Nevada subpoenas: your opponent gets seven days to stop it before it is ever served

In most states the fight over a records subpoena starts after the custodian has it. In Nevada it starts before. A party who intends to serve a subpoena duces tecum on a third party has to circulate it first, and an opponent who objects properly can stop it from being served at all.

Seven days before service, not after

NRCP 45(a)(4)(A):

If the subpoena commands the production of documents, electronically stored information, or tangible things, or the inspection of premises before trial, then at least 7 days before it is served on the person to whom it is directed, a notice and a copy of the subpoena must be served on each party to permit a party to object to and seek issuance of a protective order against the subpoena during that time.

The rule states its own purpose: the seven days exist to permit a party to object. This is not a courtesy copy.

It applies to pretrial production and inspection subpoenas. A subpoena purely for testimony, or one for trial, is outside it.

And the objection blocks service

NRCP 45(a)(4)(B) sets out what an objecting party has to do, and what it achieves:

A party who receives notice under Rule 45(a)(4)(A) that another party intends to serve a subpoena duces tecum on a third party that will require disclosure of privileged, confidential or other protected matter, to which no exception or waiver applies, may object to the subpoena by filing and serving written objections to the subpoena and a motion for a protective order.

Two documents, not one, and both inside seven days:

To invoke the protections of this rule, the objecting party must file and serve written objections to the subpoena and a motion for a protective order under Rule 26 (c) within 7 days after being served with notice and a copy of the subpoena under Rule 45(a)(4)(A)

The content requirement is demanding. The objecting party must

specifically state the party's objections to each command to produce documents, electronically stored information, or tangible things, or to permit the inspection of premises and demonstrate a basis for asserting that the command will require disclosure of privileged, confidential, or other protected matter and establish that no exception or waiver applies and that the objecting party is entitled to assert the claim of privilege or other protection against disclosure.

Each command, separately — a blanket objection to the subpoena as a whole does not comply.

The payoff justifies the effort:

If the party objects based upon privilege, confidentiality, or other protection and timely files and serves objections and a motion for a protective order, the subpoena may not be served, unless revised to eliminate the objected-to commands, until the court that issued the subpoena has ruled on the objections and motion.

The subpoena is frozen until the court rules — with one escape for the issuing party, which is to revise it to drop the objected-to commands and serve what is left. For a party protecting medical records, personnel files or privileged communications, this is the strongest pre-service protection in this set of states.

It is not free, though: "The objections and motion practice are subject to the provisions of Rules 26 (c) and (g) and 37(a)(5)" — so Rule 37(a)(5)'s fee-shifting applies to a motion that should not have been brought, and Rule 26(g)'s certification standard applies to what is signed.

Who issues it, and what it must say

A subpoena "must issue from the court where the action is pending," and "[a]n attorney also may issue and sign a subpoena if the attorney is authorized to practice in the issuing court."

NRCP 45(a)(1) requires every subpoena to state the issuing court, the title and case number, and the name and address of the party or attorney responsible for issuing it — a detail that makes the objection route in (a)(4) workable, because the recipient knows who to write to. A deposition subpoena must also state the method for recording the testimony.

Serving it

Any person at least 18 years old who is not a party may serve a subpoena, "as appropriate under Rule 4.2 or 4.3," and where attendance is required the serving party must tender the fees for one day's attendance and the mileage allowed by law. As elsewhere, "[f]ees and mileage need not be tendered when the subpoena issues on behalf of the State or any of its officers or agencies."

Service reaches statewide, subject to the geographic limits on where a person can be made to appear: "Subject to the provisions of Rule 45(c)(3)(A)(ii), a subpoena may be served at any place within the state."

Proof of service is not automatic — it is required "when necessary," and then takes the form of "a statement showing the date and manner of service and the names of the persons served," which "must be certified by the server."

Crossing state lines, in both directions

Nevada handles the interstate problem in three short provisions.

Outbound. "A subpoena may be served in another state or territory of the United States as provided by the law of that state or territory," and "[a] subpoena may be served in a foreign country as provided by the law of that country."

Inbound. A subpoena from elsewhere is domesticated through the clerk: one "issued by a court in another state or territory of the United States that is directed to a person in Nevada must be presented to the clerk of the district court in the county in which discovery is sought to be conducted."

And NRS Chapter 53 subpoenas may be served under the rule as well.

A short checklist

Issuing one:

1. Circulate it 7 days before serving any pretrial production or inspection subpoena.
2. Name yourself on the face of it — the issuing party or attorney and an address are required.
3. State the recording method on a deposition subpoena.
4. Tender fees and mileage unless you act for the State.
5. Expect a hold if a party objects — revise it to drop the objected-to commands, or wait for the ruling.
6. Domesticate a foreign subpoena through the clerk of the county where discovery will happen.

Objecting to one your opponent circulated:

1. Diary 7 days from receiving the notice and copy.
2. File and serve both documents — written objections and a Rule 26(c) motion. One without the other does not invoke the protection.
3. Object command by command, and establish the privilege or protection for each.
4. Weigh the downside. Rule 37(a)(5) fee-shifting applies to this motion practice.

Where these rules live

• NRCP 26 — General Provisions Governing Discovery
• NRCP 30 — Depositions by Oral Examination
• NRCP 37 — Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
• NRCP 45 — Subpoena
• Subpoenaing records in another state
• Nevada motion to compel discovery

This page explains what the rules say. It isn't legal advice, and NRS Chapter 53 is a statute this site doesn't carry.