139 Nev., Advance Opinion a3
IN THE COURT OF APPEALS OF THE STATE OF NEVADA
IN THE MATTER OF SEARCH No. 84931-COA
WARRANTS REGARDING SEIZURE
OF DOCUMENTS, LAPTOP
COMPUTERS, CELLULAR
TELEPHONES, AND OTHER DIGITAL FRED
STORAGE DEVICES FROM THE
PREMISES OF LAS VEGAS BISTRO,
LLC, AND LITTLE DARLINGS OF LAS ELI2 .TH A. BRO
RT
ËRKí'FJ3UPt.lE C
VEGAS, LLC.
LAS VEGAS BISTRO, LLC, D/B/A
LARRY FLYNT'S HUSTLER CLUB;
AND LITTLE DARLINGS OF LAS
VEGAS, LLC,
Appellants,
vs.
LAS VEGAS METROPOLITAN POLICE
DEPARTMENT,
Respondent.
Appeal from a district court order denying a motio.n to unseal
and quash search warrants and for the return of property. Eighth Judicial
District Court, Clark County; Jerry A. Wiese, Chief Judge.
Affirmed in part, reuersed in. part, and remanded.
Fox Rothschild LLP and Deanna L. .Forbush and Colleen E. McCarty, Las
Vegas; Shafer & Associates, P.C., and Zachary M. Youngsma, Lansing,
Michigan,
for Appellants.
Marquis Aurbach and Nick D. Crosby and Jackie V. Nichols, Las Vegas,
for Respondent.
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5.
BEFORE THE COURT OF APPEALS, GIBBONS, C.J., and BULLA and
WESTBROOK, JJ.
OPINION'
By the Court, WESTBROOK, J.:
After the Las Vegas Metropolitan Police Department (LVMPD)
executed search warrants at appellants' business establishments, seizing
various documents and electronic devices, appellants filed a motion for the
return of that property pursuant to NRS 179.085 on the basis that the
property contained privileged materials. In the motion, appellants also
sought to quash and unseal the warrants. Citing its ongoing investigation,
LVMPD opposed appellants' motion and proposed to resolve appellants'
privilege concerns by having its own Digital Forensics Lab (DFL) search for
any privileged information and redact it before turning it over to LVMPD
detectives. The district court determined that it was "not unreasonable" for
LVMPD to retain the property under these circumstances and that the
proposed search protocol was "a reasonable resolution of' the privilege
issue. As a result, the district court denied appellants' return-of-property
10n April 7, 2023, we issued an unpublished order affirming in part,
reversing in part, and remanding. Thereafter, appellants filed a petition
for rehearing pursuant to NRAP 40. We grant that petition and withdraw
our unpublished order, issuing this opinion in its place. See Carson City v.
Capital City Entm't, Inc., 118 Nev. 415, 417, 49 P.3d 632, 633 (2002) ("After
reviewing the parties' submissions, as well as the briefs and appendix, we
concluded that rehearing was warranted, and we granted the petition. We
now withdraw our [prior] order and issue this opinion in its place."). We
also deny the Las Vegas Review-Journal's third-party motion for extension
of time to file a motion for publication and all related filings as moot.
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motion. The district court also denied appellants' request to quash and
unseal the warrants.
Although we agree that the district court properly denied
appellants' request to quash and unseal the warrants, we conclude that the
district court erred when it prematurely denied appellants' return-of-
property motion without giving appellants an opportunity to demonstrate
privilege. We also conclude that the district court erred by adopting
LV1VIPD's proposed search protocol, which allowed DFL to disclose
potentially confidential communications to law enforcement based on its
own unilateral determination of privilege without affording appellants an
opportunity to challenge that determination prior to disclosure.
In reaching these conclusions, we recognize for the first time
that Nevada's return-of-property statute, NRS 179.085, allows a property
owner to seek the return of privileged materials that have been seized
pursuant to a valid search warrant, even when the government has an
ongoing investigation. When a property owner files a return-of-property
motion prior to the initiation of criminal proceedings, the Nevada Rules of
Civil Procedure apply. In such cases, t.he property owner must comply with
NRCP 26(b)(5), which requires both an express claim of privilege and a
description of the privileged documents in a privilege log. However, the
property owner need not produce a privilege log until they have been given
access to the seized materials. Accordingly, we affirm in part, reverse in
part, and reniand.
