138 Nev., Advance Opinion 15 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

THE NEVADA INDEPENDENT, 

Appellant, 

vs. 

RICHARD WHITLEY, IN HIS 

OFFICIAL CAPACITY AS THE 

DIRECTOR OF THE NEVADA 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES; THE STATE OF 

NEVADA DEPARTMENT OF HEALTH 

AND HUMAN SERVICES; AND 

SANOFI-AVENTIS U.S. LLC, 

Respondents. 

No. 81844 

FILED 

Appeal from a district court order denying a petition for a writ 

of mandamus in a public records matter. Eighth Judicial District Court, 

Clark County; Adriana Escobar, Judge. 

Affirmed. 

Robert L. Langford & Associates and Matthew J. Rashbrook and Robert L. 

Langford, Las Vegas, 

for Appellant The Nevada Independent. 

Aaron D. Ford, Attorney General, Heidi Parry Stern, Solicitor General, 

Steve Shevorski, Chief Litigation Counsel, and Akke Levin, Senior Deputy 

Attorney General, Carson City, 

for Respondents Richard Whitley and the State of Nevada Department of 

Health and Human Services. 

Bailey Kennedy and John R. Bailey, Dennis L. Kennedy, Sarah E. Harmon, 

and Rebecca L. Crooker, Las Vegas, 

for Respondent Sanofi-Aventis U.S. LLC. 

SUPREME 6OURT 

OF 

NEVADA 

(01 1947A 400 

22- 012,12. 
McCracken, Stemerman & Holsberry, LLP, and Richard G. McCracken and 

Paul L. More, San Francisco, California, 

for Amicus Curiae Culinary Workers Union Local 226. 

BEFORE THE SUPREME COURT, PARRAGUIRRE, C.J., STIGLICH and 

SILVER, JJ. 

OPINION 

By the Court, STIGLICH, J.: 

Nevada's public records law shines a light on government 

conduct. It permits Nevadans insight into whether the officials they elected 

are holding true to their promises. But this law's illumination ends where 

statutory confidentiality provisions begin. 

In this appeal, we consider whether the federal Defend Trade 

Secrets Act (DTSA) prohibits disclosure, under the Nevada Public Records 

Act (NPRA), of documents from pharmaceutical companies and pharmacy 

benefit managers collected under S.B. 539. The Nevada Independent (TNI) 

petitioned the district court to order the Department of Health and Human 

Services (DHHS) to release such documents, arguing that the documents 

constituted public records that must be made available to it. The district 

court determined that the information in these documents comprised trade 

secrets protected under the DTSA and that the documents thus were not 

subject to disclosure under the NPRA. TNI appeals the district court's 

order. 

As a matter of first impression, we hold that because the DTSA 

classifies these requested documents, obtained pursuant to S.B. 539, as 

2 
confidential trade secrets, these documents are shielded from disclosure 

under the NPRA. 

BACKGROUND 

Most states, including Nevada, have adopted some form of the 

Uniform Trade Secrets Act. See NRS Chapter 600A. To compliment these 

state trade secret laws, Congress, in 2016, amended the Economic 

Espionage Act of 1996 by passing the DTSA to further ensure trade secret 

protections in national and global economies. H.R. Rep. No. 114-529 (2016), 

as reprinted in 2016 U.S.C.C.A.N. 195, 198. The DTSA created a federal 

cause of action for misappropriation of trade secrets and defined 

"misappropriation" to include disclosure of a trade secret without the 

owner's consent, among other things. 18 U.S.C. §§ 1836, 1839(5)(b). Like 

the uniform act, the DTSA classifies as trade secrets information (A) that 

the owner has taken "reasonable measures" to keep secret and (B) that 

"derives independent economic value from "not being generally known to" 

or "readily ascertainable through proper means" by an entity that can 

economically benefit from the information's disclosure or use. 18 U.S.C. 

§ 1839(3). 

