concurring:
I concur with the result reached by the majority that the extraordinary writs must issue, but in particular, base my concurrence that mandamus lies to compel the discovery right to depose Howard R. Hughes on the following rationale.
*36I. On January 11, 1971 Judge Babcock stayed the taking of the deposition of Hughes Tool Company noticed for January 11, 1971 until further order of the court. The motion on which the stay was predicated set forth the grounds, in addition to testimony and evidence theretofore received, to be:
“ 1. The discovery sought is premature.
“2. The discovery sought is not in conformity with applicable provisions of the Nevada Rules of Civil Procedure nor with other applicable rules of law.
“3. Hughes Tool Company may not be compelled to produce Howard R. Hughes for deposition as its managing agent.”
Upon motion for a stay and for an extension of time, on January 19, 1971, Judge Babcock stayed all proceedings including the taking of Howard Hughes’ deposition until he would conduct a hearing on whether or not Maheu had complied with the court’s previous order to return all papers that Maheu had taken from Hughes Tool Company and Hughes Nevada Operations. The judge’s position is that the court has the inherent power to see to it that its orders are complied with. I maintain he was in excess of his jurisdiction and that it was not mere error, that (1) the order to turn over all papers was stayed by the stay bond request, (2) he has rules relating to contempt to enforce his orders, if valid, (3) that the Hughes people have the right according to rules provided to amend their pleadings at any time that new information is discovered (NRCP Rule 15, Amended & Supplemental Pleadings), thus, their claim that they cannot proceed to file an answer to the counterclaim because, allegedly, Maheu had some of their papers, is without merit, and (4) that they have the benefit of protective orders provided in the rules on the talcing of depositions and none of those protective orders includes a stay order of all proceedings such as Judge Babcock imposed.
II. Mandamus is appropriate.
My first assignment of error has been treated by the majority. As the second and third are self-explanatory, I will discuss more fully the fourth.
A. Rule 30 of the Nevada Rules of Civil Procedure grants the right after commencement of the action for any party to take the testimony of any person, including a party, by deposition upon oral examination. When this right is denied or infringed upon without lawful authority interlocutory review may be had by use of an extraordinary writ, in this instance the writ of mandate. Texaco, Inc. v. Borda, 383 F.2d 607 (3rd Cir. 1967). NRS 34.160 provides in pertinent part:
*37“The writ may be issued by the supreme court... to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled and from which he is unlawfully precluded by such inferior tribunal, . . . [Emphasis supplied.].”
There is the further requirement of NRS 34.170 that:
“This writ shall be issued in all cases where there is not plain, speedy and adequate remedy in the ordinary course of law. It shall be issued upon affidavit, on the application of the party beneficially interested.”
In Harabedian v. Superior Court, County of Los Angeles, 195 Cal.App.2d 26, 15 Cal.Rptr. 420, 422 (1961), it was held that a writ of mandamus may issue not only to enforce a proper discovery right (Dowell v. Superior Court, 47 Cal.2d 483, 304 P.2d 1009 (1956); Powell v. Superior Court, 48 Cal.2d 704, 312 P.2d 698 (1957); Walker v. Superior Court, 155 Cal.App.2d 134, 317 P.2d 130 (1957); Jorgensen v. Superior Court, 163 Cal.App.2d 513, 329 P.2d 550 (1958)), but also to prevent improper discovery proceedings including physical examinations. Sharff v. Superior Court, 44 Cal.2d 508, 282 P.2d 896, 64 A.L.R.2d 494 (1955); Gonzi v. Superior Court, 51 Cal.2d 586, 335 P.2d 97 (1959).
Statutes relating to discovery procedures should be liberally construed in favor of disclosure. Harabedian, supra; Hauk v. Superior Court of Los Angeles County, 38 Cal.Rptr. 345, 391 P.2d 825 (1964).
Chief Judge Lumbard in Trans World Airlines, Inc. v. Hughes, 332 F.2d 602, 614 (1964), said:
“We think it clear beyond any question, in light of all the circumstances here presented, that the deposition of Hughes was necessary to all aspects of this litigation, and his willful and deliberate default constituted a sufficient basis under Rule 37 for the dismissal of the counterclaims with prejudice. Hughes has at all times been the sole owner of Toolco and the guiding light behind all the transactions between Toolco and TWA. Both TWA and the additional defendants had the right to depose Hughes.”
For the purposes of this litigation, I subscribe to those views.
