Coyote Springs Inv. v. Eighth Jud. Dist. Ct.

131 Nev., Advance Opinion IS
IN THE SUPREME COURT OF THE STATE OF NEVADA

COYOTE SPRINGS INVESTMENT, No. 64623
LLC,
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT FILED
COURT OF THE STATE OF NEVADA,
APR 0 2 2015
IN AND FOR THE COUNTY OF
TRACIE K. DEMAN
CLARK; AND THE HONORABLE C
ELIZABETH GOFF GONZALEZ,
DISTRICT JUDGE,
Respondents, 1°.
and
BRIGHTSOURCE ENERGY, INC.,
Real Party in Interest.

Original petition for a writ of prohibition or mandamus
challenging a district court order that required the disclosure of a private
communication between a witness and plaintiffs counsel during a
deposition.
Petition denied.

Pisanelli Bice, PLLC, and Todd L. Bice, James J. Pisanelli, Debra L.
Spinelli, Maria Magali Calderon, and Jordan T. Smith, Las Vegas,
for Petitioner.

Kaempfer Crowell and Peter C. Bernhard and Lisa J. Zastrow, Las Vegas,
for Real Party in Interest.

BEFORE HARDESTY, C.J., DOUGLAS and CHERRY, JJ.

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OPINION
By the Court, CHERRY, J.:
This petition for extraordinary writ relief challenges a district
court order requiring a witness for the plaintiff to disclose the substance of
communications that took place between the witness and plaintiff's
counsel during a break in the witness's deposition. To resolve it, we must
decide whether a private communication between a witness and an
attorney during a requested break in the witness's deposition is entitled to
protection from discovery under the attorney-client privilege.
We hold that attorneys may confer with witnesses during
requested recesses in depositions only to determine whether to assert a
privilege. For the attorney-client privilege to apply to these conferences,
however, counsel must state on the deposition record (1) the fact that a
conference took place, (2) the subject of the conference, and (3) the result
of the conference. In the instant case, we conclude that the
communications between the witness and plaintiff's counsel during the
break in the witness's deposition are discoverable because plaintiffs
counsel requested the recess in the deposition and failed to make a
sufficient, contemporaneous record of the privileged communications.
FACTS AND PROCEDURAL HISTORY
Petitioner Coyote Springs Investment, LLC, and real party in
interest BrightSource Energy, Inc., entered into a lease for BrightSource
to develop a solar energy generating facility on Coyote Springs' property.
The parties negotiated the terms of the lease through several term sheets
exchanged via email. The parties then finalized and executed the lease,
and Coyote Springs created a lease summary for its bankers and
appraisers. Roughly one year later, BrightSource sought to terminate the

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lease. In response, Coyote Springs informed BrightSource that the
termination was ineffective in the absence of a lease termination fee. A
dispute arose regarding the termination terms and whether just one or
both of two conditions (the so-called tower height approval and
transmission solution achievement conditions) had to be met before a
termination fee could be imposed because the term sheets and the lease
summary apparently contained language different from the actual lease as
to those conditions. Subsequently, Coyote Springs sued BrightSource,
arguing that the lease's termination was ineffective without payment of
the termination fee.
The deposition discussions at issue
In preparation for trial, the parties deposed Harvey
Whittemore, the former co-owner and manager of Coyote Springs.
Whittemore testified that he and Coyote Springs' general counsel, Emilia
Cargill, negotiated the lease for Coyote Springs. Whittemore was
questioned regarding the lease's termination provisions. Specifically,
BrightSource's counsel asked Whittemore whether he had agreed to the
termination provisions in the lease. Whittemore answered, "I believe that
[the provision] appropriately reflects the definitions" of the lease to which
the parties agreed. When asked again about the lease's termination
conditions, Whittemore stated that they were the business terms agreed
upon by both parties.
Whittemore's deposition was continued and resumed nearly
six months later, and BrightSource's counsel further questioned
Whittemore about his approval of the term sheets and the lease summary.
Whittemore testified that he believed that the term sheets were an
accurate statement of terms agreed upon before the lease agreement was
finalized. And when BrightSource's counsel questioned Whittemore about
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the lease summary distributed to Coyote Springs' bankers and appraisers,
Whittemore testified that he believed he had reviewed earlier versions of
the summary for accuracy and approved sending the final draft of the
summary.
After BrightSource's counsel completed this round of
questioning, Coyote Springs' litigation counsel suggested taking a break
and requested a conference room for him, Whittemore, and Cargill.
BrightSource's counsel objected to any discussion during the break
regarding questions that Whittemore had been asked. Coyote Springs'
litigation counsel and Cargill then met with Whittemore in a conference
room. After returning from the conference, Coyote Springs' counsel
resumed questioning Whittemore. During that questioning, Whittemore
clarified that he believed the term sheets were not controlling. Upon
further questioning, Whittemore explained his understanding of the lease
was that once one of the conditions—tower height approval—was met, the
company had earned the termination fee. When Coyote Springs' counsel
asked whether he had previously noticed that the lease summary was
inaccurate, Whittemore agreed that the lease summary was inaccurate
but did not recall whether he had noticed it before.
After Coyote Springs' counsel completed his examination of
Whittemore, BrightSource's counsel posed several follow-up questions.
Although Whittemore could not indicate specific details or cite to any
evidence in support of his statement, he emphasized that, prior to the
lease's finalization, the parties agreed that the termination fee would be
owed solely upon tower height approval and that a transmission solution
would not be required for the termination fee to be due.