FACTS AND PROCEDURAL HISTORY
The LVMPD's Special Investigation Section began covertly
investigating erotic dance locations for prostitution-rela.ted activities,
including investigations at Las Vegas Bistro, LLC, dba Larry Flynt's
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Hustler Club (1-lustler Club) and Little Darlings of Las Vegas, LLC (Little
Darlings) (collectively, appellants). As part of its investi.gation, LVMPD
sent undercover officers to each establishment in January and March 2022.
During each of these visits, one or more entertainers reportedly solicited the
undercover officers to engage i.n illicit prostitution activity.
ln April 2022, LVMPD submitted applications and, affidavits in
support of search warrants for Hustler Club and Little Darlings; those
applications were granted by the Las Vegas Justice Court. Both warrant
aPplications indicated an investigation into the crimes of "advanci.ng
prostitution" and "living from earnings of prostitution" at. these
establishments. The warrants for both properties were issued the same
day, as well as orders sealing the affidavits for both warrants.
The Warrants were executed on both Hustler Club and Little
Darlings on April 5. At both properties, 1_,VMPD seized computers, tablets,
thumb drives, documents, and the cell phones of managers present. Two
days after the warrants were executed, LVMPD submitted additional
applications and affidavits in support of search warrants requesting
authority to search the digital stora.ge'devices seized from Hustler Club and
Little Darlings. The justice court issued both search warrants the same
day, as well as additiona.1 orders sealing the affidavits.
Five days later, appellants filed in the district court a motion to
(1) unseal the search warrant applications and supporting affidavits,
(2)quash the search warrants, and (3) return seized. property. The motion
was brought pursuant to NRS 179.105 (retention and restoration of
property taken on warrant), NRS 1.79.045(4) (sealing and unsealing of
warrant materials), and NRS 179.085(1)(b), (d), and (e) (requesting the
return of property). The motion was divided into two main points: a request
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to quash and unseal the warrant materials based on a lack of probable
cause, and a request for the return of property because the warrants were
allegedly insufficient and illegally executed and the property seized
contained privileged materials.
LVMPD opposed the motion. It argued the warrants were
supported by probable cause for the crimes of "advancing prostitution" and
"living from earnings of prostitution." LVMPD further argued that
additional evidence would potentially be destroyed if the district court were
to unseal the warrants and that the ongoing investigation presented a
compelling reason against disclosure.
At the time of its opposition, LVMPD confirmed the seized
property was in the custody of DFL. No search had yet occurred, as DFL
was still in the process of creating mirror images of the electronic contents.
To address appellants' privilege concerns, LVMPD proposed a search
protocol whereby appellants would provide DFL with "a list of full names,
email addresses, and/or phone numbers that would be considered
privileged." DFL would search for the keywords and review the search
results for privileged information. Privileged materials would be redacted
before the documents were turned over to LVMPD detectives.
LVMPD further argued that the Nevada statute explicitly
requiring the return of privileged materials among seized property, NR.S
179.105, applied only to search warrants executed on practicing attorneys
or law firms. Because the search warrants in this case were not executed
on any attorneys or law firms, LVMPD argued that no statute required the
return of privileged materials. LVMPD also asserted that the ongoing
criminal investigation justified retaining the materials.
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At the hearing in district court, appellants asserted there was
no evidence of "prostitution" as defined by NRS 201.320 because the
undercover officers may have witnessed solicitation, but not prostitution.
Appellants further contended that "advancing prostitution" and "living from
earnings of prostitution" could not be supported by probable cause because
they lacked the material element of "prostitution." With regard to the
privileged materials, appellants argued that the proper course would be to
return the seized property to them to create a privilege log, and then the
parties could engage a special master or third party to determine what was
privileged.