The notice on December 31, 1970 to Hughes Tool Company and Howard R. Hughes was proper and in conformance with the Nevada Rules of Civil Procedure. NRCP 30(c); Deros v. Stern, 87 Nev. 148, 483 P.2d 648 (1971). Therefore, it is clear that there is a right under the Nevada discovery rules to take the deposition, that this right has been infringed upon, and per the mandamus statute, the writ of mandate will lie to compel the enjoyment of the right to which Maheu is entitled.
*38B. An appeal is not an adequate remedy in this instance. As a condition precedent to mandamus, NRS 34.170 requires that there be no plain, speedy and adequate remedy in law.
In Annot., Availability of mandamus or prohibition to compel or to prevent discovery proceedings, 95 A.L.R.2d 1229, 1237 (1964), it is stated:
“In accordance with the general principle that the availability of other legal remedies does not preclude proceedings in prohibition where such other remedies are not adequate, it was held in the following cases that a writ of prohibition to review the granting of a discovery order was available to the aggrieved party on the ground that the remedy by appeal from the final judgment of the action wherein discovery was granted was inadequate. [California and Arizona cases then are cited.]”
In McClatchy Newspapers v. Superior Court of Sacramento County, 26 Cal.2d 386, 159 P.2d 944, 948 (1945), the California Supreme Court, in considering an interlocutory review of pretrial discovery proceedings, stated, “[mjandamus is the appropriate remedy to secure the enforcement of a litigant’s statutory right to take depositions, and an appeal from a final judgment is neither speedy nor adequate where a trial court improperly refuses to order that a deposition be taken [citations omitted].”
The Arizona Court of Appeals had occasion in Phelps Dodge Corp. v. Superior Court, 7 Ariz.App. 277, 438 P.2d 424 (1968), to consider a writ of certiorari seeking review of pretrial discovery order entered in a civil action. The court stated, at 427, “[w]e agree with California that appeal is not an adequate remedy for denial of discovery because a litigant has a right to: ‘. . . the means of obtaining in advance of the trial information concerning the issues and the means of producing at the trial the evidence necessary to sustain his action or defense.’ McClatchy, [supra,] 159 P.2d at 948-49.”
Consequently the requirements of NRS 34.170 are satisfied in this case.
III. The general rule in Nevada is that mandamus wifi not lie to review the discretionary acts of a trial judge. This has been the inflexible rule as exemplified by the following citations of its application. Only a relatively small handful of exceptions have been made even in light of the extensive changes which have occurred in criminal and civil discovery. Those cases which recite the rule include:
1. Mears v. State, 83 Nev. 3, 7, 422 P.2d 230 (1967) (mandamus and prohibition — criminal discovery).
*392. Jowers v. Compton, 82 Nev. 95, 96, 411 P.2d 479 (1966) (mandamus — civil—will contest).
3. Wilmurth v. District Court, 80 Nev. 337, 340, 393 P.2d 302 (1964) (mandamus — civil—request to vacate pretrial order).
4. Marshall v. District Court, 79 Nev. 280, 283, 382 P.2d 214 (1963) (certiorari — criminal discovery).
5. Franklin v. District Court, 85 Nev. 401, 402, 455 P.2d 919 (1969) (certiorari — criminal discovery).
6. Pinana v. District Court, 75 Nev. 74, 75, 334 P.2d 843 (1959) (mandamus — criminal discovery).
7. State v. McFadden, 46 Nev. 1, 6, 205 P. 594 (1922) (mandamus — civil—to expunge grand jury report).
8. State v. District Court, 40 Nev. 163, 166, 161 P. 510 (1916) (mandamus — civil—removal of administrator).
9. State v. Curler, 26 Nev. 347, 356, 67 P. 1075 (1902) (mandamus — civil—refusal to appoint appraisers).
10. Hoole v. Kinkead, 16 Nev. 217, 222 (1881) (mandamus — civil—commissioners’ determination of best bid).
11. State ex rel. Hetzel v. Board of Commissioners of Eureka County, 8 Nev. 309, 310 (1873) (mandamus — civil— election of county officers).
12. State v. Curler, 4 Nev. 445, 447 (1869) (mandamus- — civil—transfer of cause).
The Nevada Supreme Court has recognized that mandamus will lie in the following class of cases.
A. Proceedings which are not within jurisdiction of district court.
Culinary Workers v. District Court, 66 Nev. 166, 207 P.2d 990 (1949),
Gaming Control Bd. v. District Court, 82 Nev. 38, 409 P.2d 974 (1966).
B. Court’s declination to use jurisdiction it possessed.
Roberts et al. v. Second Judicial District Court, 43 Nev. 332, 185 P. 1067 (1920),
Swisco, Inc. v. District Court, 79 Nev. 414, 385 P.2d 772 (1963),
Floyd v. District Court, 36 Nev. 349, 135 P. 922 (1913).
