Wardleigh v. Second Judicial Dist. Court In and For County of Washoe

• Decision Date: 22 March 1995
• Docket Number: No. 25190,25190
• Citation: 111 Nev. 345,891 P.2d 1180
• Parties: Rose WARDLEIGH and Kevin Sigstad, Petitioners, v. The SECOND JUDICIAL DISTRICT COURT OF the STATE OF NEVADA, in and for the COUNTY OF WASHOE, and the Honorable Mark Handelsman, District Judge, Respondents, and Clear Acre, Ltd., a Nevada Limited Partnership, and its General Partners, Clear Acre, Inc., a Nevada Corporation, McMillan Construction Company, an Entity of Unknown Capacity, Successor in Interest to McMillan Construction Company, a Dissolved Nevada Corporation, Donald L. Wilkerson, Ronald G. Palmer and John Ghilieri; Thomas G. McMillan; McMillan Mortgage Company, an Entity of Unknown Capacity; S.E.A., Incorporated, a Corporation; Gary A. Hartunian; 5334 Lindley Partnership, a California Limited Partnership, and its General Partners, Garabed Demirjian and Albert Wayne; Clear Acre Village Apartments, Ltd., a California Limited Partnership d/b/a Clear Acre Apartments, and its General Partners, Garabed Demirjian, Gary A. Hartunian, and Albert Wayne; Novato Corporation, n.v., a Netherlands Antilles Corporation; Cornell Finance Company, Ltd., a Hong Kong Corporation; Cornell Properties, Inc., a Nevada Corporation; John Handley; Bobby D. Slentz; The City of Reno, Nevada, a Municipal Corporation; Prudential Real Estate Affiliates, Inc., a Corporation; Prudential Residential Services, L.P., a Limited Partnership; Successor in Interest to Merrill Lynch Realty, an Entity of Unknown Capacity; Jack Matthews, an Individual; Jack Matthews and Co., a Corporation; Prudential Homes Corp., a Corporation; Fine Homes, L.P., a Limited Partnership; and Kleinfelder, Inc., a California Corporation as Successor in Interest to J.H. Kleinfelder, Real Parties in Interest.
• Court: Nevada Supreme Court

Page 1180

891 P.2d 1180

111 Nev. 345

Rose WARDLEIGH and Kevin Sigstad, Petitioners, v. The SECOND JUDICIAL DISTRICT COURT OF the STATE OF NEVADA, in and for the COUNTY OF WASHOE, and the Honorable

Mark Handelsman, District Judge, Respondents,

and

Clear Acre, Ltd., a Nevada Limited Partnership, and its General Partners, Clear Acre, Inc., a Nevada Corporation, McMillan Construction Company, an Entity of Unknown

Capacity, Successor in Interest to McMillan Construction

Company, a Dissolved Nevada Corporation, Donald L.

Wilkerson, Ronald G. Palmer and John Ghilieri; Thomas G.

McMillan; McMillan Mortgage Company, an Entity of Unknown

Capacity; S.E.A., Incorporated, a Corporation; Gary A.

Hartunian; 5334 Lindley Partnership, a California Limited

Partnership, and its General Partners, Garabed Demirjian and Albert Wayne; Clear Acre Village Apartments, Ltd., a

California Limited Partnership d/b/a Clear Acre Apartments,

and its General Partners, Garabed Demirjian, Gary A.

Hartunian, and Albert Wayne; Novato Corporation, n.v., a

Netherlands Antilles Corporation; Cornell Finance Company,

Ltd., a Hong Kong Corporation; Cornell Properties, Inc., a Nevada Corporation; John Handley; Bobby D. Slentz; The

City of Reno, Nevada, a Municipal Corporation; Prudential

Real Estate Affiliates, Inc., a Corporation; Prudential

Residential Services, L.P., a Limited Partnership;

Successor in Interest to Merrill Lynch Realty, an Entity of Unknown Capacity; Jack Matthews, an Individual; Jack

Matthews and Co., a Corporation; Prudential Homes Corp., a Corporation; Fine Homes, L.P., a Limited Partnership; and Kleinfelder, Inc., a California Corporation as Successor in

Interest to J.H. Kleinfelder, Real Parties in Interest.

No. 25190.

Supreme Court of Nevada.

March 22, 1995.

Maddox & Robertson and Jo Lee M. Wickes, Reno, for petitioners.

Perry & Spann, Reno, for City of Reno.

Woodburn & Wedge and Casey Vlautin, Reno, for Prudential.

McDonald, Carano, Wilson, McCune, Bergin, Frankovich & Hicks and Matthew C. Addison, Reno, for Clear Acre, Wilkerson & Palmer.

Erickson, Thorpe & Swainston, Ltd., Reno, for John Ghilieri.

Rawlings, Olson & Cannon and Dana Jonathon Nitz, Las Vegas, for McMillan and McMillan Const.

Beasley, Holden & Brooks, Reno, for S.E.A., Inc.

Benesch & Fermoile, Reno, for Kleinfelder, Inc.

Jack I. McAuliffe, Reno, for Cornell Properties, Inc.

Robert Grayson, Carson City, for 5334 Lindley Partnership and Albert Wayne.

Monsey & Andrews, Las Vegas, for Jack Matthews.

OPINION

PER CURIAM:

In this original proceeding in mandamus, petitioners Rose Wardleigh and Kevin Sigstad seek a writ of mandamus or prohibition directing respondent district court to vacate a pretrial discovery order permitting discovery of certain minutes and legal files, and to prevent an attorney deposition. Because real parties in interest have not shown undue hardship as required to circumvent the work product doctrine, the district court erred in ordering the discovery of certain legal files and in allowing the attorney's deposition. Therefore, writ relief is warranted.

