upon any other party written

interrogatories to be answered by the party served or if the party served is a public or

private corporation or a partnership or association or governmental agency, by any officer

or agent, who shall furnish such information as is available to the party. Interrogatories

may, without leave of court, be served upon the plaintiff after commencement of the

action and upon any other party with or after service of the summons upon that party.

Unless otherwise permitted by the court for good cause shown, no party shall serve upon

any other party more than fifty interrogatories. Each question, subquestion, or subpart

shall count as one interrogatory.

Each interrogatory shall be repeated and answered separately and fully in writing under

oath, unless it is objected to, in which event the reasons for objection shall be stated in

lieu of an answer. The answers are to be signed by the person making them, and the

objections signed by the attorney making them. The party upon whom the interrogatories

have been served shall serve a copy of the answers, and objections if any, within thirty

days after the service of the interrogatories, except that a defendant may serve answers or

objections within forty-five days after service of the summons upon that defendant. The

court may allow a shorter or longer time. The party submitting the interrogatories may

move for an order under Rule 37(a) with respect to any objection to or other failure to

answer an interrogatory.

- 36 -

(b) Scope; Use at Trial. Interrogatories may relate to any matters which can be inquired

into under Rule 26(b) and the answers may be used to the extent permitted by the

Nebraska Evidence Rules.

An interrogatory otherwise proper is not necessarily objectionable merely because an

answer to the interrogatory involves an opinion or contention that relates to fact or the

application of law to fact, but the court may order that such an interrogatory need not be

answered until after designated discovery has been completed or until a pretrial

conference or other later time.

derived or ascertained from the business records, including electronically stored

information, of the party upon whom the interrogatory has been served or from an

examination, audit, or inspection of such business records, including a compilation,

abstract, or summary thereof, and the burden of deriving or ascertaining the answer is

substantially the same for the party serving the interrogatory as for the party served, it is a

sufficient answer to such interrogatory to specify the records from which the answer may

be derived or ascertained and to afford to the party serving the interrogatory reasonable

opportunity to examine, audit, or inspect such records and to make copies, compilations,

abstracts, or summaries. A specification shall be in sufficient detail as to permit the

interrogating party to locate and to identify, as readily as can the party served, the records

from which the answer may be ascertained.

(a) In General.

(1) Number. Unless otherwise stipulated or ordered by the court, a party may serve on

any other party no more than 50 written interrogatories, including all discrete subparts.

The court may grant leave to serve additional interrogatories for good cause shown.

(2) Scope. An interrogatory may relate to any matter that may be inquired into under

Rule 26(b). An interrogatory is not objectionable merely because it asks for an opinion

or contention that relates to fact or the application of law to fact, but the court may

order that the interrogatory need not be answered until designated discovery is complete

or some other time.

(3) Time; Editable Format. Interrogatories may be served on the plaintiff after

commencement of the action and on any other party with or after service of the

summons on that party. Upon demand, the party served with the interrogatories must be

given an electronic copy of the interrogatories in a readily editable format.

- 37 -

(b) Answers and Objections.

(1) Responding Party. The interrogatories must be answered:

(A) by the party to whom they are directed; or

(B) if that party is a public or private corporation, a partnership, an association, a

governmental agency, or other entity, by any officer or agent, who must furnish the

information available to the party.

(2) Time to Respond. The responding party must serve its answers and any

objections within 30 days after being served with the interrogatories, except that a

defending party may serve its answers and objections within 45 days after being served

with the summons or 30 days after being served with the interrogatories, whichever is

longer. A shorter or longer time may be stipulated to under Rule 29 or be ordered by

the court.

(3) Answering Each Interrogatory. Each interrogatory must, to the extent it is

not objected to, be answered separately and fully in writing under oath.

(4) Objections. If a party objects to an interrogatory, the party must state the

grounds for the objection and must also explain with specificity why the

interrogatory is objectionable on those grounds. Any ground not stated in a timely

objection is waived unless the court, for good cause, excuses the failure.

(5) Form of Answer or Objection. The answering or objecting party must reproduce

each interrogatory and then state the party’s answer or objection to the interrogatory.

(6) Signature. The person who makes the answers must sign them, and the attorney

who objects must sign any objections.

Nebraska Evidence Rules.

