Getting Information From The Other Side
Learn what information you must give to the other side at the very start of the case - and what information the other side must give to you. Also find out how "discovery" can be used to to get the documents and evidence you need to support your case.
After the defendant files his answer with the court in response to plaintiff’s complaint, the parties move into the “discovery” stage. In the discovery stage, both parties have the chance to learn (or “discover”) what evidence the other side has.
The discovery stage is important for a number of reasons:
- It allows each side to prepare for trial. During discovery, the parties gather the evidence (documents, witness testimony, and the like) they will need to submit at trial to prove their case or defend against the other side’s claims.
- It allows parties to explore the strengths and weaknesses in the case. Using discovery tools, the parties have the chance to talk to the other side and to witnesses, to see what documents and evidence the other side has that may help or hurt the case, and to learn the other side’s position on critical facts and legal issues.
- It allows the parties to evaluate settlement. Once each party knows what evidence exists to support or undercut the claims and defenses in the case, they are in a good position to talk about settling the case without going to trial.
- It allows the parties to gather the information they need to file motions. “Motions” are written submissions to the court that ask the judge to rule on some (or all) issues in the case. Motions can narrow the issues for trial or even resolve the case completely before trial. During discovery, the parties can get the documentation and information they need to file motions and possibly end the case or at least reduce its scope.
The parties usually do not need to go to court during the discovery stage unless there is a problem. If the parties are having a dispute, either party can file a motion with the court asking the judge to order the other side to respond to discovery requests or punish the other side for failing to respond to discovery requests or for making unreasonable discovery requests.
If you have received discovery requests from the other side and need to prepare a response, click to visit Responding to the Other Side’s Requests for Information.
If your case is in the justice court, you must disclose certain documents and information to the other side at the very start of the case. (JCRCP 16.1(a).)
After this first disclosure of documents and information, both sides have an ongoing obligation to supplement their initial disclosures as the case moves forward. (JCRCP 16.1(c).) That means you always must give any new information that becomes available to the other side.
If either party fails to tell the other side about new documents or witnesses during the case, the judge can “exclude” those document or witness. That means the party who failed to disclose the document or witness may not be able to use them as evidence or rely on them at trial.
Follow these steps to begin discovery in justice court:
- Step 1: Prepare and exchange your initial disclosures
Within thirty days after the defendant files his answer, the plaintiff and defendant must exchange:
Documents. You must give the other side copies of all documents that are reasonably available that you think you might use to support your allegations or denials in the complaint or answer. This includes any document you might use to rebut the other side’s allegations or denials or to impeach a witness at trial. (JCRCP 16.1(1)(1).)
Witnesses. You must give the other side a written list with the name and address of any person (including any expert witnesses) that has knowledge about any of the allegations or denials in the complaint or answer or any rebuttal or impeachment evidence. In addition to each person’s name and address, your list must give a general description of what you believe each person knows about the case. (JCRCP 16.1(a)(2).)
A form for your Initial Disclosure of Documents and Witnesses is available for free at the Self-Help Center, or you can download the form by clicking one of the formats underneath the form’s title below.
For tips on filling out legal forms, click to visit Basics of Court Forms and Filings.
You do not need to file your initial disclosure statement with the court. Just mail it to the other side (and any other party who has filed something in the case). Make sure you keep a copy for yourself.
- Step 2: File the early case conference report
Within ten days after you and the other side make the initial disclosures in Step 1, the parties must file an Early Case Conference Report with the court. The report has to contain a complete list of all the documents the parties exchanged and each side’s list of witnesses. (JCRCP 16.1(b).)
A form for your Early Case Conference Report is available for free at the Self-Help Center, or you can download the form by clicking one of the formats underneath the form’s title below.
TIP! The Self-Help Center form Early Case Conference Report is designed for simple cases with one plaintiff and one defendant. If your case is more complicated with more parties, you’ll need to create your own form. Use the Self-Help Center form as an example.
For tips on filling out legal forms, click to visit Basics of Court Forms and Filings.
- Step 3: Ask the court to allow more discovery if you want it
In justice court, if one (or both) of the parties does not have a lawyer, the court must grant the parties permission before any more discovery can take place. (JCRCP 25A.)
If you need more discovery, you can file a “motion” (request) with the court and tell the judge why you need it. The judge will evaluate your motion and consider such things as the expense of discovery, the amount at issue, whether discovery will delay the case, and whether the issues in the case lend themselves to discovery. If the court grants your request, it can limit the discovery available to you. (JCRCP 25)
A motion to request more discovery is available for free at the Self-Help Center, or you can download the form by clicking one of the formats underneath the form’s title below:
For tips on filling out legal forms and filing with the court, click to visit Basics of Court Forms and Filings.
When you file your motion with the court, the court clerk will set it for a hearing. Once you have the date and time of the hearing, mail a copy of the motion (including the hearing date and time) to the other side.
If the court grants your motion, you can use the discovery tools described below to get the information you need. Click to jump down to Discovery Tools to learn more.
To learn more about discovery, read Rules 26 to 37 of the Justice Court Rules of Civil Procedure. Click to visit Justice Court Rules.
The discovery process in district court can be more complicated that in justice court.
If less than $50,000 is at issue in the case, it will be assigned to the district court’s mandatory arbitration program, with some exceptions. (NAR 3(a).) Once an arbitrator is assigned, the parties will meet with the arbitrator and discuss what discovery is needed. (NAR 11.) The arbitrator will typically issue an order outlining what discovery is allowed and setting important dates.
