                                              130 Nev., Advance Opinion 57
                         IN THE SUPREME COURT OF THE STATE OF NEVADA

                   LAS VEGAS DEVELOPMENT                      No. 62512
                   ASSOCIATES, LLC, A NEVADA
                   LIMITED LIABILITY COMPANY;
                   ESSEX REAL ESTATE PARTNERS,
                                                                     FILED
                   LLC, A NEVADA LIMITED LIABILITY                   MAY 2 9 2014
                   COMPANY; INTEGRATED FINANCIAL                       E K. LiNDEMAN
                                                                CL
                   ASSOCIATES, INC.; NEXBANK, SSB, A            BY
                   TEXAS-CHARTERED STATE SAVINGS                       D=       ERK

                   BANK; WESTCHESTER CLO, LTD., A
                   CORPORATION ORGANIZED UNDER
                   THE LAWS OF THE CAYMAN
                   ISLANDS; GLENEAGLES CLO, LTD., A
                   CORPORATION ORGANIZED UNDER
                   THE LAWS OF THE CAYMAN
                   ISLANDS; STRATFORD CLO, LTD., A
                   CORPORATION ORGANIZED UNDER
                   THE LAWS OF THE CAYMAN
                   ISLANDS; GREENBRIAR CLO, LTD., A
                   CORPORATION ORGANIZED UNDER
                   THE LAWS OF THE CAYMAN
                   ISLANDS; EASTLAND CLO, LTD., A
                   CORPORATION ORGANIZED UNDER
                   THE LAWS OF THE CAYMAN
                   ISLANDS; BRENTWOOD CLO, LTD., A
                   CORPORATION ORGANIZED UNDER
                   THE LAWS OF THE CAYMAN
                   ISLANDS; JASPER CLO, LTD., A
                   CORPORATION ORGANIZED UNDER
                   THE LAWS OF THE CAYMAN
                   ISLANDS; LONGHORN CREDIT
                   FUNDING LLC, A DELAWARE
                   LIMITED LIABILITY COMPANY;
                   GRAYSON CLO, LTD., A
                   CORPORATION ORGANIZED UNDER
                   THE LAWS OF THE CAYMAN
                   ISLANDS; AND RED RIVER CLO, LTD.,
                   A CORPORATION ORGANIZED
                   UNDER THE LAWS OF THE CAYMAN
                   ISLANDS,
SUPREME COURT
                   Petitioners,
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                   vs.
                   THE EIGHTH JUDICIAL DISTRICT
                   COURT OF THE STATE OF NEVADA,
                   IN AND FOR THE COUNTY OF
                   CLARK; THE HONORABLE
                   ELIZABETH GOFF GONZALEZ,
                   DISTRICT JUDGE; AND THE
                   HONORABLE MARK R. DENTON,
                   DISTRICT JUDGE,
                   Respondents,
                      and
                   KB HOME NEVADA INC.,
                   Real Party in Interest.



                               Original petition for a writ of prohibition or mandamus
                   challenging a district court order compelling discovery of purportedly
                   privileged documents.
                              Petition denied.

                   Hutchison & Steffen, LLC, and Michael K. Wall and Patricia Lee, Las
                   Vegas; Lackey Hershman, LLP, and Paul B. Lackey, Michael P. Aigen,
                   and Kennedy Barnes, Dallas, Texas,
                   for Petitioners.

                   Pisanelli Bice, PLLC, and Todd L. Bice, James J. Pisanelli, Christopher R.
                   Miltenberger, and Jordan T Smith, Las Vegas,
                   for Real Party in Interest.




                   BEFORE THE COURT EN BANC.'



                         'The Honorable Kristina Pickering, Justice, voluntarily recused
                   herself from participation in the decision of this matter.


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                                                     OPINION

                 By the Court, GIBBONS, C.J.:
                                This court recently addressed the intersection of NRS 50.125
                 and Nevada privilege law and concluded that "when invoked at a
                 hearing,. . . NRS 50.125 requires disclosure of any document used to
                 refresh the witness's recollection before or while testifying, regardless of
                 privilege." Las Vegas Sands Corp. v. Eighth Judicial Dist. Court, 130 Nev.
                    „ 319 P.3d 618, 623 (2014). In this opinion, we address whether
                                                                                            •

                 NRS 50.125 applies to depositions as well as to in-court hearings. We
                 conclude that it does. We therefore deny this petition for a writ of
                 prohibition or mandamus.

