                                                  130 Nevi.Advance Opinion
                                                         .                   61
                        IN THE SUPREME COURT OF THE STATE OF NEVADA


                 LAS VEGAS SANDS CORP., A NEVADA                   No. 63444
                 CORPORATION; AND SANDS CHINA
                 LTD., A CAYMAN ISLANDS
                 CORPORATION,
                                                                         FILED
                 Petitioners,                                            AUG 0 7 2014
                 vs.                                                      K. LINIZMAN
                 THE EIGHTH JUDICIAL DISTRICT                       CLETKLfl
                                                                       RIA
                                                                    BY
                 COURT OF THE STATE OF NEVADA,
                 IN AND FOR THE COUNTY OF
                 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 authorizing the use of purportedly
                 privileged documents.
                            Petition granted in part.

                 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, Debra L.
                 Spinelli, and Eric T. Aldrian, 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 former chief executive
                officer of a corporation, who is now suing his former employer, is within a
                "class of persons" entitled to access the corporation's privileged documents
                for use in the litigation. We conclude that a corporation's current
                management is the sole holder of its attorney-client privilege, and thus,
                Nevada law does not allow for a judicially created class of persons
                exception to attorney-client privilege. Accordingly, we grant petitioners'
                request for a writ of prohibition in part to prevent real party in interest
                from using the purportedly privileged documents in the underlying
                litigation.
                                   FACTS AND PROCEDURAL HISTORY
                              This matter arises out of real party in interest Steven C.
                Jacobs's termination as president and chief executive officer of Sands
                China Ltd. On or near the same day he was terminated, Jacobs gathered
                approximately 40 gigabytes of documents in the form of e-mails and other
                communications (the documents), which Jacobs continues to possess.
                              Approximately three months after his termination, Jacobs
                filed a complaint against petitioners Las Vegas Sands Corp. (LVSC) and
                Sands China Ltd., as well as nonparty to this writ petition, Sheldon
                Adelson, the chief executive officer of LVSC (collectively, Sands). In the
                complaint, Jacobs alleged that Sands breached his employment contract
                by refusing to award him promised stock options, among other things.

                       '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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                             Almost nine months after filing his complaint, Jacobs
                disclosed, as an update on the status of document production, that he
                possessed the documents at issue in this writ petition. Shortly thereafter,
                the parties met and conferred regarding the documents, and Sands
                asserted that the material may be subject to Sands's attorney-client
                privilege and demanded that Jacobs return the documents. Jacobs,
                however, refused to return the documents.
                LVSC files a motion for a protective order and for return of the documents
                             Approximately one month after Jacobs disclosed that he
                possessed the documents, LVSC filed a motion for a protective order and
                for return of the documents. 2 Among LVSC's several arguments was that,
                after he was terminated, Jacobs had no right to possess documents that
                were subject to LVSC's attorney-client privilege.
                             The district court expressed concern that it could not consider
                LVSC's motion in light of the stay that this court had imposed on the
                underlying litigation in connection with a previous writ petition that
                Sands China filed in this court. 3 LVSC communicated to the district court
                that if the district court believed that entertaining the motion would


                        Sands China did not join in the motion in order to avoid seeking
                affirmative relief from the district court and thereby• subject itself to the
                court's jurisdiction.

