                                                 130 Nev., Advance Opinion 13
                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                LAS VEGAS SANDS CORP., A NEVADA                     No. 62489
                CORPORATION; AND SANDS CHINA
                LTD., A CAYMAN ISLANDS
                CORPORATION,
                Petitioners,
                                                                        FILED
                vs.                                                         FEB 27 2014
                THE EIGHTH JUDICIAL DISTRICT                            T      E K. LINUMAN
                COURT OF THE STATE OF NEVADA,                                 PS
                                                                   BY
                IN AND FOR THE COUNTY OF                                     •EPU4

                CLARK; AND THE HONORABLE
                ELIZABETH GOFF GONZALEZ,
                DISTRICT JUDGE,
                Respondents,
                   and
                STEVEN C. JACOBS,
                Real Party in Interest.



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

                Morris Law Group and Steve L. Morris and Rosa Solis-Rainey, Las Vegas;
                Kemp, Jones & Coulthard, LLP, and J. Randall Jones and Mark M. Jones,
                Las Vegas; Holland & Hart LLP and J. Stephen Peek and Robert J.
                Cassity, Las Vegas,
                for Petitioners.

                Pisanelli Bice, PLLC, and Todd L. Bice, James J. Pisanelli, and Debra L.
                Spinelli, Las Vegas,
                for Real Party in Interest.




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                BEFORE THE COURT EN BANC. ]


                                                OPINION

                By the Court, GIBBONS, C.J.:
                            In this opinion, we consider whether a witness's review of
                purportedly privileged documents prior to testifying constitutes a waiver
                of any privilege under NRS 50.125, such that the adverse party may
                demand production, be allowed to inspect the documents, cross-examine
                the witness on the contents, and admit the evidence for purposes of
                impeachment. We conclude that it does. However, under the specific facts
                of this case, where the adverse party failed to demand production,
                inspection, cross-examination, and admission of the documents at or near
                the hearing in question and instead waited until well after the district
                court had entered its order, the demand was untimely under NRS
                50.125(1). Accordingly, we grant petitioners' request for a writ of
                prohibition to halt the production of the purportedly privileged documents.
                                 FACTS AND PROCEDURAL HISTORY
                            Real party in interest Steven Jacobs filed an action against
                petitioners Las Vegas Sands Corp. and Sands China Ltd. and nonparty
                Sheldon Adelson, the chief executive officer of Las Vegas Sands
                (collectively, Sands), arising out of Jacobs's termination as president and
                chief executive officer of Sands's Macau operations. Jacobs alleged that
                Sands breached his employment contract by refusing to award him
                promised stock options, among other things. When the district court


                       'The Honorable Kristina Pickering and the Honorable Ron
                Parraguirre, Justices, voluntarily recused themselves from participation
                in the decision of this matter.

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                 denied Sands China's motion to dismiss for lack of personal jurisdiction,
                 Sands filed a petition for a writ of mandamus with this court, challenging
                 the district court's finding of personal jurisdiction. We granted the
                 petition for a writ of mandamus due to defects in the district court's order
                 and directed the district court to revisit the issue of personal jurisdiction,
                 hold an evidentiary hearing, and issue its findings on personal
                 jurisdiction. See Sands China Ltd. v. Eighth Judicial Dist. Court, Docket
                 No. 58294 (Order Granting Petition for Writ of Mandamus, August 26,
                 2011).
                              As a result of Sands's conduct in the ensuing jurisdictional
                 discovery process, the district court sua sponte ordered an evidentiary
                 hearing to consider sanctions. At the hearing, the district court considered
                 (1) whether Sands violated EDCR 7.60(b) by causing the district court and
                 Jacobs to waste time and resources on the applicability of Macau's
                 Personal Data Protection Act (MPDPA), and (2) whether Sands breached
                 its duty of candor to the court. 2
                              During the three-day sanctions hearing, Jacobs cross-
                 examined former Las Vegas Sands attorney Justin Jones on the theory
                 that Jones and another attorney had printed copies of e-mails from Jacobs


                         The MPDPA prohibits the transfer of personal data out of Macau,
                          2
                 but testimony revealed that Sands had transported "ghost images" of
                 important hard drives from Macau into the United States and that other
                 data links were available between Macau and Las Vegas. Despite the fact
                 that the information was already in the United States, Sands delayed
                 discovery by asserting that it was having trouble obtaining authorization
                 from Macau to transfer the data out of the country; it was forced to fly to
                 Macau to• view the data; and as a result, it could not comply with its
                 disclosure obligations. When the district court found out that the
                 information had been in the United States all along, it ordered a sanctions
                 hearing.