(d) Option to Produce Business Records. If the answer to an interrogatory may be

determined by examining, auditing, compiling, abstracting, or summarizing a party’s

business records (including electronically stored information), and if the burden of

- 38 -

deriving or ascertaining the answer will be substantially the same for either party, the

responding party may answer by:

(1) specifying the records that must be reviewed, in sufficient detail to enable the

interrogating party to locate and identify them as readily as the responding party could;

and

(2) giving the interrogating party a reasonable opportunity to examine and audit the

records and to make copies, compilations, abstracts, or summaries.

. . . .

§ 6-334. Production of Producing documents, electronically stored information, and

tangible things and entry upon, or entering onto land, for inspection and other

purposes.

(a) Scope. In General. Any A party may serve on any other party a request within the

scope of Rule 26(b):

(1) To to produce and permit the requesting party or its representative making the

request, or someone acting on his or her behalf, to inspect, copy, test, or sample the

following items in the responding party’s possession, custody, and control:

(A) 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 translated, if necessary, by the responding

party respondent into a reasonably usable form;, or

(B) to inspect and copy, test, or sample any tangible things which constitute or contain

matters within the scope of Rule 26(b) and which are in the possession, custody, or

control of the party upon whom the request is served; or

(2) to To permit entry upon onto designated land or other property in the possession or

control of possessed or controlled by the responding party, so that the requesting party

may inspect, measure, survey, photograph, test, or sample upon whom the request is

served for the purpose of inspection and measuring, surveying, photographing, testing, or

sampling the property or any designated object or operation on it. thereon, within the

scope of Rule 26(b).

- 39 -

(b) Procedure Time; Editable Format. The request may, without leave of court, be

served on upon the plaintiff after commencement of the action and on upon any other

party with or after service of the summons upon on that party. Upon demand, the party

served with the request must be given an electronic copy of the request in a readily

editable format.

(1) Contents of the Request. The request:

(A) must shall set forth the items to be inspected either by individual item or by

category, and describe each item and category with reasonable particularity each item or

category of items to be inspected;. The request shall

(B) must specify a reasonable time, place, and manner of making for the inspection and

performing the related acts; and

information is to be produced.

(2) Reponses and Objections.

(A) Time to Respond. The party upon to whom the request is directed must respond in

writing served shall serve a written response within 30 days after the service of the

request, being served, except that a defendant defending party must respond may serve a

response within 45 days after being served service of with the summons or 30 days after

being served with the request, whichever is longer upon that defendant. The court may

allow a A shorter or longer time may be stipulated to under Rule 29 or be ordered by the

court.

(B) Responding to Each Item. The responding party must reproduce each request and

then state the party’s response to the request. For The response shall state, with respect to

each item or category, the response must either state that inspection and related activities

will be permitted as requested or state an objection. The responding party may state that it

will produce copies of documents or of electronically stored information instead of

permitting inspection. The production must then be completed no later than the time for

inspection specified in the request or another reasonable time specified in the response.,

unless the request is objected to, including an objection to the requested form or forms for

- 40 -

producing electronically stored information, in which event the reasons for objection

shall be stated.

objection and must also explain with specificity why the request is objectionable on those

grounds. Any ground not stated in a timely objection is waived unless the court, for good

cause, excuses the failure.

(i) Withholding Materials. An objection must state whether any responsive materials

are being withheld on the basis of that objection.

(ii) Partial Objection. An objection to part of a request must specify the part and

produce or permit inspection of the rest. If objection is made to part of an item or

category, the part shall be specified and inspection permitted of the remaining parts.

(D) Responding to a Request for Production of Electronically Stored Information. The

response may state an objection to a If objection is made to the requested form or forms

for producing electronically stored information. If the responding party objects to a

requested form – , or if no form was specified in the request, – the responding party must

state the form or forms it intends to use. The party submitting the request may move for

an order under Rule 37(a) with respect to any objection to or other failure to respond to

the request or any part thereof, or any failure to permit inspection as requested.

(E) Producing the Documents or Electronically Stored Information. Unless the parties

otherwise stipulated or ordered by agree, or the court, these procedures apply to

producing documents or electronically stored information otherwise orders:

(1i) A a party who must produce produces documents for inspection shall produce them

as they are kept in the usual course of business or shall must organize and label them to

correspond with to the categories in the request;

(2ii) if If a request does not specify the a form or forms for producing electronically

stored information, a responding party must produce it the information in a form or forms

in which it is ordinarily maintained or in a reasonably usable form or forms that are

reasonably usable; and

(3iii) a A party need not produce the same electronically stored information in more

than one form.

