Article 3: Nebraska Court Rules of Discovery in Civil Cases. (Effective January 1, 2025.) · Last amended September 3, 2025 · Last verified July 22, 2026
This section prints two full, separately-dated versions in the official compilation (the January 1, 2025 discovery/pleading rewrite); both are shown below, current version first.
§ 6-326. General provisions governing discovery. — Current version (effective January 1, 2025)
(a) Discovery Methods and Sequence.
(1) Discovery Methods. Parties may obtain discovery by one or more of the following methods: required disclosures; depositions by oral examination or written questions; interrogatories to parties; requests for producing documents, electronically stored information, and tangible things or entering onto land 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.
(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 and Limits.
(1) Scope in General. Parties may obtain discovery regarding any nonprivileged matter 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. It is not a ground for objection that the information sought will be inadmissible at trial if the 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 an insurance business may be liable to satisfy all or part of a possible judgment 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, an application for insurance is not treated as part of an insurance agreement.
(3) Work Product Materials.
(A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(c)(4), such materials may be discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) the party shows that it has substantial need of the materials to prepare its case and cannot, without undue hardship, obtain the substantial equivalent of the materials by other means.
(B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.
(C) Previous Statement. Any party or other person may, on request and without making the showing required by Rule 26(b)(3)(A), obtain the person’s own previous statement about the action or its subject matter. If the request is refused, the person may move for a court order, and Rule 37(a)(5) applies to the award of expenses.
(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 producing party took reasonable steps under the circumstances to prevent the inadvertent disclosure of the document, and the producing party 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 producing party may notify any receiving party of the claim and the basis for it. After being notified, a receiving party 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 producing party must preserve the document until the claim is resolved. Either the producing or receiving party 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.
(C) A lawyer who receives a document, including electronically stored information, 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.
(c) Discovery From Experts.
(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 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(18) 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 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.
(C) Report Requirements for Treating Physicians. A treating physician who is retained 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 identified by another party under Rule 26(c)(1), within 45 days after the other party’s disclosure.
(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. Rules 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.
(6) Discovery from a Consulting Expert. Ordinarily, 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 for trial and who is not expected to be called as a witness at trial except as provided in Rule 35(b). But a party may discover the identity of such an expert on showing good cause and may discover facts known or opinions held by such an expert on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.
(7) Payment. Unless manifest injustice would result, the court must require that the party seeking discovery:
(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; and
(B) for discovery under Rule 26(c)(6), also pay the other party a fair portion of the fees and expenses it reasonably incurred in obtaining the expert’s facts and opinions.
(1) In General. A party or other person from whom discovery is sought may move for a protective order in the court in which the action is pending. 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 order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
(A) forbidding the disclosure or discovery;
(B) specifying terms, including time or place or the allocation of expenses, for the disclosure or discovery;
(C) prescribing a discovery method other than the one selected by the party seeking discovery;
(D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;
(E) designating the persons who may be present while the discovery is conducted;
(F) requiring that a deposition be sealed and opened only on court order;
(G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and
(H) requiring that the parties file, serve, or deliver specified documents or information in a specified way, to be revealed or accessed only as 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
(C) the burden or expense of the proposed discovery outweighs its likely benefit, 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 a motion for a protective order is denied in whole or in part, the court may, on just terms, order that any party or person provide or permit discovery.
(4) Awarding Expenses. Rule 37(a)(5) applies to the award of expenses.
(e) Supplementing Disclosures and Responses.
(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 request for admission – must supplement or correct its disclosure or response:
(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.
(f) Filing and Service of Discovery Documents. Section 6-1105 governs the filing and service of discovery documents.
(g) Access to Deposition for Use at Hearing. If the original of a deposition is not in the possession of a party who intends to offer it 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. On receiving such notice, the party in possession of the deposition must either make it available to the party who intends to offer it or produce it at the hearing.
(h) Amendments. The Nebraska Court Rules of Discovery in Civil Cases apply to cases filed on or after January 1, 2025, and to cases pending on that date. But the trial court may order that the previous version of the Discovery Rules apply, either in whole or in part, to a case pending on January 1, 2025, if the court determines, in the exercise of its discretion, that application of the amended rule or rules to the case would be impracticable, unreasonable, or unjust.
§ 6-326. General provisions governing discovery. — Prior version (in effect before January 1, 2025)
(a) Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property 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.
(b) Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
(1) In General. Parties may obtain discovery regarding any matter, not privileged, which 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 ground for objection that the information sought will be inadmissible at the trial if the 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 part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purposes of this paragraph, an application for insurance shall not be treated as part of an insurance agreement.