                      3 0n August 26, 2011, this court granted Sands China's petition for a
                writ of mandamus, which challenged the district court's order denying
                Sands China's motion to dismiss it from the underlying action for lack of
                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, this court directed the district court to stay
                the underlying action until the district court held an evidentiary hearing
                on whether Sands China is subject to personal jurisdiction in Nevada. The
                underlying action is still stayed because the parties have not yet concluded
                jurisdictional discovery in preparation for the ordered evidentiary hearing.
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                    violate the stay, then LVSC would withdraw the motion and instead file a
                    second action challenging Jacobs's possession and use of the documents.
                    LVSC files a second action in district court in an attempt to obtain a ruling
                    on Jacobs's possession of the purportedly privileged documents
                                  Subsequently, LVSC filed a complaint (the second action)
                    against Jacobs in the district court claiming theft/conversion of the
                    documents and seeking preliminary and permanent injunctive relief.
                    LVSC simultaneously filed a motion in the second action for a temporary
                    restraining order and preliminary injunction or, in the alternative, for a
                    protective order, again arguing that Jacobs took company documents
                    containing attorney-client privileged communications without the
                    authority to do so. The district court granted injunctive relief, prohibiting
                    Jacobs from disseminating the documents to third parties for 14 days, in
                    order, to allow. Sands to return to the original action and file an emergency
                    writ petition with this court requesting a "carve out" from the underlying
                    stay. 4 Neither party challenged this decision before this court.
                                  Six days after the hearing in the second action, LVSC filed an
                    emergency writ petition with this court requesting a limited lift of the stay
                    in order to pursue a protective order barring the use of the privileged
                    documents and requiring their return. This court denied LVSC's
                    emergency writ petition.
                                  At a subsequent hearing in the second action, the district
                    court made the determination that the subject matter was purely a
                    jurisdictional discovery dispute that could be resolved in this case.
                    Therefore, the district court dismissed the second action without




                          4 Thedistrict court labeled its order an "Interim Order," prohibiting
                    Jacobs from disseminating the documents to any third party for 14 days.
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                         prejudice, 5 indicating that Sands must pursue its discovery claims in this
                         case. Thereafter, LVSC stopped pursuing its complaint in the second
                         action, and that action has been statistically closed.
                                       The district court subsequently ordered the parties to
                         establish an electronically stored information (ESI) protocol in the instant
                         action that (1) directed Jacobs to turn over copies of the documents to an
                         independent ESI vendor, 5 (2) allowed Jacobs and Sands to review the
                         documents and assert any privilege, and (3) provided that the district
                         court would then conduct an in-camera review to resolve any privilege
                         disputes.
                         After providing the documents to a court-ordered ESI vendor pursuant to
                         an ESI protocol, Jacobs files a motion to return the documents
                                       After extensive motion practice, the district court entered a
                         formal ESI protocol in which it appointed an independent ESI vendor, and
                         ordered Jacobs to provide the ESI vendor a full mirror image of the
                         documents. Pursuant to the ESI protocol, Sands received the documents
                         from the independent ESI vendor, reviewed the documents for privileges,
                         and completed a privilege log. Shortly after receiving Sands's privilege
                         log, Jacobs filed a motion for the return of the documents from the
                         independent ESI vendor. Jacobs argued that Sands's privilege log was
                         deficient and asserted several improper privileges. Additionally, Jacobs
                         argued that the "collective corporate client" approach to the attorney-client



                               5 The district court did not enter a written order dismissing the
                         second action.

                               6An ESI vendor is a neutral third party who stores potentially
                         discoverable electronic information such that the parties can search,
                         collect, and produce relevant documents and withhold privileged
                         documents. See Jason Fliegel & Robert Entwisle, Electronic Discovery in
                         Large Organizations, 15 Rich. J.L. & Tech. 7, 2009, at 25-27.
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                  privilege applied, such that Sands could not "deprive Jacobs of access to
                  the proof, particularly when he was a participant in its creation."
                  Essentially, Jacobs argued that he was "the client" when he was directly
                  involved in running Sands China, and therefore had a right to access and
                  use any privileged documents that had been created while he was CEO of
                  Sands China.
                                 In opposition, Sands argued that pursuant to NRS 49.045 and
                  49.095, Sands was the sole holder of the attorney-client privilege, and it
                  had not waived that privilege.
                        The district court grants Jacobs's motion, ruling that Jacobs is
                        among the "class of persons" legally entitled to view and use
                        privileged documents that pertain to his tenure at Sands China
                                 The district court granted Jacobs's motion to return the
                  documents from the independent ESI vendor based on the legal conclusion
                  that Jacobs was within a class of persons legally allowed to view and use
                  the purportedly privileged documents. The district court order stated that
                  it did not need to address "whether any of the particular documents
                  identified by [Sands] are subject to some privilege ... , whether Jacobs has
                  the power to assert or waive any particular privileges that may belong to
                  [Sands] . . . or whether [Sands] waived the privilege." Rather, the district
                  court ruled:
                                 the question presently before this [c]ourt is
                                 whether Jacobs, as a former executive who is
                                 currently in possession, custody and control of the
                                 documents and was before his termination, is
                                 among the class of persons legally allowed to view
                                 those documents and use them in the prosecution
                                 of his claims and to rebut [Sands's] affirmative
                                 defenses and counterclaim, as these were
                                 documents that the former executive authored,
                                 received and/or possessed, both during and after
                                 his tenure.