The district court ordered INMPD to provide the sealed
warrant materials in camera so the court could determine whether there
was probable cause for the warrants and whether appellants presented good
cause to unseal them. After conducting its in camera review, the district
court entered an order finding that the warrants were supported by
probable cause and denying appellants' request to unseal. Further, the
district court summarily found that INMPD's proposed DFL search protocol
was a reasonable resolution of' the privilege claim.
ANALYSIS
On appeal, appellants argue that the district court erred in
finding that the warrants were supported by probable cause and that good
cause existed for the warrant materials to remain sealed. In addition,
appellants argue that the district court erred in finding LVMPD's proposed
DFL search protocol was a proper resolution to the privilege issue, because
there must be some mechanism for the return of privileged materials seized
from nonattorneys. LVMPD disagrees, arguing that the warrants were
supported by probable cause, that good cause did not exist to unseal the
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warrants, and that INIVIPD's retention of the property was reasonable
under the circumstances. I,VM PI) further argues that appellants' request
for the return of property is now moot because the electronic devices were
returned to the property owners (though LVMPD retained a copy of the
contents). We address appellants' arguments in turn.
The district court did not err in finding the warrants were properly
supported by probable cause
Appellants argue probable cause for the warrants was lacking
because the undercover officers could not have consummated any sexual
acts with the entertainers. While there rnay have been probable cause for
solicitation, appellants claim that there could not have been probable cause
for prostitution or any crimes that have prostitution as a material element.
As a result, appellants argue they are entitled to the return of property
under NRS 179.085(1)(b) and (d) because the warrants were insufficient on
their face and illegally executed. LV1VIPD responds that the district court
properly found that probable cause existed after its in camera review of the
warrant materials.
"[T]he proper standard for determining probable cause for the
issuance of [a] warrant is whether, under the totality of the circumsta.nces,
there is probable cause to believe that contraband or evidence is located in
a particular place." Keesee v. State, 110 Nev. 997, 1.002, 879 P.2d 63, 67
(1994). Probable cause to support a search warrant exists where the facts
and circumstances within an officer's knowledge warrant a reasonable
belief that an offense has been or is being committed. Brinegar v. United
States, 338 U.S. 160, 175-76 (1949). "Further, the issuing judge's
determination of probable cause should be given great deference by a
reviewing court. . . . The duty of a reviewing court is simply to determine
whether there is a substantial basis for concluding that • probable cause
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existed." Doyle v. State, 116 Nev. 148, 158, 995 P.2d 465, 471-72 (2000)
(internal citations omitted).
In this case, INMPD's undercover investigations reportedly
revealed a pattern of entertainers soliciting undercover officers for illicit
sexual activity for a fee. Simply because the undercover officers did not
personally engage in prostitution activities does not inherently mean that
probable cause was lacking for prostitution-related offenses. A reasonable
inference is that some customers could or would have engaged in illicit
activities and that the entertainers were attempting to commit a crime.
Having also reviewed the affidavits in camera, we agree under the totality
of circumstances that there was a substantial basis for the district court to
conclude that probable cause existed. Therefore, we conclude that the
district court did not err in finding probable cause for the crimes of
"advancing prostitution" and "living from earnings of prostitution," and it
properly denied appellants' motion to return property pursuant to NRS
179.085(1)(b) and (d).2
2 In their reply brief, appellants argue for the first time that the
business owners and managers, as opposed to the specific female
entertainers, cannot be liable for "advancing prostitution" and "living from
earnings of prostitution" because the owners and managers do not permit
prostitution activity to take place. We note that arguments raised for the
first time in a reply brief need not be addressed and are deemed waived.
Khoury v. Seastrand, 132 Nev. 520, 530 n.2, 377 P.3d 81, 88 n.2 (2016)
(explaining that arguments brought for the first time in reply briefs are
waived). However, even on the merits, this argument is premature in the
context of an ongoing investigation and further does not provide a basis for
invalidating warrants that are otherwise supported by probable cause.
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t.( I, 1,4 741
The district court did not abuse its discretion when it found appellants did
not establish good cause to unseal the warrant applications and affidavits
Appellants argue that good cause exists to unseal the warrant
materials because "[t]he gravamen of LVMPD's investigation is the alleged
solicitation of prostitution at [a]ppellants' businesses in January and March
of this year. . . . As such, all of the events at issue have already occurred."
