L v. Dev. Assocs. v. Eighth Jud. Dist. Ct. , 2014 NV 37 ( 2014 )

130 Nev., Advance Opinion 57
IN THE SUPREME COURT OF THE STATE OF NEVADA
LAS VEGAS DEVELOPMENT No. 62512
ASSOCIATES, LLC, A NEVADA
LIMITED LIABILITY COMPANY;
ESSEX REAL ESTATE PARTNERS,
FILED
LLC, A NEVADA LIMITED LIABILITY MAY 2 9 2014
COMPANY; INTEGRATED FINANCIAL E K. LiNDEMAN
CL
ASSOCIATES, INC.; NEXBANK, SSB, A BY
TEXAS-CHARTERED STATE SAVINGS D= ERK
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,
SUPREME COURT
Petitioners,
OF
NEVADA
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vs.
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.
Original petition for a writ of prohibition or mandamus
challenging a district court order compelling discovery of purportedly
privileged documents.
Petition denied.
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, Texas,
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.'
'The Honorable Kristina Pickering, Justice, voluntarily recused
herself from participation in the decision of this matter.
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OPINION
By the Court, GIBBONS, C.J.:
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.
FACTS
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?
2 Eleven intervenors joined this action.
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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
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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 recommended full
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.
DISCUSSION
We exercise our discretion to consider this writ petition
because this case presents a situation where "the assertedly privileged
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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? 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
3 NRS 50.125(1) provides:
If a witness uses a writing to refresh his or her
memory, either before or while testifying, an
adverse party is entitled:
(a) To have it produced at the hearing;
(b) To inspect it;
(c) To cross-examine the witness thereon;
and
(d) To introduce in evidence those portions which relate
to the testimony of the witness for the purpose of affecting the
witness's credibility.
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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] recollection of the event." Id. at
123, 716 P.2d at 234. Thus, "ftlhe 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.
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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, "it [was] clear that
[Holman] reviewed the documents, including the alleged privileged
documents to 'refresh his memory.' Therefore, this case is not one where
the purported privileged communications did not refresh." Thus, we
conclude that the district court did not abuse its discretion in finding that
KB Home laid a proper foundation to invoke NRS 50.125.
NRS 50.125 serves as a waiver of the attorney-client privilege and the
work-product doctrine when a witness reviews such writings to refresh his
or her recollection prior to testifying
LVDA argues that NRS 50.125 does not serve as a waiver of
the attorney-client privilege or the work-product doctrine because those
protections apply "at all stages of the proceedings." NRS 47.020(2)
(providing that "the provisions of [C]hapter 49 of MRS with respect to
privileges apply at all stages of all proceedings").
We recently addressed the intersection of MRS 50.125 and
Nevada privilege law in Las Vegas Sands Corp. v. Eighth Judicial District
Court, 130 Nev. , 319 P.3d 618 (2014). In Las Vegas Sands, we noted
that the language of NRS 50.125 is ambiguous, given its bare use of the
term "a writing." Id. at , 319 P.3d at 622. In analyzing the statute, we
compared MRS 50.125 to its federal counterpart, Federal Rule of Evidence
(FRE) 612, and noted that "[w]hereas FRE 612 permits the district court's
exercise of discretion to preclude disclosure of privileged documents used
to refresh a witness's recollection before testifying, no such discretionary
language exists in NRS 50.125." Id. at , 319 P.3d at 623. Thus,
without such discretionary language, "Nevada district courts lack
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discretion to halt the disclosure of privileged documents when a witness
uses the privileged documents to refresh his or her recollection prior to
testifying." Id.
Here, LVDA prepared Holman for his deposition by supplying
him with two memoranda that LVDA asserts are attorney work-product
and subject to the attorney-client privilege. Holman admittedly used
those memoranda to refresh his memory before his deposition, which
potentially shaped and influenced his deposition testimony. 4
However, NRS 50.125 uses the term "hearing," without any
indication as to whether the statute should apply to depositions. In order
to properly resolve this writ petition, we must address whether NRS
50.125 applies to depositions as well as in-court hearings.
NRS 50.125's "hearing" language applies to depositions as well as to in-
court hearings
This court has not previously addressed whether depositions
are included within the term "hearing" under NRS 50.125. Black's Law
Dictionary defines hearing as "fal judicial session, usu[ally] open to the
public, held for the purpose of deciding issues of fact or of law, sometimes
4Additionally, we conclude that LVDA's argument that the district
court was required to redact any mental impressions, opinions, or legal
theories is without merit. The discovery commissioner conducted an in
camera review of the redacted and unredacted memoranda and found that
"Holman reviewed the entirety of the documents and relied upon them in
their entirety in preparing for his deposition." In light of these findings
and NRS 50.125's absolute language, we cannot say that the district court
abused its discretion in affirming and adopting the discovery
commissioner's recommendation that the memoranda be produced in their
unredacted form.
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with witnesses testifying." Black's Law Dictionary 788 (9th ed. 2009). A
deposition is defined as "[a] witness's out-of-court testimony that is
reduced to writing (usu[ally] by a court reporter) for later use in court or
for discovery purposes." Id. at 505. Although the two terms may be
defined to encompass different specific events, there is also a significant
amount of overlap in terms of the functions they serve. See Chanos v. Nev.
Tax Comm'n, 124 Nev. 232, 241, 181 P.3d 675, 681 (2008) ("[T]hough
[definitions of hearing] var[y] . , they all share[ ] a common element: a
hearing is an official gathering at which evidence is taken."). Because
these two terms can reasonably be interpreted in both manners, we look to
the legislative history for guidance.
A search of the legislative history behind NRS 50.125 reveals
that there was no discussion as to whether the Nevada Legislature
intended depositions to be included within the term. See Hearing on S.B.
