Diaz v. Dist. Ct.
| Citation | 993 P.2d 50,116 Nev. 88 |
| Decision Date | 27 January 2000 |
| Docket Number | No. 32968.,32968. |
| Parties | Rosalva DIAZ; Eduardo Jesus Diaz, a Minor by and Through His Guardian Ad Litem Rosalva Diaz; Katia Guadalupe Alcantara, a Minor by and Through Her Guardian Ad Litem Jose Antonio Zermeno; Estephania Alcantara, a Minor by and Through Her Guardian Ad Litem Jose Antonio Zermeno; Maria Estrada; and Michael Anthony Estrada, a Minor by and Through His Guardian Ad Litem, Veronica Molina, Petitioners, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, In and For the COUNTY OF CLARK, and the Honorable Mark W. Gibbons, District Judge, Respondents, and Glenn Puit, Real Party in Interest. |
| Court | Supreme Court of Nevada |
Your Legal Power, Herbert L. Michel Jr., Las Vegas, for Petitioners.
Frankie Sue Del Papa, Attorney General, Bridget A. Branigan, Deputy Attorney General, Carson City, Alverson Taylor Mortensen Nelson & Sanders, Kurt Anderson, Las Vegas, for Respondents.
Lionel Sawyer & Collins, Kevin D. Doty, Las Vegas, for Real Party in Interest.
JoNell Thomas, Las Vegas, for Amicus Curiae, Nevada Press Association.
BEFORE THE COURT EN BANC.
This original petition for a writ of mandamus or prohibition challenges an order of the district court that denied petitioners' motion to compel the real party in interest to answer deposition questions. The real party in interest, a news reporter, invoked the protection of Nevada's news shield statute against compelled disclosure of information he obtained while investigating a fatal traffic accident. As we conclude that the news shield statute affords reporters a privilege from compelled disclosure of the contents of a published article, we conclude that extraordinary relief is not warranted; consequently, we deny the petition.
On September 21, 1996, at approximately 1:00 a.m., Nevada Highway Patrol ("NHP") trooper John Kennedy responded to a dispatch stating that a person was lying in a northbound lane of Interstate 95 at the Summerlin Parkway off ramp in Las Vegas. Upon arriving at the scene, Trooper Kennedy approached the person, who was identified as Michael Estrada. The record before this court is unclear as to what transpired next. Trooper Kennedy testified during his deposition that he detected the odor of alcohol on Estrada's breath and that Estrada admitted that he had been drinking. The record also reveals from the NHP dispatch transcript that, as Trooper Kennedy was en route to the scene, the NHP dispatcher informed the Las Vegas Metropolitan Police that there was no need for their involvement; the dispatcher stated, "[W]e're there and it's just a broken down vehicle." Trooper Kennedy later informed the NHP dispatcher that Estrada was the registered owner of the vehicle but that Estrada claimed he had been riding as a passenger in the vehicle. According to the transcript, Trooper Kennedy explained to the dispatcher that "[t]he reason the vehicle is ... being towed is it stalled in the travel lane and as soon as we get clear here I'll be [transporting Estrada] to his ... residence." Trooper Kennedy arranged for Estrada's vehicle, which was parked on the shoulder of the road, to be towed and then drove Estrada home.
Later that day, at approximately 12:30 p.m., Estrada, his wife, daughter, and stepson retrieved Estrada's vehicle from the towing company. Estrada drove away in the vehicle, with his stepson as a passenger, while his wife and daughter followed in another vehicle. Shortly thereafter, Estrada and his stepson were involved in a collision with another vehicle. Estrada, his stepson, and all three people in the other vehicle were killed. Petitioners, who are relatives of the five victims of the fatal accident, assert that Estrada was intoxicated at the time of the accident.1 Following the accident, petitioners filed a wrongful death action against the state, the NHP, and the towing company.