LVMPD counters that the warrant materials should remain sealed because
they include police procedures and intelligence obtained during covert
investigations. Further, LVMPD argues that unsealing the warrant
materials may compromise LVMPD's ongoing investigation.
NRS 179.045(4), governing the sealing of search warrants,
states that "[u]pon a showing of good cause, the magistrate may order an
affidavit or a recording of an oral statement given pursuant to this section
to be sealed. Upon a showing of good cause, a court may cause the affidavit
or recording to be unsealed." The term "good cause" is undefined within the
context of unsealing a warrant affidavit, but Nevada's appellate courts have
typically held that "good cause" determinations are within the district
court's discretion. See Spar Bus. Serus., Inc. v. Olson, 135 Nev. 296, 298,
448 P.3d 539, 541 (2019) (stating that "we review a district court's good
cause determination [to extend service] for an abuse of discretion");
Nunnery v. State, 127 Nev. 749, 766, 263 P.3d 235, 247 (2011) ("We have
indicated that a finding of good cause [to admit unnoticed evidence] is
within the district court's discretion."); Saavedra-Sandoval v. Wal-Mart
Stores, Inc., 126 Nev. 592, 594, 245 P.3d 1198, 1199 (2010) (holding that the
district court did not abuse its discretion in finding the party failed to
demonstrate good cause to enlarge time). We find this caselaw persuasive
and hold that a court's determination of good cause under NRS 179.045(4)
is likewise subject to an abuse of discretion standard of review.
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As this court has previously recognized in other contexts, "the
disclosure of an active and ongoing criminal investigation rnay jeopardize
the integrity of the investigation itself by revealing to a suspect that he or
she is being investigated, how the investigation is being conducted, and by
whom." In re Execution of Search Warrants (Anderson), 134 Nev. 799, 807,
435 P.3d 672, 678 (Ct. App. 2018). Here, the district court found that the
warrant materials were properly sealed because disclosure of the sensitive
information contained within "may compromise the ability of the
Metropolitan Police Department's ability to further investigate the crimes
alleged to have been committed, and any ongoing crirnes allegedly being
committed, relating to this investigation." Moreover, the district court
found that unsealing the warrant materials might endanger the •undercover
officers involved and reveal details of the ongoing investigation. After
reviewing the warrant materials in camera, we agree with LVMPD that the
district court had sufficient grounds to make this decision. We therefore
conclude the district court did not abuse its discretion in finding the
warrants should remain sealed.3
The district court erred by prematurely denying appellants' return-of-
property motion without giving appellants an opportunity to demonstrate
privilege
Appellants also moved for the return of property in district
court pursuant to NRS 179.085(1)(e), which provides, in pertinent part, that
A person aggrieved by an unlawful search and
seizure or the deprivation of property may move the
court having jurisdiction where the property was
3As our review of the search warrant materials reveals investigations
into ongoing criminal activity, appellants' assertion that all releva.nt events
have already occurred is unpersuasive in this case.
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seized for the return of the property on the ground
that:
(e) Retention of the property by law
enforcement is not reasonable under the totality of
the circumstances.
Specifically, appellants sought the return of property on the basis that it
was protected by the attorney-client privilege and the accountant-client
privilege. See NRS 49.095 (attorney-client privilege); NRS 49.185
(accountant-client privilege).
In denying appellants' request, the district court agreed that a
motion under NRS 179.085 was the proper vehicle for appellants' return-of-
property claims but found that it "does not appear to be unreasonable" for
LVMPD to retain the materials given its ongoing investigation. The district
court further determined that LVMPD's proposal to "redact information
that [appellants] believe is privileged, if [appellants] provide a list of names,
email addresses, and/or phone numbers, of information which would be
considered privileged" was "a reasonable resolution" of appellants' privilege
concerns. Appellants challenge that ruling on appeal.
