Las Vegas Dev. Assocs., LLC v. Eighth Judicial Dist. Court of State
| Decision Date | 29 May 2014 |
| Docket Number | No. 62512.,62512. |
| Citation | 325 P.3d 1259,130 Nev. Adv. Op. 37 |
| Parties | LAS VEGAS DEVELOPMENT ASSOCIATES, LLC, A Nevada Limited Liability Company; Essex Real Estate Partners, LLC, A Nevada Limited Liability Company; Integrated Financial Associates, Inc.; Nexbank, SSB, A Texas–Chartered State Savings Bank; Westchester CLO, Ltd., A Corporation Organized Under the Laws of the Cayman Islands; Gleneagles CLO, Ltd., A Corporation Organized Under the Laws of the Cayman Islands; Stratford CLO, Ltd., A Corporation Organized Under the Laws of the Cayman Islands; Greenbriar CLO, Ltd., A Corporation Organized Under the Laws of the Cayman Islands; Eastland CLO, Ltd., A Corporation Organized Under the Laws of the Cayman Islands; Brentwood CLO, Ltd., A Corporation Organized Under the Laws of the Cayman Islands; Jasper Clo, Ltd., A Corporation Organized Under the Laws of the Cayman Islands; Longhorn Credit Funding LLC, A Delaware Limited Liability Company; Grayson CLO, Ltd., A Corporation Organized Under the Laws of the Cayman Islands; and Red River CLO, Ltd., A Corporation Organized Under the Laws of the Cayman Islands, Petitioners, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, In and for the County of Clark; the Honorable Elizabeth Goff Gonzalez, District Judge; and the Honorable Mark R. Denton, District Judge, Respondents, and KB Home Nevada Inc., Real Party in Interest. |
| Court | Nevada Supreme Court |
OPINION TEXT STARTS HERE
Hutchison & Steffen, LLC, and Michael K. Wall and Patricia Lee, Las Vegas; Lackey Hershman, LLP, and Paul B. Lackey, Michael P. Aigen, and Kennedy Barnes, Dallas, TX, for Petitioners.
Pisanelli Bice, PLLC, and Todd L. Bice, James J. Pisanelli, Christopher R. Miltenberger, and Jordan T. Smith, Las Vegas, for Real Party in Interest.
BEFORE THE COURT EN BANC.1
This court recently addressed the intersection of NRS 50.125 and Nevada privilege law and concluded that “when invoked at a hearing, ... NRS 50.125 requires disclosure of any document used to refresh the witness's recollection before or while testifying, regardless of privilege.” Las Vegas Sands Corp. v. Eighth Judicial Dist. Court, 130 Nev. ––––, ––––, 319 P.3d 618, 623 (2014). In this opinion, we address whether NRS 50.125 applies to depositions as well as to in-court hearings. We conclude that it does. We therefore deny this petition for a writ of prohibition or mandamus.
The underlying action stems from a dispute between petitioners Las Vegas Development Associates, LLC; Essex Real Estate Partners, LLC; and Integrated Financial Associates, Inc. (collectively, LVDA), and real party in interest KB Home Nevada, Inc. (KB Home), arising out of a real estate transaction. 2 In conducting discovery, KB Home noticed and took the deposition of Essex Real Estate Partners, LLC's principal, George Holman. Holman testified that before his deposition, he had reviewed two memoranda prepared by his attorneys, as well as his own handwritten notes, to refresh his recollection and prepare for the proceeding. Then, the following exchange occurred:
Q. Okay. Did the documents ... what was the purpose of reviewing all those documents?
A. To be prepared and to refresh my memory.
Q. Did they all refresh your recollection?
A. Yes.
Q. Including the memo?
A. Yes.
Holman testified that the memoranda were summaries of conversations that he had with his attorneys regarding the issues in this case. KB Home then requested that Holman divulge the contents of the attorney-prepared memoranda along with Holman's own handwritten notes. Holman refused based on the attorney-client privilege and the work-product doctrine.
On the second day of Holman's deposition, he again confirmed the intent behind reviewing his handwritten notes, stating: “I looked at them to refresh my recollection, yes.” KB Home asked if the notes did in fact refresh his recollection about matters he expected to testify about that day. Holman responded affirmatively. KB Home again requested to inspect the notes, but Holman refused. Later in the deposition, Holman confirmed for a third time that the notes summarized conversations that he had with his attorneys and related to his testimony. In a later installment of his deposition, Holman stated that his intent behind reviewing the memoranda and notes was to refresh his “memory about the strategy of the case going forward.” Throughout his deposition, Holman refused to divulge the contents of the attorney-prepared memoranda and his handwritten notes, on the grounds that they were privileged.