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                 Based on this "class of persons" exception, the district court granted
                 Jacobs's motion to return the remaining documents from the independent
                 ESI vendor. Two days later, Sands filed this original petition for writ of
                 prohibition or mandamus, asking that this court direct the district court to
                 vacate its order permitting Jacobs to use the documents in the underlying
                 litigation. 7
                                                  DISCUSSION
                                 As a preliminary matter, Jacobs argues that writ relief is
                 unavailable because Sands failed to appeal the district court's ruling in
                 the second action. Jacobs argues that a district court's refusal to grant an
                 injunction is immediately appealable and that "writ relief is not available
                 to correct an untimely notice of appeal."       Pan v. Eighth Judicial Dist.
                 Court, 120 Nev. 222, 224-25, 88 P.3d 840, 841 (2004); see also Bradford v.
                 Eighth Judicial Dist. Court, 129 Nev. „ 308 P.3d 122, 123 (2013).
                                 While this is generally a correct statement, in this case, the
                 district court's interim order actually granted relief by prohibiting Jacobs
                 from disseminating the documents to third parties for 14 days. This
                 afforded Sands the time to use the ESI protocol in the underlying action to
                 review the documents and assert any applicable privileges. In addition,
                 the district court's ruling in the second action did not reach the merits of
                 the "class of persons" exception to the corporate attorney-client privilege
                 issue raised in this writ petition; it instead ruled that Sands needed to
                 pursue its privileges in this case. Thus, any appeal of the district court's
                 ruling in the second action would not preclude this current writ petition.
                 As a result, we are not persuaded by Jacobs's argument that Sands should
                 be estopped from filing this writ petition.


                        7 Thiscourt previously granted Sands's emergency motion to stay the
                 district court order under NRAP 8(c) pending resolution of this petition.
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                              Additionally, even if we were to construe the district court's
                order as adverse to Sands, the district court had not consolidated the
                motion for a temporary restraining order and preliminary injunction with
                the trial on the merits pursuant to NRCP 65(a)(2), and when it dismissed
                the second action, it did so without prejudice. 9 Under these
                circumstances, LVSC could still obtain the permanent injunction
                requested in its complaint in the second action. NRCP 65; cf. Cal. State
                Univ., Hayward v. NCAA,        121 Cal, Rptr. 85, 92 (Ct. App. 1975); Art
                Movers, Inc. v. Ni W., Inc., 4 Cal. Rptr. 2d 689, 696 (Ct. App. 1992). In our
                view, Sands made a strategic decision to assert its privileges in this case—
                a decision that coincided with the directions of the district court. 9
                Therefore, we conclude that Sands's writ petition is proper in this
                instance.
                We exercise our discretion to consider Sands's petition for a writ of
                prohibition
                              "A writ of prohibition may issue to arrest the proceedings of a
                district court exercising its judicial functions when such proceedings are in


                      9 Thedistrict court stated that it was dismissing the complaint "for
                [Sands] to pursue it as a discovery dispute related to the jurisdictional
                evidentiary hearing issue" in the instant case.