At the outset, LVMPD contends that appellants' request for the
return of property has been rendered moot because the property seized was
subsequently returned to the property owners. Appellants respond that the
issue is not moot because. even though LVMPD gave back some of the
original property, LVMPD has retained copies or mirror images of the
electronic devices' contents. Because LVMPD concedes that it has retained
copies of the electronic devices' contents, which would also include any
privileged communications, appellants' request for the return of any
privileged property, including the copies or mirror images, is not moot.
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As INMPD points out, this court has previously recognized a
similarity between Nevada's return-of-property statute and Federal Rule of
Criminal Procedure (FRCrP) 41(g), the federal return-of-property rule.
"NRS 179.085 largely rnirrors Federal Rule of Criminal Procedure 41(g),
and where Nevada statutes track their federal counterparts, federal cases
interpreting the rules can be instructive." Anderson, 134 Nev. at 805, 435
P.3d at 677 (footnote omitted).
Other jurisdictions, in addressing the return of seized property
under FRCrP 41(g), have held that property owners have an equal interest
in copies of seized property as they do in the originals. For instance, the
United States Court of Appeals for the Fifth Circuit recognized "that a
plaintiff in a civil action for the return of property has a sufficient
proprietary interest in copies of documents which have been seized to
demand their return as well as the return of the originals." Richey v. Smith,
515 F.2d 1239, 1242 n.5 (5th Cir. 1975). The Fifth Circuit also recognized
that injury to the property owner continues to occur as long as the
government retains the privileged documents. Harbor Healthcare Sys., LP
v. United States, 5 F.4th 593, 600 (5th Cir. 2021) ("The government's
ongoing intrusion on Harbor's privacy constitutes an irreparable
injury . . . . Harbor remains injured as long as the government retains its
privileged documents.").
Likewise, the United States Court of Appeals for the Ninth
Circuit has ordered copies of unlawfully seized materials to be returned, as
well as the originals. See Goodman v. United States, 369 F.2d 166, 168 (9th
Cir. 1966) ("Assuming, arguendo, that the searches or seizures were
unlawful, we must consider whether the copies must be returned to the
appellants in addition to the originals. We hold that they must."); see also
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Uniteci States v. &warn, 639 F. App'x 503, 504 (9th Cir. 2016) (holding that
an evidentiary hearing was necessary to determine "which documents
(including copies) the government still has in its possession"). Although we
agree with LVMPD that the property at issue in this case was not
unlawfully seized," we find this authority relevant to the question of
rnootness because it demonstrates that a party has an equal right to seek
the return of copies of seized property under the analogous federal rule
governing return 'of property. Because LVMPD has retained copies or the
mirror irnages of the electronic devices containing certain documents that
appellants assert to be privileged, the issue was not rendered moot by the
return of the physical devices.
Citing Anderson, LVMPD asks this court to rely on a line of
federal cases indicating that motions for the return of property under
FRCrP 41(g) are properly denied where the government has an ongoin.g
need for the property in question. See, e.g., United States v. Mills, 991 F.2d
609, 612 (9th Cir. 1993) (-Generally, a Rule 41(e) motion is properly denied
if . . . the government's need for the property as evidence continues."
(emphasis added) (internal quotation marks omitted)); United States v.
Martinson, 809 F.2d 1364, 1370 (9th Cir. 1987) ("A district court has both
the jurisdiction and the duty to return the contested property once the
government's need for it has ended." (internal quotation marks omitted));
United States v. Totaro, 468 F. Supp. 1045, 1048 (D. Md. 1.979) (holding
"that federal district. courts have both the jurisdiction and the duty to order
the return of seized evidence to its rightful owner, whether or not the
seizure was illegal, once the need for the evidence has terminated"). Based
on these federal cases, LVMPD contends that the district court correctly
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,
determined that it was not "unreasonable" for it to retain even those
privileged materials belonging to appellants.