One year later, in responding to the rapidly increasing price of 

insulin for Nevada residents, then-Governor Brian Sandoval signed into 

law S.B. 539. 2017 Nev. Stat., ch. 592. That bill, now codified in NRS 

4398.600-.695, requires pharmaceutical manufacturers and pharmacy 

benefit managers (PBMs) to submit to DHHS documentation regarding the 

cost structure of insulin medication in Nevada. As relevant here, S.B. 539 

requires DHHS to compile lists of essential diabetes medications, 

manufacturers to report the pricing information of these drugs and justify 

SUPREME COURT 

OF 

NEVADA 

(0) 1947A attella 3 
any price increases, and PBMs to disclose the rebates they negotiate. NRS 

439B.630-.645. 

Importantly, S.B. 539 also amended Nevada's version of the 

Uniform Trade Secrets Act to exclude from trade secret protections "any 

information" that a manufacturer or PBM is required to report per S.B. 539. 

NRS 600A.030(5)(b). Nevertheless, after S.B. 539 was passed, two 

organizations representing pharmaceutical companies sued Governor 

Sandoval, DHHS Director Richard Whitley, and the Nevada Legislature, 

claiming that S.B. 539s elimination of trade secret protections is preempted 

by the DTSA and is constitutionally suspect. The case was dismissed after 

DHHS promulgated regulations, NAC 439.730-.740, to harmonize S.B. 539, 

the NPRA, and the DTSA. 

A reporter for TNI thereafter made a public records request to 

DHHS for all reports submitted by pharmaceutical manufacturers and 

PBMs under S.B. 539. Relevant here, TNI sought the names of 

pharmaceutical manufacturers and PBMs that submitted annual reports 

pursuant to S.B. 539, and the annual reports themselves.1DHHS 

responded by providing the names of manufacturers and PBMs and some 

general information about the diabetes drugs but did not disclose other 

parts of the Manufacturer Essential Diabetes Drug Reports, including 

(1) the cost of producing the drug, (2) the total administrative expenditure 

1TNI also requested written opinions by the Nevada Attorney 

General's Office regarding S.B. 539s implementation in 2017. DHHS did 

not produce these opinions, a decision which TNI does not challenge on 

appeal. We therefore do not consider it. See Las Vegas Review Journal v. 

City of Henderson, 137 Nev., Adv. Op. 81, 500 P.3d 1271, 1275 (2021) 

(determining that an issue not raised in an appellant's opening brief need 

not be considered). 

4 
relating to the drug, and (3) the profit margin the manufacturer earned by 

producing the drug. DHHS explained that, proceeding under NAC 439.730-

.740, it believed disclosing this information would constitute 

misappropriating trade secrets under the DTSA, such that this information 

was confidential and not subject to release under the NPRA. TNI and 

DHHS subsequently exchanged another similar request and response. 

As a result of DHHS's refusal to provide the requested 

information, TM filed a mandamus action in the district court to compel 

disclosure under the NPRA, also challenging the validity of NAC 439.730-

.740. Sanofi-Aventis U.S. LLC, a pharmaceutical company that submitted 

records pursuant to S.B. 539, moved to intervene, which the district court 

allowed. Sanofi thereafter presented an affidavit from its Vice President 

and Head of Diabetes and Primary Care Sales, James Borneman, who 

attested to the steps Sanofi takes to safeguard its trade secrets and the 

potential economic hardship Sanofi would suffer from the trade secrets' 

disclosure. For example, Borneman affirmed that pricing inputs and 

rationale are restricted internally within Sanofi and are shared on a needto-know basis only, subject to nondisclosure agreements. The public 

disclosure of this information, Borneman declared, could be used by Sanofi's 

competitors and customers in, inter alia, price negotiations with insurers to 

Sanofi's financial detriment. TM moved to compel Borneman's testimony 

or in the alternative to strike his affidavit from the record. The district . 

court denied this motion. 

The district court then denied TNrs writ petition. The district 

court determined that "Mlle DTSA's definition for trade secrets places these 

reports squarely under confidentiality protections," since DHHS 

demonstrated that the reports are subject to reasonable efforts to maintain 

SUPREME COURT 

OF 

NEVADA 

(0) 1947A 44011. 