(3) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his or her attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his or her case and that he or she is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, a person not a party may obtain 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. The provisions of Rule 37(a)(4) apply 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.
(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.
(B) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) 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.
(C) Unless manifest injustice would result,
(i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions (b)(4)(A)(ii) and (b)(4)(B) of this rule; and
(ii) with respect to discovery 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 pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.
(c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, 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, may 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 the discovery not be had;
(2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place;
(3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;
(4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;
(5) that discovery be conducted with no one present except persons designated by the court;
(6) that a deposition after being sealed be opened only by order of the court;
(7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way;
(8) that the parties simultaneously file specified documents or information under seal with access only as directed by the court.
If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of Rule 37(a)(4) 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.
(e) Supplementation of Responses. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his or her response to include information thereafter acquired, except as follows:
(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.
(f) Service of Discovery Documents. 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) 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 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 receiving such notice the party in possession of the deposition shall either make it available to the party who intends to offer it or produce it at the hearing.
Current version (effective January 1, 2025)
COMMENTS TO § 6-326 [1] Section 6-326 is the keystone of the discovery rules. Among other things, the rule governs the scope of discovery, the work product protection, the methods for obtaining discovery from experts, the grounds for a protective order, and the duty to supplement discovery disclosures and responses. [2] Subpart (b)(1) governs the scope of discovery and is modeled on a pre-2015 version of Rule 26(b)(1) of the Federal Rules of Civil Procedure. In 2015, Federal Rule 26(b)(1) was amended to incorporate proportionality into the standard for discovery. Federal Rule 26(b)(1) currently provides that information is discoverable if it is relevant and proportional to the needs of the case. The 2024 Amendments incorporated the concept of proportionality into Nebraska § 6-326 but did so in a different way. Rather than being part of the standard for discovery, proportionality is a ground for seeking a protective order to deny or limit discovery pursuant to subpart (d)(2). [3] The original version of subpart (b)(1) included examples of discoverable information such as the existence of documents and the identity of persons having knowledge of discoverable matters. Although the examples may have been helpful when the rule was promulgated in 1982, they are now so well known that there is no longer a good reason to keep them in the rule. Therefore, the examples were deleted by the 2024 Amendments. It should be underscored, however, that their deletion should not be construed as altering the scope or methods of discovery. [4] Subpart (b)(2) allows parties to discover insurance agreements that may cover all or part of a possible judgment. Having access to the agreements can be helpful in making and evaluating settlement offers. Knowing whether coverage is disputed can also be helpful. Therefore, the 2024 Amendments added a provision that allows a party to serve an interrogatory asking if coverage is disputed. The provision, however, does not allow a party to discover the grounds for any such dispute. If the coverage dispute status changes, the party answering the interrogatory should supplement its answer pursuant to subpart (e). [5] Subpart (b)(3) addresses the work product protection and allows a person to obtain a copy of the person’s previous statement. The 2024 Amendments rewrote the definition of a previous statement to make the definition easier to understand and to exclude deposition testimony. The reason for the exclusion is to prevent a person who is unwilling to pay the reporter for a copy of the deposition from obtaining a copy for free from the party who took the deposition. [6] Subpart (b)(4) was added by the 2024 Amendments to address what a party must do if the party withholds documents on the basis of a privilege or the work product protection. The subpart is modeled on Rule 26(b)(5) of the Federal Rules of Civil Procedure and requires a party to describe the documents in a manner that will allow the other parties to assess the claim that the documents are privileged. [7] The nature of the description will vary with the privilege because different privileges have different elements. For example, the description for the attorney-client privilege will normally include the identities of the persons who prepared and received the document, the subject matter of the document, the date of the document, and the basis for the assertion of the privilege. In other words, the description will normally include the information listed in the Supreme Court’s decision in Greenwalt v. Wal-Mart Stores, 253 Neb. 32 (1997). [8] But there may be situations in which it would be burdensome or unnecessary for a party to provide a description for each individual document. In those situations, a party may instead provide a description by categories of documents. Providing