However, the federal cases relied on by INMPD do not support
a blanket rule that privileged materials are not required to be returned as
long as the government has a need for them. To the contrary, these and
other federal jurisdictions recognize that attorney-client privilege is a valid
basis to seek the return of property under FRCrP 41(g). The Third,
Eleventh, Fifth, Ninth, and D.C. Circuits have all addressed requests to
return privileged materials within the scope of FRCrP 41(g) motions for the
return of property. United States v. Scarfo, 41 F.4th 136, 171 (3d Cir. 2022)
(addressing an appeal from a ruling on a motion for the return of property
under FRCEP 41(g) that challenged a filter team's disclosure of
communications to the prosecution without "giving him an opportunity to
challenge any of the communications as privileged, prior to their potential
use at trial"), cert. denied by Pelullo v. United States, U.S. , 143 S.
Ct. 1044 (2023); In re Sealed Search Warrant & Application for a Warrant
by Tel. or Other Reliable Elec. Means, 11 F.4th 1235, 1245-46 (11th Cir.
2021) (evaluating a district court ruling on an FRCEP 41(g) motion where
businesses and their owners, managers, and controllers moved to intervene
under FRCrP 41(g) to assert attorney-client and work-product privileges
over some documents that were seized), cert. denied by Korf v. United States,
U.S. . 143 S. Ct. 88 (2022); Harbor, 5 F.4th at 600; Burum, 639 F.
App'x at 504 (addressing an appeal from an FRCrP 41(g) motion seeking
the return or destruction of all privileged property retained by the
government); United States v. Rayburn House Office Bldg., Room 2113,
Washington, D.C. 20515, 497 F.3d 654, 665 (D.C. Cir. 2007) (addressing an
FRCrP 41(g) motion for the return of all privileged materials seized upon
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executing a search warrant for nonlegislative materials in the congressional
office of a sitting member of Congress).
Federal courts recognize that privacy interests in privileged
materials "weigh{ ] heavily in favor of granting Rule 41(g) relief' for the
return of property and that the government's retention of privileged
materials may "constitute[ ] an irreparable injury that can be cured only by
Rule 41(g) relief." Harbor, 5 F.4th at 600. "Once the government
improperly reviews privileged materials, the damage to the [property
owners'] interests is 'definitive and complete." In re Sealed Search
Warrant, 11 F.4th at 1247 (quoting DiBella v. United States, 369 U.S. 121,
124 (1962)). We find these cases persuasive. Because FRCrP 41(g) provides
a basis in federal court to seek the return of privileged materials among
seized property, we read Nevada's analogous return-of-property statute to
also include privilege as a basis to seek the return of seized property under
NRS 179.085(1)(e), regardless of whether the government has an ongoing
investigation. See Anderson, 134 Nev. at 805, 435 P.3d at 677.
Notably, the language in FRCrP 41(g) rnirrors that of NRS
179.085(3), which directly addresses the return of property under NRS
179.085(1)(e). FRCrP 41(g) states, in pertinent part, "If [the court] grants
the motion, the court must return the property to the movant, but may
impose reasonable conditions to protect access to the property and its use
in later proceedings." Likewise, NRS 179.085(3) states, "If the motion is
granted on the ground set forth in paragraph (e) of subsection 1, the
property must be restored, but the court rnay impose reasonable conditions
to protect access to the property and its use in later proceedings." Thus,
both rules allow the district court to grant a party relief from the seizure of
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(I)) i9-1711
privileged materials in a manner that would protect the government's
interest in "access to the property" for "use in later proceedings."
In this case, the district court initially denied appellants'
return-of-property motion under NRS 179.085(1)(e) without determining
whether any of the subject materials were, in fact, covered by a privilege
and continued to permit LVMPD to retain the copies or mirror images of
the electronic devices that may contain certain privileged documents
without making such a determinationz' In addition, the district court
assumed, without deciding, that the subject materials did contain
privileged documents and directed DFL to conduct its own search through
the materials to "redact information that [appellants] believe is privileged."
This was error.
Preliminarily, when a motion for the return of property is filed
prior to the initiation of criminal proceedings, which was the case here, the
Nevada Rules of Civil Procedure apply. See NRS 179.085(5) ("If a motion
pursuant to this section is filed when no criminal proceeding is pending, the
motion must be treated as a civil complaint seeking equitable relief.").
