                  protected by the work-product doctrine or attorney-client privilege. Mega
                  petitioned this court to issue a writ of mandamus directing that the
                  district court recognize the report as privileged.
                  Standard of Review
                               A writ of prohibition is the appropriate writ to challenge a
                  discovery order compelling production of allegedly privileged documents.
                  Wardleigh v. Second Judicial Dist. Court, 111 Nev. 345, 350, 891 P.2d
                  1180, 1183 (1995). Although Mega has filed a petition for a writ of
                  mandamus, a party's action is not absolutely bound by the title of its
                  filing. See NC-DSH, Inc. v. Garner, 125 Nev. 647, 652, 218 P.3d 853, 857
                  (2009) (quoting 11 Charles Alan Wright, Arthur R. Miller & Mary Kay
                  Kane, Federal Practice and Procedure §2868 (2d ed. 1995) ("A party is not
                  bound by the label he puts on his papers.")). And the writ of prohibition is
                  the natural counterpart to the writ of mandamus. State v. Eighth Judicial
                  Dist. Court, 118 Nev. 140, 146, 42 P.3d 233, 237 (2002). Hence, we will
                  treat Mega's petition as one for a writ of prohibition.
                               Discovery rulings are reviewed for an abuse of discretion.
                  Club Vista Fin. Servs., LLC v. Eighth Judicial Din. Court, 128 Nev.            ,
                       276 P.3d 246, 249 (2012). "A manifest abuse of discretion is la]
                  clearly erroneous interpretation of the law or a clearly erroneous
                  application of a law or rule."    State v. Eighth Judicial Dist. Court, 127
                  Nev. „ 267 P.3d 777, 780 (2011) (alteration in original) (quoting
                  Steward v. McDonald, 958 S.W.2d 297, 300 (Ark. 1997)). We will not
                  disturb the factual determinations of the district court if supported by
                  substantial evidence. Hall v. SSF, Inc., 112 Nev. 1384, 1389, 930 P.2d 94,
                  97 (1996).