                      9Although   Jacobs argues that Sands's failure to timely object to his
                possession of the documents should constitute a waiver of any privilege
                that Sands may be able to assert, the district court did not rule on this
                issue and made no findings of fact to this effect. The record before this
                court is unclear regarding the steps taken by Sands to preserve any
                privileges. We therefore decline to consider Jacobs's waiver-related
                arguments in opposition to this writ petition. See Ryan's Express Transp.
                Servs., Inc. v. Amador Stage Lines, Inc., 128 Nev. „ 279 P.3d 166,
                172 (2012) ("An appellate court is not particularly well-suited to make
                factual determinations in the first instance."). To the extent necessary to
                address Jacobs's waiver-related arguments, we direct the district court to
                make findings of fact and resolve whether Sands waived any privileges.
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                excess of the jurisdiction of the district court."   Club Vista Fin, Servs.,
                L.L.C. v. Eighth Judicial Dist. Court, 128 Nev. , & n.6, 276 P.3d
                246, 249 & n.6 (2012) (explaining that discovery excesses are more
                appropriately remedied by a writ of prohibition than mandamus).
                Although this court will generally decline to review issues involving
                discovery disputes, this court has elected to intervene in discovery matters
                when (1) the trial court issues a blanket discovery order without regard to
                relevance, or (2) a discovery order requires disclosure of privileged
                information. Valley Health Sys., L.L.C. v. Eighth Judicial Dist. Court, 127
                Nev. „ 252 P.3d 676, 679 (2011).
                            Although Jacobs already possesses the purportedly privileged
                documents, this case nevertheless presents a situation where, if Jacobs
                were improperly permitted to use the documents in litigation, "the
                assertedly privileged information would irretrievably lose its confidential
                and privileged quality and petitioners would have no effective remedy,
                even by a 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 at issue permits adverse use 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) ("Writ 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."). Accordingly, we now turn to the merits of Sands's petition.
                      Standard of review
                            Generally, discovery issues "are within the district court's
                sound discretion, and [this court] will not disturb a district court's ruling
                regarding discovery unless the court has clearly abused its discretion."
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                    Club Vista, 128 Nev. at      , 276 P.3d at 249. But here, the parties dispute
                    the proper scope of the attorney-client privilege, which, in Nevada, is
                    governed primarily by statute.          See NRS 49.035-.115. Statutory
                    interpretation 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); see also
                    United States v. Richey, 632 F.3d 559, 563 (9th Cir. 2011) ("We review de
                    novo the district court's rulings on the scope of the attorney-client
                    privilege."). Therefore, our analysis surrounding the proper scope of the
                    attorney-client privilege is subject to de novo review.
                    The district court erred when it ruled that Jacobs may use Sands's
                    assertedly privileged documents in litigation on the grounds that Jacobs
                    was within a class of persons entitled to review Sands's privileged
                    information
                          Nevada privilege law grants the attorney-client privilege to the client
                          corporation's current management
                                "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. 187, 196, 234 P.3d
                    912, 918 (2010).
                                Here, Sands argues that the plain language of NRS 49.095
                    unambiguously guarantees a client the right "to prevent any other person
                    from disclosing" privileged communications. Thus, Sands argues that
                    given the broad language used in the statute, Nevada law does not allow
                    for a "class of persons," other than the client itself, to use or disclose
                    privileged documents over a client's assertion of privilege. While we agree
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                 that NRS 49.095 unambiguously guarantees a client the right "to prevent
                 any other person from disclosing" privileged communications, we note that
                 this right belongs to the client—a term defined by NRS 49.045.
                               NRS 49.045 defines "client" as "a person, including a public
                 officer, corporation, association or other organization or entity, either
                 public or private, who is rendered professional legal services by a lawyer,
                 or who consults a lawyer with a view to obtaining professional legal
                 services from the lawyer." (Emphasis added.) In a corporate context, a
                 client corporation is not a living entity that can make decisions
                 independently—people have to make decisions on its behalf. Thus, the
                 issue we are faced with is the appropriate scope of persons who have the
                 authority to assert a corporation's privilege and whether an exception
                 should exist when a corporation's current management attempts to assert
                 the attorney-client privilege against a former officer or director. Other
                 courts have addressed this issue, with varying results.
                       We decline to adopt an exception to the attorney-client privilege based
                       on a litigant's status as a former officer or director of a corporation
                               Sands argues that the district court erred because the
                 attorney-client privilege belongs exclusively to the client corporation's
                 current management, and thus Jacobs's status as former CEO alone does
                 not entitle him to access and use Sands's privileged communications in
                 litigation.   See Commodity Futures Trading Comm'n v. Weintraub,          471
                 U.S. 343, 348-49 (1985); Montgomery v. eTreppid Techs., L.L.C.,       548 F.
                 Supp. 2d 1175, 1187 (D. Nev. 2008). Sands contends that the district
                 court's order is inconsistent with the purpose of attorney-client privilege
                 because allowing former employees to use the company's privileged
                 documents against it in litigation would chill officers' and directors'
                 willingness to communicate candidly with counsel.         See Upjohn Co. v.
                 United States, 449 U.S. 383, 389 (1981); Dexia Credit Local v. Rogan, 231
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                 F.R.D. 268, 277 (N.D. Ill. 2004) ("To rule otherwise would defeat that
                 expectation, and could chill the willingness of control group members to
                 speak candidly on paper (or, these days, in electronic media) about
                 privileged matters, knowing that some day one of their number may leave
                 the control group and become adverse (whether through litigation or
                 business activity) to the corporation.").
                              The "collective corporate client" or "joint client" exception to
                              corporate attorney-client privilege
                              The collective corporate client exception to corporate attorney-
                 client privilege is based on the idea that there is one collective corporate
                 client that includes the corporation itself as well as each individual
                 member of the board of directors, rather than just the corporation alone.
                 See Lane v. Sharp Packaging Sys., Inc., 640 N.W.2d 788, 815-16 (Wis.
                 2002) (Abrahamson, C.J., dissenting); Montgomery, 548 F. Supp. 2d at
                 1183, 1185. The theory is that "directors are collectively responsible for
                 the management of a corporation and a corporation is an inanimate entity
                 that cannot act without humans"; therefore "it is consistent with a
                 director's role and duties that the director be treated as a 'joint client."
                 Montgomery, 548 F. Supp. 2d at 1183. Thus, similar to the way in which
                 parties with a common interest who retain a single attorney may not
                 assert the attorney-client privilege against each other if they later become
                 adverse, Livingston v. Wagner, 23 Nev. 53, 58, 42 P. 290, 292 (1895), the
                 collective corporate client approach creates an exception to a corporation's
                 attorney-client privilege by precluding a corporation from asserting its
                 attorney-client privilege against a former director or officer.   See Gottlieb
                 v. Wiles, 143 F.R.D. 241, 247 (D. Colo. 1992).
                              Jacobs argues that the district court's decision is amply
                 supported by caselaw adopting the collective corporate client exception to
                 corporate attorney-client privilege. Jacobs primarily relies on People v.
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                 Greenberg, 851 N.Y.S. 2d 196, 200-02 (App. Div. 2008). In Greenberg, the
                 New York Attorney General's office filed a complaint against MG and its
                 former CEO and CFO for their involvement in alleged sham insurance
                 transactions. The former CEO and CFO served document requests on AIG
                 seeking documents created during their tenure as officers and directors of
                 AIG for use in their defense. Id. at 197-98. In evaluating the issue, the
                 court separated attorney-client communications into "two categories:
                 general business matters and the four transactions at the heart of this
                 action." Id. at 200. The court found that while the corporation's current
                 board of directors controlled the attorney-client privilege regarding
                 "general business matters," a former director may inspect records that are
                 "necessary to protect their personal responsibility interests."    Id. at 201.
                 Thus, the court found that former executives were "within the circle of
                 persons entitled to view privileged materials without causing a waiver of
                 the attorney-client privilege" because they were "privy to, and on many
                 occasions actively participated in, legal consultations regarding the four
                 subject transactions .        Id. at 201-02; see also Kirby v. Kirby, 1987 WL