Therefore, assertions of privilege are governed by NRCP 26(b)(5). Pursuant
to NRCP 26(b)(5)(A)(i)-(ii), when a property owner seeks to withhold
information on the basis of' privilege, the property owner is required to do
two things: (1) "expressly make the claim," and (2) "describe the nature of'
the privileged documents through a privilege log.
4In its petition for rehearing, appellants point out that other seized
property remains in LVMPD's possession, and LVMPD does not dispute this
assertion.
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As to the first requirement that appellants "expressly make the
claim," appellants asserted in their motion for the return of property that
the seized property included materials privileged under NRS 49.095 and
NRS 49.185. To support their claims of privilege, appellants provided
declarations from several employees that attested to the presence of
privileged materials among the seized property, including communications
between those employees and appellants' attorneys and accountants. In
response, LVMPD did not dispute the presence of potentially privileged
materials but instead proposed a search protocol for DFL to find and redact
this privileged information. The district court agreed.5
5 0n rehearing, LVMPD argues that appellants waived any privilege
claim for the materials that have not yet been returned, including DVR and
point-of-sale systems, because appellants failed to specifically assert that
those itenis contained privileged information. However, LVMPD failed to
raise this argument in the district court, and therefore the argument is
waived. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981,
983 (1981) (explaining that issues not argued below are "deemed to have
been waived and will not be considered on appeal"). Nonetheless, LVMPD's
argument can also be rejected on the merits. ln appellants' motion for the
return of property, they asserted that "Nile Property seized by INMPD,
inclusive of paper documents and digital storage devices, contains emails,
documents and other correspondence with [appellants] attorneys and
accountants that are privileged ...." Similarly, the accompanying
declaration to the motion stated "that materials protected by the attorney-
client and accountant-client privileges and the work product doctrine are
stored on digital storage devices which were seized by [LVMPD]." When
LVMPD offered its DFL search protocol, it did not propose to limit the
search to any particular documents but rather would have DFL search all
items recovered under the warrants. Therefore, we reject LVMPD's
argument that appellants waived their right to assert privilege in certain
items seized.
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To comply with the second requirement to assert privilege, a
party must ordinarily submit a privilege log identifying any potentially
privileged materials. See NRCP 26(b)(5)(A)(ii). However, appellants were
unable to do so without first having access to the seized property. At least
until a party has access to the seized property in question, federal courts
are hesitant to hold the absence of a privilege log against a party seeking
relief under FRCrP 41(g). In re Grand Jury Subpoenas, 454 F.3d 511, 515
(6th Cir. 2006) (stating that the movant could not be criticized for failing to
provide a privilege log before he had an opportunity to review the records);
see also Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court for the Dist. of
Mont., 408 F.3d 1142, 1149 (9th Cir. 2005) (stating that the timeliness of a
privilege log is determined by the relevant circumstances, including the
ability of the party to review the documents and identify privileged
materials); United States v. SDI Future Health, Inc., 464 F. Supp. 2d 1027,
1046 (D. Nev. 2006) (holding that the property owner "had not waived its
privileges because it had, as yet, no opportunity to inspect its files and
identify additional privileged records").
Prior to a formal determination of privilege under the Nevada
Rules of Civil Procedure, it is unknown what, if any, privileged materials
actually exist among the seized property that appellants have asked the
court to return. Therefore, it was premature for the district court to find
that it was "not unreasonable" for LVMPD to retain the seized property,
which continues to include the copies and mirror images of the electronic
devices, because such a determination could not properly have been made
until appellants had a full opportunity to demonstrate privilege.
To that end, the district court also erred by adopting LVMPD's
proposed DFL search protocol. Appellants objected to the proposed DFL
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protocol before the district court. Appel.lants argued that the protocol
provides. no guarantee that privileged information will be properly
searched and, if that does not occur, [a]ppellants will. have no recourse."
Appellants' concerns in this regard are persuasive. NRS 49.095 guarantees
a client the right "to prevent any other person from disclosing" confidential
privileged communications, and the statutory reference to "any other
person," by its plain language, would necessarily include the individuals
within DFL.
