In mandamus action former physician who was a defendant in a medical malpractice lawsuit sought to prohibit the Dawes County District Court from allowing plaintiff to review materials the Nebraska Attorney General had obtained in its disciplinary action against him. The doctor had surrendered his license for sexual misconduct while the malpractice suit stemmed from an allegedly botched diagnosis of a spinal cord injury. The plaintiff argued that discovery was necessary because she may have been injured because the pervert doctor might have been turned on too much to give her good care. The Nebraska Supreme Court denies the doctors writ of mandamus and allows discovery of the disciplinary investigation to proceed. Stetson v. Silverman, S-09-209, 278 Neb. 389 "We conclude that the relators (the defendant doctor) have failed to meet their burden of showing clearly and convincingly that they are entitled to quash discovery of information regarding defendant's surrender of his license. In addition, they do not have standing to quash a subpoena directed at the Department to obtain its records. We therefore deny their request for a peremptory writ of mandamus ordering the district judge to vacate his discovery order."

Nebraska Supreme Court considers whether divorced wife may compel business executive husband to undergo medical examination so she could purchase a $1million life insurance policy to secure his payments. Nebraska Judicial Branch Case Summaries April 29 through May 2, 2008. S-07-529, Mary Kay Davis (Appellant) v. Henry Alan Davis (Appellee)

Douglas County District Court, Judge Patrick Mullen

Attorneys: William G. Dittrick and Kirk S. Blecha of Baird Holm (Appellant); John S. Slowiaczek and Virginia A. Albers of Lieben, Whitted, Houghton, Slowiaczek, and Cavanagh (Appellee).

Civil: Marital Dissolution

Proceedings Below: Parties stipulated to a “Post-Marital Agreement” which provided for dissolution of the marriage and division of property. The district court upheld the agreement and dissolved the marriage. Shortly thereafter, Mary attempted to take out life insurance on Henry’s life, which required that Henry submit to a physical examination. Henry declined and Mary petitioned for the district court to order Henry’s compliance. The district court denied Mary’s request and this appeal followed.

Issues: Whether the district court erred when it failed to order Henry to submit to a physical exam for purposes of allowing Mary Kay to obtain a life insurance policy on Henry’s life.

During a dental malpractice trial in Gage county district court the judge kept a trial schedule so tight that the jury heard the entire case in one week with over sixty hours of trial time. Malchow v. Doyle, S-06-219, 275 Neb. 530The jury verdict went to the dentist and the plaintiff appealed claiming the grueling trial schedule and possible juror misconduct prejudiced the plaintiff. Nebraska Supreme Court finds no abuse of discretion in the lengthy court sessions and no juror misconduct after it refused to admit affidavits from jurors who claimed the foreman was injecting his own legal standards of proof into the case. The Supreme Court did modify the court's discovery sanction against the defendant to remove the plaintiff's expert's extra costs to prepare for testimony when the defendant delayed submitting discovery materials. "the trial was conducted over a 5-day period and 62 hours were devoted to the trial. T he record does not show that either party was restricted in the presentation of its evidence. Malchow has not demonstrated that she was prejudiced in presenting her case based on the length of each trial day, and she is not entitled to an inference that the jury resented her because of the length of the trial. We conclude that the district court did not arbitrarily place time limits on either party or restrict the presentation of evidence. Thus, the court did not abuse its discretion in overruling any motions for mistrial on the basis of the conduct of the trial." juror’s knowledge about the burden of proof is personal knowledge that is not directly related to the litigation at issue and is not extraneous information. Doyle did not pay certain specified fees to Miloro in advance as agreed upon, which resulted in the deposition’s being canceled. We conclude that the district court abused its discretion in ordering Doyle to pay the $6,000 charged by Miloro as compensation for time he spent preparing for the deposition. Whether Miloro needed to spend 12 additional hours to prepare for a 2-hour discovery deposition by Doyle is not the question, but, rather, whether Doyle should have been ordered to pay such charges. We conclude that the district court’s order on this issue was in error.

Nebraska Supreme Court denies defendant's claim of ineffective appellate counsel and opens the door slightly to post-conviction discovery proceedings, but holds further discovery would not have helped the defendant. State v. Jackson, S-06-1041, 275 Neb. 434. the defendant in his post-conviction action sought discovery from the prosecutor regarding any evidence the prosecutor had that would show that a drug dealer ordered another hit man to kill the man that the defendant was convicted of killing. The trial court overruled the defednat's request. The Supreme Court agrees that discovery was not appropriate in this case under State v. Thomas, 236 Neb. 553, 462 N.W.2d 862 (1990)., but suggests it might allow some discovery in the future. "when a postconviction discovery request is for evidence that the defendant would not have known to request until after the trial, the postconviction stage is the prisoner’s first opportunity to make such a request...there should be a limited exception for discovery requests concerning evidence which the prosecution withheld from the defendant at trial when there is a reasonable possibility that the requested evidence, if it exists, could have resulted in a different outcome at trial."

Parties to a dispute over the Salem Grain Company won nearly $12000 attorneys' fees for the defendants' failure to comply with discovery orders. The appealing parties' appeal is dismissed as neither a final nor a collateral order. Frederick v. Seeba, A-06-272, 16 Neb. App. 373`an order imposing a money judgment for attorney fees and expenses for discovery violations pursuant to Nebraska’s discovery rule 37(a)(4) does not affect a “substantial right” as required by § 25-1902 RRS Neb.to seek review of the appellant's discovery sanctions, they must meet three elements for their appeal to come within the collateral order doctrine: “[T]he order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively not reviewable on appeal from a final judgment.”Hallie Mgmt. Co. v. Perry, 272 Neb. at 85-86, 718 N.W.2d at 535 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S. Ct. 2454, 57 L. Ed. 2d 351 (1978)). the Seebas cannot meet the third condition of the collateral order doctrine, i.e., that the order is effectively not reviewable upon final judgment. Once a final determination of the merits of the case has been decided, theSeebas can appeal the imposition of attorney fees and expenses at that time, and if the appellate court determines that an error was made, the remedies available to theSeebas after appeal from a final judgment are sufficient to adequately protect their interests.

It takes the smartest brightest judges of all time to determine that "closed" doesn't mean "closed." Nebraska Supreme Court Justice Gerrard rules that Natural Resources District defendant could not close off discovery of litigation strategy meetings it conducted in accordance with the Nebraska Open Meetings Law (§ 84-1408 et seq. ). State ex rel. Upper Republican NRD v. District Judges, S-06-549, 273 Neb. 148 Organization of independent irrigators sued this natural resources district and sought discovery of what its members discussed during closed sessions. The district court agreed with the independent irrigators that the records of closed sessions were not absolutely privileged even if the sessions qualified as closed under the Open Meetings Law, § 84-1410(1).RRS Neb. The Supreme Court Justice Gerrard approves of the district court and holds that the district court should review the closed sessions to determine if any parts of the meetings The old Supreme Court must have been wrong in Maresh v State 489 N.W.2d 298, 241 Neb. 496 (1992) when it said court rules, such as Discovery Rule 26 cannot trump statutes, such as the Open Meetings Law. Also the legislature is supposed to tell the court that lawyers cant get the information, such as specifying that meetings are privileged, as in the Peer Review law§ 71-7903 (Reissue 2003).