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Recently, in Walker v. Second Judicial District Court ex rel. County of Washoe, Nev. Adv. Op. 80, 476 P.3d 1194 (Dec. 10, 2020), the Nevada Supreme Court provided clarification regarding the requirements which must be met to seek extraordinary writ relief regarding an issue for which the district court has been entrusted to exercise its discretion.  Specifically, writ relief is not appropriate to correct every error or abuse of discretion alleged to have been committed by the district court.  At a minimum, a party must be able to demonstrate a manifest abuse of discretion by the lower court, as well as an impending, irreparable harm that will occur if the party must await entry of a final judgment before seeking appellate review.

While most issues are appropriate for review on appeal at the end of a case, after entry of a final judgment, there are some issues, like the invocation of a privilege, which may warrant immediate review by the Nevada Supreme Court.  In such circumstances, a party can file a petition for extraordinary writ relief to request that the Supreme Court exercise its discretion to review the issue prior to entry of a final judgment in the case.

The most common writ relief sought in civil cases is a writ of mandamus by which the Supreme Court can order any government official or office to perform one or more of its legal duties.  In most instances, this means that the Supreme Court can order a district court judge to perform an act which it is legally obligated to do—i.e., issue an order protecting a party’s attorney-client privileged documents from disclosure during discovery, dismiss an action where a claim cannot be stated by the plaintiff as a matter of law, or sanction a party for a failure to comply with a court order.

To obtain issuance of a writ of mandamus or any other extraordinary writ, like a writ of prohibition (which can be used to prohibit a district court judge from taking some action), a party must be able to demonstrate the following:

First, the petitioner must show that the district court manifestly abused its discretion or acted arbitrarily or capriciously.  Merely contending that the district court committed an error is not sufficient.  An appeal is more than an adequate remedy for most errors that may have been committed in the case.  Rather, writ relief is only appropriate when the lower court: (1) acts contrary to the law; (2) misapplies the law; (3) takes an action that is manifestly unreasonable; or (4) exercises partiality, prejudice, bias, or ill will.  In sum, a petitioner must show that the district court manifestly abused its discretion by taking an action or making a decision “in the absence of a clearly established factual and legal basis to do so.”  Id. at 1197.

Second, the petitioner must show that no other plain, speedy, or adequate legal remedy is available to correct the alleged error.  Essentially, a party must be able to demonstrate that some impending, irreparable harm will occur if the Supreme Court does not remedy the district court’s error before entry of final judgment.  It is not sufficient merely to claim that extraordinary writ relief would be easier or more expeditious than awaiting the right to appeal.  Id. at 1198.

About Sarah Harmon: 

Sarah E. Harmon is Of Counsel at Bailey Kennedy and has over 18 years of experience in the areas of appellate advocacy and civil/business litigation, including breach of contract, fraud, legal malpractice, products liability, complex civil litigation, and many other types of business disputes.  Her experience with appellate advocacy includes appeals from adverse judgments and orders as well as petitions for extraordinary writ relief.  Ms. Harmon can assist clients with obtaining settlements and judgments before going to trial, avoiding errors at trial, and properly preserving issues for an appeal.

If you have any questions about appeals or civil/business litigation, please call or email Sarah Harmon at 702-562-8820 or [email protected].  Additional resources can also be found at www.baileykennedy.com/category/articles/ or www.linkedin.com/in/sarahharmonbk.

Disclaimer

The information provided in this article does not, and is not intended to, constitute legal advice.  All information, content, and materials available in this article are for general informational purposes only.  The information in this article may not constitute the most up-to-date legal information.  Any links to third-party websites included in this article are only made for the convenience of the reader, and the author of this article does not recommend or endorse the contents of the third-party sites.

Readers of this article should contact their attorney to obtain advice with respect to any particular legal matter.  No reader of this article should act or refrain from acting on the basis of information in this article without first seeking legal advice from counsel in the relevant jurisdiction.  Only your individual attorney can provide assurances that the information contained herein — and your interpretation of it — is applicable or appropriate to your particular situation.  Use of, and access to, this article, or any of the links or resources contained herein do not create an attorney-client relationship between the reader and author.

All liability with respect to actions taken or not taken based on the contents of this article are hereby expressly disclaimed.  The content of this article is provided “as is;” no representations are made that the content is error-free.