LVMPD's proposed DFL search protocol violated NRS 49.095
by allowing DFL to disclose potentially confidential communications to law
enforcement's investigatory arm based on its own unilateral determination
of privilege. See In re Grand Jury Subpoenas, 454 F.3d at 523 (stating that
the risk of accidental disclosure of privileged materials to prosecutors is a
paramount concern when dealing with privileged materials among the
property seized). The proposed protocol was also inadequate because it did
not provide appellants with any opportunity to review DFL's privilege
determinations before the seized property was forwarded to the
investigating detectives. In. re Sealed Search Warrant, 11 F.4th at 1247
("[I]f a district court incorrectly denies Rule 41(g) relief when it is required,
immediate review is necessary to preserve that same remedy of return of
the documents before the government reviews them. R.eview later would be
incapable of vindicating the [property owners.] privacy interests."); see also
SDI Future Health, 464 F. Supp. 2d at 1039 ("Because the Government did
not provide or implement any procedure for notifying SDI of the taint
attorney's privilege decisions or afford SDI an opportunity to challenge
those determinations in court before the documents were provided to the
prosecution team, it is doubtful that the court would h.ave approved the
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Government's thint procedures if SDI had challenged thern."); Richey, 515
F.2d at 1242 n.5 ("It follows that one entitled to the return of original
documents is entitled to their return prior to and not after examination or
reproduction by government agents.").
Further, at the time appellants filed their motion for the return
of property, INMPD had not yet returned their physical devices, and the
protocol implemented by the district court failed to provide appellants with
a meaningful opportunity to assert privilege because it did not grant them
any access to the seized property. Without access to the property,
appellants had no ability to create a privilege log in conformance with
NRCP 26(b)(5)(A)(ii). For these reasons, we conclude that LVMPD's
proposed DFL search protocol was inadequate, and the district court erred
in adopting it.
CONCLUSION
In summary, we affirm the portions of the district court's order
that denied appellants' motion to quash and unseal the warrants. However,
we conclude that the district court erred when it prematurely denied
appellants' request to return the seized property without affording them an
opportunity to demonstrate privilege under NRCP 26(b)(5). After asserting
that the seized items contained privileged information, appellants were
required to create a privilege log but were unable to do so without having
access to the seized property. We therefore reverse the district court's order
denying appellants' motion for the return of the entirety of appellants'
property without determining whether privileged communications existed
within the property seized in accordance with NRCP 26(b)(5)(A)(ii) and the
relevant statutory privileges.
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On remand, appellants must create a privilege log for all
materials that have been returned by LVMPD, as they now have those
seized materials in their possession. SDI Future Health, 464 F. Supp. 2d at
1044 n.4 (holding that once the defendants are granted access to the seized
property, they should "supplementH their privilege claims by more
specifically describing the documents that they allege were protected by the
attorney-client privilege"). To the extent that LVMPD has not yet returned
any items seized or copies thereof, the district court should address
appellants' ability to access this property in the first instance.6 Appellants
must be given an opportunity to demonstrate privilege as to the property
not yet returned, "but the court may impose reasonable conditions to protect
access to the property and its use in later proceedings." NRS 179.085(3).
The district court should then follow the protocol for asserting
privilege pursuant to the applicable statutory privileges and NRCP 26(c)
and set a schedule for appellants to submit a privilege log within a
reasonable period of time. Finally, in the interim, due to LVMPD's
retention of the copies and mirror images of the electronic devices, the
district court should put in place a protective order pursuant to NRCP 26(c)
that prevents LVMPD from accessing the copies and rnirror images until
such time as the privilege issues have been resolved and the privileged
6Insofar as LVMPD argues on rehearing that there are ownership
disputes as to items that have not yet been returned to appellants, LVMPD
should likewise direct any such ownership disputes to the district court in
the first instance. See Ryan's Express Transp. Servs., Inc. v. Amador Stage
Lines, Inc., 128 Nev. 289, 299. 279 P.3d 166, 172 (2012) ("An appellate court
is not particularly well-suited to make factual determinations in the first
instance.").
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documents have been redacted. We leave the timing to the discretion of the
district court with the understanding that there is an ongoing investigation.
J.
Wetbrook
We concur:
, C.J.
j.
Bulla
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i(4 1.147B