Edelman (Victoria) v. Dist. Ct. (Price) ( 2013 )

of a district court exercising its judicial functions, when such proceedings
are in excess of the jurisdiction of the district court. NRS 34.320.
Although this court has issued writs of mandamus to compel a district
court to vacate a discovery order requiring the production of privileged
information, this court more recently has "reaffirm[ed] . . . that prohibition
is a more appropriate remedy for the prevention of improper discovery
than mandamus." Wardleigh v. District Court, 111 Nev. 345, 350, 891
P.2d 1180, 1183 (1995). A writ of prohibition may issue, however, only
where there is no plain, speedy, and adequate remedy at law. NRS
34.330. Here, the order is not independently appealable and likely will
not be reviewable as an intermediate decision, see NRS 177.045, since
Edelman's agreement with the State does not contemplate a judgment of
conviction being entered against her in state court. Even if the order could
be challenged in a later appeal, as we observed in Wardleigh, "[i]f
improper discovery were allowed, the assertedly privileged information
would irretrievably lose its confidential and privileged quality and
petitioned ] would have no effective remedy." 111 Nev. at 350-51, 891
P.2d at 1183-84. Under the circumstances, a writ of prohibition is an
appropriate remedy.
Petitions for extraordinary writs are addressed to the sound
discretion of the court. State ex rel. Dep't Transp. v. Thompson, 99 Nev.
358, 360, 662 P.2d 1338, 1339 (1983). We have indicated that we "will
infrequently" exercise that discretion to entertain pretrial discovery
challenges except "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." Wardleigh, 111 Nev. at 351, 891 P.2d at 1184.
2
T
While dismissal with prejudice is not a likely sanction in this case, the
issues here implicate important rights.
Edelman and Price were charged with multiple felony
offenses. Edelman entered negotiations with the State and eventually
agreed to testify against Price. The agreement requires her to testify
truthfully and plead guilty to a felony federal offense based on the same
incident as the state charges, with the State forgoing its prosecution of
her. As part of the plea negotiations, Edelman apparently made an oral
proffer of her testimony. Edelman has refused to submit to an interview
with Price's counsel. Price sought a written summary of Edelman's
unrecorded oral proffer from the State, but that ultimately proved
unsuccessful when this court granted a writ petition. See State v. Dist.
Ct. (Price), Docket No. 62464 (Order Granting Petition, January 25, 2013).
Price also issued subpoenas directed to Edelman's defense counsel,
requiring them to appear and provide testimony related to the proffer and
to produce documents related to the proffer. Edelman's attorneys moved
to quash the subpoenas. The district court denied the motion and
modified the subpoenas, requiring counsel to produce all responsive
documents "insofar as [they] contain statements made by Victoria
Edelman in the process of formulating her proffer to the State of Nevada
and/or the Federal Government" and to appear for a pretrial hearing to
testify and "disclose all statements made by Victoria Edelman which form
the basis for the proffer provided to the State of Nevada and/or the
Federal Government." The order states that the district court found that
these documents and statements were "intended to be disclosed to the
State and/or the Court [and therefore] are not protected from disclosure by
the attorney-client privilege."
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Edelman essentially challenges the district court's
determination that the subject documents and statements are not
protected by the attorney-client privilege. The privilege protects
‘`confidential communications" between the client and the client's attorney.
NRS 49.095(1). For purposes of the privilege, "[a] communication is
'confidential' if it is not intended to be disclosed to third persons other
than those to whom disclosure is in furtherance of the rendition of
professional legal services to the client or those reasonably necessary for
the transmission of the communication." NRS 49.055. Edelman does not
dispute that courts have held that a communication is not "confidential" if
the communication is "for the purpose of having [the attorney] relay [the]
communication to a third party." U.S. v. Sudikoff, 36 F. Supp. 2d 1196,
1204-05 (C.D. Cal. 1999) (discussing "client's communications of proposed
testimony made with the intent that the lawyer relay the communications
to the government"); see also State v. Watkins, 672 S.E.2d 43, 49 (N.C. Ct.
App. 2009) (communication provided by client "precisely for the purpose of
conveying it to the prosecutor" is not "confidential"); accord Wardleigh, 111
Nev. at 353-54, 891 P.2d at 1185 86 (holding that communications
-
between client and lawyer in presence of non-client homeowners and other
individuals were not intended to be confidential).