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                 Work-product doctrine
                             The district court held that the report was not privileged
                 under the work-product doctrine. NRCP 26(b)(3) provides that a party's
                 documents prepared in anticipation of litigation are only discoverable
                 where the other party shows a substantial need:
                             [A] party may obtain discovery of documents and
                             tangible things otherwise discoverable under
                             subdivision (b)(1) of this rule and prepared in
                             anticipation of litigation or for trial by or for
                             another party or by or for that other party's
                             representative (including the other party's
                             attorney, consultant, surety, indemnitor, insurer,
                             or agent) only upon a showing that the party
                             seeking discovery has substantial need of the
                             materials in the preparation of the party's case
                             and that the party is unable without undue
                             hardship to obtain the substantial equivalent of
                             the materials by other means.
                             In Ballard v. Eighth Judicial District Court, 106 Nev. 83, 85,
                 787 P.2d 406, 407 (1990), we held that "materials resulting from an
                 insurance company's investigation are not made 'in anticipation of
                 litigation' unless the insurer's investigation has been performed at the
                 request of an attorney." This holding, however, is constrained to the
                 specific facts of Ballard.    NRCP 26(b)(3) also protects materials• not
                 created at the request of attorneys.      See NRCP 26(b)(3) (stating that
                 protected documents include those prepared "by . . . [the] other party's
                 attorney, consultant, surety, indemnitor, insurer, or agent"); see also Goff
                 v. Harrah's Operating Co., Inc., 240 F.R.D. 659, 660-61 (D. Nev. 2007)
                 (applying a parallel federal rule). Whether an attorney is involved or
                 directs an investigation is not dispositive for deciding whether the fruit of
                 that investigation is work product. See Wardleigh v. Second Judicial Dist.
                 Court, 111 Nev. 345, 357-58, 891 P.2d 1180, 1188 (1995).
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                                 Our recent precedent focuses instead on whether the materials
                     were created in anticipation of litigation or, conversely, in the ordinary
                     course of business "regardless of counsel's presence or involvement."   See
                     Columbia/ HCA Healthcare Corp. v. Eighth Judicial Dist. Court, 113 Nev.
                     521, 527-28, 936 P.2d 844, 848 (1997). As we noted in Columbia / HCA
                     Healthcare, this litigation-business distinction aligns with the rule
                     described in Professors Wright and Miller's         Federal Practice and
                     Procedure. See id. at 528 n.5, 936 P.2d at 848 n.5. The Second Circuit has
                     elaborated on the Wright-and-Miller rule, stating that:
                                 [A] document. . . does not lose protection under
                                 this formulation merely because it is created in
                                 order to assist with a business decision.
                                 Conversely. . . [this rule] withholds protection
                                 from documents that are prepared in the ordinary
                                 course of business or that would have been created
                                 in essentially similar form irrespective of the
                                 litigation.
                     United States v. Adlman,     134 F.3d 1194, 1202 (2d Cir. 1998). The
                     anticipation of litigation must be the sine qua non for the creation of the
                     document—"but for the prospect of that litigation," the document would
                     not exist. In re Grand Jury Subpoena, 357 F.3d 900, 908 (9th Cir. 2004)
                     (quoting Adlman, 134 F.3d at 1195).
                                 Here, the district court found that the report was not created
                     in anticipation of litigation and that any legal discussion that may have
                     occurred did not inspire creation of the report. As the parties' briefs
                     showed, the same affidavits in this case suggest different conclusions on
                     this factual point. Frank Sommerville's affidavit stated that Jared
                     Peterson, a representative from another company involved in the
                     distribution and maintenance of the machine, informed Sommerville that
                     "someone will be sued." Peterson's affidavit, however, disputes that he
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                said any such thing. The district court, as fact-finder, weighed the
                competing claims and decided that the report was not protected work
                product. Thus, because the evidence points in both directions, we hold
                that the district court did not abuse its discretion by ordering production
                of the report.
                Attorney-client privilege
                             Mega argues that the report is privileged under the attorney-
                client privilege because it was prepared by a representative of Mega and
                confidentially sent to Metz, Mega's outside corporate counsel.
                             NRS 49.095 provides that communications between an
                attorney and a client are privileged:
                                   A client has a privilege to refuse to disclose,
                             and to prevent any other person from disclosing,
                             confidential communications:
                                   1. Between the client or the client's
                             representative and the client's lawyer or the
                             representative of the client's lawyer.
                                  2. Between the client's lawyer and the
                             lawyer's representative.
                                   3. Made for the purpose of facilitating the
                             rendition of professional legal services to the
                             client, by the client or the client's lawyer to a
                             lawyer representing another in a matter of
                             common interest.
                NRS 49.095. In Wardleigh, 111 Nev. at 352, 891 P.2d at 1185, this court
                ‘`approve[d of] the test announced in" Upjohn Co. v. United States, 449
                U.S. 383 (1981), in deciding an issue of corporate attorney-client privilege.
                In Upjohn, the Supreme Court noted that "Mlle communications at issue
                were made by Upjohn employees to counsel for Upjohn acting as such, at
                the direction of corporate superiors in order to secure legal advice from
                counsel." 449 U.S. at 394 (emphasis added) (footnote omitted). It held
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                these communications to be privileged under the attorney-client privilege.
                Id. at 395.
                              Here, there is basic disagreement over whether the
                communication at issue, the report, was made by a corporate employee of
                Mega. In his affidavit, Sommerville claims that he was an employee of
                Mega at the time of the investigation. However, the deposition of a safety
                manager for American Metal who was present at the investigation states
                that Sommerville introduced himself as an employee of MegaFab, a
                separate, sister corporation of Mega Likewise, Sommerville's business
                card from that time shows "MegaFab."
                              The Upjohn analysis largely turns on the issue of employment.
                See 449 U.S. at 394-95. The parties here dispute whether the report's
                authors are Mega employees. This is a factual dispute. We defer to the
                district court's view of the facts. Therefore, we hold that the district court
                did not abuse its discretion. We have also considered Mega's other
                arguments and conclude that they lack merit.
                              Accordingly, we
                              ORDER the petition DENIED.



                                                          /WA $1-44-C\               J.
                                                    Hardesty


                                                                                     J.
                                                    Douglas


                                                                                     J.



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                cc:   Hon. Jerry A. Wiese, District Judge
                      Hall Jaffe & Clayton, LLP
                      Henness & Haight
                      Kolesar & Leatham, Chtd.
                      Law Offices of Tracy Strickland
                      Kring & Chung/Las Vegas
                      Eighth District Court Clerk




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