On May 28, 2020, the Nevada Supreme Court issued an opinion which impacts the scope of the attorney-client privilege. Specifically, in Canarelli v. Eighth Judicial District Court ex rel. County of Clark, 136 Nev. Adv. Op. 29, 2020 WL 2777371 (May 28, 2020), the Court determined: (1) that a client’s notes made in preparation for or contemporaneously with an attorney-client communication are privileged regardless of physical delivery of the notes to counsel; and (2) that there is no fiduciary exception to the privilege in Nevada.

In Canarelli, the beneficiary of an irrevocable trust filed a petition seeking to compel the trustee to produce all information relating to a purchase agreement the trustee entered into to sell off trust assets, as well as an inventory and accounting of the trust. The trustee retained counsel and spoke to his counsel on the phone regarding his response to the petition. During discovery, the trustee’s counsel inadvertently disclosed the trustee’s notes that he composed in preparation for his phone call with his counsel, as well as the notes he made contemporaneously memorializing the defense strategies discussed during the call. The trustee’s counsel attempted to claw back the documents claiming the notes were attorney-client privileged and work product. Id. at *1-2.

The discovery commissioner determined that the notes were discoverable because of the fiduciary exception and common interest exceptions to the attorney-client privilege and the substantial need exception to the work product doctrine. The district court adopted the discovery commissioner’s findings; however, the district court also determined that the attorney-client privilege did not apply because it could not be assumed that the trustee’s notes had been communicated to his counsel. Id. at *2.

In the subsequent writ proceedings, the Supreme Court examined for the first time whether a client must deliver his notes to his attorney in order for the notes to constitute a “communication” for the purposes of the attorney-client privilege. The Court decided to follow federal precedent and concluded that physical delivery is not necessary for attorney-client privilege protection. “[S]o long as the content of the notes was previously or is subsequently communicated between a client and counsel, the notes constitute communications subject to the attorney-client privilege. Holding otherwise would discourage a client from diligently preparing for a conversation with counsel and undermine a client’s ability to confidently memorialize any legal advice received.” Id. at *4. Moreover, in order to assert the privilege, the client does not have to prove that he “spoke each and every word written in his or her notes to counsel verbatim.” The client need only submit his counsel’s billing records and their declarations to prove that the content of the notes was communicated to his counsel. Id. at *5.

Further, the Court examined for the first time the applicability of a fiduciary exception to the attorney-client privilege. Id. In the context of trust disputes, many jurisdictions have held that a fiduciary, like a trustee, cannot assert the attorney-client privilege against beneficiaries on matters of trust administration. See Murphy v. Gorman, 271 F.R.D. 296, 305 (D.N.M. 2010). This exception has been applied to other fiduciary relationships beyond that of a trustee and beneficiary. See Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970) (applying the fiduciary exception in a stockholder derivative action, and holding that “[w]hen stockholders sue a corporation for acting contrary to the stockholders’ interests, the stockholders may obtain otherwise-privileged materials where they can show cause why the attorney-client privilege should not be invoked in the particular case”). However, because the Nevada legislature enacted a privilege statute with only five specifically defined exceptions to the attorney-client privilege, and these five exceptions do not include the fiduciary exception, the Supreme Court refused to create a sixth exception by judicial fiat. Canarelli, 136 Nev. Adv. Op. 29, at *5-6. Therefore, the Supreme Court upheld the well-known rule of statutory construction that “‘the expression of one thing is the exclusion of another.’” Id. at *5 (quoting Galloway v. Truesdell, 83 Nev. 13, 26, 422 P.2d 237, 246 (1967)).

About Sarah Harmon:

Sarah E. Harmon is Of Counsel at Bailey Kennedy and has over eighteen years of experience in the areas of appellate advocacy and civil/business litigation, including breach of contract, fraud, legal malpractice, products liability, complex civil litigation, and many other types of business disputes. Her experience with appellate advocacy includes appeals from adverse judgments and orders as well as petitions for extraordinary writ relief. Ms. Harmon can assist clients with obtaining settlements and judgments before going to trial, avoiding errors at trial, and properly preserving issues for an appeal.

If you have any questions about appeals or civil/business litigation, please call or email Sarah Harmon at 702-562-8820 or [email protected]. Additional resources can also be found a t www.baileykennedy.com/category/articles/ or www.linkedin.com/in/sarahharmonbk.