- 41 -

person not a party for production of documents and things and permission to enter upon

land.

. . . .

[Committee’s Note: Although the proposed rule and current rule are similar in content,

they are very different in organization. The difference in organization makes impossible

to prepare a useful marked-up version of the current rule (other than for the title) because

just about everything in the current rule would be crossed out and just about everything in

the proposed rule would be added in – even though the content was much the same.]

§ 6-334A. Discovery from a Nonparty without a Deposition

(a) Procedure.

(1) Scope. Any party may, by subpoena without a deposition:

(A) require the production for inspection, copying, testing, or sampling of designated

books, papers, documents, tangible things, or electronically stored information (including

writings, drawings, graphs, charts, photographs, sound recordings, 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 object 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 entry, 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.

- 42 -

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 plaintiff 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

parties 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 objection on the party who gave notice that it would be issued. The

objection shall specifically identify any intended production or entry 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

of any material or entry upon any 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 parties 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).

- 43 -

(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,

copying, testing, or sampling either where the documents or tangible things are regularly

kept or at some other reasonable 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 production of any or all of the designated materials or entry upon the

premises. If objection is made, the party for whom the subpoena was issued shall not be

entitled to production of the materials or entry upon premises except pursuant to an order

of the court. 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 or to permit

entry 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 applies, or

- 44 -

(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.

(e) Coordination.

(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 (a)(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.

. . . .

§ 6-334(A). Subpoenas commanding nonparties to produce documents,

electronically stored information, and tangible things or to allow entry onto land, for

inspection and other purposes.

(a) In General.

(1) Scope of Subpoena. A party may serve a subpoena that commands a person to

produce and permit the party or its representative to do the following at a specified time

and place:

- 45 -

(A) inspect, copy, test, or sample the following items that are within the scope of

Rule 26(b) and in the person’s possession, custody, or control:

(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

(B) 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.

(2) Option to Provide Copies. The subpoena may give the person the option of (A)

producing documents or electronically stored information for inspection or (B)

providing copies of the documents or information by the date specified in the

subpoena. If the subpoena gives the person such an option, the person may condition

preparation of the copies on advance payment of the reasonable cost of preparing the

copies.

(3) Subpoena for Deposition and Documents. Pursuant to Neb. Rev. Stat. § 25-1224,

the subpoena may command the person to appear and testify at a deposition at the time

and place specified for production. Such a subpoena must comply with this rule and

contain the information that the statutes and Rule 30(b)(1)(E) require for deposition

subpoenas. It must also contain a statement of the method for recording the testimony.

(b) Prior Notice to Parties.

(1) A party who intends to serve a subpoena pursuant to this rule must serve a

written notice on every other party at least 10 days before issuance of the subpoena.

Leave of court or a stipulation of the parties is required only if a plaintiff seeks to

serve the notice within 30 days after service of the summons and no defending party

has served such a notice.

- 46 -

(2) The notice must state the name and address of the person to whom the subpoena

will be directed, the date on or after which the subpoena will be issued, the time and

place of the inspection or entry, and whether the person will be given the option of

providing the party with copies of the designated documents or electronically stored

information. The notice must also contain a designation of (i) the documents or

electronically stored information to be produced or (ii) the land or other property to be

entered.

objection to the subpoena on all the other parties, including the party who gave written

notice of the intent to serve the subpoena. If the subpoena is for entry onto land, any

party may request that it be named in the subpoena as also entering at the same time and

place.

(1) Objection to Production or Entry. A party may object to one or more of the

designations in the subpoena on the grounds that the designated production or entry is

(i) protected by a privilege, in which case the party must identify the applicable

privilege, (ii) not within the scope of Rule 26(b), or (iii) would be unreasonably

intrusive or oppressive to the party. The objection must specify the designated

production or entry to which the objection is directed and must also specify the grounds

for the objection.

(2) Unless the party withdraws the objection or the court orders otherwise, a

subpoena may not command the production of any items or the entry onto any land to

which an objection has been made pursuant to subpart (1) of this rule.