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                 but did not retain the copies so that they could later claim they technically
                 did not possess the documents, as the documents would have been in the
                 United States in violation of Macau law. Jacobs noted that Jones's
                 testimony had been fairly precise, and asked if Jones had reviewed his
                 billing records before arriving at court that day. Following a work product
                 objection, Jones responded affirmatively, explaining that he had done so to
                 refresh his recollection as to certain dates, and that reviewing those
                 records had in fact refreshed his recollection as to relevant dates. After
                 another work product objection, Jones revealed that he had also reviewed
                 e-mails that refreshed his memory as to the timing of events.
                             Jacobs argued at the hearing that Nevada law requires a
                 party to disclose any documents used to refresh a witness's recollection,
                 and thus, the billing records and e-mails Jones used were openly
                 discoverable. When Sands objected to the identification and examination
                 of the e-mails based on the work product doctrine and the attorney-client
                 privilege, the district court suggested that Jacobs file a motion requesting
                 that the documents be produced. The district court indicated that it would
                 hold argument and rule on the discovery issue at a later date. Two days
                 later, and without deciding the discovery issue, the district court filed its
                 order imposing sanctions on Sands.
                             Jacobs filed his motion to compel production of the documents
                 Jones used to refresh his recollection two months later. In this motion,
                 Jacobs alleged that Jones had waived the work product doctrine and the
                 attorney-client privilege when he refreshed his recollection with the
                 purportedly privileged documents. Sands opposed the motion, arguing
                 that NRS 50.125(1), which generally requires disclosure of a writing used
                 to refresh a witness's memory, does not require automatic disclosure of
                 privileged documents, and that the district court must employ a balancing
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                test to determine whether disclosure is in the interests of justice.
                Alternatively, Sands argued that the rights of production, inspection,
                cross-examination, and admission provided for in NRS 50.125(1) must be
                exercised at the hearing at which the witness testifies based on the
                documents. The district court heard arguments in chambers and entered
                an order compelling Sands to produce the documents. At Sands's request,
                the district court stayed enforcement of its order pending the resolution of
                these writ proceedings.
                                                DISCUSSION
                            When the district court acts without or in excess of its
                jurisdiction, a writ of prohibition may issue to curb the extrajurisdictional
                act. Club Vista Fin, Servs., L.L.C. v. Eighth Judicial Dist. Court, 128 Nev.
                   „ 276 P.3d 246, 249 (2012). Thus, even though discovery matters
                typically are addressed to the district court's sound discretion and
                unreviewable by writ petition, this court has intervened in discovery
                matters when (1) the trial court issues blanket discovery orders without
                regard to relevance, or (2) a discovery order requires disclosure of
                privileged information. Id. at & n.6, 276 P.3d at 249 & n.6 (explaining
                that discovery excesses are more appropriately remedied by writ of
                prohibition than mandamus); Valley Health Sys., L.L.C. v. Eighth Judicial
                Dist. Court, 127 Nev.        252 P.3d 676, 679 (2011); Schlatter v.
                Eighth Judicial Dist. Court, 93 Nev. 189, 193, 561 P.2d 1342, 1344 (1977).
                This case presents a situation where, if improperly disclosed, "the
                assertedly privileged 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). Thus, we choose to exercise
                our discretion to consider this writ petition because the district court order
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                   at issue compels disclosure of purportedly privileged information.        See
                   Valley Health, 127 Nev. at     , 252 P.3d at 679; see also Aspen Fin. Servs.,
                   Inc. v. Eighth Judicial Dist. Court, 128 Nev.       „ 289 P.3d 201, 204
                   (2012) ("[W]rit 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.").
                   Standard of review
                               Here, the parties dispute the district court's interpretation
                   and application of NRS 50.125. Statutory interpretation and application
                   is a question of law subject to our de novo review, even when arising in a
                   writ proceeding. Int'l 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 statute is susceptible to more than one reasonable interpretation,
                   it is ambiguous, and this court must resolve that ambiguity by looking to
                   legislative history and "construing the statute in a manner that conforms
                   to reason and public policy." Great Basin Water Network v. Taylor, 126
                   Nev.          234 P.3d 912, 918 (2010).
                   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
                               To resolve this appeal, we must determine whether the
                   Nevada Legislature intended all writings, including privileged documents,
                   to be produced for impeachment purposes when a witness uses the
                   document to refresh his or her recollection prior to testifying. NRS
                   50.125(1) provides for the production and introduction of writings used to
                   refresh a witness's memory:

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                              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.
                 The intersection of NRS 50.125 and Nevada privilege law is an issue of
                 first impression in Nevada. 3
                              Sands argues that 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 except where they are "relaxed by a statute or
                 procedural rule applicable to the specific situation." NRS 47.020(1)(a). To
                 that end, Sands argues that NRS 50.125 does not "relax" any privilege
                 because it does not specifically mandate the forfeiture of privileged

                       3 We  note that this court addressed the interaction between NRS
                 50.125 and privileged communications in Means v. State, 120 Nev. 1001,
                 103 P.3d 25 (2004). In Means, a former client demanded work product
                 from his former attorney, not the more common scenario where counsel
                 representing an adverse party demands disclosure. Id. at 1009-10, 103
                 P.3d at 30-31. Under the circumstances presented there, we concluded
                 that disclosure of the documents in question was warranted. Id. at 1010,
                 103 P.3d at 31. We take this opportunity to clarify that Means involved a
                 unique factual situation where a former client attempted to obtain his
                 former counsel's notes for the purposes of an ineffective assistance of
                 counsel claim. Our narrow holding was consistent with our reliance on
                 Spivey v. Zant, 683 F.2d 881 (5th Cir. 1982), a case holding that a former
                 client is entitled to all portions of his former attorney's file and that the
                 work product protection only applies when an adversary seeks materials.
                 Id. at 885. Therefore, we conclude that Means is inapplicable to the case
                 at hand.

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                 documents when a witness uses those documents to refresh his or her
                 memory before testifying. Alternatively, Sands argues that NRS 50.125
                 only provides that an adverse party is entitled to a document at the
                 hearing, and therefore, it cannot be used as a tool for obtaining discovery
                 after the relevant hearing has concluded. Jacobs responds that NRS
                 50.125 makes no exception for privileged documents and therefore applies
                 to both privileged and nonprivileged documents. Additionally, Jacobs
                 argues that NRS 50.125 lacks the discretionary prong that its federal
                 counterpart, Federal Rule of Evidence (FRE) 612, contains. 4 Thus, Jacobs
                 asserts that any document used to refresh a witness's recollection before
                 or during testimony must be disclosed.
                              Looking at the language of NRS 50.125, we conclude that the
                 language "a writing" is ambiguous because the phrase could be interpreted
                 to mean any writing, privileged or unprivileged. "[Al writing" could also
                 be interpreted under NRS 47.020 to exempt privileged documents because
                 under NRS 47.020, a privilege applies "at all stages of all proceedings"
                 except where it is "relaxed by statute or procedural rule applicable to the
                 specific situation." NRS 47.020(1). Therefore, we consider the statute's
                 legislative history.



                        4 Similar to NRS 50.125, FRE 612(b) provides that when a witness
                 uses a writing to refresh his or her 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." But FRE 612(a) differentiates between
                 instances when a witness uses a writing to refresh memory while
                 testifying as opposed to before testifying. In situations when a witness
                 uses a writing to refresh his or her memory prior to testifying, it is within
                 the district court's discretion to decide whether justice requires the writing
                 to be produced. FRE 612(a)(2).

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                        NRS 50.125 differs significantly from FRE 612
                              The Nevada Legislature has not amended NRS 50.125 since
                  its passage in 1971. At that time, the language of the statute was chosen
                  based on a draft version of FRE 612. Hearing on S.B. 12 Before the
                  Senate Judiciary Comm., 56th Leg. (Nev., February 10, 1971). During the
                  United States Congress's consideration of the draft rules, however, it
                  amended FRE 612(a) to make production of writings used by a witness to
                  refresh recollection before testifying subject to the discretion of the court
                  "in the interests of justice, as is the case under existing federal law." H.R.
                  Rep. No. 93-650, at 13 (1974), reprinted in 1974 U.S.C.C.A.N. 7075, 7086.
                  Congress implemented this change because it did not want to require
                  wholesale production of documents used before testifying, as doing so
                  "could result in fishing expeditions." Id. NRS 50.125 does not contain this
                  discretionary prong.
                              The legislative history of NRS 50.125 does not shed light on
                  whether the Nevada Legislature intended to require automatic disclosure
                  despite a document's privileged status. But the legislators who worked on
                  Nevada's evidence code noted that they wanted the code to promote "the
                  search for truth," that "as much evidence as can come out, should come
                  out," and therefore, they attempted to limit exceptions. Hearing on S.B.
                  12 Before the Senate Judiciary Comm, 56th Leg. (Nev., February 10,
                  1971).
                              Sands argues that the difference in the text between FRE 612
                  and NRS 50.125 is slight and does not affect the outcome of the case and
                  that Nevada courts should have discretion on a case-by-case basis to
                  balance the adverse party's need for the writing against the important
                  public interests in protecting privileged documents. Jacobs responds that
                  unlike FRE 612, NRS 50.125 draws no distinction between documents
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                used prior to and while testifying, and contains no provision for the
                exercise of discretion. Further, Jacobs argues that even under federal
                cases that apply the discretionary prong, the weight of authority mandates
                disclosure of the privileged documents.
                             We conclude that the differences between NRS 50.125 and
                FRE 612 are significant. Whereas 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. Without such language in NRS 50.125,
                Nevada district courts lack discretion to halt the disclosure of privileged
                documents when a witness uses the privileged documents to refresh his or
                her recollection prior to testifying. In the 40 years since the passage of
                FRE 612, the Nevada Legislature has had the option to bring NRS 50.125
                in line with the federal rule by adding a discretionary prong, but has not.
                Thus, we conclude that NRS 50.125 mandates that documents relied on
                before and during testimony to refresh recollection be treated the same.
                We therefore decline to read a discretionary element into NRS 50.125
                where the Legislature has provided none.
                             Additionally, allowing privilege to prevail at this stage of a
                witness's testimony would place an unfair disadvantage on the adverse
                party. Sands's interpretation of NRS 50.125 would encourage witnesses to
                use privileged writings to refresh recollection in an attempt to shield the
                witness from any meaningful cross-examination on his or her testimony. 5