12 Before the Senate Judiciary Comm., 56th Leg. (Nev., Feb. 10, 1971);
Hearing on S.B. 12 Before the Joint Senate & Assembly Judiciary
Cons., 56th Leg. (Nev., Feb. 11, 1971) (addressing concerns regarding
various proposed rules of evidence, but not addressing the provisions of
NRS 50.125). However, NRS 50.125 was submitted to the Nevada
Legislature based on a draft version of Federal Rule of Evidence (FRE)
612. Hearing on S.B. 12 Before the Senate Judiciary Comm., 56th Leg.
(Nev., Feb. 10, 1971) ("There is a federal evidence code that is proposed; it
is amended in some respects and this draft follows as closely as possible
that code ... our work here is as close as can be to [the] federal code.").
And although NRS 50.125 differs from FRE 612 insofar as NRS 50.125
lacks a discretionary element, see Las Vegas Sands, 130 Nev. at , 319
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P.3d at 623, both provisions refer to use of the writing at a "hearing." 5
Thus, the federal decisions interpreting FRE 612 are instructive with
regard to our consideration of this issue. Cf. Nelson v. Heer, 121 Nev. 832,
834, 122 P.3d 1252, 1253 (2005) ("We have previously recognized that
federal decisions involving the Federal Rules of Civil Procedure provide
persuasive authority when this court examines its rules.").
Federal courts interpreting FRE 612 have concluded that the
rule applies to depositions and deposition testimony by operation of FRCP
30(c), which provides that "examination and cross-examination of a
deponent proceedS as they would at trial under the Federal Rules of
Evidence." See, e.g., Sporck v. Fell, 759 F.2d 312, 317 (3d Cir. 1985)
(explaining that FRE 612 "is applicable to depositions and deposition
testimony by operation of Federal Rule of Civil Procedure 30(c)"); Heron
Interact, Inc. v. Guidelines, Inc., 244 F.R.D. 75, 76 (D. Mass. 2007); Magee
v. Paul Revere Life Ins. Co., 172 F.R.D. 627, 637 (E.D.N.Y. 1997); James
Julian, Inc. v. Raytheon Co., 93 F.R.D. 138, 144 (D. Del. 1982); see also
Doxtator v. Swarthout, 328 N.Y.S.2d 150, 152 (App. Div. 1972) ("We think
it a sound rule that writings used prior to testifying for the purpose of
refreshing the memory of a witness be made available to the adversary
5 FRE 612 provides in relevant part:
[VVilien a witness uses a writing to refresh
memory. . . an adverse party is entitled to have
the writing produced at the hearing, to inspect it,
to cross-examine the witness about it, and to
introduce in evidence any portion that relates to
the witness's testimony.
(Emphasis added.)
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whether at the trial or at pre-trial examination." (internal citations
omitted)).
The portion of FRCP 30(c) that federal courts have relied upon
to apply FRE 612 to deposition testimony states that "examination and
cross-examination of a deponent proceed as they would at trial under the
Federal Rules of Evidence." FRCP 30(c) (emphasis added). Similarly,
NRCP 30(c) states that "[e]xamination and cross-examination of witnesses
may proceed as permitted at the trial under the provisions of Rule 43(b)." 6
(Emphasis added.) Based on our review of both NRCP 30(c) and FRCP
30(c), we conclude that the two provisions are substantially similar
because both provide that deposition examinations proceed as permitted
at trial.
Given that depositions proceed as permitted at trial, we see no
reason why writings used to refresh the memory of a witness before or
during a deposition should be treated differently than those used by a
witness before or at "the trial." We find the federal caselaw on this issue
to be persuasive and conclude that NRS 50.125 applies to depositions and
deposition testimony as well as to in-court hearings by operation of NRCP
30(c), See Hallmark v. Eldridge, 124 Nev. 492, 498, 189 P.3d 646, 650
(2008) (stating that "federal court decisions discussing [an analogous
federal rule of evidence] may provide persuasive authority" to help this
court interpret its own rules). 7
6 NRCP 43(b) provides that a "solemn affirmation" may be accepted
in lieu of an oath.
7 Unlike
in Las Vegas Sands, this "hearing" has not been completed
and the finder of fact has not yet ruled on the underlying issue. See Las
Vegas Sands, 130 Nev. at , 319 P.3d at 624. Thus, because Holman's
deposition can be resumed, he can still be cross-examined on the writing,
continued on next page . . .
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Therefore, we conclude that when a witness uses a privileged
document to refresh his or her recollection prior to giving testimony at a
deposition, an adverse party is entitled to have the writing produced at the
deposition pursuant to NRS 50.125. KB Home is entitled to know the
contents of those memoranda in order to properly cross-examine Holman
as to their accuracy, truthfulness, and their influence on his testimony.
As a result, we conclude that the district court did not err in granting KB
Home's motion to compel production of the attorney-prepared
memoranda. 8
CONCLUSION
We conclude that reviewing a document for the purpose of
refreshing one's memory prior to or during testimony serves as a waiver to
the attorney-client privilege and the work-product doctrine under NRS
50.125, allowing the adverse party to demand production of the document,
inspect it, cross-examine the witness on the contents, and admit the
document into evidence for the purpose of impeachment. We also conclude
that NRS 50.125 applies to deposition testimony as well as to in-court
hearings. As a result, we conclude that the district court properly
compelled the production of the documents that Holman used to refresh
. . . continued
and the writing can be produced, inspected, and used for cross-
examination for the purpose of assessing Holman's credibility.
8 We have considered the parties' remaining arguments and conclude
they are without merit.
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his recollection prior to his deposition, and we therefore deny this petition
for a writ of prohibition or mandamus.
Gibbons
We concur:
tect4- J.
4;
Hardesty
J.
Douglas
Saitta
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