                       "While the district court did not directly cite to Greenberg in its
                 order, it appears that its order is primarily based on the analysis in
                 Greenberg. In Greenberg, the court held that former corporate officers had
                 a "qualified right" to access privileged corporate documents because those
                 documents were needed by the officers to defend• themselves against
                 allegations of malfeasance. Id. at 201-02 (emphasis omitted). Here, the
                 only issue upon which discovery is being conducted is whether Sands
                 China is subject to personal jurisdiction. In light of this fact, it is unclear
                 how the Greenberg court's analysis led to the district court's conclusion
                 that Jacobs is entitled to use any documents that he "authored, received
                 and/or possessed, both during and after his tenure," in establishing
                 personal jurisdiction over Sands China. To the extent that Sands may
                 have placed any documents "at-issue," this court's analysis of at-issue
                 waiver in Wardleigh v. Second Judicial District Court, 111 Nev. 345, 891
                 P.2d 1180 (1995), provides the appropriate framework for resolving those
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                14862, at *7 (Del. Ch. July 29, 1987) (holding that the directors of a closely
                held corporation, collectively, were the client and that joint clients may not
                assert the attorney-client privilege against one another);" Gottlieb, 143
                F.R.D. at 247 (concluding that because the plaintiff was a chairman of the
                board and CEO when the documents were created, he was "squarely
                within the class of persons who could receive communications" from the
                corporation's counsel "without adversely impacting the privileged or
                confidential nature of such material").
                            "The entity is the client" approach
                            Sands primarily cites two cases for its proposition that the
                corporation's current management is the sole holder of the attorney-client
                privilege: Weintraub, 471 U.S. 343, and Montgomery, 548 F. Supp. 2d
                1175. In Weintraub, the Supreme Court considered whether managers of
                a bankrupt corporation could assert the attorney-client privilege on behalf
                of the corporation or if, instead, the right to assert and waive the privilege
                passed to the bankruptcy trustee. 471 U.S. at 349. The Court framed the
                issue before it as "which corporate actors are empowered to waive the
                corporation's privilege." 12 Id. at 348. The Court explained that for solvent