Edelman is correct that the criminal cases identified by the
parties involve either the prosecution's duty to disclose (under Brady v.
Maryland, 373 U.S. 83 (1963) or the Jencks Act, 18 U.S.C. § 3500(b)) or
the admissibility of an attorney's testimony in a proceeding instituted by
the client that is based on the attorney's representation of the client (such
as a motion to withdraw a guilty plea or a habeas petition), rather than
efforts to compel the attorney to disclose communications in situations
4
similar to those presented here. But the basic premise in those cases
remains—communications between a client and the client's lawyer that
are intended to be conveyed to a third party are not confidential and
therefore are not privileged. Thus, to the extent that counsel has
documents that reflect communications from Edelman that were provided
to counsel precisely for the purpose of conveying those communications to
the State, those documents are not privileged. The attorney-client
privilege therefore does not stand as a bar to the disclosure of such
documents or similar testimony.'
We are concerned, however, that the district court's order
modifying the subpoenas may yet require counsel to divulge
communications that are confidential and therefore privileged under NRS
49.095(1). The order seems to conclude that all documents containing
statements made by Edelman to counsel in the process of formulating her
proffer were intended to be disclosed to the State. This is not necessarily
true. To that extent, the district court's order exceeds its authority.
It further appears that the district court exceeded its
authority in ordering Edelman's counsel to appear and testify in a pretrial
proceeding. The primary purpose of this pretrial testimony appears to be
"As Edelman notes, RPC 1.6(a) precludes a lawyer from "reveal[ing]
information relating to representation of a client" except in limited
circumstances. This restriction arguably is broader than the attorney-
client privilege afforded by NRS 49.095(1), which is limited to
"confidential" communications. Regardless, the rule acknowledges that a
lawyer "may reveal information relating to the representation of a client to
the extent the lawyer reasonably believes necessary. . . [t]o comply with
other law or a court order." RPC 1.6(b)(6). Here, the district court has
entered such an order.
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an effort to obtain information about the substance of Edelman's
anticipated trial testimony so that Price can prepare for trial. In this
respect, the district court's order observes that "nondisclosure of the
substance of Ms. Edelman's proposed testimony would substantially
prejudice Mr. Price's preparation and presentation of his trial and that a
trial by ambush is a foregone conclusion." While the district court's
concerns are understandable, the situation is not uncommon since
witnesses in criminal cases are not required to submit to an interview by
either party and a witness's refusal to submit to an interview therefore
does not deprive a defendant of the right to a fair trial, absent evidence
that the State improperly interfered with the defendant's right of access to
the witness. See, e.g., U.S. v. Troutman, 814 F.2d 1428, 1453 (10th Cir.
1987); Kines v. Butterworth, 669 F.2d 6, 9 (1st Cir. 1981). To the extent
that the pretrial testimony is intended to provide Price with prior
inconsistent statements that may be used to impeach Edelman, as with
any other prosecution witness who declines to be interviewed, Edelman
will be subject to cross-examination. At that time, Price can address her
refusal to be interviewed and question her regarding her negotiations with
the State and the proffer to the extent such testimony would be relevant
and not otherwise inadmissible. Price is not entitled to pretrial testimony
from Edelman's counsel as a means of discovery. 2 We therefore conclude
2 The district court will have to determine whether counsel should be
required to testify during the trial pursuant to the subpoena. That
determination will depend on whether the testimony is admissible
impeachment evidence; if so, the testimony must be limited to evidence
that is not privileged or otherwise inadmissible. The district court would
also need to consider whether there are other means of obtaining any
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that the district court exceeded its authority in ordering Edelman's
counsel to appear and testify before the trial.
For the reasons stated herein, we
ORDER the petition GRANTED IN PART AND DIRECT THE
CLERK OF THIS COURT TO ISSUE A WRIT prohibiting the district
court from proceeding with its order to the extent that it requires
petitioner's counsel to provide documents that are confidential and
therefore privileged and to appearall.d,teAif y before trial. 3
/.)
J.
Gibbons
J.
cc: Hon. James M. Bixler, District Judge
Clark County Public Defender
Coyer & Landis, LLC
Clark County District Attorney
Eighth District Court Clerk
. continued
impeachment evidence since counsel's testimony would likely create a
conflict that could implicate Edelman's Sixth Amendment rights and
require their withdrawal as Edelman's counsel.
3 Edelman's motion for a stay is denied as moot.
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