FACTS

Petitioners own units in Wildcreek Gardens, a Reno condominium development. The property owners in Wildcreek Gardens are represented by the Wildcreek Garden Condominium Homeowners Association ("Association"), a non-profit Nevada corporation. In 1993, petitioners filed a complaint on behalf of themselves and the 312 condominium owners who belong to the Association in order to recover damages caused by the allegedly deficient manner in which the condominiums were constructed. However, only petitioners Wardleigh and Sigstad are presently named as plaintiffs.

Prior to the present action, three previous lawsuits had been filed complaining about the poor quality of the condominiums. The first action was dismissed in 1979. The second action, brought in 1985 by three homeowners, was also dismissed. The law firm of Hale, Lane, Peek, Dennison & Howard ("Hale firm") and attorney Donald Lattin represented the various plaintiffs in this second suit. At various times, attorneys from the Hale firm attended the Association's board meetings in their capacity as counsel for the 1985 lawsuit. Individual homeowners who were not board members also attended these meetings. Additionally, individuals who were neither homeowners nor attorneys attended some of these meetings ("true guests"). The Association produced and kept minutes of these meetings. The third lawsuit was initiated in 1989 by two individual In 1991, petitioners initiated the present lawsuit alleging, like their predecessors, construction defects in their homes. In each of petitioners' three amended complaints, they raised the issue of their lack of knowledge of construction defects as a basis for tolling the statute of limitations. Additionally, petitioners unsuccessfully sought a class certification and the addition of the Association as a named plaintiff to represent the homeowners. In 1993, petitioners' counsel, in an attempt to have the homeowners assign their claims to the Association, sent a letter to all the homeowners clearly marked "Confidential Attorney-Client Privileged Communication." In response to this second letter, 295 homeowners sent signed, written responses in the form of postcards to petitioners' counsel. These postcards contained the purported assignments.

homeowners alleging the same construction defects. The Hale firm represented the plaintiffs, and attorney John White filed the lawsuit. As with the previous lawsuits, this action was also dismissed.

The Real Parties in Interest ("Real Parties") subsequently petitioned the district court to compel production of the legal files, Association minutes, 1993 postcards, ¹ and to compel attorney Lattin to subject himself to depositional testimony. The district court granted the discovery order sought by Real Parties, thus prompting petitioners to seek an original protective writ in this court.

DISCUSSION

Petitioners contend that they are entitled to writ relief from the district court's discovery order on grounds that the attorney-client privilege and attorney work-product doctrine preclude discovery of the legal files of the Hale firm and attorneys White and Lattin, and the written minutes from the Association meetings. Petitioners invoke the same grounds in support of their opposition to attorney Lattin's deposition.

This original proceeding requires us to determine whether the district court erred by ordering disclosure of the Association minutes and legal files, as well as ordering the deposition of Lattin. We must also determine whether the discovery ordered by the lower court is protected by the attorney-client privilege and/or the attorney work product doctrine, and if so, whether a writ of mandamus or writ of prohibition is an appropriate remedy.

Mandamus or Prohibition

In the instant proceeding, petitioner has sought alternative relief in the form of mandamus or prohibition. This court has previously issued a writ of mandamus compelling a district court to vacate a discovery order under circumstances similar to the present case. See Clark v. District Court, 101 Nev. 58, 692 P.2d 512 (1985) (writ of mandamus issued upon finding that a district court had exceeded its jurisdiction in ordering production and disclosure of privileged information); see also Schlatter v. District Court, 93 Nev. 189, 561 P.2d 1342 (1977) (writ issued upon finding that district court had exceeded its jurisdiction in ordering discovery of irrelevant matter). Moreover, a writ of mandamus may be issued "to compel performance of an act" that the law requires as a duty resulting from an office, trust or station if there exists no plain, speedy, and adequate remedy at law. NRS 34.160; NRS 34.170. Notwithstanding the foregoing precedent, in the case of State ex rel. Tidvall v. District Court, 91 Nev. 520, 524, 539 P.2d 456, 458 (1975), this court held that "[p]rohibition is the remedy which is generally employed to prevent improper discovery" (citations omitted). We reaffirm, without the necessity of overruling either Clark or Schlatter, that prohibition is a more appropriate remedy for the prevention of improper discovery than mandamus.

Writ relief is an available remedy, where, as here, petitioners have no plain, speedy and adequate remedy at law other than to petition this court. If improper discovery were allowed, the assertedly privileged information would irretrievably lose its

                [111 Nev. 351] confidential and privileged quality and petitioners would have no effective remedy, even by a later appeal.  Schlatter, 93 Nev. at 193, 561 P.2d at 1344.   Therefore, a writ of prohibition will issue to prevent discovery required by court order entered in excess of the court's jurisdiction.  Although this court will infrequently exercise its discretion to entertain pre-trial challenges to discovery, there are occasions where, in the absence of writ relief, the resulting prejudice would not only be irreparable, but of a magnitude that could require the imposition of such drastic remedies as dismissal with prejudice or other similar sanctions
                

Attorney-Client Relationship

Petitioners invoke the attorney-client privilege as a barrier to the discovery of the 1985 and 1989 legal files, Association minutes, and the taking of Lattin's deposition. Because the information at issue regards communications with the homeowners, it is necessary to determine whether the homeowners are clients, and if they are, whether the communications between the homeowners and the attorneys in question were intended to be privileged, and therefore, confidential. ²

To the extent that the attorney-client relationship involving homeowners is alleged to exist merely because of their membership in the Association, no such relationship exists. Because the Association is a non-profit corporation, the homeowners are analogous to corporate shareholders (NRS 49.105(1)), and the Association and its members must...