Can I Gather Evidence Before a Lawsuit is Filed?

In short, the answer is yes… maybe you can.

Nevada Rule of Civil Procedure (NRCP), Rule 27 allows a a possible future party to Petition the District Court for an Order requiring a person or entity to appear for a Deposition to perpetuate testimony. The Party seeking the testimony to be preserved for a future lawsuit must state:

1. that the petitioner expects to be a party to an action cognizable in a court of the State but is presently unable to bring it or cause it to be brought;

2. the subject matter of the expected action and the petitioner’s interest therein;

3. the facts which the petitioner desires to establish by the proposed testimony and the reasons for desiring to perpetuate it;

4. the names or a description of the persons the petitioner expects will be adverse parties and their addresses so far as known; and

5. the names and addresses of the persons to be examined and the substance of the testimony which the petitioner expects to elicit from each.

The Petition must ask for an Order authorizing the Depositions for the purpose of perpetuating evidence. Notice of the Petition must be given to the person whose Deposition is sought as well as the persons or entities that may be Parties in the possible future suit. Depositions under this Rule may also be taken while a case is on Appeal or if time remains for an Appeal to be filed.

The idea behind this Rule is to prevent unfairness in a lawsuit due to the loss of information. Sometimes, this occurs due to the death or other inability to depose a witness. Sometimes, it occurs through the loss of evidence.

This Rule does not address the issue of spoliation of evidence, but is intertwined with it due to its use in preserving physical evidence such as videotapes, records, other documents documents, and equipment.

It has been noted that the “purpose of this rule is to provide an ancillary proceeding to prevent a failure of justice by preserving testimony which otherwise would be lost before the matter to which it relates is ripe for judicial determination. See, Cardinal v. Zonneveld, 89 Nev. 403, 514 P.2d 204 (1973).

However, the Nevada Supreme Court has also held limited circumstances in which NRCP 27 may be used to obtain evidence prior to a lawsuit being filed. In Sunrise Hospital v. District Court, 110 Nev. 52, 866 P.2d 1143 (1994), the Court stated “A district court may not grant a petition to perpetuate testimony pursuant to NRCP 27, for the sole purpose of allowing the petitioner to obtain information with which to formulate the petitioner’s complaint. An order permitting the perpetuation of testimony is to be granted only in extraordinary circumstances. Further, an order permitting the perpetuation of testimony should be limited to that evidence which will likely be lost or destroyed without the order.”

Our office has used this rule on many occasions to obtain videotapes of incidents as the owners of the videos (whether they be possible defendants or just have captured the event on video) rotate their tapes.

In addition to filing a Petition to preserve the video, we send a letter as soon as the case is filed advising the owner of the tape (if it is a possible Defendant) to retain the tape or risk a finding that the loss of the tape amounts to spoliation and may have adverse effects on its Affirmative Defenses.

Donald C. Kudler, Esq. is an attorney practicing in the Las Vegas, Nevada law firm of Cap & Kudler. Additional information can be found at the firm website, capandkudler.com, or his blog,

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