                ...continued
                address such a fact-intensive issue that would hinge on the content of
                individual• documents, and whether Sands placed such a document at
                issue. See Ryan's Express Transp. Servs., Inc. v. Amador Stage Lines, Inc.,
                128 Nev. , 279 P.3d 166, 172 (2012).

                      "While this is an unpublished disposition, many courts across the
                country have cited to this case. See, e.g., Milroy v. Hanson, 875 F. Supp.
                646, 648 (D. Neb. 1995).

                       12 Weintraub specifically addressed which party has the power to
                control attorney-client privilege during the pendency of a bankruptcy. 471
                U.S. at 349. However, its analysis of corporate attorney-client privilege
                has been cited outside the context of bankruptcy. See Montgomery, 548 F.
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                Supp. 2d at 1183; Milroy, 875 F. Supp. at 649-50 (citing Weintraub for the
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                   corporations, the power to waive attorney-client privilege rests with the
                   corporation's officers and directors. 13 Id. "The managers, of course, must
                   exercise the privilege in a manner consistent with their fiduciary duty to
                   act in the best interests of the corporation and not of themselves as
                   individuals." Id. at 348-49. The Court reasoned that "when control of a
                   corporation passes to new management, the authority to assert and waive
                   the corporation's attorney-client privilege passes as well."         Id. at 349.
                   Thus, the Court concluded that "[d]isplaced managers may not assert the
                   privilege over the wishes of current managers, even as to statements that
                   the [displaced managers] might have made to counsel concerning matters
                   within the scope of their corporate duties."      Id.    As a result, a former
                   officer and director "who is now neither an officer nor a director. . . retains
                   no control over the corporation's privilege." Id. at 349 n.5.
                                  Similarly, in Montgomery, the federal district court for the
                   district of Nevada found that a former officer may not access his former
                   employer's privileged communications for use in his lawsuit against his
                   former employer. 548 F. Supp. 2d at 1187. Dennis Montgomery, the
                   plaintiff, who was a member 14 and former manager for eTreppid,


                   ...continued
                   proposition that "[a] dissident director is by definition not 'management'
                   and, accordingly, has no authority to pierce or otherwise frustrate the
                   attorney-client privilege when such action conflicts with the will of
                   [current] 'management").

                         1 More accurately, the Court noted that the parties agreed that the
                             -3




                   power to waive attorney-client privilege rests with the corporation's
                   officers and directors. See Weintraub, 471 U.S. at 348-49. But it appears
                   that the Court implicitly supported these conclusions because it cited to
                   additional legal authority to support them. Id.