(3) The party who intends to serve the subpoena may move for an order on the

objection. The motion must be filed in the court where the action is pending and served

on the other parties. The court may sustain or overrule the objection in whole or in part,

order that discovery proceed in a different manner, or enter a protective order pursuant

to Rule 26(d). The court may also award expenses as authorized in Rule 37(a)(5).

(d) Issuance; Contents; Form of Production; Service.

(1) Issuance. A subpoena may be issued pursuant to this rule by either the clerk of

the court where the action is pending upon the request of a party or by an attorney on

behalf of the court if the attorney is authorized to practice in the court.

- 47 -

(2) Contents. A subpoena issued pursuant to this rule must:

(A) state the name of the court from which it is issued, the title of the action, and the

case number;

(B) command the person to whom it is directed to produce the designated

documents, electronically stored information, or things or permit the designated

entry;

person the option of producing the designated documents or electronically stored

information for inspection at the specified time and place or providing copies of them

by the specified date;

(D) if for entry, specify the time and place for the designated entry and state the

name of each party entering;

(E) state the name of each party who was given written notice that the subpoena would

be issued and the date on which the party was given notice; and

(F) include this rule, either in the text of the subpoena or as an attachment

to the subpoena.

(3) Form of Production. A subpoena may specify the form or forms in which

electronically stored information is to be produced.

(4) Reasonable Particularity. The designations in the subpoena must describe the

documents, electronically stored information, or items with reasonable particularity.

(5) Service on the Person; Time; Return of Service. A subpoena issued pursuant to

this rule must be served on the person to whom it is directed no less than 14 days before

the time specified for production or entry. The subpoena may be served by any person

who is authorized by statute to serve a deposition subpoena. Service and return of

service must be made in the manner authorized by statute for the service and return of

service of a deposition subpoena.

(6) Service on the Other Parties. The party who serves a subpoena on the person

pursuant to this rule must also serve a copy of the subpoena on the other parties no

less than 14 days before the time specified for production or entry.

- 48 -

(7) Protective Order. After a subpoena has been issued, any party or the person served

with a subpoena may move for a protective order pursuant to Rule 26(d).

(8) Avoiding Undue Burden or Expense. A party or an attorney responsible for

issuing and serving a subpoena must take reasonable steps to avoid imposing undue

burden or expense on a person subject to the subpoena. The court by which the

subpoena was issued must enforce this duty and impose an appropriate sanction –

which may include lost earnings and reasonable attorney fees – on a party or attorney

who fails to comply.

(e) Objections; Motions. If a person served with a subpoena believes that compliance

with the subpoena should not be required in whole or in part, the person may serve an

objection to the subpoena or file a motion to quash or modify the subpoena.

(1) Objection.

(A) Making an Objection. A person served with a subpoena may serve on the party

serving the subpoena an objection to producing any or all of the designated items, to

producing electronically stored information in the specified form or forms, or to

allowing the designated entry. The objection must be in writing and served within 14

days after the subpoena was served. The party on whom the objection was served must

promptly serve a copy of the objection on all the other parties to the action.

(B) Waiver of Objection. The objection must state the grounds for the objection and

must also state with specificity why the subpoena is objectionable on those grounds.

Any ground not stated in a timely objection is waived unless (i) the objection is based

on a privilege or protection as trial preparation material or (ii) the court, for good

cause, excuses the failure.

required to produce objected-to items or entry unless a court orders otherwise. The

party serving the subpoena may file a motion in the court where the action is pending

for an order overruling the objection and compelling compliance with the subpoena.

An order compelling compliance must protect a person who is neither a party nor a

party’s officer from significant expense resulting from compliance.

(2) Motion to Quash. A person served with a subpoena may file a motion to quash or

modify the subpoena. The motion must be filed in the court where the action is pending

- 49 -

before the time specified for compliance or within 14 days after the subpoena was

served, whichever is earlier, and must also be served on all the parties. The court must

grant the motion to quash or modify if the subpoena:

(A) fails to allow a reasonable time for compliance;

(B) requires disclosure of privileged or other protected matter, and no exception or

waiver applies; or

(f) Duties in Responding to a Subpoena.

(1) Producing Documents or Electronically Stored Information. These

procedures apply to producing documents or electronically stored information.

(A) Documents. A person responding to a subpoena to produce documents must

produce them as they are kept in the ordinary course of business or must organize

and label them to correspond to the categories in the subpoena.