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BrightSource moves to exclude Whittemore's testimony

Following Whittemore's depositions, BrightSource filed a
motion in limine to exclude Whittemore's post-conference testimony and to
"elicit at trial the substance of what was said during the private
conference." At a hearing on the motion, the district court concluded that
"in general. . . you can't do your witness prep during breaks" and
explained that "if [Whittemore] talk[ed] about it at a deposition break and
it wasn't part of his preparation that was done ahead of time, it may be
fair game" for inquiry. After Coyote Springs' counsel questioned whether
this would apply to privileged discussion that occurred during the
deposition break, the district court exclaimed, "Why on earth would you do
that?" The court explained to counsel that "[y]ou are entitled to go inside
that privilege[,] [Mut you're not entitled to do prep as part of a break in a
deposition." Nevertheless, the court then indicated that it was "not sure
that that particular instance is one where I wouldn't then give you some
leeway and give you some protection."
The trial commenced, and during cross-examination of
Whittemore, BrightSource's counsel inquired as to what was discussed at
the deposition conference. Coyote Springs' counsel objected based on
attorney-client privilege. Although noting that the conference may have
addressed privileged information, the court overruled the objection, "given
the timing of the communication between counsel and the witness," and
allowed the questioning to continue. Coyote Springs' counsel asked to voir
dire Whittemore to establish compliance with In re Stratosphere Corp.
Securities Litigation, 182 F.R.D. 614 (D. Nev. 1998), a case in which a
federal district court addressed the propriety of an in-deposition
conference, which the court permitted. Whittemore first confirmed that

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there was no question pending when he had the private conference during
his deposition. Coyote Springs' counsel then asked Whittemore about the
substance of the conference, and Whittemore testified that
communications he had with Cargill while he was in a leadership role at
Coyote Springs were "part of [the] discussion," that whether he
misunderstood or misinterpreted either questions or documents presented
to him during his examination was "also part of [the] conversation," and
that he "[did not] think [they] talked about manners or methods of
refreshing [his] recollection at all."
At the close of BrightSource's case, Coyote Springs made an
oral motion for reconsideration of the Whittemore deposition issue. The
district court denied the oral motion at the time, but the judge stated that
she would reconsider after hearing closing arguments. After Coyote
Springs' oral motion to reconsider, the district court entered an interim
order concerning whether Coyote Springs' contract claims were barred by
the doctrine of unilateral or mutual mistake. The court, however, also
determined that Whittemore's anticipated testimony about the conference
discussion was material to the issue of mistake, and thus stayed the entry
of its findings of fact and conclusions of law pending resolution of the
instant petition.
DISCUSSION
"[P]rohibition is a more appropriate remedy for the prevention
of improper discovery than mandamus." Wardleigh v. Second Judicial
Dist. Court, 111 Nev. 345, 350, 891 P.2d 1180, 1183 (1995). Consequently,
we consider this petition under the prohibition standard and deny Coyote
Springs' alternative request for a writ of mandamus. Although "writs are
generally not available to review discovery orders," this court has issued
writs to prevent improper discovery orders compelling disclosure of
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privileged information. Valley Health Sys., LLC v. Eighth Judicial Dist.
Court, 127 Nev. Adv. Op. No. 15, 252 P.3d 676, 678-79 (2011). The
reasoning behind the privilege exception is that "if the discovery order
requires the disclosure of privileged material, there would be no adequate
remedy at law that could restore the privileged nature of the information,
because once such information is disclosed, it is irretrievable." Id. at 679;
see also Aspen Fin. Servs., Inc. v. Eighth Judicial Dist. Court, 128 Nev.
Adv. Op. No. 57, 289 P.3d 201, 204 (2012) (explaining that writ relief may
be available when "it is necessary to prevent discovery that would cause
privileged information to irretrievably lose its confidential nature and
thereby render a later appeal ineffective"). Here, because Coyote Springs
seeks to prevent privileged information from being disclosed to
BrightSource, we consider this petition and examine whether the
conference between Whittemore and Coyote Spring's counsel was
privileged.
Protection of private communications during deposition breaks
The parties dispute whether the conversation between
Whittemore and Coyote Springs' counsel during Whittemore's deposition
is entitled to protection based upon the attorney-client privilege. Coyote
Springs argues that writ relief is warranted because its attorney-client
privilege is not waived when its witness and its counsel have privileged
communications during a deposition break. BrightSource asserts that the
private conference with Whittemore is not privileged because there was
discussion about Whittemore's substantive testimony in order to prepare
him for examination or to refresh his recollection. It points out that after
the private conference occurred, Whittemore repudiated his previous
testimony on a material, contested issue of fact.