such a description may be appropriate when there is a large number of documents of the kind that are almost always privileged or protected – for example, email communications between in-house and outside counsel. [9] Rule 511 of the Nebraska Rules of Evidence addresses the waiver of a privilege by voluntary disclosure. The rule, however, does not address the issue of whether a privilege or protection is waived by the inadvertent disclosure of documents in discovery. Subpart (b)(5) was added in 2024 to address the issue. The subpart is modeled on Rule 502(b) of the Federal Rules of Evidence. But there are differences. Subpart (b)(5) applies to all privileges while Federal Rule 502 only applies to the attorney-client privilege. [10] Subpart (b)(5)(A) provides that disclosure is not a waiver of a privilege or protection if three requirements are met. First, the disclosure must have been inadvertent. This requirement focuses on whether the disclosure was unintentional. Second, the disclosure occurred even though the producing party took reasonable steps to prevent the disclosure. This requirement focuses the procedures that the party used to review documents and to withhold privileged or protected documents. Third, the producing party took reasonable steps to correct its mistake. This requirement focuses on what the party did after it learned that it had mistakenly produced the documents. [11] One step that the producing party may take to correct its mistake is to notify the receiving party that privileged or protected documents were inadvertently produced. Subpart (b)(5)(B) addresses what the receiving party must do if it receives such notice and makes it clear that either party can file a motion for a protective order if they disagree on whether the privilege or protection applies. [12] Notice is sometimes a two-way street. If the lawyer for the receiving party knows or should know that a document was inadvertently produced, the lawyer has an ethical obligation to notify the person who produced the document. The obligation is stated in subpart (b)(5) and reflects the obligation imposed by § 3-504.4(b) of the Nebraska Rules of Professional Responsibility. [13] Prior to 2024, § 6-326 provided that parties could obtain discovery about expert witnesses by serving an interrogatory and could not depose an expert unless they obtained a court order or stipulation. The 2024 Amendments replaced those provisions with disclosure requirements modeled on Rule 26(a)(2) of the Federal Rules of Civil Procedure. [14] The disclosure requirements are stated in subpart (c)(1). A party must disclose the identity of any expert witness that it may use at trial. Furthermore, a party must disclose information about the expert and the expert’s expected testimony. The content and form of the information depends on whether the expert was retained or specially employed to provide expert testimony. [15] A retained or specially employed expert is one who will testify about facts the expert learned and opinions the expert developed for purposes of the litigation. In addition to disclosing the identity of such an expert, the party must provide a signed report from the expert that contains the information listed in subpart (c)(1)(A). Most (but not all) of the information corresponds to information required by Federal Rule 26(a)(2). The report must be “detailed and complete” and state “the testimony the witness is expected to present during direct examination, together with the reasons therefor.” Fed. R. Civ. P. 26, Advisory Committee Notes on the 1993 Amendment. [16] Some experts will testify about facts they learned and opinions they developed for purposes other than the litigation. For example, a treating physician may learn facts and form opinions for the purpose of treating the plaintiff’s injuries. These kinds of experts – who are sometimes called “actor experts” – are not required to prepare a written report. The party who plans to use such an expert at trial must disclose the information listed in subpart (c)(1)(B). [17] One of the issues that has divided the federal courts is whether a treating physician who testifies about causation should be classified as a retained or specially retained expert and therefore required to provide a signed report. Subpart (c)(1)(C)(i) resolves the issue for the Nebraska courts by stating that a treating physician is not required to provide a written report solely because the physician’s testimony may discuss “the diagnosis, prognosis, or causation of the patient’s injuries.” [18] Subpart (c)(2) provides that disclosures must be made at the times and in the sequence the court orders. It would be helpful to all concerned if the court issued such an order. In terms of the sequence, the order could require the parties to make their disclosures at the same time or at different times – for example, the order could require the party with the burden of proof to make its disclosures first. If the court does not issue such an order, the parties may stipulate when their respective disclosures must be made. If there is no court order or stipulation, then the parties must make their disclosures by the times specified in subpart (c)(2)(A)-(B). [19] To work effectively with a retained or specially employed expert, an attorney must be able to review drafts and to communicate with the expert without worrying about whether every draft and every communication is discoverable. Subpart (c)(4)(A) provides that the work product protection applies to draft reports and draft disclosures. [20] Subpart (c)(4)(B) provides that the work product protection applies to communications between an attorney and a retained or specially employed expert. There are three exceptions, however. Those exceptions are set out in subpart (c)(4)(B)(i)-(iii). By its terms, subpart (c)(4)(B) is limited to an attorney’s communications with a retained or specially employed expert. It does not cover communications with an actor expert. [21] Subpart (c)(5) provides that a party may depose an expert witness. Because the report may help to focus the questioning or to eliminate the need for a deposition, an