Mega Mfg. v. Dist. Ct. (Burdett) ( 2014 )

 protected by the work-product doctrine or attorney-client privilege. Mega
petitioned this court to issue a writ of mandamus directing that the
district court recognize the report as privileged.
Standard of Review
A writ of prohibition is the appropriate writ to challenge a
discovery order compelling production of allegedly privileged documents.
Wardleigh v. Second Judicial Dist. Court, 111 Nev. 345, 350, 891 P.2d
1180, 1183 (1995). Although Mega has filed a petition for a writ of
mandamus, a party's action is not absolutely bound by the title of its
filing. See NC-DSH, Inc. v. Garner, 125 Nev. 647, 652, 218 P.3d 853, 857
(2009) (quoting 11 Charles Alan Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Procedure §2868 (2d ed. 1995) ("A party is not
bound by the label he puts on his papers.")). And the writ of prohibition is
the natural counterpart to the writ of mandamus. State v. Eighth Judicial
Dist. Court, 118 Nev. 140, 146, 42 P.3d 233, 237 (2002). Hence, we will
treat Mega's petition as one for a writ of prohibition.
Discovery rulings are reviewed for an abuse of discretion.
Club Vista Fin. Servs., LLC v. Eighth Judicial Din. Court, 128 Nev. ,
276 P.3d 246, 249 (2012). "A manifest abuse of discretion is la]
clearly erroneous interpretation of the law or a clearly erroneous
application of a law or rule." State v. Eighth Judicial Dist. Court, 127
Nev. „ 267 P.3d 777, 780 (2011) (alteration in original) (quoting
Steward v. McDonald, 958 S.W.2d 297, 300 (Ark. 1997)). We will not
disturb the factual determinations of the district court if supported by
substantial evidence. Hall v. SSF, Inc., 112 Nev. 1384, 1389, 930 P.2d 94,
97 (1996).
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Work-product doctrine
The district court held that the report was not privileged
under the work-product doctrine. NRCP 26(b)(3) provides that a party's
documents prepared in anticipation of litigation are only discoverable
where the other party shows a substantial need:
[A] party may obtain discovery of documents and
tangible things otherwise discoverable under
subdivision (b)(1) of this rule and prepared in
anticipation of litigation or for trial by or for
another party or by or for that other party's
representative (including the other party's
attorney, consultant, surety, indemnitor, insurer,
or agent) only upon a showing that the party
seeking discovery has substantial need of the
materials in the preparation of the party's case
and that the party is unable without undue
hardship to obtain the substantial equivalent of
the materials by other means.
In Ballard v. Eighth Judicial District Court, 106 Nev. 83, 85,
787 P.2d 406, 407 (1990), we held that "materials resulting from an
insurance company's investigation are not made 'in anticipation of
litigation' unless the insurer's investigation has been performed at the
request of an attorney." This holding, however, is constrained to the
specific facts of Ballard. NRCP 26(b)(3) also protects materials• not
created at the request of attorneys. See NRCP 26(b)(3) (stating that
protected documents include those prepared "by . . . [the] other party's
attorney, consultant, surety, indemnitor, insurer, or agent"); see also Goff
v. Harrah's Operating Co., Inc., 240 F.R.D. 659, 660-61 (D. Nev. 2007)
(applying a parallel federal rule). Whether an attorney is involved or
directs an investigation is not dispositive for deciding whether the fruit of
that investigation is work product. See Wardleigh v. Second Judicial Dist.
Court, 111 Nev. 345, 357-58, 891 P.2d 1180, 1188 (1995).
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Our recent precedent focuses instead on whether the materials
were created in anticipation of litigation or, conversely, in the ordinary
course of business "regardless of counsel's presence or involvement." See
Columbia/ HCA Healthcare Corp. v. Eighth Judicial Dist. Court, 113 Nev.