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The attorney-client privilege, codified in NRS 49.095, protects
communications between clients or client representatives and lawyers
when made in furtherance of legal services and "appl[ies] at all stages of
all proceedings." NRS 47.020(2). Clients and attorneys are generally not
permitted to confer in the midst of giving testimony, however, and some
jurisdictions have concluded that such conferences may lead to a waiver of
the attorney-client privilege. See Aiello v. City of Wilmington, 623 F.2d
845, 858-59 (3d Cir. 1980) (holding that plaintiff and counsel could not
communicate during breaks in cross-examination during trial); see also
NRCP 30(c) (requiring that witness examination and cross-examination
during a deposition proceed as permitted at trial). Two seminal cases
directly address the propriety of conferences between attorneys and
witnesses during deposition breaks: Hall v. Clifton Precision, 150 F.R.D.
525 (E.D. Pa. 1993), and In re Stratosphere Corp. Securities Litigation, 182
F.R.D. 614 (D. Nev. 1998).
In Hall, the United States District Court for the Eastern
District of Pennsylvania held that "conferences between witness and
lawyer are prohibited both during the deposition and during recesses,"
unless the conference concerns the assertion of a privilege. 150 F.R.D. at
529. If a conference is called during a deposition to determine whether to
assert a privilege, the Hall court further held that "the conferring attorney
should place on the record the fact that the conference occurred, the
subject of the conference, and the decision reached as to whether to assert
a privilege." Id. at 530. In Hall, plaintiffs counsel informed his client-
witness that he could request a private conference at any time during his
deposition. Id. at 526. The deposition was twice interrupted: first, when
the plaintiff requested a private conference about the meaning of the word

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"document," and again when the plaintiffs counsel wished to review a
document before his client answered questions pertaining to it. Id.
In its ruling, the court referred to Federal Rule of Civil
Procedure 30(c), which then stated that "examination and cross-
examination of witnesses [during deposition] may proceed as permitted at
the trial." Id. at 527 (emphasis added) (quoting Fed. R. Civ. P. 30(c)
(1987)). 2 The court explained that during a civil trial examination, "a
witness and his or her lawyer are not permitted to confer at their pleasure
during the witness's testimony. Once a witness has been prepared and
has taken the stand, that witness is on his or her own." Id. at 528 (citing
Aiello, 623 F.2d at 858-59). The Hall court emphasized the need to protect
the underlying purposes of deposition rules, which include eliciting the
facts of a case before trial, evening the playing field, and obtaining
testimony before the witness's recollection "has been altered by. . . the
helpful suggestions of lawyers." Id. The court reasoned that depositions
serve to find out what a witness saw, heard, did, or thinks, and that
lawyers "[are] not entitled to be creative with the facts" but instead "must
accept the facts as they develop." Id.
The court acknowledged that prohibiting private conferences
during depositions may create concerns for a witness's right to an attorney

'Similarly, the Nevada Rules of Civil Procedure do not contain a rule
specifically outlining deposition conference procedure. Rather, deposition
conferences are governed by NRCP 30(c), which reads similarly to Fed. R.
Civ. P. 30(c): "Examination and cross-examination of witnesses may
proceed as permitted at the trial."