5 
their secrecy and that the reports derive independent economic value from 

such secrecy. See 18 U.S.C. § 1839(3). Next, the district court found that 

NAC 439.730-.740 are valid regulations because DHHS has broad discretion 

to develop regulations that "foster efficient enforcement of codified 

legislation" (in this case, S.B. 539) and DHHS reasonably interpreted the 

governing statute in adopting the regulations. The district court opined 

that these regulations ensured that NPRA requests for information DHHS 

had gathered due to S.B. 539 did not run afoul of the DTSA because, while 

the regulations' "confidentiality protections are not automatic," they 

ensured that the affected entity had the opportunity to contest the release 

of what it believes to be confidential information in court. This appeal 

followed. 

DISCUSSION 

TNI has not demonstrated that NAC 439.730-.740 are invalid regulations 

TNI contends that NAC 439.735 and NAC 439.740 are invalid 

regulations because they were not authorized by the Nevada Legislature, 

conflict with S.B. 539, and "operate as a line-item veto over the NPRA."2 

We disagree. 

NRS 439B.685 allows DHHS to adopt regulations it deems 

"necessary or advisable to carry out the provisions of NRS 439B.600 to 

439B.695, inclusive." Relevant here, DHHS utilized this enabling provision 

to promulgate NAC 439.735 and NAC 439.740 to harmonize the NPRA, S.B. 

539, and the DTSA. NAC 439.735(1) permits a manufacturer or PBM to 

2TNI also argues that NAC 439.730 is invalid but does not cogently 

argue this point or support it with salient authority. We therefore decline 

to consider it. See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 

n.38, 130 P.3d 1280, 1288 n.38 (2006). 

6 
submit a request for confidentiality to DHHS to prevent public disclosure of 

any information it reasonably believes could lead to the misappropriation of 

a trade secret under the DTSA. The requesting manufacturer or PBM must 

describe the information it seeks to protect with particularity and explain 

why public disclosure would lead to misappropriation of a trade secret 

under the DTSA. NAC 439.735(2)(a)-(b). DHHS must determine whether 

it agrees with this assessment if it receives an NPRA request for the 

ostensibly confidential information. NAC 439.735(3). If DHHS agrees with 

the manufacturer's or PBM's assessment, it must deny the NPRA request. 

NAC 439.735(4). However, if DHHS does not agree, then it must provide 

the manufacturer or PBM a period of 30 days before releasing the 

information to allow the affected entity the opportunity to challenge 

DHHS's determination in court. NAC 439.735(5). NAC 439.740 requires 

DHHS to include only aggregated data that does not disclose the identity of 

any manufacturer or PBM in its public reports submitted pursuant to NRS 

439B.650 and descriptions of trends in prescription drugs and how those 

prices affect the prevalence and severity of diabetes in Nevada and 

healthcare in the state more generally. 

Agency regulations are presumed valid. See NRS 233B.090; 

Montage Mktg., LLC v. Washoe County ex rel. Washoe Cty. Bd. of 

Equalization, 134 Nev. 294, 297, 419 P.3d 129, 131 (2018). And this court 

generally defers to an agency's interpretation of a statute that the agency 

is tasked with enforcing. State, Div. of Ins. v. State Farm Mut. Auto. Ins. 

Co., 116 Nev. 290, 293, 995 P.2d 482, 485 (2000). It is well established, 

however, that laklministrative regulations cannot contradict or conflict 

with the statute they are intended to implement." Roberts v. State, 104 Nev. 

33, 37, 752 P.2d 221, 223 (1988); accord Clark Cty. Social Serv. Dep't v. 

7 
Newkirk, 106 Nev. 177, 179, 789 P.2d 227, 228 (1990). Where an agency 

regulation directly conflicts with the unambiguous language of the statute, 

a court may invalidate it. See Newkirk, 106 Nev. at 179, 789 P.2d at 228. 

Contrary to TNFs allegation, NAC 439.735 does not contradict 

S.B. 539. First, NRS 439B.685s unambiguous language, while not 

specifically directing DHHS to protect the confidentiality of these 

documents, nonetheless authorizes DHHS to promulgate these regulations. 

