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March 20, 2014

Nevada Privilege Law May Be Inadvertently Waived During Witness Preparation

It is common for a witness to refer to documents when testifying in order to refresh the witnesses’ recollection. NRS 50.125 requires disclosure of any writing used to refresh a witness’ recollection before or while testifying. What happens, however, when a witness is provided documents that are either privileged or protected by the work product doctrine when preparing to testify? NRS 47.020 and NRCP 26(b)(3) guarantee that the work product doctrine and the attorney-client privilege apply at all stages of all proceedings unless “relaxed by a state or procedural rule applicable to the specific situation.” NRS 47.020(1)(a). The Nevada Supreme Court’s recent decision in Las Vegas Sands Corp. v. Eighth Jud. Dist. Ct., 130 Nev. Adv. Op. 13 (Feb. 27, 2014), addressed the intersection of NRS 50.125 and Nevada privilege law in an issue of first impression.

In Sands, the district court heard a motion for sanctions related to Sands’ alleged discovery misconduct. During the sanctions hearing, a former attorney for the Sands was cross-examined. During the examination it was revealed that prior to testifying, the attorney had reviewed attorney billing records and emails to refresh his recollection of relevant dates and the timing of events.

Based on this testimony, the party conducting the cross-examination argued that the documents used to refresh the witness’ recollection should be disclosed pursuant to NRS 50.125. NRS 50.125 provides in part:

1. If a witness uses a writing to refresh his or her memory, either before or while testifying, an adverse party is entitled:
(a) To have it produced at the hearing;
(b) To inspect it;
(c) To cross-examine the witness thereon; and
(d) To introduce in evidence those portions which relate to the testimony of the witness for the purpose of affecting the witness’s credibility.

Sands objected, claiming work product doctrine and attorney-client privilege prevented disclosure of the documents notwithstanding NRS 50.125 and that the court must employ a balancing test to determine whether disclosure is in the interests of justice. The district court suggested that the party seeking production file a motion requesting production of the documents. Two days after the hearing, the district court entered an order sanctioning the Sands.

The party that cross-examined the Sands’ counsel filed a motion seeking to compel production of the documents approximately two months after the sanction order was entered. At the subsequent hearing, the district court ordered Sands to produce the documents, but stayed the order pending resolution of the Sands’ application for a writ of prohibition.

The Nevada Supreme Court initially held that NRS 50.125 was ambiguous because the term “writing” could be interpreted to mean any writing, privileged or unprivileged. The Court found the legislative history unhelpful but noted that the legislators who wrote Nevada’s evidence code wanted to promote the search for the truth, and therefore, they attempted to limit exceptions to NRS 50.125. This analysis prompted the Court to disagree with Sands’ position that NRS 50.125 should be read similarly to FRE 612, which gives the federal courts discretion in determining whether a document used to refresh a witness’s recollection should be produced. The Court ultimately held that “NRS 50.125 requires disclosure of any document used to refresh the witness’s recollection before or while testifying, regardless of privilege.”

Despite the Court’s determination that NRS 50.125 mandates disclosure of privileged documents used to refresh a witness’s recollection, the Court granted Sands’ writ and directed the clerk of the court to issue a writ of prohibition ordering the district court to halt the production of the documents. The Court ruled the party was not entitled to the documents because he requested them after the sanctions hearing and NRS 50.125 is a rule of evidence intended to “allow an adverse party to inspect and use the document to test a witness’s credibility at the hearing.” Emphasis added. Moreover, NRS 50.125 is not a rule of discovery. Since the request for production came two months after the hearing and the lower court’s ruling, the Court held that the lower court abused its discretion by ordering production of privileged documents and noted that the lower court’s order improperly turned NRS 50.125 into a rule of discovery.

Sands makes it crystal clear that Nevada courts must require production of documents used by a witness to refresh his or her recollection prior to testifying, even if they are privileged, provided the request is made at the time of the hearing. Every practitioner needs to understand the significance of this ruling when preparing witnesses to give testimony.