expert from whom a report is required may only be deposed after the report is provided. [22] If a party deposes an expert witness, the party must normally pay the expert a reasonable fee for responding to discovery. Subpart (c)(7) makes it clear, however, that the fee does not include time spent preparing for the deposition. Prior to 2024, the rule contained a provision that gave courts the discretion to require the deposing party to pay a portion of the fees that the opposing party paid the expert. The provision was based on the assumption that depositions of testifying experts were the exception rather than the norm. The provision was deleted in 2024 because the assumption is no longer valid. Subpart (c)(5) now allows a party to depose testifying expert without a court order or stipulation. [23] Subpart (d) addresses protective orders. Like a party filing a motion to compel pursuant to § 6-337(a), a party filing a motion for a protective order must first attempt to resolve a discovery dispute informally. Because the judge presiding over a case is in the best position to rule on discovery motions, all motions for a protective order – including those related to a deposition – must be filed in the court in which the action is pending. [24] Rule 26(b) of the Federal Rules of Civil Procedure contains a provision that addresses the discovery of electronically stored information from sources that a party identifies as not reasonably accessible. Section 6-326 does not contain a comparable provision because the issue can be addressed on a motion for a protective order pursuant to subpart (d)(2). [25] Subpart (e) specifies the circumstances under which a party must supplement an earlier disclosure or discovery response. The subpart was amended in 2024 so that it more closely follows the wording of Rule 26(e) of the Federal Rules of Civil Procedure. As amended, the subpart requires a party to supplement its earlier disclosure or response in a timely manner. In other words, a party is required to supplement its earlier disclosure or response within a reasonable time of acquiring the new information. [26] The 2024 Amendments consolidated the filing and service requirements for pleadings, motions, and discovery documents in § 6-1105. As a result, the provisions in § 6-326 that previously discussed the filing and service requirements have been replaced with a cross-reference to § 6-1105. The cross-reference appears in subpart (f). [27] Subpart (h) was added in 2024 to address the issue of whether rule amendments apply to cases pending on the effective date of the amendment. The subpart creates a presumption that an amendment applies to pending cases but gives trial courts the discretion not to apply the amendment to a pending case if it would be impracticable, unreasonable, or unfair to do so. Trial courts, however, do not have the same discretion in cases filed on or after the effective date. The first sentence of subpart (h) makes it clear that the amendment applies to those cases.
Prior version (in effect before January 1, 2025)
COMMENTS TO RULE 26 26(a) This subsection provides a catalog of the discovery devices, and is new to Nebraska law. Although there is no limit on the frequency of use of these methods, the limit on interrogatory questions in Rule 33 will restrict the extent of discovery by interrogatory. 26(b)(1) and (2) The definition of the scope of discovery in subsection (1) follows former Neb. Rev. Stat. § 25- 1267.02 (Repealed 1982). The provision of subsection (2) was taken from the federal rules and follows the rule established in Walls v. Horback, 189 Neb. 479, 203 N.W.2d 490 (1973). 26(b)(3) Subsection (3) provides for protection of material often described as an attorney's work product, and follows the language of the federal rule. Prior Nebraska law on discovery of work product was established in Haarhues v. Gordon, 180 Neb. 189, 141 N.W.2d 856 (1966). A provision similar but not identical to the second paragraph of subsection (3) was found in Neb. Rev. Stat. § 25-1222.02 (Repealed 1982). That section, however, applied only to statements by parties and provided only the sanction of exclusion at trial. The language found in subsection (3) was adopted to maintain uniformity of language, to authorize a wider range of sanctions, and to cover statements by parties and nonparties. 26(b)(4) Subsection (4) on experts presents in the expanded language of the federal rules the idea found in former Neb. Rev. Stat. § 27-705(2) (Repealed 1982). The committee recommended repeal of that section, a part of the Nebraska Evidence Rules, because it is a discovery procedure better codified here in the discovery rules. 26(c) This provision on sanctions is substantially similar to former Neb. Rev. Stat. §§ 25-1267.22 and 25- 267.31 (Repealed 1982), but is expanded to include all kinds of discovery and not just depositions and interrogatories. 26(d) This is a new provision identical to the federal rules; it would not appear to change current Nebraska practice. 26(e) This provision on supplementation of discovery was added to the federal rules in 1970 and is now adopted for the first time in Nebraska. The proposed language follows the federal rule, except that in subsection (e)(3) the federal language allowing imposition of the duty to supplement by a request for supplementation was rejected. 26(f) A provision on service of discovery papers is necessary because Nebraska law prior to the adoption of these rules did not cover the topic. This is a nonuniform addition to the language of the federal rules because such a provision is in Rule 5(a) of the federal rules, while Nebraska has no similar rule. 26(g) This rule has been adopted because the routine filing of discovery material has unnecessarily overcrowded court files. Parties are now required to keep possession of the discovery material and file it only upon court order or when required by law. Discovery materials used to support or resist a motion for summary judgment shall not be filed separately; Neb. Rev. Stat. § 25-1332 (Amended 2001) makes clear that the court may consider them only if they are admitted as evidence.