See Newkirk, 106 Nev. at 179, 789 P.2d at 228. Although TNI contends that 

NAC 439.735 "invitres] unelected members of the executive branch to make 

judicial determinations regarding confidentiality" and delays production of 

public records in violation of the NPRA, we determine that its claims are 

unfounded. NAC 439.735 does not act as a unilateral bar on disclosure of 

documents otherwise entitled to be part of the public record. It merely 

creates a process by which DHHS can determine whether the requested 

records fall within the DTSA's protection of trade secrets. Should DHHS 

determine that the DTSA does not afford the records such protection, NAC 

439.735 places the burden on the pharmaceutical company or PBM to 

challenge the DHHS's determination in court. Likewise, any DHHS 

determination that the requested records are confidential can be contested 

by the requester in court. See NRS 239.011. It is the district court judge, 

therefore, that makes the ultimate determination regarding confidentiality, 

not DHHS. In fact, TM concedes in its reply brief that NAC 439.735 

presents no bar to the production of the requested records. In sum, TNI has 

not overcome the presumption that NAC 439.735 is valid, and we therefore 

defer to DHHS's interpretation of S.B. 539. See NRS 233B.090; Montage 

8 
Mktg., LLC, 134 Nev. at 297, 419 P.3d at 131; State Farm Mut. Auto. Ins. 

Co., 116 Nev. at 293, 995 P.2d at 485.3 

TNI next contends that NAC 439.740 directly conflicts with the 

Legislatures intent in passing S.B. 539 to create transparency in the 

market for diabetic medication. It argues that the Legislature did not grant 

DHHS the authority to promulgate NAC 439.740 and exempt material from 

public disclosure. Not so. 

This court first looks to the plain language of a statute when 

interpreting a statutory provision. Clay v. Eighth Judicial Dist. Court, 129 

Nev. 445, 451, 305 P.3d 898, 902 (2013). Where a statute is unambiguous, 

we do not go beyond it to divine legislative intent. Robert E. v. Justice Court, 

99 Nev. 443, 445, 664 P.2d 957, 959 (1983). 

Here, the plain language of NRS 439B.650 is clear. It requires 

DHHS to analyze the reports submitted by pharmaceutical companies and 

PBMs and compile its own report documenting such analysis. It does not, 

as TM maintains, prohibit DHHS from anonymizing the data it collects per 

S.B. 539. Thus, NAC 439.740 does not conflict with NRS 439B.650, and 

DHHS had the authority to promulgate the regulation under NRS 

439B.685. Therefore, we conclude that TNrs challenge of NAC 439.740 fails 

as well.4 

3TM alternatively argues that NAC 439.735 leads to an unreasonable 

delay in the production of public records by providing pharmaceutical 

companies and PBMs 30 days to respond to NPRA requests. However, it 

does not provide salient authority on how this process leads to an 

unreasonable delay under the NPRA, so we do not consider it. See Edwards, 

122 Nev. at 330 n.38, 130 P.31 at 1288 n.38. 

4As with NAC 439.735, TNI maintains NAC 439.740 delays public 

record requests under the NPRA but fails to cogently demonstrate how so. 

9 
The district court did not abuse its discretion by admitting James 

Borneman's declaration 

TNI next contends that the district court abused its discretion 

by admitting Borneman's declaration after determining the declaration was 

not based solely on his personal knowledge. We determine that the 

admission of Borneman's declaration was proper. 

A lay witness may testify on a matter if the witness has 

personal knowledge of the matter to which he or she is testifying. NRS 

50.025(1)(a). Personal knowledge may come from a witness's review of files 

and records, Wash. Cent. R.R. Co., Inc. v. Nat'l Mediation Bd., 830 F. Supp. 

1343, 1353 (E.D. Wash. 1993); or be inferred from the witness's position, In 

re Kaypro, 218 F.3d 1070, 1075 (9th Cir. 2000). We review the district 

court's decision to admit or exclude evidence for an abuse of discretion. M.C. 

Multi-Family, LLC v. Crestdale Assocs., Ltd., 124 Nev. 901, 913, 193 P.3d 

536, 544 (2008). A district court abuses its discretion when its decision is 

"in clear disregard of the guiding legal principles." Gunderson v. D.R. 