                                                      FACTS
                                The underlying action stems from a dispute between
                 petitioners Las Vegas Development Associates, LLC; Essex Real Estate
                 Partners, LLC; and Integrated Financial Associates, Inc. (collectively,
                 LVDA), and real party in interest KB Home Nevada, Inc. (KB Home),
                 arising out of a real estate transaction. 2 In conducting discovery, KB
                 Home noticed and took the deposition of Essex Real Estate Partners,
                 LLC's principal, George Holman. Holman testified that before his
                 deposition, he had reviewed two memoranda prepared by his attorneys, as
                 well as his own handwritten notes, to refresh his recollection and prepare
                 for the proceeding. Then, the following exchange occurred:
                                      Q. Okay. Did the documents. . . what was
                                         the purpose of reviewing all those
                                         documents?



                       2   Eleven intervenors joined this action.


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                                         A. To be prepared and to refresh my
                                            memory.
                                         Q. Did they all refresh your recollection?
                                         A. Yes.
                                         Q. Including the memo?
                                         A. Yes.
                       Holman testified that the memoranda were summaries of conversations
                       that he had with his attorneys regarding the issues in this case. KB Home
                       then requested that Holman divulge the contents of the attorney-prepared
                       memoranda along with Holman's own handwritten notes. Holman refused
                       based on the attorney-client privilege and the work-product doctrine.
                                   On the second day of Holman's deposition, he again confirmed
                       the intent behind reviewing his handwritten notes, stating: "I looked at
                       them to refresh my recollection, yes." KB Home asked if the notes did in
                       fact refresh his recollection about matters he expected to testify about that
                       day. Holman responded affirmatively. KB Home again requested to
                       inspect the notes, but Holman refused. Later in the deposition, Holman
                       confirmed for a third time that the notes summarized conversations that
                       he had with his attorneys and related to his testimony. In a later
                       installment of his deposition, Holman stated that his intent behind
                       reviewing the memoranda and notes was to refresh his "memory about the
                       strategy of the case going forward." Throughout his deposition, Holman
                       refused to divulge the contents of the attorney-prepared memoranda and
                       his handwritten notes, on the grounds that they were privileged.
                                   KB Home filed a motion to compel production of the
                       documents, arguing that NRS 50.125 mandates disclosure of any
                       documents used before a deposition to refresh one's recollection. The
                       district court agreed and granted KB Home's motion. LVDA filed a motion

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                for reconsideration, and the district court referred the matter to the
                discovery commissioner. While the matter was proceeding before the
                discovery commissioner, LVDA produced Holman's handwritten notes and
                provided a redacted version of the attorney-prepared memoranda.
                Nevertheless, the discovery commissioner ultimately recommended full
                production of the unredacted memoranda. The discovery commissioner
                found that "so much of the information was intertwined," that "it would be
                impossible to conclude what 'factual' information [Holman] relied on."
                Additionally, the discovery commissioner found that "Holman reviewed
                the entirety of the documents and relied upon them in their entirety in
                preparing for his deposition." LVDA filed a written objection to the
                discovery commissioner's report and recommendation. The district court
                ultimately affirmed and adopted the discovery commissioner's report and
                recommendation, ordering production of the unredacted attorney-prepared
                memoranda pursuant to NRS 50.125.
                            The underlying proceedings have been stayed by the district
                court, and LVDA now seeks writ relief from this court, arguing that the
                district court abused its discretion in granting KB Home's motion to
                compel because: (1) KB Home did not lay a sufficient foundation to invoke
                NRS 50.125, (2) NRS 50.125 does not serve as a waiver of the attorney-
                client privilege, (3) NRS 50.125 does not serve as a waiver of the work-
                product doctrine. Additionally, in order to properly resolve this writ
                petition, we will address whether NRS 50.125 applies to depositions as
                well as to in-court hearings.

                                                DISCUSSION
                            We exercise our discretion to consider this writ petition
                because this case presents a situation where "the assertedly privileged


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                information would irretrievably lose its confidential and privileged quality
                and petitioners would have no effective remedy, even by later appeal."
                Wardleigh v. Second Judicial Dist. Court, 111 Nev. 345, 350-51, 891 P.2d
                1180, 1183-84 (1995). Further, we note that a writ of prohibition is an
                appropriate remedy to correct an order that compels disclosure of
                privileged information. Valley Health Sys., L.L.C. v. Eighth Judicial Dist.
                Court, 127 Nev. , n.5, 252 P.3d 676, 679 n.5 (2011); Las Vegas
                Sands, 130 Nev. at       , 319 P.3d at 621.

