T 

of a district court exercising its judicial functions, when such proceedings 

are in excess of the jurisdiction of the district court. NRS 34.320. 

Although this court has issued writs of mandamus to compel a district 

court to vacate a discovery order requiring the production of privileged 

information, this court more recently has "reaffirm[ed] . . . that prohibition 

is a more appropriate remedy for the prevention of improper discovery 

than mandamus." Wardleigh v. District Court, 111 Nev. 345, 350, 891 

P.2d 1180, 1183 (1995). A writ of prohibition may issue, however, only 

where there is no plain, speedy, and adequate remedy at law. NRS 

34.330. Here, the order is not independently appealable and likely will 

not be reviewable as an intermediate decision, see NRS 177.045, since 

Edelman's agreement with the State does not contemplate a judgment of 

conviction being entered against her in state court. Even if the order could 

be challenged in a later appeal, as we observed in Wardleigh, "[i]f 

improper discovery were allowed, the assertedly privileged information 

would irretrievably lose its confidential and privileged quality and 

petitioned ] would have no effective remedy." 111 Nev. at 350-51, 891 

P.2d at 1183-84. Under the circumstances, a writ of prohibition is an 

appropriate remedy. 

Petitions for extraordinary writs are addressed to the sound 

discretion of the court. State ex rel. Dep't Transp. v. Thompson, 99 Nev. 

358, 360, 662 P.2d 1338, 1339 (1983). We have indicated that we "will 

infrequently" exercise that discretion to entertain pretrial discovery 

challenges except "where, in the absence of writ relief, the resulting 

prejudice would not only be irreparable, but of a magnitude that could 

require the imposition of such drastic remedies as dismissal with prejudice 

or other similar sanctions." Wardleigh, 111 Nev. at 351, 891 P.2d at 1184. 

2 
3 

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'.• 

While dismissal with prejudice is not a likely sanction in this case, the 

issues here implicate important rights. 

Edelman and Price were charged with multiple felony 

offenses. Edelman entered negotiations with the State and eventually 

agreed to testify against Price. The agreement requires her to testify 

truthfully and plead guilty to a felony federal offense based on the same 

incident as the state charges, with the State forgoing its prosecution of 

her. As part of the plea negotiations, Edelman apparently made an oral 

proffer of her testimony. Edelman has refused to submit to an interview 

with Price's counsel. Price sought a written summary of Edelman's 

unrecorded oral proffer from the State, but that ultimately proved 

unsuccessful when this court granted a writ petition. See State v. Dist. 

Ct. (Price), Docket No. 62464 (Order Granting Petition, January 25, 2013). 

Price also issued subpoenas directed to Edelman's defense counsel, 

requiring them to appear and provide testimony related to the proffer and 

to produce documents related to the proffer. Edelman's attorneys moved 

to quash the subpoenas. The district court denied the motion and 

modified the subpoenas, requiring counsel to produce all responsive 

documents "insofar as [they] contain statements made by Victoria 

Edelman in the process of formulating her proffer to the State of Nevada 

and/or the Federal Government" and to appear for a pretrial hearing to 

testify and "disclose all statements made by Victoria Edelman which form 

the basis for the proffer provided to the State of Nevada and/or the 

Federal Government." The order states that the district court found that 

these documents and statements were "intended to be disclosed to the 

State and/or the Court [and therefore] are not protected from disclosure by 

the attorney-client privilege." 
Edelman essentially challenges the district court's 

determination that the subject documents and statements are not 

protected by the attorney-client privilege. The privilege protects 

‘`confidential communications" between the client and the client's attorney. 

NRS 49.095(1). For purposes of the privilege, "[a] communication is 

'confidential' if it is not intended to be disclosed to third persons other 

than those to whom disclosure is in furtherance of the rendition of 

professional legal services to the client or those reasonably necessary for 

the transmission of the communication." NRS 49.055. Edelman does not 

dispute that courts have held that a communication is not "confidential" if 

the communication is "for the purpose of having [the attorney] relay [the] 

communication to a third party." U.S. v. Sudikoff, 36 F. Supp. 2d 1196, 

1204-05 (C.D. Cal. 1999) (discussing "client's communications of proposed 

testimony made with the intent that the lawyer relay the communications 

to the government"); see also State v. Watkins, 672 S.E.2d 43, 49 (N.C. Ct. 

App. 2009) (communication provided by client "precisely for the purpose of 

conveying it to the prosecutor" is not "confidential"); accord Wardleigh, 111 

Nev. at 353-54, 891 P.2d at 1185 -86 (holding that communications 

between client and lawyer in presence of non-client homeowners and other 

individuals were not intended to be confidential). 