                      5 We have previously observed that "the attorney-client privilege was
                intended as a shield, not a sword." Wardleigh v. Second Judicial Dist.
                Court, 111 Nev. 345, 354, 891 P.2d 1180, 1186 (1995) (internal quotation
                marks omitted). It would be unfair to allow a witness to rely on a
                privileged document to refresh his or her recollection, and then disallow
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                    Such an interpretation of NRS 50.125 would inhibit the cross-examining
                    party from investigating discrepancies between the writing and the
                    witness's testimony, and as such, would serve to inhibit "the search for
                    truth."
                                The Nevada Legislature enacted NRS 50.125 to allow an
                    adverse party to inspect and use the document to test a witness's
                    credibility at the hearing. Thus, we conclude that where a witness
                    refreshes his or her recollection with privileged documents, the witness
                    takes the risk that an adversary will demand to inspect the documents.
                    Therefore, when invoked at a hearing, we conclude that NRS 50.125
                    requires disclosure of any document used to refresh the witness's
                    recollection before or while testifying, regardless of privilege.      See
                    Wardleigh, 111 Nev. at 354-55, 891 P.2d at 1186 (indicating that the
                    "attorney-client privilege is waived when a litigant places information
                    protected by it in issue through some affirmative act for his own benefit"
                    (internal quotations omitted)). However, as explained below, Jacobs did
                    not properly invoke NRS 50.125 at the sanctions hearing, rendering the
                    issue of Jones's credibility a moot point.
                                We note that Jones's reliance on the purportedly privileged
                    documents for the purposes of refreshing his recollection would have only


                    ...continued
                    the cross-examiner to know the extent to which that document influenced
                    or contradicts the witness's testimony. See James Julian, Inc. v. Raytheon
                    Co., 93 F.R.D. 138, 146 (D. Del. 1982) ("The instant request constitutes
                    neither a fishing expedition into plaintiffs files nor an invasion of
                    counsel's 'zone of privacy.' Plaintiffs counsel made a decision to educate
                    their witnesses by supplying them with the [privileged documents], and
                    the Raytheon defendants are entitled to know the content of that
                    education.").