2 Thecurrent federal rules states that "[t]he examination and cross-
examination of a deponent proceed as they would at trial under the
Federal Rules of Evidence."

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and due process. Id. The court stated, however, that it is a lawyer's
"right, if not [his or her] duty" 3 to adequately prepare the witness before a
deposition, and any concern after the deposition begins "is somewhat
tempered by the underlying goal of our discovery rules: getting to the
truth." Id. The court therefore determined that the deposing attorney
may inquire about any private conferences during depositions in order to
ascertain whether there had been any witness coaching and, if so, what
that coaching entailed. Id. at 529 n.7.
After the Hall decision was published, the United States
District Court for the District of Nevada concluded that the Hall court
may have gone too far in its restriction of private conferences during
depositions. In re Stratosphere Corp. Sec. Litig., 182 F.R.D. 614, 621 (D.
Nev. 1998). The In re Stratosphere court held that attorneys may conduct
private meetings during unrequested recesses in depositions in order to
ensure that the "client did not misunderstand or misinterpret questions or
documents," to fulfill their "ethical duty to prepare a witness," see supra

3 1n support of the view that a lawyer has a duty to adequately
prepare a witness before deposition, the court pointed to Pennsylvania
Rule of Professional Conduct (PRPC) 1.1, which reads identically to
Nevada Rule of Professional Conduct (RPC) 1.1: "Competent
representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation." Hall, 150
F.R.D. at 528 n.4 (citing P1.1); RPC 1.1. In In re Stratosphere, the
court commented on the responsibility of an attorney to prepare a client:
"The right to prepare a witness is not different before the questions begin
than it is during (or after, since a witness may be recalled for rebuttal,
etc., during trial)." 182 F.R.D. at 621. Although neither the caselaw nor
the rules further explain an attorney's responsibility to prepare a witness
to testify, we believe that the responsibility to prepare the witness clearly
exists.

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note 2, or to determine whether to assert a privilege. Id. at 621. The In re
Stratosphere court agreed with Hall that if an attorney holds a private
conference to determine whether to assert a privilege, it "should [be]
place [d] on the record the fact that a conference is held. , the subject of
the conference . . . , and the decision reached as to whether to assert a
privilege." Id. at 621-22. In In re Stratosphere, the plaintiffs, basing their
arguments on Hall, filed a motion to establish deposition procedures that
prohibited all conferences during the deposition—including conferences
during breaks and lunches—and plaintiffs sought to establish that
opposing counsel may "inquire into whether they have spoken [during
deposition breaks] and, if so, what was discussed." Id. at 619.
In resolving the motion, the In re Stratosphere court agreed
with Hall that a "questioning attorney is entitled to have the witness, and
the witness alone, answer questions," and the witness should not "seek
understanding or direction about how to answer the question from his or
her attorney." Id. at 621. But the court did not adopt Hall's "strict
requirements[,]" which, the court opined, do not differentiate between
"preclud[ing] attorney-coaching of witnesses" and "deny [ing] someone the
right to counsel." Id. The court held that absent a showing of abuse of the
deposition process, precluding counsel and witness from communicating
once a deposition commences unnecessarily infringes upon the right to an
attorney. Id. at 620-21.
In refusing to adopt Hall's strict guidelines, the court noted
that unlike Hall's description of a witness being "on his or her own" during
trial, attorneys and clients confer regularly during trial and even when the
court calls a recess during the client's testimony. In re Stratosphere, 182
F.R.D. at 621; Hall, 150 F.R.D. at 528. The court clarified, however, that