Disclaimer

The information provided in this article does not, and is not intended to, constitute legal advice.  All information, content, and materials available in this article are for general informational purposes only.  The information in this article may not constitute the most up-to-date legal information.  Any links to third-party websites included in this article are only made for the convenience of the reader, and the author of this article does not recommend or endorse the contents of the third-party sites.

Readers of this article should contact their attorney to obtain advice with respect to any particular legal matter.  No reader of this article should act or refrain from acting on the basis of information in this article without first seeking legal advice from counsel in the relevant jurisdiction.  Only your individual attorney can provide assurances that the information contained herein — and your interpretation of it — is applicable or appropriate to your particular situation.  Use of, and access to, this article, or any of the links or resources contained herein do not create an attorney-client relationship between the reader and author.

All liability with respect to actions taken or not taken based on the contents of this article are hereby expressly disclaimed.  The content of this article is provided “as is;” no representations are made that the content is error-free.

On May 7, 2020, the Nevada Supreme Court issued an administrative order, ADKT 0553, which amended Nevada Rule of Appellate Procedure 21.  This order, which took effect on June 7, 2020, imposes, for the first time, limitations on the length for writ petitions.  Specifically, a petition for extraordinary writ relief is now limited to 15 pages, 7,000 words (for proportionally spaced typeface, like Times New Roman), or 650 lines of text (for monospaced typeface, like Courier), whichever is longer.  If the Supreme Court or the Court of Appeals directs the real party in interest to file an answer to the petition, then the answer, reply, and any amicus brief are subject to the same page, word count, or line count limitations.

Moreover, the petition, and any applicable answer, reply, or amicus brief, must now include an NRAP 32(a)(9) certificate of compliance, setting forth the word or line count for the brief as well as information about the word processing program and font.  A sample of the certificate of compliance can be found in Form 9 of the Nevada Rules of Appellate Procedure.

Similarly, the petition, and any answer directed by the Court, must also now include an NRAP 26.1 disclosure statement.  The disclosure statement must list all parent corporations for the filing party and any publicly held company that owns ten percent or more of the filing party’s stock (or disclose that no such corporations or companies exist).

Finally, if you believe that you will need to exceed the new limitations on the length of briefs in writ proceedings, you can file a motion requesting such relief.  However, keep in mind that the Court does not look favorably upon these motions and they are not routinely granted.  You must be able to demonstrate diligence in limiting the length of the brief and good cause to exceed the limitations.  The motion must also be accompanied by:

1. A declaration explaining the need for the extension and the number of additional pages, words, or lines of text requested;
2. A copy of the proposed over-length brief; and
3. A certificate of compliance disclosing the word or line count for the proposed brief.

About Sarah Harmon: 

Sarah E. Harmon is Of Counsel at Bailey Kennedy and has over 18 years of experience in the areas of appellate advocacy and civil/business litigation, including breach of contract, fraud, legal malpractice, products liability, complex civil litigation, and many other types of business disputes.  Her experience with appellate advocacy includes appeals from adverse judgments and orders as well as petitions for extraordinary writ relief.  Ms. Harmon can assist clients with obtaining settlements and judgments before going to trial, avoiding errors at trial, and properly preserving issues for an appeal.

If you have any questions about appeals or civil/business litigation, please call or email Sarah Harmon at 702-562-8820 or [email protected]. Additional resources can also be found at www.baileykennedy.com/category/articles/ or www.linkedin.com/in/sarahharmonbk.

Disclaimer

The information provided in this article does not, and is not intended to, constitute legal advice.  All information, content, and materials available in this article are for general informational purposes only.  The information in this article may not constitute the most up-to-date legal information.  Any links to third-party websites included in this article are only made for the convenience of the reader, and the author of this article does not recommend or endorse the contents of the third-party sites.

Readers of this article should contact their attorney to obtain advice with respect to any particular legal matter.  No reader of this article should act or refrain from acting on the basis of information in this article without first seeking legal advice from counsel in the relevant jurisdiction.  Only your individual attorney can provide assurances that the information contained herein — and your interpretation of it — is applicable or appropriate to your particular situation.  Use of, and access to, this article, or any of the links or resources contained herein do not create an attorney-client relationship between the reader and author.

All liability with respect to actions taken or not taken based on the contents of this article are hereby expressly disclaimed.  The content of this article is provided “as is;” no representations are made that the content is error-free.