Edelman is correct that the criminal cases identified by the 

parties involve either the prosecution's duty to disclose (under Brady v. 

Maryland, 373 U.S. 83 (1963) or the Jencks Act, 18 U.S.C. § 3500(b)) or 

the admissibility of an attorney's testimony in a proceeding instituted by 

the client that is based on the attorney's representation of the client (such 

as a motion to withdraw a guilty plea or a habeas petition), rather than 

efforts to compel the attorney to disclose communications in situations 

4 
5 

91• 

similar to those presented here. But the basic premise in those cases 

remains—communications between a client and the client's lawyer that 

are intended to be conveyed to a third party are not confidential and 

therefore are not privileged. Thus, to the extent that counsel has 

documents that reflect communications from Edelman that were provided 

to counsel precisely for the purpose of conveying those communications to 

the State, those documents are not privileged. The attorney-client 

privilege therefore does not stand as a bar to the disclosure of such 

documents or similar testimony.' 

We are concerned, however, that the district court's order 

modifying the subpoenas may yet require counsel to divulge 

communications that are confidential and therefore privileged under NRS 

49.095(1). The order seems to conclude that all documents containing 

statements made by Edelman to counsel in the process of formulating her 

proffer were intended to be disclosed to the State. This is not necessarily 

true. To that extent, the district court's order exceeds its authority. 

It further appears that the district court exceeded its 

authority in ordering Edelman's counsel to appear and testify in a pretrial 

proceeding. The primary purpose of this pretrial testimony appears to be 

"As Edelman notes, RPC 1.6(a) precludes a lawyer from "reveal[ing] 

information relating to representation of a client" except in limited 

circumstances. This restriction arguably is broader than the attorneyclient privilege afforded by NRS 49.095(1), which is limited to 

"confidential" communications. Regardless, the rule acknowledges that a 

lawyer "may reveal information relating to the representation of a client to 

the extent the lawyer reasonably believes necessary. . . [t]o comply with 

other law or a court order." RPC 1.6(b)(6). Here, the district court has 

entered such an order. 

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an effort to obtain information about the substance of Edelman's 

anticipated trial testimony so that Price can prepare for trial. In this 

respect, the district court's order observes that "nondisclosure of the 

substance of Ms. Edelman's proposed testimony would substantially 

prejudice Mr. Price's preparation and presentation of his trial and that a 

trial by ambush is a foregone conclusion." While the district court's 

concerns are understandable, the situation is not uncommon since 

witnesses in criminal cases are not required to submit to an interview by 

either party and a witness's refusal to submit to an interview therefore 

does not deprive a defendant of the right to a fair trial, absent evidence 

that the State improperly interfered with the defendant's right of access to 

the witness. See, e.g., U.S. v. Troutman, 814 F.2d 1428, 1453 (10th Cir. 

1987); Kines v. Butterworth, 669 F.2d 6, 9 (1st Cir. 1981). To the extent 

that the pretrial testimony is intended to provide Price with prior 

inconsistent statements that may be used to impeach Edelman, as with 

any other prosecution witness who declines to be interviewed, Edelman 

will be subject to cross-examination. At that time, Price can address her 

refusal to be interviewed and question her regarding her negotiations with 

the State and the proffer to the extent such testimony would be relevant 

and not otherwise inadmissible. Price is not entitled to pretrial testimony 

from Edelman's counsel as a means of discovery. 2We therefore conclude 

2The district court will have to determine whether counsel should be 

required to testify during the trial pursuant to the subpoena. That 

determination will depend on whether the testimony is admissible 

impeachment evidence; if so, the testimony must be limited to evidence 

that is not privileged or otherwise inadmissible. The district court would 

also need to consider whether there are other means of obtaining any 

continued on next page. . . 

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7 

that the district court exceeded its authority in ordering Edelman's 

counsel to appear and testify before the trial. 

For the reasons stated herein, we 

ORDER the petition GRANTED IN PART AND DIRECT THE 

CLERK OF THIS COURT TO ISSUE A WRIT prohibiting the district 

court from proceeding with its order to the extent that it requires 

petitioner's counsel to provide documents that are confidential and 

therefore privileged and to appearall.d,teAif y before trial. /.) 3 

J. 

Gibbons 

cc: Hon. James M. Bixler, District Judge 

Clark County Public Defender 

Coyer & Landis, LLC 

Clark County District Attorney 

Eighth District Court Clerk 

. continued 

impeachment evidence since counsel's testimony would likely create a 

conflict that could implicate Edelman's Sixth Amendment rights and 

require their withdrawal as Edelman's counsel. 

3Edelman's motion for a stay is denied as moot. 

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