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"[s]uch breaks in the action are usually not taken when a question is
pending and are usually not at the instigation of the deponent or counsel."
In re Stratosphere, 182 F.R.D. at 621. Further, the court emphasized that
"consultation between lawyers and clients cannot be neatly divided into
discussions about testimony and those about other matters," and adopting
strict guidelines would allow for "unfettered inquiry into anything which
may have been discussed." Id. (internal quotations omitted).
Several jurisdictions have followed In re Stratosphere's
reasoning and criticized Hall's guidelines as unnecessarily burdensome on
the deponent's right to an attorney. See, e.g., McKinley Infuser, Inc. v.
Zdeb, 200 F.R.D. 648, 650 (D. Colo. 2001) (concluding that Hall's
guidelines, taken to the extreme, could effectively bar a deponent from
conferring with his or her attorney from the time of deposition through
trial because there could be "coaching" that could alter the deponent's trial
testimony, which would be an absurd result); State ex rel. Means v. King,
520 S.E.2d 875, 882-83 (W. Va. 1999) (explaining that "[a] n attorney
should be able to ensure that his or her client did not misunderstand or
misinterpret a question or a document" and that "Mlle right to counsel
should not be jeopardized absent a showing that the attorney or the
deponent is abusing the deposition process"). Accordingly, these
jurisdictions have cited In re Stratosphere's guidelines favorably. See, e.g.,
McKinley, 200 F.R.D. at 650 ("I agree with the reasoning of In re
Stratosphere. . . that the truth finding function is adequately protected if
deponents are prohibited from conferring with their counsel while a
question is pending."); King, 520 S.E.2d at 882 ("With regard to discovery
depositions taken in the course of litigation, we believe that the approach
taken in Stratosphere is the more logical and fair approach.").

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We agree with the reasoning in In re Stratosphere that Hall's
discovery guidelines—which essentially preclude conversations between
counsel and witness at any point between the start of depositions until
trial when they involve an issue beyond whether to exercise a privilege—
are unnecessarily restrictive. Although the holding in In re Stratosphere
was limited to unrequested recesses, to the extent that the In re
Stratosphere court appeared to approve of witness-counsel conferences
during requested breaks so long as the break did not occur in the middle of
questioning, we decline to adopt that reasoning here. See In re
Stratosphere, 182 F.R.D. at 621. Accordingly, we hold that attorneys may
confer with witnesses during an unrequested recess or break in a
discovery deposition. See id. Furthermore, we hold that attorneys may
not request a break to confer with witnesses in a discovery deposition
unless the purpose of the break is to determine whether to assert a
privilege. Id. We additionally hold that once the deposition proceedings
resume after a private conference that is requested to determine whether
to assert a privilege, the attorney must place the following on the record:
(1) the fact that a conference took place; (2) the subject of the conference;
and (3) the result of the conference, specifically, the outcome of the
decision whether to assert a privilege. See id. at 621-22; see also Hall, 150
F.R.D. at 530. We stress that counsel must make a record of the
confidential communications promptly after the deposition resumes in
order to preserve the attorney-client privilege.
Coyote Springs' assertion of privilege
At trial, Coyote Springs relied upon In re Stratosphere and
sought to protect the contents of the private conference through voir dire
of Whittemore. Coyote Springs argues that the record reflects that it
followed the precise practice approved by In re Stratosphere and the
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communications should therefore be protected. We disagree, as Coyote
Springs' record of the deposition conference was insufficient.
The trial record reflects that counsel and Whittemore "broke
and went into a private office." Had this been placed on the deposition
record, it would have satisfied the first requirement of record sufficiency, a
record that a conference took place. The trial record next reflects that,
during the deposition conference, Coyote Springs' counsel asked
Whittemore if he "misunderstood or misinterpreted either questions or
documents that had been presented . . . earlier in the examination" and
that counsel did not "coach" Whittemore's testimony or refresh his
recollection. Had this been placed on the deposition record, this also
would have satisfied the second requirement for record sufficiency, a
record of the subjects discussed between the attorney and the witness.
However, Coyote Springs did not make a record of the result of the
conference, such as the outcome of a decision whether to assert a privilege.
Therefore, even if the two previous representations had been placed on the
deposition record, Coyote Springs still would not be able to assert the
privilege because it did not satisfy the third requirement.
Accordingly, the communications between Whittemore and
Coyote Springs' counsel during the break in Whittemore's deposition are
not privileged because Coyote Springs requested a break in the
proceedings, failed to make a record of the result reached in the
conference, and failed to make a prompt record of the communications.
CONCLUSION
Coyote Springs requested a recess in order to conduct a
private conference with Whittemore. Following the conference, it did not
make a prompt, sufficient record of the conference so as to preserve the
attorney-client privilege. Cf. In re Stratosphere, 182 F.R.D. at 621. Thus,
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the district court did not abuse its discretion in determining that the
conference was not privileged. Club Vista Fin. Servs., LLC v. Eighth
Judicial Dist. Court, 128 Nev. Adv. Op. No. 21, 276 P.3d 246, 249 (2012).
Writ relief is therefore not warranted, and we deny this petition.

We concur:

, C.J.
Hardesty

J.
Douglas