C.' Noncompliance with statutory provisions.
State ex rel. Friedman v. District Court, 81 Nev. 131, 399 P.2d 632 (1965), and Shelton v. District Court, 64 Nev. 487, 185 P.2d 320 (1947). (Here the legal principle is the same although these cases arose under the rubric “prohibition.”)
State ex rel. Cooper v. Reese, 57 Nev. 125, 59 P.2d 647 (1936).
*40D. Where the court erred as a matter of law.
Dzack v. Marshall, 80 Nev. 345, 393 P.2d 610 (1964).
Smith v. Gabrielli, 80 Nev. 390, 395 P.2d 325 (1964).
I conclude that a trial court which so abuses its discretion relative to pretrial discovery matters to such an extent as to exceed its jurisdiction is subject to interlocutory review by writ of mandamus to an appellate court.
IV. Law of other jurisdictions.
The application is recognized in other jurisdictions. In Arizona, after the courts had struggled with the problem of extraordinary writs for a number of years, the Arizona Supreme Court adopted Rules of Procedure for Special Actions— [Extraordinary Writs — Certiorari, Mandamus, Prohibition] 17 ARS Annot., 1969-70 Supp. (effective January 1, 1970). Rule 3 thereof is as follows:
“Rule 3. Questions Raised
“The only questions that may be raised in a special action are:
(a) Whether the defendant has failed to exercise discretion which he has a duty to exercise; or to perform a duty required by law as to which he has no discretion; or
(b) Whether the defendant has proceeded or is threatening to proceed without or in excess of jurisdiction or legal authority; or
(c) Whether a determination was arbitrary and capricious or an abuse of discretion. [Emphasis supplied.]”
In commenting upon and explaining Rule 3, John Nelson, in The Rules of Procedure for Special Actions: Long Awaited Reform of Extraordinary Writ Practice in Arizona, 11 Ariz. L.Rev. 413, 423-24 (1969), said:
“There is no question that the more recent cases have tended to broaden the traditional scope of mandamus. The fact that discretion may have been exercised is no longer a complete bar to relief by mandamus since the courts have held that, although they normally will not control the exercise of discretion, they may do so if the respondent has acted arbitrarily or has abused his discretion. This does not mean that the petitioner must establish bad motivation — he need only show conduct which the court deems unreasonable or ultra vires.
“Rule 3(c)
“Whether a determination was arbitrary and capricious or an abuse of discretion.
*41“In the past it was often said by Arizona courts that prohibition would not lie merely to correct error, irregularity, or mistake in the proceedings of an inferior tribunal. Similarly, ‘[c]ertiorari issues only to test jurisdiction, and not to determine whether it was erroneously exercised.’ Although these principles have never been expressly repudiated, recent cases indicate that they are no longer binding standards, and that the court will ‘see that essential justice is done.’ For example, in discussing certiorari, the Supreme Court of Arizona in State ex rel. Ronan v. Superior Court [95 Ariz. 319, 390 P.2d 109 (1964)], stated:
“[I]f the court abused its discretion, or failed regularly to pursue its authority, which has the same meaning, the reviewing court might examine the evidence bearing on jurisdiction or abuse of discretion, but not with a view to determine facts or draw conclusions therefrom respecting guilt. [Footnotes omitted.]”
New York has adopted a special action rule merging the three remedies, N.Y.Civ.Prac. Laws and Rules § 7801 (McKinney’s 1963) (§ 7803(3) dealing with abuse of discretion), and Colorado has to a considerable extent done the same, Colo.R.Civil Proc. 106 (1964).
As already noted, in California the trial court’s discretion relative to discovery matters has long been subject to review by special writs.
In Daum v. Superior Court, Sutter County, 228 Cal.App.2d 283, 39 Cal.Rptr. 443, 445 (1964), an original proceeding to compel the Superior Court to permit petitioners to file a second amended complaint, the court stated:
“Section 1086 of the Code of Civil Procedure provides that the writ of mandamus will issue ‘in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law.’ (Sharff v. Superior Court, 44 Cal.2d 508, 282 P.2d 896, 64 A.L.R.2d 494.) Case law has established that mandate will lie, inter alia, to control judicial discretion when that discretion is abused; and that ‘[i]n a legal sense discretion is abused whenever in the exercise of its discretion the court exceeds the bounds of reason, all of the circumstances before it being considered.’ (State Farm Mutual Automobile Ins. Co. v. Superior Court, 47 Cal.2d 428, 432, 304 P.2d 13, 15; Hays v. Superior Court, 16 Cal.2d 260, 105 P.2d 975.)”