Several of Nevada’s Rules of Civil Procedure require parties, and non-parties, to produce all documents, electronically stored information, and tangible things that are within their “possession, custody, or control.” However, until recently, neither the Rules of Civil Procedure nor the Nevada Supreme Court had defined the scope of this phrase. On July 9, 2020, the Nevada Supreme Court issued a new opinion clarifying that the phrase pertains to all documents, electronically stored information and tangible things: (1) that are within a party’s or non-party’s actual possession; or (2) that the party or non-party has a legal right to obtain. State, Dep’t of Taxation v. Eighth Jud. Dist. Ct. ex rel. Cnty. of Clark, 136 Nev. Adv. Op. 42, 466 P.3d 1281 (July 9, 2020).

Specifically, NRCP 16.1(a)(1)(A)(ii) requires a party to disclose copies “of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or
defenses . . . .” Similarly, NRCP 34(a)(1), requires a party to produce copies of all documents, electronically stored information, and tangible things which are within the party’s “possession, custody, or control” and responsive to the adverse party’s written discovery request. Moreover, NRCP 45(a)(1)(A)(iii) requires a non-party to produce all documents, electronically stored information, and tangible things which are within the non-party’s “possession, custody, or control” and are responsive to a subpoena served on the non-party.

There has been much debate over the definition of the phrase “possession, custody, or control” and the lengths parties or non-parties must go to in order to obtain relevant documents that are beyond their physical possession. Often, parties and non-parties relied on federal law for guidance on this issue; however, federal law was not very instructive as there was a split of authority among the federal courts. Several Circuit Courts of Appeal, including the Ninth Circuit Court of Appeal, interpreted the phrase to mean documents in a party’s or non-party’s actual possession, as well as documents that the party or non-party had a legal right to obtain. See, e.g., In re Citric Acid Litig., 191 F.3d 1090, 1107-08 (9th Cir. 1999). Other Circuit Courts of Appeal, like the Second Circuit Court of Appeal, defined the phrase to mean documents within a party’s or non-party’s actual possession or documents that the party or non-party had a “practical ability to produce,” even if there is no legal right to such documents. Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 138 (2d Cir. 2007).

The Nevada Supreme Court has ultimately chosen to adopt the Ninth Circuit’s interpretation of the phrase “possession, custody, or control (actual possession or a legal right to obtain). The Court reasoned that requiring a party to produce documents, electronically stored information, or tangible things that it had the “practical ability” to obtain with good faith efforts would often prove futile where the party lacked the legal right to such documents.

About Sarah Harmon:

Sarah E. Harmon is Of Counsel at Bailey Kennedy and has over 18 years of experience in the areas of appellate advocacy and civil/business litigation, including breach of contract, fraud, legal malpractice, products liability, complex civil litigation, and many other types of business disputes. Her experience with appellate advocacy includes appeals from adverse judgments and orders as well as petitions for extraordinary writ relief. Ms. Harmon can assist clients with obtaining settlements and judgments before going to trial, avoiding errors at trial, and properly preserving issues for an appeal.

If you have any questions about appeals or civil/business litigation, please call or email Sarah Harmon at 702-562-8820 or [email protected]. Additional resources can also be found at www.baileykennedy.com/category/articles/ or www.linkedin.com/in/sarahharmonbk.

Disclaimer

The information provided in this article does not, and is not intended to, constitute legal advice.  All information, content, and materials available in this article are for general informational purposes only.  The information in this article may not constitute the most up-to-date legal information.  Any links to third-party websites included in this article are only made for the convenience of the reader, and the author of this article does not recommend or endorse the contents of the third-party sites.

Readers of this article should contact their attorney to obtain advice with respect to any particular legal matter.  No reader of this article should act or refrain from acting on the basis of information in this article without first seeking legal advice from counsel in the relevant jurisdiction.  Only your individual attorney can provide assurances that the information contained herein — and your interpretation of it — is applicable or appropriate to your particular situation.  Use of, and access to, this article, or any of the links or resources contained herein do not create an attorney-client relationship between the reader and author.

All liability with respect to actions taken or not taken based on the contents of this article are hereby expressly disclaimed.  The content of this article is provided “as is;” no representations are made that the content is error-free.