                        mThe respondent in that case, eTreppid, is an LLC, not a
                   corporation. 548 F. Supp. 2d at 1177. However, the court determined that
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                   eTreppid's structure was most similar to that of a corporate structure, and
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                 requested discovery, in response to which eTreppid asserted the attorney-
                 client privilege. Id. at 1177. Montgomery claimed that as a member and
                 former manager, he was a "joint client," and as such, eTreppid could not
                 assert the attorney-client privilege against him with respect to privileged
                 communications created during his tenure as a manager.              Id.   The
                 Montgomery court analyzed a number of cases on each side of the issue,
                 and concluded that
                               [T]he Milroy [15] [and Weintraub] line of cases are
                               more persuasive.       It makes sense that the
                               corporation is the sole client.         While the
                               corporation can only communicate with its
                               attorneys through human representatives, those
                               representatives are communicating on behalf of
                               the corporation, not on behalf of themselves as
                               corporate managers or directors. Moreover, the
                               court finds very convincing the language in

                 ...continued
                 therefore treated it as a corporation for the purposes of its privilege
                 analysis. Id. at 1183.

                       15 InMilroy, the plaintiff Michael Milroy, an active member of the
                 board of directors and minority stockholder of a corporation, sued several
                 other directors and majority stockholders based on claims related to
                 alleged violations of their fiduciary duty. 875 F. Supp. at 647. Milroy
                 requested discovery, which the corporation—via a majority vote of the
                 other directors—refused based on attorney-client privilege. Id. Milroy
                 asked the federal court to adopt the collective corporate client exception to
                 corporate attorney-client privilege because he was an active director and
                 thus belonged to the entity that controls the corporation. Id. at 648. The
                 court found that no exception should apply to the normal rule that "since
                 the majority decision of the board of directors of a Nebraska corporation
                 'controls' the corporation. .. an individual director is bound by the
                 majority decision and cannot unilaterally waive or otherwise frustrate the
                 corporation's attorney-client privilege if such an action conflicts with the
                 majority decision of the board of directors." Id. Thus, "[a] dissident
                 director is by definition not 'management' and, accordingly, has no
                 authority to pierce or otherwise frustrate the attorney-client privilege
                 when such action conflicts with the will of 'management." Id. at 649-50.
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                               Weintraub, which states that the privilege belongs
                               to the corporation, can be asserted or waived only
                               by management, and that this power transfers
                               when control of the corporation is transferred to
                               new management.
                                     Also important to the court's decision is the
                               fact that Montgomery, like the former director
                               in Milroy, is not suing on behalf of eTreppid or in
                               his capacity as a former manager or officer.
                               Rather, Montgomery is suing to benefit himself
                               individually—a perfectly acceptable position, but
                               not one which should entitle him to eTreppid's
                               attorney-client privileged communications. Like
                               the "dissident" director in Milroy, Montgomery
                               is now adverse to eTreppid and may not
                               obtain privileged documents over the objection of
                               current management. Moreover, even though
                               Montgomery would have had access to such
                               documents during his time at eTreppid, he still
                               would have been duty-bound to keep such
                               information confidential.
                Id. at 1187.
                      We decline to adopt an exception to the attorney-client privilege based
                      on a litigant's status as a former officer or director of a corporation
                               It appears that the modern trend in caselaw follows the
                Weintraub, Milroy, and Montgomery line of cases. See Montgomery, 548 F.
                Supp. 2d at 1186 (noting that "many more courts have rejected the
                reasoning in Gottlieb than in Milroy"); Nunan v. Midwest, Inc.,           No.
                2004/00280, 2006 WL 344550, at *7 (N.Y. Sup. Ct. January 10, 2006)
                ("Although there is discredited authority to the contrary. . . most of the
                more recent cases embrace the view that, when a former officer or director
                is suing the company for his or her own personal gain, the privilege
                belongs to the corporation and if asserted is effective to prevent disclosure
                to the former officer or director." (internal citations omitted)).