In Sharff v. Superior Court, 44 Cal.2d 508, 282 P.2d 896 (1955), the California Supreme Court held that plaintiff in a personal injury action who was ordered to undergo a physical *42examination by defendant’s doctor was entitled to have the assistance and protection of her attorney during the examination, and the denial of this right imposed an unlawful condition upon plaintiff’s right to proceed to trial. Mandamus was held to be a proper remedy. The court summarized its holding, at 897, “We are of the view that the respondent court, in staying all proceedings until plaintiff should comply with the order directing her to submit to an oral and physical examination without the presence of her attorney, imposed an unwarranted condition on her right to have the case proceed to trial.”
V. The trial court abused its discretion.
A. Referring back to the mandamus statute, NRS 34.160, all that is required to be shown is that the petitioner “is unlawfully precluded by such inferior tribunal” from a right “to which he is entitled. . . .” The trial court abused its discretion on three grounds:
1. The petitioner only must show that the district judge acted unlawfully. NRCP 26-37 grant broad powers to litigants promoting and expediting the trial of civil matters by allowing those litigants an adequate means of discovery during the period of trial preparation. To prevent abuse of this expanded discovery process, the district court has been granted discretion in the granting of protective orders under NRCP 26(c) and 30(d). Rule 30(d) is inapplicable as it focuses on the time during the taking of the deposition.
Rule 26(c) provides:
“(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 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 [sanctions].”
None of the grounds stated in the motion to vacate notice to take deposition relied upon by the lower court in its stay order of January 11, 1971 is allowed for by Rule 26(c) and therefore the district judge unlawfully stayed the deposition. In this light it may appear that the district court exceeded its jurisdiction. The case of Dzack v. Marshall, 80 Nev. 345, 393 P.2d 610 (1964), held that the district court had a duty to grant a 56(e) summary judgment under the facts of the case, that there was no remaining discretion left in the court. Conceptually, the same result could have been reached by stating that the lower court abused its discretion in not granting the judgment when the defendant had a legal right to it. Here, *43the trial court either exceeded its jurisdiction or abused its discretion, both of which amount to the same.
2. The district court relied on the motion to vacate, the first ground stated therein being that “The discovery sought is premature.” In this matter the discovery was not premature. It is difficult to predict if and when Howard R. Hughes will be available for deposition. His vagaries are common knowledge. In De Wagenknecht v. Stinnes, 102 U.S.App.D.C. 89, 250 F.2d 414 (1957), the Court of Appeals affirmed the district court’s order, under F.R.Civ.P. 27, authorizing the taking of the deposition of a 74-year-old witness, saying at 417, “Mrs. Stinnes seeks by this proceeding to perpetuate the testimony of a person who has knowledge of certain events and transactions, many of which took place years ago. There can be no certainty that this testimony will still be available when the controversy is ready for litigation, since the witness is at present seventy-four years of age.”
In Texaco, Inc. v. Borda, 383 F.2d 607 (3rd Cir. 1967), the appellate court held that the denial to the petitioner of leave to take the deposition from an individual whose civil antitrust action against the company had been stayed until determination of a related criminal antitrust action in which the company has been named co-conspirator was an abuse of discretion, where the individual was 71 years old, and the alleged conspiracy had occurred 11 years previously. See also, Martin v. Reynolds Metals Corporation, 297 F.2d 49 (9th Cir. 1961), and Block v. Superior Court of Los Angeles County, 219 Cal.App.2d 469, 33 Cal.Rptr. 205 (1963), both of which illustrate the policy of allowing liberal discovery by deposition to perpetuate testimony.
3. The stay order of January 19, 1971 staying all proceedings until Maheu showed compliance with the turnover orders of December 12 and 24, 1970 and the motion in support of the stay order clearly show that this stay order was imposed as a sanction to force compliance with the court’s prior order. As pointed out in the foregoing analysis, Maheu has a right to depose Howard R. Hughes (NRCP 30), that certain designated grounds are set out in NRCP 26(c) for the protection of any person from whom discovery is sought, namely, protection from annoyance, embarrassment, oppression, or undue burden or expense and that none of these grounds includes a stay to force or precipitate compliance with a court order. Other rules in the nature of contempt proceedings are provided for that purpose. The district judge abused *44his discretion and in effect acted without jurisdiction. See Hauk v. Superior Court of Los Angeles County, 38 Cal.Rptr. 345, 391 P.2d 825 (1964).
I concur in the result reached by the majority and trust that discovery, including the deposition of Howard R. Hughes, will now proceed forthwith to the end that the merits of the action will be resolved.