                Standard of review
                              Here, the parties dispute the district court's interpretation
                and application of NRS 50.125. 3 Statutory interpretation presents a
                question of law subject to our de novo review, even when arising in a writ
                proceeding. Int? Game Tech., Inc. v. Second Judicial Dist, Court, 124 Nev.
                193, 198, 179 P.3d 556, 559 (2008). "Generally, when a statute's language
                is plain and its meaning clear, the courts will apply that plain language."
                Leven v. Frey, 123 Nev. 399, 403, 168 P.3d 712, 715 (2007). But when a



                      3 NRS   50.125(1) provides:

                              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.


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                statute is susceptible to more than one reasonable interpretation, it is
                ambiguous, and this court must resolve that ambiguity by looking to the
                statute's legislative history and "construing the statute in a manner that
                conforms to reason and public policy."      Great Basin Water Network v.
                Taylor, 126 Nev. 187, 196, 234 P.3d 912, 918 (2010).

                KB Home laid a proper foundation to invoke NRS 50.125
                                As a preliminary matter, LVDA argues that even if NRS
                50.125 requires production of documents otherwise protected by the
                attorney-client privilege and the work-product doctrine, KB Home did not
                lay the proper foundation to invoke the benefits of NRS 50.125 because KB
                Home did not establish the extent to which the documents refreshed
                Holman's recollection. LVDA primarily relies on Sipsas v. State, 102 Nev.
                119, 123, 716 P.2d 231, 233 (1986), in which this court determined that
                the district court abused its discretion in admitting a photograph pursuant
                to NRS 50.125(1)(d) when that photograph was not used to refresh the
                memory of the witness in question. This court concluded that although
                the witness "had previously viewed the photograph, it was not used, nor
                was it needed, to refresh [the witness's] recollection of the event."   Id. at
                123, 716 P.2d at 234. Thus, "ftlhe photograph. . . was improperly
                admitted on the grounds of NRS 50.125(1)(d)." Id.
                                LVDA's reliance on Sipsas is misplaced because that case
                involved a situation where the witness never indicated that he was unable
                to recall events, and therefore the photograph was clearly not used to
                refresh the witness's recollection at trial.     See id.   Here, KB Home
                established a foundation under NRS 50.125 because KB Home verified
                with Holman that he reviewed the two memoranda, the purpose for
                reviewing the memoranda, and the effect his review had in refreshing his
                recollection.
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                              NRS 50.125(1) clearly states that "[i]f a witness uses a writing
                 to refresh his or her memory, either before or while testifying, an adverse
                 party is entitled to have it produced at the hearing. . ." (Emphasis
                 added.) As the discovery commissioner noted, "it [was] clear that
                 [Holman] reviewed the documents, including the alleged privileged
                 documents to 'refresh his memory.' Therefore, this case is not one where
                 the purported privileged communications did not refresh." Thus, we
                 conclude that the district court did not abuse its discretion in finding that
                 KB Home laid a proper foundation to invoke NRS 50.125.

                 NRS 50.125 serves as a waiver of the attorney-client privilege and the
                 work-product doctrine when a witness reviews such writings to refresh his
                 or her recollection prior to testifying
                              LVDA argues that NRS 50.125 does not serve as a waiver of
                 the attorney-client privilege or the work-product doctrine because those
                 protections apply "at all stages of the proceedings." NRS 47.020(2)
                 (providing that "the provisions of [C]hapter 49 of MRS with respect to
                 privileges apply at all stages of all proceedings").
                              We recently addressed the intersection of MRS 50.125 and
                 Nevada privilege law in Las Vegas Sands Corp. v. Eighth Judicial District
                 Court, 130 Nev. , 319 P.3d 618 (2014). In Las Vegas Sands, we noted
                 that the language of NRS 50.125 is ambiguous, given its bare use of the
                 term "a writing." Id. at , 319 P.3d at 622. In analyzing the statute, we
                 compared MRS 50.125 to its federal counterpart, Federal Rule of Evidence
                 (FRE) 612, and noted that "[w]hereas FRE 612 permits the district court's
                 exercise of discretion to preclude disclosure of privileged documents used
                 to refresh a witness's recollection before testifying, no such discretionary
                 language exists in NRS 50.125."        Id. at , 319 P.3d at 623. Thus,
                 without such discretionary language, "Nevada district courts lack

