ORDER DENYING PETITION FOR EXTRAORDINARY WRIT RELIEF
This original petition for extraordinary writ relief challenges a
district court order finding that certain documents withheld by real
parties in interest in the underlying action were protected from discovery
by the work-product doctrine set forth in NRCP 26(b)(3).
BACKGROUND
This petition arises out of complex litigation related to a
multi-billion dollar construction project in Las Vegas. As part of the
discovery process, petitioners asked for disclosure of all communications
and documents related to the subject of the litigation held by two public
relations firms that had been hired to assist real parties in interest and
their attorneys in connection with the dispute between the parties. Real
parties in interest objected to this request and subsequently moved the
district court to quash the subpoenas issued by petitioners for this
purpose, asserting generally that all such information was protected by
the attorney-client privilege and the work-product doctrine. The district
court denied real parties in interest's motions to quash the subpoenas, but
indicated that it would consider any specific objections submitted by real
parties in interest along with a proper privilege log.
Rather than submit a privilege log to the district court, real
parties in interest filed a petition for a writ of prohibition in this court
challenging the district court's ruling. Upon consideration of the petition,
this court directed real parties in interest to submit a privilege log to the
district court, along with any challenged materials for the district court's
in camera review. Real parties in interest then submitted numerous
documents to the district court in camera along with the privilege log.
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After reviewing each of the documents, the district court concluded that
none of them were protected by the attorney-client privilege, but that a
substantial portion were covered by the work-product doctrine. The
district court then ordered production of all documents that it had
concluded were not protected by the work-product doctrine.
Following the entry of the district court's order, real parties in
interest initially filed a supplement to their writ petition arguing that the
district court should have found that all of the documents were protected
by both the attorney-client privilege and the work-product doctrine. In
response, petitioners argued that, to the extent that the district court's
order concluded that any of the documents were protected, it was
erroneous. Thus, petitioners included in their answer a request that this
court issue a writ requiring the district court to modify its order to
conclude that none of the disputed documents were protected from
discovery. Thereafter, real parties in interest sought to voluntarily
dismiss their writ petition, but petitioners opposed dismissal in light of the
request for affirmative relief included in their answer. This court granted
the motion in part, dismissing the petition as to real parties in interest's
request for relief, but allowing it to go forward as petitioners' writ petition
challenging the conclusion that certain documents were protected by the
work-product doctrine.
DISCUSSION
In challenging the district court's ruling, petitioners argue
that this court's intervention by way of writ relief is appropriate because
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this case presents an important issue of law that needs clarification with
regard to the application of the work-product doctrine. In conjunction
with this argument, petitioners contend that the district court's order
endangers their fundamental right to a fair trial. Real parties in interest
disagree, asserting that writ relief is not warranted to address the district
court's conclusion that certain documents were entitled to work-product
protection.
This court has previously explained that writ relief is
generally not available to review discovery orders. Valley Health Sys.,
LLC v. Eighth Judicial Dist. Court, 127 Nev. „ 252 P.3d 676, 678
(2011). Nevertheless, this court has recognized that "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." Id. at , 252 P.3d at 678-79 (quoting Wardleigh v. Second
Judicial Dist. Court, 111 Nev. 345, 351, 891 P.2d 1180, 1184 (1995)). In
light of these principles, this court has primarily exercised its discretion to
grant writ relief addressing improper discovery orders in only two
situations—when the discovery order compels disclosure of privileged
information or when the district court has issued a blanket discovery order
with no regard to relevance. Valley Health Sys., 127 Nev. at , 252 P.3d
at 679.
An examination of the issues presented in this matter reveals
that neither of the conditions in which extraordinary relief may be
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..]' •
appropriate to address a district court discovery order are present here.
While real parties in interest initially challenged the district court's
discovery rulings on the basis that the court's order required the
disclosure of privileged information, they have withdrawn their challenge
to that ruling. Thus, all that remains for this court's review is petitioners'
request for relief regarding the district court's determination that certain
requested documents are protected by the work-product doctrine and are
therefore not discoverable. While writ relief may be warranted to address
the compelled disclosure of privileged information, which cannot be
undone once the material at issue has been disclosed, see id. at , 252
P.3d at 679, when the challenged ruling protects, rather than compels,
disclosure of disputed documents, the situation presented is not of an
equivalent urgency such that an appeal will not provide an effective
remedy to determine whether information that the district court ordered
protected should have been subject to discovery. Indeed, exercising our
discretion to consider writ petitions in such situations would be akin to
permitting piecemeal litigation through interlocutory appeals, which this
court has similarly declined to do. Cf. Bally's Grand Hotel & Casino v.
Reeves, 112 Nev. 1487, 1488, 929 P.2d 936, 937 (1996) (indicating that
avoiding piecemeal appellate review promotes judicial economy).
Because neither party argues that the discovery order compels
disclosure of privileged information or is a blanket discovery order, and
because petitioners have not otherwise demonstrated that any potential
harm created by the order would be irreparable or of such a magnitude as
to require extraordinary writ relief, we conclude that our intervention in
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this discovery matter is not warranted. Valley Health Sys., 127 Nev. at
, 252 P.3d at 678-79. 1
Accordingly, we
ORDER the pptitto&DEVIED. 2
Gibbons
'While the discussion set forth in this order arguably would have
been appropriate for a published opinion, in light of the 2014 trial date of
the underlying matter, we are concerned that resolving this matter by
opinion could delay its resolution and potentially interfere with the trial
date. For this reason, we conclude that resolution by order is appropriate
in this instance.
2 The
Honorable Kristina Pickering, Chief Justice, and the Honorable
Ron D. Parraguirre, Justice, voluntarily recused themselves from
participation in the decision of this matter.
In light of this order, we vacate the partial stay entered by this
court's October 15, 2012, order.
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EUEMSIEWEIEEMENWEEN
cc: Hon. Elizabeth Goff Gonzalez, District Judge
McDonald Carano Wilson LLP/Las Vegas
McDonald Carano Wilson LLP/Reno
Martin & Allison, Ltd.
Jones Day/San Francisco
Robertson & Associates, LLP
Greenberg Traurig, LLP/Las Vegas
Kemp, Jones & Coulthard, LLP
Eighth District Court Clerk
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