(B) Form for Producing Electronically Stored Information Not Specified. If a

subpoena does not specify a form for producing electronically stored information, the

person must produce it in a form or forms in which it is ordinarily maintained or in a

reasonably useable form or forms.

not produce the same electronically stored information in more than one form.

(2) Claiming Privilege or Protection. When a person withholds subpoenaed

information by claiming that the information is privileged or subject to protection as

work product, the party must:

(A) expressly make the claim; and

(B) describe the nature of the documents, communications, or tangible things not

produced – and do so in a manner that, without revealing information itself privileged

or protected, will enable the parties to assess the claim.

- 50 -

(g) Production of Privileged or Protected Documents. Rule 26(b)(5) applies to

documents or electronically stored information produced in response to a subpoena.

(h) Duplicates. If the party who served the subpoena creates or obtains copies of any

items from the person served with the subpoena, the party must make duplicate copies

available to any other party who requests them and pays in advance the reasonable cost

of making the duplicates.

§ 6-335. Physical and mental examinations of persons.

(a) Order for Examination.

(1) In General. The court where the action is pending may order a party whose When

the mental or physical condition – (including the blood group) – of a party, or of a person

in the custody or under the legal control of a party, is in controversy, the court in which

the action is pending may order the party to submit to a physical or mental examination

by one or more physicians, or other persons suitably licensed or certified examiners under

the laws to engage in a health profession, or to produce for examination the person in his

or her custody or legal control. The court has the same authority to order a party to

produce for examination a person who is in the party’s custody or under the party’s legal

control.

(2) Motion and Notice; Contents of the Order. The order:

(A) may be made only on motion for good cause shown and on upon notice to all

parties the person to be examined; and to all parties and shall

(B) must specify the time, place, manner, conditions, and scope of the examination, as

well as and the person or persons who will perform it by whom it is to be made.

(b) Examiner’s Report of Examining Physician.

(1) Request by the Party or Person Examined. If requested by the party against whom

an order is made under subdivision (a) of this rule or the person examined, the party The

party who moved for causing the examination must, on request, to be made shall deliver

to the requester him or her a copy of the examiner’s a detailed written report of the

examining physician setting out his or her findings, including results of all tests made,

diagnoses, and conclusions, together with like reports of all earlier examinations of the

- 51 -

same condition. The request may be made by the party against whom the examination

order was issued or by the person examined.

(2) Contents. The examiner’s report must be in writing and must set out in detail the

examiner’s findings, including diagnoses, conclusions, and the results of any tests.

(3) Request by the Moving Party. After delivering the reports, delivery the party who

moved for causing the examination shall be entitled upon may request – and is entitled to

receive – from the party against whom the examination order was issued is made a like

reports report of all earlier or later examinations any examination, previously or

thereafter made, of the same condition. But those reports need not be delivered by the

party with custody or control of the person examined, unless, in the case of a report of

examination of a person not a party, if the party shows that he or she is unable to it could

not obtain them it.

(4) Failure to Deliver a Report. The court on motion may make an order – on just terms

– that against a party requiring delivery of a deliver the report of an examination. If the

report is not provided on such terms as are just, and if a physician fails or refuses to make

a report, the court may exclude his or her the examiner’s testimony if offered at the trial.

(2) (Not used).

(5) (3) Scope. This subdivision subpart (b) applies also to an examination examinations

made by the parties’ agreement of the parties, unless the agreement expressly provides

states otherwise. This subpart subdivision does not preclude discovery of a obtaining an

examiner’s report of an examining physician or deposing an examiner under the taking of

a deposition of the physician in accordance with the provisions of any other rules rule.

. . . .

§ 6-336. Requests for admission.

(a) Request for Admission Scope and Procedure.

(1) Scope. A party may serve upon on any other party a written request to admit for the

admission, for purposes of the pending action only, of the truth of any matters within the

scope of Rule 26(b) set forth in the request that relate relating to:

- 52 -

(A) facts, statements or opinions of fact or of the application of law to fact, or opinions

about either; and

(B) including the genuineness of any described documents described in the request.

(2) Form; Copy of a Document. Each matter must be separately stated. A request to

admit the genuineness of a document must be accompanied by a copy Copies of the

document documents shall be served with the request unless it is, or has been, they have

been or are otherwise furnished or made available for inspection and copying.