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                              More importantly, we• are persuaded by the policy behind the
                 Weintraub, Milroy, and Montgomery lineS of cases and conclude that it is
                 consistent with Nevada privilege law. Allowing a former fiduciary of a
                 corporation to access and use privileged information after he or she
                 becomes adverse to the corporation solely based on his or her former
                 fiduciary role is entirely inconsistent with the purpose of the attorney-
                 client privilege. 16 We believe such a situation would have a perverse
                 chilling effect on candid communications between corporate managers and
                 counsel. Cf. Whitehead v. Nev. Comm'n on Judicial Discipline,      110 Nev.
                 380, 410, 873 .P.2d 946, 965 (1994) (recognizing that the attorney-client
                 privilege's purpose "is to protect confidential communications between
                 attorney and client"). We therefore decline to recognize the collective
                 corporate client exception to a corporation's attorney-client privilege and
                 conclude that Jacobs may not use Sands's privileged documents in
                 litigation over Sands's current management's assertion of the attorney-
                 client privilege.
                              Thus, we conclude that the district court erred when it applied
                 the collective corporate client approach to find that Jacobs was within a
                 class of persons legally allowed to use Sands's purportedly privileged
                 documents in the prosecution of his claims. We therefore grant Sands's
                 petition for a writ of prohibition in part and direct the district court to
                 vacate its June 19, 2013, order granting the return of the documents from



                        16 0ther courts have expressed similar concerns.         See, e.g.,
                 Montgomery, 548 F. Supp. 2d at 1187; Davis v. PMA Cos., Inc., No. CIV-
                 11-359-C, 2012 WL 3922967, at *6 (W.D. Okla. Sept. 7, 2012) ("It seems
                 paradoxical to allow a party to access information previously available to
                 that individual only because of his or her role as a fiduciary once that
                 party is adverse to the corporation and no longer required to act in the
                 corporation's best interests.").
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                the independent ESI vendor. We note that the district court has yet to
                make a determination as to whether Sands's assertions of privilege are
                proper. As it previously indicated that it would do, the district court
                should resolve any disputes regarding Sands's privilege log by conducting
                an in-camera review of the purportedly privileged documents to determine
                which documents are actually protected by a privilege. 17
                                              CONCLUSION
                            We conclude that a corporation's current management controls
                the privilege "to refuse to disclose, and to prevent any other person from
                disclosing, confidential communications." This precludes a finding that
                there is a class of persons outside the corporation's current officers and
                directors who are entitled to access the client's confidential or privileged
                information over the client's objection for use in litigation. Therefore, we
                conclude that the district court erred when it employed the collective
                corporate client exception to corporate attorney-client privilege in ruling
                that Jacobs, solely based on his former executive position with Sands




                      17 Because  the district court resolved the underlying motion without
                addressing Jacobs's objections to various assertions of privilege, the
                district court should evaluate each of Jacobs's objections and determine
                the factual and legal validity of Sands's assertions of privilege. We note
                that documents that were not sent to legal counsel for the purpose of
                rendering legal advice, such as instances in which legal counsel was
                merely copied, are not protected by the attorney-client privilege.       See
                Lindley v. Life Investors Ins. Co. of Am., 267 F.R.D. 382, 390 (N.D. Okla.
                2010); ABB Kent-Taylor, Inc. v. Stallings & Co., Inc., 172 F.R.D. 53, 57
                (W.D.N.Y. 1996). Similarly, as noted above, to the extent that Sands may
                have placed any documents "at-issue," this court's analysis of at-issue
                waiver in Wardleigh v. Second Judicial District Court, 111 Nev. 345, 891
                P.2d 1180 (1995), provides the appropriate framework for resolving those
                issues.
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                      China, was legally allowed to use the purportedly privileged documents
                      over of Sands's claim of privilege.
                                   We therefore grant Sands's writ petition in part and direct the
                      clerk of this court to issue a writ of prohibition ordering the district court
                      to halt the return to Jacobs of the pur7 edly privileged documents. 18
                                                               2..


                                                                                           C.J.
                                                            Gibbons

                      We concur:


                         R---- tali-Ask \
                             Lt                        J.
                      Hardesty


                                                       J.
                      Douglas


                                                       J.



                                                       J.




                             isSands's alterative request for a writ of mandamus is denied. In
                      light of our resolution of this writ petition, we vacate the stay imposed by
                      our October 1, 2013, order.
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