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                discretion to halt the disclosure of privileged documents when a witness
                uses the privileged documents to refresh his or her recollection prior to
                testifying." Id.
                             Here, LVDA prepared Holman for his deposition by supplying
                him with two memoranda that LVDA asserts are attorney work-product
                and subject to the attorney-client privilege. Holman admittedly used
                those memoranda to refresh his memory before his deposition, which
                potentially shaped and influenced his deposition testimony. 4
                             However, NRS 50.125 uses the term "hearing," without any
                indication as to whether the statute should apply to depositions. In order
                to properly resolve this writ petition, we must address whether NRS
                50.125 applies to depositions as well as in-court hearings.

                NRS 50.125's "hearing" language applies to depositions as well as to in-
                court hearings
                             This court has not previously addressed whether depositions
                are included within the term "hearing" under NRS 50.125.        Black's Law
                Dictionary defines hearing as "fal judicial session, usu[ally] open to the
                public, held for the purpose of deciding issues of fact or of law, sometimes




                      4Additionally,  we conclude that LVDA's argument that the district
                court was required to redact any mental impressions, opinions, or legal
                theories is without merit. The discovery commissioner conducted an in
                camera review of the redacted and unredacted memoranda and found that
                "Holman reviewed the entirety of the documents and relied upon them in
                their entirety in preparing for his deposition." In light of these findings
                and NRS 50.125's absolute language, we cannot say that the district court
                abused its discretion in affirming and adopting the discovery
                commissioner's recommendation that the memoranda be produced in their
                unredacted form.


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                   with witnesses testifying." Black's Law Dictionary 788 (9th ed. 2009). A
                   deposition is defined as "[a] witness's out-of-court testimony that is
                   reduced to writing (usu[ally] by a court reporter) for later use in court or
                   for discovery purposes."    Id. at 505. Although the two terms may be
                   defined to encompass different specific events, there is also a significant
                   amount of overlap in terms of the functions they serve. See Chanos v. Nev.
                   Tax Comm'n, 124 Nev. 232, 241, 181 P.3d 675, 681 (2008) ("[T]hough
                   [definitions of hearing] var[y] . , they all share[ ] a common element: a
                   hearing is an official gathering at which evidence is taken."). Because
                   these two terms can reasonably be interpreted in both manners, we look to
                   the legislative history for guidance.
                               A search of the legislative history behind NRS 50.125 reveals
                   that there was no discussion as to whether the Nevada Legislature
                   intended depositions to be included within the term. See Hearing on S.B.
                   12 Before the Senate Judiciary Comm., 56th Leg. (Nev., Feb. 10, 1971);
                   Hearing on S.B. 12 Before the Joint Senate & Assembly Judiciary
                   Cons., 56th Leg. (Nev., Feb. 11, 1971) (addressing concerns regarding
                   various proposed rules of evidence, but not addressing the provisions of
                   NRS 50.125). However, NRS 50.125 was submitted to the Nevada
                   Legislature based on a draft version of Federal Rule of Evidence (FRE)
                   612. Hearing on S.B. 12 Before the Senate Judiciary Comm., 56th Leg.
                   (Nev., Feb. 10, 1971) ("There is a federal evidence code that is proposed; it
                   is amended in some respects and this draft follows as closely as possible
                   that code ... our work here is as close as can be to [the] federal code.").
                   And although NRS 50.125 differs from FRE 612 insofar as NRS 50.125
                   lacks a discretionary element, see Las Vegas Sands, 130 Nev. at , 319




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                 P.3d at 623, both provisions refer to use of the writing at a "hearing." 5
                 Thus, the federal decisions interpreting FRE 612 are instructive with
                 regard to our consideration of this issue. Cf. Nelson v. Heer, 121 Nev. 832,
                 834, 122 P.3d 1252, 1253 (2005) ("We have previously recognized that
                 federal decisions involving the Federal Rules of Civil Procedure provide
                 persuasive authority when this court examines its rules.").
                               Federal courts interpreting FRE 612 have concluded that the
                 rule applies to depositions and deposition testimony by operation of FRCP
                 30(c), which provides that "examination and cross-examination of a
                 deponent proceedS as they would at trial under the Federal Rules of
                 Evidence."    See, e.g., Sporck v. Fell, 759 F.2d 312, 317 (3d Cir. 1985)
                 (explaining that FRE 612 "is applicable to depositions and deposition
                 testimony by operation of Federal Rule of Civil Procedure 30(c)"); Heron
                 Interact, Inc. v. Guidelines, Inc., 244 F.R.D. 75, 76 (D. Mass. 2007); Magee
                 v. Paul Revere Life Ins. Co., 172 F.R.D. 627, 637 (E.D.N.Y. 1997); James
                 Julian, Inc. v. Raytheon Co., 93 F.R.D. 138, 144 (D. Del. 1982); see also
                 Doxtator v. Swarthout, 328 N.Y.S.2d 150, 152 (App. Div. 1972) ("We think
                 it a sound rule that writings used prior to testifying for the purpose of
                 refreshing the memory of a witness be made available to the adversary




