(3) Order and Examination. If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written interrogatories. An order appointing an attorney under subdivision (a)(2) to represent the absent expected adverse party and to cross-examine the proposed witness shall set the attorney’s compensation including expenses. The compensation so set shall be paid by the petitioner prior to the appearance of the appointed attorney at the examination. The depositions may then be taken in accordance with these rules; and the court may make orders of the character provided for by Rules 34 and 35. For the purpose of applying these rules to depositions for perpetuating testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed. (4) Use of Deposition. If 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 this state, it may be used in any action involving the same subject matter subsequently brought in a district court, in accordance with the provisions of Rule 32(a). [As amended; effective January 1, 2005.] (b) Pending Appeal. If an appeal has been taken from a judgment of a district court or before the taking of an appeal if the time therefor has not expired, the district court in which the judgment was rendered may allow the taking of the depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the district court. In such case the party who desires to perpetuate the testimony may make a motion in the district court for leave to take the depositions, upon the same notice and service thereof as if the action was pending in the district court. The motion shall show (1) the names and addresses of persons to be examined and the substance of the testimony which the party expects to elicit from each; (2) the reasons for perpetuating their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make 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. [As amended; effective January 1, 2005.] (c) Reserved. Drafter’s Note 2004 Amendment The amendments to subdivision (a)(1) are technical. Subdivision (a)(2) is amended to conform to the federal rule, as adopted in 1937, by adding language that allows the court to order service by publication or other means and to appoint an attorney if necessary for an ‘‘expected adverse party’’ to preserve that party’s right to confrontation. Subdivision (a)(3) is amended to provide that the court shall set the compensation for an attorney appointed to represent an expected adverse party under subdivision (a)(2) and that the compensation so set must be paid by the petitioner before the appointed attorney appears at the examination. There is no similar provision in the federal rule, but the language is taken from a local rule for the District Court for the Northern District of Illinois. Subdivision (a)(4) is amended to conform to the federal rule by adding language that allows broader use of testimony perpetuated than would otherwise be admissible. Subdivision (c) is retained as a reserved provision rather than adopting subdivision (c) of the federal rule, which addresses independent actions to perpetuate testimony. RULE 28. PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN (a) Within the United States. Within the United States or within a territory or insular possession subject to the jurisdiction of the United States, depositions shall be taken before an officer authorized to administer oaths by the laws of the United States or of the place where the examination is held, or before a person appointed by the court in which the action is pending. A person so appointed has power to administer oaths and take testimony. Upon proof that the notice to take a deposition outside the State of Nevada has been given as provided in these rules, the clerk shall issue a commission or a letter of request (whether or not captioned a letter rogatory) in the form prescribed by the jurisdiction in which the deposition is to be taken, such form to be presented by the party seeking the deposition. Any error in the form or in the commission or letters is waived unless objection thereto be filed and served on or before the time fixed in the notice. The term “officer” as used in Rule 30, 31 and 32 includes a person appointed by the court or designated by the parties under Rule 29. [As amended; effective January 1, 2005.] (b) In Foreign Countries. Depositions may be taken in a foreign country (1) pursuant to any applicable treaty or convention; or (2) pursuant to a letter of request (whether or not captioned a letter rogatory); or (3) on notice before a person authorized to administer oaths in the place where the examination is held, either by the law thereof or by the law of the United States; or (4) before a person commissioned by the court, and a person so commissioned shall have the power by virtue of the commission to administer any necessary oath and take testimony. A commission or a letter of request shall be issued on application and notice and on terms that are just and appropriate. It is not requisite to the issuance of a commission or a letter of request that the taking of the deposition in any other manner is impracticable or inconvenient; and both a commission and a letter of request may be issued in proper cases. 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 may be addressed “To the Appropriate Authority in {here name the country}.” When a letter of request or any other device is used pursuant to any applicable treaty or convention, it shall be captioned in the form prescribed by that treaty or convention. Evidence obtained in response to a letter of request need not be excluded merely for the reason that it is not a verbatim transcript, because the testimony was not taken under oath, or because of any similar departure from the requirements for depositions taken within the United States under these rules. [As amended; effective January 1, 2005.] (c) Disqualification for Interest. No deposition shall be taken before a person who is a relative or employee or attorney or counsel of any of the parties, or is a relative or employee of such attorney or counsel, or is financially interested in the action. Drafter’s Note 2004 Amendment The rule is amended to conform to the federal rule, which, consistent with modern terminology and the primary method provided by The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, replaced the phrase ‘‘letter rogatory’’ with ‘‘letter of request.’’ The third sentence in subdivision (a) of the Nevada rule, governing the issuance of commissions and letters of request for depositions taken within other states, is retained. It does not have a federal counterpart. RULE 29. STIPULATIONS REGARDING DISCOVERY PROCEDURE Unless otherwise directed by the court, the parties may by written stipulation (1) provide that depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions, and (2) modify the procedures governing or limitations placed upon discovery, except that stipulations extending the time provided in Rules 33, 34, and 36 for responses to discovery may, if they would interfere with any time set for completion of discovery, for hearing of a motion, or for trial, be made only with the approval of the court. [As amended; effective January 1, 2005.] Drafter’s Note 2004 Amendment The rule is amended to conform to the federal rule, which allows parties to stipulate to certain procedural waivers and limitations in discovery, while protecting against a stipulation that is contrary to court mandated discovery deadlines, such as a stipulation to waive early disclosure under Rule 16.1. The amended rule requires that stipulations to extend the time for responses to discovery provided in Rules 33, 34, and 36 may be made only with the court’s approval if the extension would interfere with times set for completing discovery, hearing a motion, or trial. RULE 30. DEPOSITIONS UPON ORAL EXAMINATION (a) When Depositions May Be Taken; When Leave Required. (1) A party may take the testimony of any person, including a party, by deposition upon oral examination without leave of court except as provided in subdivision (a)(2) of this rule. The attendance of witnesses may be compelled by subpoena as provided in Rule 45. (2) A party must obtain leave of court, which shall be granted to the extent consistent with the principles stated in Rule 26(b)(2), if the person to be examined is confined in prison or if, without the written stipulation of the parties: (A) the person to be examined already has been deposed in the case; or (B) a party seeks to take a deposition before the time specified in Rule 26(a), unless the notice contains a certification, with supporting facts, that the person to be examined is expected to leave the state and be unavailable for examination in this state unless deposed before that time. [As amended; effective January 1, 2005.]

Vegas Law