During discovery, petitioners deposed Trooper Harney, an NHP public information officer, who had been quoted in articles about the accident that appeared in the Las Vegas Review-Journal. Specifically, the articles, which were authored by real party in interest Glenn Puit, credit Harney with stating, among other things, that "troopers" questioned Estrada "hours before the fatal pileup for suspicion of drunk driving." Additionally, Trooper Harney is reported as stating that "troopers could not charge Estrada with drunken driving because Estrada did not have the keys [to the vehicle] in his possession and there were no witnesses who could say he was behind the wheel." At his deposition, Trooper Harney testified that to the best of his recollection, what he told Puit about the encounter was that the NHP "responded to an abandoned vehicle alongside the roadway; and that there was a gentleman there that was sitting off the roadway; and that we had asked him if he ... was driving the vehicle; and he stated that a friend was and had left; and ... that there was no ... witness to place him behind the wheel of the automobile; and based on that we did not arrest him." Furthermore, during his deposition, Trooper Harney claimed that he could not remember whether he had made certain statements attributed to him in the articles, so he deferred to the articles.
Petitioners later attempted to depose, in an apparent effort to impeach Trooper Kennedy and other law enforcement officers who had given statements inconsistent with those attributed to Trooper Harney in the Review-Journal articles. At his deposition, Puit refused to answer questions by citing the reporter's privilege as conferred by NRS 49.275, Nevada's news shield statute.
Subsequently, petitioners filed a motion to compel Puit to answer the questions. Puit, who was joined by the NHP, opposed the motion. The discovery commissioner concluded that both Nevada's news shield statute and the First Amendment-based reporter's privilege required that petitioners' motion to compel be denied. The district court adopted the discovery commissioner's report and recommendations, despite petitioners' objections.
Petitioners then filed a motion for reconsideration, which the district court granted. Although the district court found the information sought by petitioners to be probative and relevant as impeachment evidence, it determined that Puit could not be compelled to testify pursuant to Nevada's news shield statute. Accordingly, the district court reaffirmed the discovery commissioner's report and recommendations.
Petitioners subsequently filed this original petition for writ of mandamus or prohibition, to which Puit has filed an answer.2
A writ of mandamus may be issued to compel the performance of an act that the law requires as a duty resulting from an office, trust or station, or to control an arbitrary or capricious exercise of discretion. See State ex rel. Dep't Transp. v. Thompson, 99 Nev. 358, 662 P.2d 1338 (1983); Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981). A writ of prohibition, in turn, is the "proper remedy to restrain a district [court] from exercising a judicial function without or in excess of its jurisdiction." Smith v. District Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991). Either writ will only issue where "there is not a plain, speedy and adequate remedy in the ordinary course of law." NRS 34.170; NRS 34.330.
Generally, extraordinary relief is unavailable to review discovery orders. See Hetter v. District Court, 110 Nev. 513, 515, 874 P.2d 762, 763 (1994)
. Thus, we could conclude that petitioners have a plain, speedy and adequate remedy at law that would preclude extraordinary relief, since petitioners may challenge the district court's order in an appeal from an adverse final judgment. See Clark County Liquor v. Clark, 102 Nev. 654, 730 P.2d 443 (1986). Nevertheless, "where an important issue of law needs clarification and public policy is served by this court's invocation of its original jurisdiction, ... consideration of a petition for extraordinary relief may be justified." Business Computer Rentals v. State Treas., 114 Nev. 63, 67, 953 P.2d 13, 15 (1998). One such instance is when a writ petition offers this court "a unique opportunity to define the precise parameters of [a] privilege" conferred by a statute that this court has never interpreted. Ashokan v. State, Dep't of Ins., 109 Nev. 662, 667, 856 P.2d 244, 247 (1993). We conclude that this writ petition raises an issue of first impression that implicates a matter of public importance: Whether a journalist waives the protection of the news shield statute with respect to the contents of an article that has been published. Accordingly, today we address this petition.
Nevada's news shield statute is one of the most liberal in the country. See Leslye deRoos Rood and Ann K. Grossman, The Case for a Federal Journalist's Testimonial Shield Statute, 18 Hastings Const. L.Q. 779 (1991) () [hereinafter Testimonial Shield Statute]. The statute confers upon journalists an absolute privilege from disclosure of their sources and information in any proceeding. Specifically, the shield statute provides in pertinent part:
NRS 49.275(1).
In 1971, two years after enacting the first shield law, which preceded NRS 49.275, Nevada's legislature enacted NRS 49.385, which governs waiver of privileges by voluntary disclosure. The waiver statute provides:
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