(3) When Served; Editable Format. The request Requests may, without leave of court,

be served on upon the plaintiff after commencement of the action and upon on any other

party with or after service of the summons upon on that party. Upon demand, the party

served with the requests must be given an electronic copy of the requests in a readily

editable format. Each matter of which an admission is requested shall be separately set

forth by the party making the request, and shall be repeated by the responding party in the

answer or objection thereto.

(4) Time to Respond; Effect of Not Responding. A The matter is admitted unless,

within thirty days after service of the request, or within such shorter or longer time as the

court may allow, the party to whom the request is directed serves on upon the party

requesting party the admission a written answer or objection addressed to the matter, and

signed by the party or its by his or her attorney:

(A) within 30 days after being served with the request;

(B) if the party is a defending party within 45 , but, unless the court shortens the time, a

defendant shall not be required to serve answers or objections before the expiration of

forty-five days after being served with service of the summons upon him or her. or 30

days after being served with the request, whichever is longer; or

(5) Answer. If a matter is not admitted, the objection is made, the reasons therefor shall

be stated. The answer shall must specifically deny it the matter or set forth state in detail

the reasons why the answering party cannot truthfully admit or deny it the matter. A

denial shall must fairly respond to meet the substance of the matter; requested admission,

and when good faith requires that a party qualify his or her an answer or deny only a part

of the matter of which an admission is requested, he or she shall the answer must specify

- 53 -

the part admitted so much of it as is true and qualify or deny the rest remainder. An The

answering party may assert not give lack of knowledge or information or knowledge as a

reason for failure failing to admit or deny only if the party states unless he or she states

that he or she it has made reasonable inquiry and that the information it knows known or

can readily obtain obtainable by him or her is insufficient to enable it him or her to admit

or deny.

(6) The grounds for objecting to a request must be stated. A party must not object solely

on the ground that the request who considers that a matter of which an admission has

been requested presents a genuine issue for trial. may not, on that ground alone, object to

the request; he or she may, subject to the provisions of Rule 37(c), deny the matter or set

forth reasons why he or she cannot admit or deny it.

(7) Form of Answer or Objection. The answering or objecting party must reproduce

each request and then state the party’s answer or objection to the request.

(8) Motion Regarding the Sufficiency of an Answer or Objection. The requesting party

who has requested the admissions may move to determine the sufficiency of an answer or

objection the answers or objections. Unless the court finds determines that an objection is

justified, it must shall order that an answer be served. On finding If the court determines

that an answer does not comply with the requirements of this rule, the court it may order

either that the matter is admitted or that an amended answer be served. The court may

defer its final decision until , in lieu of these orders, determine that final disposition of the

request be made at a pretrial conference or at a specified designated time before prior to

trial. The provisions of Rule 37(a)(4)(5) apply applies to an the award of expenses

incurred in relation to the motion.

(b) Effect of Admission; Withdrawing or Amending It. Any A matter admitted under

this rule is conclusively established unless the court, on motion, permits the admission to

be withdrawn or amended withdrawal or amendment of the admission. The court may

permit withdrawal or amendment when if it promotes the presentation of the merits of the

action will be subserved thereby and the party who obtained the admission fails to satisfy

if the court is not persuaded that it would prejudice the requesting party withdrawal or

amendment will prejudice him or her in maintaining his or her or defending the action or

defense on the merits. Any An admission made by a party under this rule is for the

purpose of the pending action only and is not an admission by him or her for any other

purpose nor may it and cannot be used against the party him or her in any other

proceeding.

- 54 -

. . . .

§ 6-337. Failure to Make disclosures or to cooperate in discovery; sanctions.

(a) Motion for Order Compelling Disclosure or Discovery.

(1) In General. On A party, upon reasonable notice to other parties and all affected

persons affected thereby, a party may move apply for an order compelling disclosure or

discovery. as follows: The motion must include a certification that the movant has in

good faith conferred or attempted to confer with the person or party failing to make

disclosure or discovery in an effort to obtain it without court action.

(2) (1) Appropriate Court. An application A motion for an order compelling disclosure

or discovery must to a party may be made to in the court in which the action is pending,

or alternatively, on matters relating to a deposition, to the district court in the district

where the deposition is being taken. An application for an order to a deponent who is not

a party shall be made to the district court where the deposition is taken.

(3) Specific Motions Motion.