                       5 FRE   612 provides in relevant part:
                               [VVilien a witness uses a writing to refresh
                               memory. . . an adverse party is entitled to have
                               the writing produced at the hearing, to inspect it,
                               to cross-examine the witness about it, and to
                               introduce in evidence any portion that relates to
                               the witness's testimony.
                  (Emphasis added.)

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                   whether at the trial or at pre-trial examination." (internal citations
                   omitted)).
                                The portion of FRCP 30(c) that federal courts have relied upon
                   to apply FRE 612 to deposition testimony states that "examination and
                   cross-examination of a deponent proceed as they would at trial under the
                   Federal Rules of Evidence." FRCP 30(c) (emphasis added). Similarly,
                   NRCP 30(c) states that "[e]xamination and cross-examination of witnesses
                   may proceed as permitted at the trial under the provisions of Rule 43(b)." 6
                   (Emphasis added.) Based on our review of both NRCP 30(c) and FRCP
                   30(c), we conclude that the two provisions are substantially similar
                   because both provide that deposition examinations proceed as permitted
                   at trial.
                                Given that depositions proceed as permitted at trial, we see no
                   reason why writings used to refresh the memory of a witness before or
                   during a deposition should be treated differently than those used by a
                   witness before or at "the trial." We find the federal caselaw on this issue
                   to be persuasive and conclude that NRS 50.125 applies to depositions and
                   deposition testimony as well as to in-court hearings by operation of NRCP
                   30(c), See Hallmark v. Eldridge, 124 Nev. 492, 498, 189 P.3d 646, 650
                   (2008) (stating that "federal court decisions discussing [an analogous
                   federal rule of evidence] may provide persuasive authority" to help this
                   court interpret its own rules). 7


                          6 NRCP  43(b) provides that a "solemn affirmation" may be accepted
                   in lieu of an oath.

                          7 Unlike
                                 in Las Vegas Sands, this "hearing" has not been completed
                   and the finder of fact has not yet ruled on the underlying issue. See Las
                   Vegas Sands, 130 Nev. at , 319 P.3d at 624. Thus, because Holman's
                   deposition can be resumed, he can still be cross-examined on the writing,
                                                                    continued on next page . . .
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                                 Therefore, we conclude that when a witness uses a privileged
                    document to refresh his or her recollection prior to giving testimony at a
                    deposition, an adverse party is entitled to have the writing produced at the
                    deposition pursuant to NRS 50.125. KB Home is entitled to know the
                    contents of those memoranda in order to properly cross-examine Holman
                    as to their accuracy, truthfulness, and their influence on his testimony.
                    As a result, we conclude that the district court did not err in granting KB
                    Home's motion to compel production of the attorney-prepared
                    memoranda. 8

                                                  CONCLUSION
                                 We conclude that reviewing a document for the purpose of
                    refreshing one's memory prior to or during testimony serves as a waiver to
                    the attorney-client privilege and the work-product doctrine under NRS
                    50.125, allowing the adverse party to demand production of the document,
                    inspect it, cross-examine the witness on the contents, and admit the
                    document into evidence for the purpose of impeachment. We also conclude
                    that NRS 50.125 applies to deposition testimony as well as to in-court
                    hearings. As a result, we conclude that the district court properly
                    compelled the production of the documents that Holman used to refresh




                    . . . continued

                    and the writing can be produced, inspected, and used for cross-
                    examination for the purpose of assessing Holman's credibility.

                          8 We have considered the parties' remaining arguments and conclude
                    they are without merit.


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                  his recollection prior to his deposition, and we therefore deny this petition
                  for a writ of prohibition or mandamus.




                                                       Gibbons

                  We concur:

                                tect4-            J.
                                     4;
                  Hardesty




                                                  J.
                  Douglas




                  Saitta




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