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                required disclosure of the documents to opposing counsel upon appropriate
                request under NRS 50.125, and would not constitute any further waiver of
                the work product doctrine or the attorney-client privilege that would have
                made the documents discoverable at a later point.         See Marshall v. U.S.
                Postal Serv., 88 F.R.D. 348, 351 (D.D.C. 1980) ("[U]se of a document for
                recollection purposes requires only the disclosure of the document to
                opposing counsel, and [the] disclosure does not, in and of itself, constitute
                any further waiver of the attorney-client privilege.").
                The district court abused its discretion when it ordered the production of
                purportedly privileged documents because the request was untimely and
                Jones's credibility was no longer at issue
                            Sands argues that NRS 50.125 was designed to ensure that an
                adverse party has a full and fair opportunity to test the witness's
                credibility when the witness's testimony is based on recollection that was
                refreshed by examining particular writings. Sands points out that when
                the district court entered its order compelling production of the documents
                in question, there was no longer any need or opportunity to test Jones's
                credibility because the hearing was already over and the district court had
                issued its sanctions order. Jacobs argues that the fact that the district
                court made its decision post-hearing does not impair Sands's production
                requirements.
                            NRS 50.125(1) plainly states that the adverse party is entitled
                to have a document used to refresh the witness's recollection produced at
                the hearing, to allow inspection and cross-examination based on the
                document, and to permit the adverse party to introduce the document into
                evidence "for the purpose of affecting the witness's credibility." As the
                United States Court of Appeals for the Third Circuit has noted, "[FRE] 612
                is a rule of evidence, and not a rule of discovery. Its sole purpose is
                evidentiary in function 'to promote the search of credibility and memory."
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                 Sporck v. Peil, 759 F.2d 312, 317 (3d Cir. 1985) (quoting FRE 612 advisory
                 committee note); see also Derderian v. Polaroid Corp., 121 F.R.D. 13, 17
                 (D. Mass. 1988) (indicating that FRE 612 "is a rule of evidence, not a rule
                 of discovery"); A,guinaga v. John Morrell & Co., 112 F.R.D. 671, 683 (D.
                 Kan. 1986) (same). 6 Although Jacobs argues that Sands's misconduct is
                 ongoing, we are convinced that permitting such an untimely motion would
                 encourage the types of "fishing expeditions" that both the Nevada
                 Legislature and Congress sought to avoid with NRS 50.125 and FRE 612.
                 The sole purpose of MRS 50.125 is to test the witness's credibility at the
                 hearing, and the statute clearly states that the production must occur at
                 the hearing.
                                Here, the district court order compelling production of the
                 purportedly privileged documents effectively turns MRS 50.125 into a
                 discovery tool that has no relation to testing any witness's credibility. The
                 district court read MRS 50.125 too broadly when it ordered the production
                 of the billing entries and e-mails two months after Jones left the stand and
                 after it issued its sanctions order. This is evident in the district court
                 order's language, which states that "[phirsuant to NRS 50.125, once a
                 document is used by a witness to refresh his recollection, then that
                 document is subject to discovery." This reading of NRS 50.125 ignores the
                 "at the hearing" language and turns the statute into a general rule of
                 discovery, not a rule of evidence. See Derderian, 121 F.R.D. at 17. As a
                 result, we conclude that the district court abused its discretion by



                       6 We  note that despite the differences between FRE 612 and NRS
                 50.125, the two provisions serve the same fundamental purpose. Thus, we
                 find this authority persuasive inasmuch as it relates to the proper purpose
                 of MRS 50.125.

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                 mandating the production of the purportedly privileged documents after it
                 had issued its sanctions order.     See Skender v. Brunsonbuilt Constr. &
                 Dev. Co., 122 Nev. 1430, 1435, 148 P.3d 710, 714 (2006) (explaining that a
                 district court abuses its discretion if its decision "exceeds the bounds of
                 law or reason").
                             Under these facts, when the district court indicated that it
                 wanted briefing and would defer ruling on the issue, Jacobs should have
                 noted that NRS 50.125 required the district court to rule on his request at
                 the hearing. Alternatively, Jacobs should have submitted his motion
                 immediately following the hearing to ensure that Jones could be put back
                 on the stand and cross-examined regarding the contents of the purportedly
                 privileged documents before the district court issued its ruling.
                             However, because the district court already issued its ruling
                 on the sanctions issue, the issue of Jacobs's credibility became a moot
                 point and there was no evidentiary reason to produce the documents.
                 Thus, this is precisely the scenario in which "writ relief. . . is necessary to
                 prevent discovery that would cause privileged information to irretrievably
                 lose its confidential nature and thereby render a later appeal ineffective."
                 Aspen Fin. Servs., Inc., 128 Nev. at , 289 P.3d at 204.
                                                CONCLUSION
                             We conclude that upon a timely request, NRS 50.125
                 mandates production of documents used by a witness to refresh his or her
                 recollection prior to testifying, regardless of privilege. However,
                 considering these facts, Jacobs's request for production of the documents
                 was not timely because the district court had already issued its ruling on
                 the underlying sanctions issue. We therefore grant Sands's petition and
                 direct the clerk of this court to issue a writ of prohibition ordering the


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                  district court to halt the production of the purportedly privileged
                  documents. 7




                                                        Gibbons




                  We concur:


                                  %,egalLA .   ,   J.
                  Hardesty


                   Dr_3-69 14a
                  Douglas




                  Cheri


                                                   J.
                  Saitta




                           7 In
                          light of this disposition, we need not address the parties' other
                  arguments, and Sands's alternative request for a writ of mandamus is
                  denied.

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