By Sarah E. Harmon
As a result of the March 1, 2019 amendments to the Nevada Rules of Civil Procedure, there is now an additional step that litigants must take before they can subpoena a witness in Nevada. Under NRCP 45(a)(4), if you wish to subpoena a witness in order to obtain documents, electronically stored information (such as emails, metadata, Excel spreadsheets, and the like), other tangible or physical objects, or even the right to inspect the premises at issue in the litigation, then you must now provide advance notice to all other parties of your intent before serving the subpoena on the witness. Specifically, you must serve all other parties in the action with a notice and a copy of the subpoena at least seven (7) days before service of the subpoena on the witness. The seven-day notice period is designed to permit each party time to make objections to the subpoena and time to seek issuance of a protective order, where necessary.
The new notice requirement does not alleviate the need to provide the witness with his or her own time period in which to lodge any objections to the subpoena. NRCP 45(c)(2)(B) still provides that the witness may lodge his or her own objection to the subpoena before the time specified for compliance in the subpoena, or within 14 days of service of the subpoena, whichever is earlier. Keep in mind that the court can quash or modify a subpoena if it fails to provide reasonable time for compliance. Thus, it is best practices to provide the witness with at least seven (7) to fourteen (14) days to comply with subpoena, although a longer period of time may be required for subpoenas requesting production of a large quantity of documents or documents containing a significant amount of privileged or confidential information. Therefore, if you are thinking about serving a subpoena for the production of documents, you will need to plan accordingly and make sure to serve your notice of the subpoena at least fourteen (14) to twenty-one (21) days before the compliance deadline in the subpoena, if not earlier.
This notice requirement is not required for subpoenas commanding the appearance of the witness for a deposition, hearing, or trial. However, it likely will be applied to subpoenas duces tecum served on Nevada residents for actions outside of Nevada.
If you have any questions about the new Nevada rule, please call or email Sarah Harmon at 702-562-8820 or sharmon@baileykennedy.com