KB Home filed a motion to compel production of the documents, arguing that NRS 50.125 mandates disclosure of any documents used before a deposition to refresh one's recollection. The district court agreed and granted KB Home's motion. LVDA filed a motion for reconsideration, and the district court referred the matter to the discovery commissioner. While the matter was proceeding before the discovery commissioner, LVDA produced Holman's handwritten notes and provided a redacted version of the attorney-prepared memoranda. Nevertheless, the discovery commissioner ultimately recommendedfull production of the unredacted memoranda. The discovery commissioner found that “so much of the information was intertwined,” that “it would be impossible to conclude what ‘factual’ information [Holman] relied on.” Additionally, the discovery commissioner found that “Holman reviewed the entirety of the documents and relied upon them in their entirety in preparing for his deposition.” LVDA filed a written objection to the discovery commissioner's report and recommendation. The district court ultimately affirmed and adopted the discovery commissioner's report and recommendation, ordering production of the unredacted attorney-prepared memoranda pursuant to NRS 50.125.
The underlying proceedings have been stayed by the district court, and LVDA now seeks writ relief from this court, arguing that the district court abused its discretion in granting KB Home's motion to compel because: (1) KB Home did not lay a sufficient foundation to invoke NRS 50.125, (2)NRS 50.125 does not serve as a waiver of the attorney-client privilege, (3) NRS 50.125 does not serve as a waiver of the work-product doctrine. Additionally, in order to properly resolve this writ petition, we will address whether NRS 50.125 applies to depositions as well as to in-court hearings.
We exercise our discretion to consider this writ petition because this case presents a situation where “the assertedly privileged information would irretrievably lose its confidential and privileged quality and petitioners would have no effective remedy, even by later appeal.” Wardleigh v. Second Judicial Dist. Court, 111 Nev. 345, 350–51, 891 P.2d 1180, 1183–84 (1995). Further, we note that a writ of prohibition is an appropriate remedy to correct an order that compels disclosure of privileged information. Valley Health Sys., L.L.C. v. Eighth Judicial Dist. Court, 127 Nev. ––––, –––– n. 5, 252 P.3d 676, 679 n. 5 (2011); Las Vegas Sands, 130 Nev. at ––––, 319 P.3d at 621.
Standard of review
Here, the parties dispute the district court's interpretation and application of NRS 50.125.3 Statutory interpretation presents a question of law subject to our de novo review, even when arising in a writ proceeding. Int'l Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 198, 179 P.3d 556, 559 (2008). “Generally, when a statute's language is plain and its meaning clear, the courts will apply that plain language.” Leven v. Frey, 123 Nev. 399, 403, 168 P.3d 712, 715 (2007). But when a statute is susceptible to more than one reasonable interpretation, it is ambiguous, and this court must resolve that ambiguity by looking to the statute's legislative history and “construing the statute in a manner that conforms to reason and public policy.” Great Basin Water Network v. Taylor, 126 Nev. 187, 196, 234 P.3d 912, 918 (2010).
KB Home laid a proper foundation to invoke NRS 50.125
As a preliminary matter, LVDA argues that even if NRS 50.125 requires production of documents otherwise protected by the attorney-client privilege and the work-product doctrine, KB Home did not lay the proper foundation to invoke the benefits of NRS 50.125 because KB Home did not establish the extent to which the documents refreshed Holman's recollection. LVDA primarily relies on Sipsas v. State, 102 Nev. 119, 123, 716 P.2d 231, 233 (1986), in which this court determined that the district court abused its discretion in admitting a photograph pursuant to NRS 50.125(1)(d) when that photograph was not used to refresh the memory of the witness in question. This court concluded that although the witness “had previously viewed the photograph, it was not used, nor was it needed, to refresh [the witness's] recollectionof the event.” Id. at 123, 716 P.2d at 234. Thus, “[t]he photograph ... was improperly admitted on the grounds of NRS 50.125(1)(d).” Id.
LVDA's reliance on Sipsas is misplaced because that case involved a situation where the witness never indicated that he was unable to recall events, and therefore the photograph was clearly not used to refresh the witness's recollection at trial. See id. Here, KB Home established a foundation under NRS 50.125 because KB Home verified with Holman that he reviewed the two memoranda, the purpose for reviewing the memoranda, and the effect his review had in refreshing his recollection.
NRS 50.125(1) clearly states that “[i]f a witness uses a writing to refresh his or her memory, either before or while testifying, an adverse party is entitled to have it produced at the hearing....” (Emphasis added.) As the discovery commissioner noted, Thus, we conclude that the district court did not abuse its discretion in...
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