521, 527-28, 936 P.2d 844, 848 (1997). As we noted in Columbia / HCA
Healthcare, this litigation-business distinction aligns with the rule
described in Professors Wright and Miller's Federal Practice and
Procedure. See id. at 528 n.5, 936 P.2d at 848 n.5. The Second Circuit has
elaborated on the Wright-and-Miller rule, stating that:
[A] document. . . does not lose protection under
this formulation merely because it is created in
order to assist with a business decision.
Conversely. . . [this rule] withholds protection
from documents that are prepared in the ordinary
course of business or that would have been created
in essentially similar form irrespective of the
litigation.
United States v. Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998). The
anticipation of litigation must be the sine qua non for the creation of the
document—"but for the prospect of that litigation," the document would
not exist. In re Grand Jury Subpoena, 357 F.3d 900, 908 (9th Cir. 2004)
(quoting Adlman, 134 F.3d at 1195).
Here, the district court found that the report was not created
in anticipation of litigation and that any legal discussion that may have
occurred did not inspire creation of the report. As the parties' briefs
showed, the same affidavits in this case suggest different conclusions on
this factual point. Frank Sommerville's affidavit stated that Jared
Peterson, a representative from another company involved in the
distribution and maintenance of the machine, informed Sommerville that
"someone will be sued." Peterson's affidavit, however, disputes that he
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said any such thing. The district court, as fact-finder, weighed the
competing claims and decided that the report was not protected work
product. Thus, because the evidence points in both directions, we hold
that the district court did not abuse its discretion by ordering production
of the report.
Attorney-client privilege
Mega argues that the report is privileged under the attorney-
client privilege because it was prepared by a representative of Mega and
confidentially sent to Metz, Mega's outside corporate counsel.
NRS 49.095 provides that communications between an
attorney and a client are privileged:
A client has a privilege to refuse to disclose,
and to prevent any other person from disclosing,
confidential communications:
1. Between the client or the client's
representative and the client's lawyer or the
representative of the client's lawyer.
2. Between the client's lawyer and the
lawyer's representative.
3. Made for the purpose of facilitating the
rendition of professional legal services to the
client, by the client or the client's lawyer to a
lawyer representing another in a matter of
common interest.
NRS 49.095. In Wardleigh, 111 Nev. at 352, 891 P.2d at 1185, this court
‘`approve[d of] the test announced in" Upjohn Co. v. United States, 449
U.S. 383 (1981), in deciding an issue of corporate attorney-client privilege.
In Upjohn, the Supreme Court noted that "Mlle communications at issue
were made by Upjohn employees to counsel for Upjohn acting as such, at
the direction of corporate superiors in order to secure legal advice from
counsel." 449 U.S. at 394 (emphasis added) (footnote omitted). It held
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these communications to be privileged under the attorney-client privilege.
Id. at 395.
Here, there is basic disagreement over whether the
communication at issue, the report, was made by a corporate employee of
Mega. In his affidavit, Sommerville claims that he was an employee of
Mega at the time of the investigation. However, the deposition of a safety
manager for American Metal who was present at the investigation states
that Sommerville introduced himself as an employee of MegaFab, a
separate, sister corporation of Mega Likewise, Sommerville's business
card from that time shows "MegaFab."
The Upjohn analysis largely turns on the issue of employment.
See 449 U.S. at 394-95. The parties here dispute whether the report's
authors are Mega employees. This is a factual dispute. We defer to the
district court's view of the facts. Therefore, we hold that the district court
did not abuse its discretion. We have also considered Mega's other
arguments and conclude that they lack merit.
Accordingly, we
ORDER the petition DENIED.
/WA $1-44-C\ J.
Hardesty
J.
Douglas
J.
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cc: Hon. Jerry A. Wiese, District Judge
Hall Jaffe & Clayton, LLP
Henness & Haight
Kolesar & Leatham, Chtd.
Law Offices of Tracy Strickland
Kring & Chung/Las Vegas
Eighth District Court Clerk
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