FYI! Arbitration in the district court is a great way to resolve cases more quickly and inexpensively than through the normal district court process, which can take years. The Alternative Dispute Resolution Commissioner’s office runs the arbitration program. You can find helpful information about the arbitration program - including the arbitration rules and forms - on the commissioner’s website. Click to visit the ADR Commissioner website.
If your case does not go into the arbitration program, at the start of the case the parties must meet in person to discuss the case and the possibility of settlement and to make arrangements to exchange information. (NRCP 16.1(b).) At the meeting, the parties must develop a discovery plan and submit a case conference report to the court. (NRCP 16.1(c).)
After the meeting, each party must provide a statement to the other side that discloses witnesses, documents, damage calculations, and insurance policies. (NRCP 16.1(a).)
Once the parties file their joint case conference report, they can engage in the discovery allowed by the court’s rules. (NRCP 26(a).) The court will issue a scheduling order that states the deadlines to complete discovery and other important dates. (EDCR 2.55.)
FYI! The Discovery Commissioner issues the scheduling order and handles any problems that involve discovery. The commissioner’s website is a terrific resource. On it, you’ll find the discovery rules, forms, and examples to help you in your case. Click to visit the Discovery Commissioner website.
- Step 1: Meet and confer with the other side
With certain exceptions, within thirty days after the defendant files an answer, the parties must meet in person to plan for discovery and discuss the possibility of settling the case. (NRCP 16.1(b).) It is the plaintiff’s responsibility to designate the time and place for the meeting.
For a sample notice of early case conference, click to visit the Discovery Commissioner forms page.
- Step 2: Prepare your initial disclosures and provide them to the other side
At the parties’ meeting in Step 1 (or at within fourteen days after), the parties must exchange:
Witnesses. The parties must exchange a written list of individuals likely to have information relevant to the case that relates to any claim or defense. The list must include the name, address, and phone number of each person and a general description what they are likely to know.
Documents. The parties must exchange all documents in their possession, custody, or control that are relevant to the case that relate to any claim or defense.
Damage calculations. Each party must provide a computation of any category of damages he or she claims, making available any documents or evidence that they used to make the calculations.
Insurance policies. The parties must exchange all insurance agreements that might provide coverage for a judgment eventually entered in the case.
- Step 3: Prepare and file a joint case conference report
Within thirty days after the parties’ meeting in Step 1, they must file a joint case conference report with the court. (NRCP 16.1(c).) If the parties cannot agree on the contents of a joint report, each party must file his or her own report.
TIP! Expert witnesses (such as doctors, engineers, and accountants, for example) are frequently used in district court cases. There are special requirements for disclosing expert witnesses and their testimony. If your case involves expert testimony, study the court’s rules carefully, as well as any discovery order issued by the court!
For a sample joint case conference report, click to visit the Discovery Commissioner forms page.
Once you file the joint case conference report, the parties are free to utilize the discovery tools described below. Click to jump down to Discovery Tools for more information.
To learn more about discovery in the district court, read Rule 16.1 and Rules 26 to 37 of the Nevada Rules of Civil Procedure. Click to visit District Court Rules. You can also read the chapter on discovery in the Nevada Civil Practice Manual, which is available at your local law library. Click to visit Law Libraries.
After the initial discovery described above, the parties can use these discovery tools to get additional information:
Depositions allow you to question the other side, or question witnesses who are not parties to the case, to find out what they know. The party who wants to take the deposition must pay the costs associated with it (court reporter fees, witness fees, and the like).
Deposition upon oral examination. In this type of deposition, the witness answers all questions orally under oath in the presence of a court reporter. The court reporter makes a transcript of everything the witness says. The parties schedule a deposition. It does not take place at the court or in front of a judge. Sometimes the testimony given at the deposition can later be used as evidence at trial. Click to visit Rules and Laws and read JCRCP 30 or NRCP 30 for more information.
Deposition upon written questions. In this type of deposition, the party taking the deposition sends written questions to the witness who is answering the questions (or “being deposed”). The witness appears before an “officer” who records the witness’s responses to the written questions. The officer returns the responses to the party who prepared the questions. Click to visit Court Rules and read JCRCP 31 or NRCP 31 for more information.
Interrogatories are written questions about things that are relevant or important to the case. You can usually serve up to forty interrogatories on the other side (unless the court orders a different number). The other side must send back written answers to the questions within thirty days. Click to visit Rules and Laws and read JCRCP 33 or NRCP 33 for more information.
- Requests for production of documents or things
In this type of discovery, you ask the other side in writing to provide particular documents or items to you. You can also ask that they allow you to inspect, copy, test, or sample the documents, items, or electronically stored information. The other side must send back written responses to your requests within thirty days. Click to visit Rules and Laws and read JCRCP 34 or NRCP 34 for more information.
- Requests for admission
A party uses this type of discovery to ask another party to admit or deny certain facts about the case. If the other side does not deny or object to the requests within thirty days (with some exceptions), they are considered admitted. Click to visit Rules and Laws and read JCRCP 36 or NRCP 36 for more information.
These are not the only discovery tools available. To find out about other tools or learn when or how discovery responses might be used in court, talk with a lawyer or conduct your own legal research. Click to visit Lawyers and Legal Help and Researching the Law.