If an adverse order or judgment has been entered against you or your client, and you are considering an appeal but are unsure how to initiate the process, here are three important steps to get you started:

1. Determine if the order or judgment is appealable.

First and foremost, you must determine if the adverse order or judgment is appealable.  If the order or judgment resolves all claims, counterclaims, cross-claims, and/or third-party claims alleged by all parties in the action, then you may file an appeal.  If, after entry of the adverse order or judgment, some claims still remain unresolved in the action, then you have three options: (1) review Nevada Rule of Appellate Procedure 3A(b)(2)-(10) to determine if the order or judgment entered against you is included in one of the nine categories of non-final judgments and orders for which an appeal lies; (2) file a motion with the district court requesting that the adverse order or judgment be certified as a final judgment pursuant to Nevada Rule of Civil Procedure 54; or (3) file a Petition for Extraordinary Writ Relief with the Nevada Supreme Court requesting that the Supreme Court exercise its discretion to review the interlocutory (non-final) judgment or order.

2. Obtain a stay of execution upon the judgment.

If the adverse judgment entered against you is appealable, you will likely need to obtain a stay of enforcement of and/or execution upon the judgment.  Once written notice of entry of the adverse judgment has been served, the prevailing party is only barred from attempting to enforce and/or execute upon the judgment for thirty (30) days, pursuant to Nevada Rule of Civil Procedure 62(a).  To extend the stay for the period of the appeal, you must either post a supersedeas bond for the amount of the judgment entered against you, plus anticipated costs associated with the appeal and anticipated interest on the judgment during the pendency of the appeal, or you must file a motion for a stay with the district court.

3. Timely file the Notice of Appeal and Case Appeal Statement, and pay your filing fee.

Once you have determined that the adverse judgment or order is appealable, and determined that you have the means to post a supersedeas bond or otherwise obtain a stay of execution of the judgment, you are ready to file a Notice of Appeal.  The Notice of Appeal must be filed in the district court within thirty (30) days of service of the written notice of entry of the judgment or order.  This deadline cannot be stayed or continued; however, this deadline can be tolled by the filing of a motion for judgment pursuant to Nevada Rule of Civil Procedure 50(b), a motion to amend or make additional findings of fact pursuant to Nevada Rule of Civil Procedure 52(b), a motion to alter or amend the judgment pursuant to Nevada Rule of Civil Procedure 59, or a motion for a new trial pursuant to Nevada Rule of Civil Procedure 59.  If any of these four motions is timely filed in the district court, then the deadline to commence the appeal is tolled and the Notice of Appeal must be filed within thirty (30) days of service of the written notice of entry of the order resolving the motion.

When you file the Notice of Appeal, you must also file a Case Appeal Statement in the district court and pay the Supreme Court filing fee of $250.00.  The content for both the Notice of Appeal and the Case Appeal Statement can be found in Nevada Rule of Appellate Procedure 3.

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About Sarah Harmon: 

Sarah E. Harmon is Of Counsel at Bailey Kennedy and has over eighteen years of experience in the areas of appellate advocacy and civil/business litigation, including breach of contract, fraud, legal malpractice, products liability, complex civil litigation, and many other types of business disputes.  Her experience with appellate advocacy includes appeals from adverse judgments and orders as well as petitions for extraordinary writ relief.  Ms. Harmon can assist clients with obtaining settlements and judgments before going to trial, avoiding errors at trial, and properly preserving issues for an appeal.

If you have any questions about appeals, please call or email Sarah Harmon at 702-562-8820 or [email protected]. Additional resources can also be found at www.baileykennedy.com/category/articles/ or www.linkedin.com/in/sarahharmonbk.

Disclaimer

The information provided in this article does not, and is not intended to, constitute legal advice.  All information, content, and materials available in this article are for general informational purposes only.  The information in this article may not constitute the most up-to-date legal information.  Any links to third-party websites included in this article are only made for the convenience of the reader, and the author of this article does not recommend or endorse the contents of the third-party sites.

Readers of this article should contact their attorney to obtain advice with respect to any particular legal matter.  No reader of this article should act or refrain from acting on the basis of information in this article without first seeking legal advice from counsel in the relevant jurisdiction.  Only your individual attorney can provide assurances that the information contained herein — and your interpretation of it — is applicable or appropriate to your particular situation.  Use of, and access to, this article, or any of the links or resources contained herein do not create an attorney-client relationship between the reader and author.

All liability with respect to actions taken or not taken based on the contents of this article are hereby expressly disclaimed.  The content of this article is provided “as is;” no representations are made that the content is error-free.