(A) To Compel Disclosure. If a party fails to make a disclosure required by Rule 26(d),

any other party may move to compel disclosure and for appropriate sanctions.

(B) To Compel a Discovery Response. A party seeking discovery may move for an

order compelling an answer, designation, production or inspection. The motion may be

made if:

(i) If a deponent fails to answer a question asked propounded or submitted under Rule

30 or Rule 31; , or

(ii) a corporation or other entity fails to make a designation under Rule 30(b)(6) or

31(a)(4); , or

(iii) a party fails to answer an interrogatory submitted under Rule 33; , or

(iv) if a party, in response to a request for inspection submitted under Rule 34, fails to

produce documents or fails to respond that inspection will be permitted – as requested or

fails to permit inspection – as requested under Rule 34, the discovering party may move

- 55 -

for an order compelling an answer, or a designation, or an order compelling inspection in

accordance with the request.

party asking proponent of the question may complete or adjourn the examination before

he or she applies moving for an order.

If the court denies the motion in whole or in part, it may make such protective order as

it would have been empowered to make on a motion made pursuant to Rule 26(c).

(4) (3) Evasive or Incomplete Disclosure, Answer, or Response. For purposes of this

subpart subdivision (a), an evasive or incomplete disclosure, answer, or response is to

must be treated as a failure to disclose, answer, or respond.

(5) (4) Payment Award of Expenses; Protective Orders of Motion.

(A) If the Motion is Granted (or Disclosure or Discovery is Provided After Filing). If

the motion is granted, – or if the disclosure or requested discovery is provided after the

motion was filed -- the court shall must, after giving an opportunity for hearing to be

heard, require the party or deponent whose conduct necessitated the motion, or the party

or attorney advising such that conduct, the attorney’s law firm or employer, or some or

all or both of them to pay to the moving party the movant’s reasonable expenses incurred

in obtaining making the order motion, including attorney fees. But, unless the court must

not order this payment if:

(i) the movant filed the motion before attempting in good faith to obtain the disclosure

or discovery without court action;

(ii) the opposing party’s nondisclosure, response, or objection finds that the opposition

to the motion was substantially justified; or that

(iii) other circumstances make an award of expenses unjust.

(B) If the Motion is Denied. If the motion is denied, the court shall may issue any

protective order authorized under Rule 26(d) and must, after giving an opportunity to be

heard for hearing, require the moving party movant, or the attorney advising filing the

motion, the attorney’s law firm or employer, or some or all both of them to pay to the

party or deponent who opposed the motion the its reasonable expenses incurred in

opposing the motion, including attorney fees., unless But the court must not order this

- 56 -

payment if finds that the making of the motion was substantially justified or that other

circumstances make an award of expenses unjust.

and denied in part, the court may issue any protective order authorized under Rule 26(d)

and may, after giving an opportunity to be heard, apportion the reasonable expenses

incurred in relation to for the motion among the parties and persons in a just manner.

(b) Failure to Comply with a Court Order.

(1) Sanctions by Court in District Where Deposition is Taken. If a deponent fails to be

sworn or to answer a question after being directed to do so by the district court in the

district in which the deposition is being taken, the failure may be considered a contempt

of that court.

(1 2) Sanctions. by Court in Which Action Is Pending. If a party or an a party’s officer,

director, or managing agent of a party – or a witness person designated under Rule

30(b)(6) or Rule 31(a)(4) 31(a) to testify on behalf of a party – fails to obey an order to

provide or permit discovery, including an order made under Rule 35 or Rule 37(a)

subdivision (a) of this rule or Rule 35, the court in which the action is pending may issue

further just make such orders. in regard to the failure as are just, and among others They

may include the following:

(A) directing An order that the matters regarding which embraced in the order was

made or any other designated facts shall be taken to be as established for the purposes of

the action, as the prevailing in accordance with the claim of the party claims obtaining the

order;

(B) An order refusing to allow prohibiting the disobedient party from supporting or

opposing to support or oppose designated claims or defenses, or prohibiting him or her

from introducing designated matters in evidence;

(D) staying further proceedings until the order is obeyed, or

(E) dismissing the action or proceeding in whole or in or any part; thereof, or

(F) rendering a default judgment by default against the disobedient party; or

- 57 -

(D) (G) In lieu of any of the foregoing orders or in addition thereto, an order treating as

a contempt of court the failure to obey any order orders except an order to submit to a

physical or mental examination;.

(2) (E) Where For Not Producing a Person for Examination. If a party has failed fails to

comply with an order under Rule 35(a) requiring him or her it to produce another for

examination, the court may issue any of the such orders as are listed in paragraphs (A),

(B), and (C) of this subdivision Rule 37(b)(1)(A)-(F), unless the disobedient party failing

to comply shows that he or she is unable to it cannot produce such the other person for

examination.

(3) Payment of Expenses. Instead In lieu of or in addition to any of the foregoing orders

above or in addition thereto, the court shall require must order the disobedient party,

failing to obey the order or the attorney advising him or her that party, the attorney’s law

firm or employer, or some or all of them both to pay the reasonable expenses, including

attorney fees, caused by the failure, unless the court finds that the failure was

substantially justified or that other circumstances make an award of expenses unjust.

If a party fails to admit what is requested the genuineness of any document or the truth of

any matter as requested under Rule 36, and if the requesting party requesting the

admissions thereafter later proves the genuineness of the a document to be genuine or the

truth of the matter true, the requesting party may move he or she may, within 30 days of

so proving, apply to the court for an order requiring that the other party who failed to

admit be ordered to pay him or her the reasonable expenses, including attorney fees,

incurred in making that proof, including reasonable attorney fees. The court shall make

the must so order unless it finds that:

(1) the The request was held objectionable pursuant to under Rule 36(a); , or

(2) the The admission sought was of no substantial importance; , or

(3) the The party failing to admit had a reasonable ground to believe that he or she it

might prevail on the matter; , or

(4) there There was other good reason for the failure to admit.

- 58 -

(d) Party’s Failure of Party to Attend Its at Own Deposition, or Serve Answers to

Interrogatories, or Respond to a Request for Inspection, Disclose, or Supplement an

Earlier Response.

(1) In General.

(A) Motion; Grounds for Sanctions. The court in which the action is pending may, on

motion, order sanctions if:

(i) (1) If a party or an a party’s officer, director, or managing agent – of a party or a

person designated under Rule 30(b)(6) or Rule 31(a)(4) – fails to testify on behalf of a

party fails (1) To appear before the officer who is to take his or her deposition, after being

served with a proper notice, to appear for that person’s deposition; or

(ii) (2) a party, after being properly served with To serve answers or objections to

interrogatories submitted under Rule 33, after proper service of the interrogatories, or (3)

To serve a written response to a request for inspection submitted under Rule 34, fails to

serve its answers, objections, or written response. after proper service of the request, the

court in which the action is pending on motion may make such orders in regard to the

failure as are just, and among others it may take any action authorized under paragraphs

(A), (B), and (C) of subdivision (b)(2) of this rule.

(iii) a party fails to provide information or identify a witness as required by Rule 26(c)

or (e).

(B) Certification. A motion for sanctions under subpart (ii) for failing to answer or

respond must include a certification that the movant has in good faith conferred or

attempted to confer with the party failing to act in an effort to obtain the answer or

response without court action.

(2) Unacceptable Excuse for Failing to Act. A failure described in Rule 37(d)(1)(A) is

not excused on the ground that the discovery sought was objectionable, unless the party

failing to act has a pending motion for a protective order under Rule 26(d).

(3) Types of Sanctions. Sanctions may include any of the orders listed in Rule

37(b)(1)(A)-(F). Instead of or In lieu of any order or in addition to these sanctions

thereto, the court shall must require the party failing to act, or the attorney advising him

or her that party, the attorney’s law firm or employer, or some or all of them both to pay

the reasonable expenses, including attorney fees, caused by the failure, unless the court

- 59 -

finds that the failure was substantially justified or that other circumstances make an

award of expenses unjust.

The failure to act described in this subdivision may not be excused on the ground that

the discovery sought is objectionable unless the party failing to act has applied for a

protective order as provided by Rule 26(c).

(e) Failure to Preserve Electronically Stored Information. If electronically stored

information that should have been preserved in the anticipation or conduct of litigation is

lost because a party failed to take reasonable steps to preserve it, and it cannot be restored

or replaced through additional discovery, the court:

(1) upon finding prejudice to another party from loss of the information, may order

measures no greater than necessary to cure the prejudice; or

(2) only upon finding that the party acted with the intent to deprive another party of the

information’s use in the litigation may:

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the

party; or

. . . .