Horton, Inc., 130 Nev. 67, 80, 319 P.3d 606, 615 (2014) (internal quotation 

marks omitted). 

Borneman proffered a declaration as Sanofi's Vice President 

and Head of Diabetes and Primary Care Sales about the confidential 

information included in Sanofi's reports, the steps Sanofi takes to safeguard 

its trade secrets, and the potential economic hardship Sanofi would suffer 

if the trade secrets were publicly disclosed. Two paragraphs of Borneman's 

six-page declaration were recited almost verbatim from Sanofi's website and 

We therefore do not consider this claim. See Edwards, 122 Nev. at 330 n.38, 

130 P.3d at 1288 n.38. 

Swann Cower 

oF 

NEVADA 

(0) 1947A 10 
from the testimony of other Sanofi employees; these paragraphs discussed 

Sanofi's headquarters and mission statement. 

As Head of Diabetes and Primary Care Sales for Sanofi, 

Borneman's personal knowledge of Sanofi's procedures regarding its 

protection of trade secrets language may be inferred. See In re Kaypro, 218 

F.3d at 1075. Furthermore, personal knowledge may be presumed because 

Borneman had access to Sanofi's files and records in preparing his 

declaration. See Wash. Cent. R.R. Co., 830 F. Supp. at 1353. Therefore, 

given the broad discretion that the district court enjoys in its admission of 

evidence, its refusal to strike the declaration was proper, despite its 

conclusion that Borneman did not testify solely from personal knowledge. 

See Saavedra-Sandoval v. Wal-Mart Stores, Inc., 126 Nev. 592, 598-99, 245 

P.3d 1198, 1202 (2010) (holding that "ftlhis court will affirm a district 

court's order if the district court reached the correct result, even if for the 

wrong reason"); M.C. Multi-Family, 124 Nev. at 913, 193 P.3d at 544. 

The district court did not abuse its discretion by denying the writ petition 

The gravamen of this appeal is TNI's claim that the district 

court abused its discretion by determining that the requested records are 

trade secrets under the DTSA. The DTSA classifies as trade secrets 

information (A) that the owner has taken "reasonable measures" to keep 

secret and (B) from which the owner "derives independent economic value" 

that is not "readily ascertainable through proper meane by an entity that 

can obtain economic benefit from the information's disclosure. 18 U.S.C. 

§ 1839(3). "[T]he definition of what may be considered a 'trade secret is 

broad." InteliClear, LLC v. ETC Glob. Holdings, Inc., 978 F.3d 653, 657 (9th 

Cir. 2020). The government bears the burden of demonstrating by a 

preponderance of the evidence that the public records at issue are 

11 
confidential. NRS 239.0113; Pub. Emps. Ret. Sys. of Nev. v. Nev. Policy 

Research Inst., Inc., 134 Nev. 669, 671, 429 P.3d 280, 283 (2018). We review 

a district court's decision to deny a writ petition for an abuse of discretion, 

but we review its decision de novo where the petition raises a question of 

statutory interpretation. Reno Newspapers, Inc. v. Haley, 126 Nev. 211, 

214, 234 P.3d 922, 924 (2010). 

The first inquiry into whether information is a protected trade 

secret is whether its owners have taken "reasonable measures" to keep the 

information secret. 18 U.S.C. § 1893(3). Owners of proprietary information 

may take a variety of approaches that constitute "reasonable measures" to 

protect their trade secrets. For example, the Ninth Circuit has noted that 

"[c]onfidentiality provisions constitute reasonable steps to maintain 

secrecy." InteliClear, 978 F.3d at 660 (citing MAI Sys. Corp. v. Peak 

Comput., 991 F.2d 511, 521 (9th Cir. 1993)). It is well-established that a 

confidential disclosure of a trade secret to an employee does not negate the 

disclosed information's status as a trade secret. Id. at 661; United States v. 

Nosal, 844 F.3d 1024, 1043-44 (9th Cir. 2016); United States v. Chung, 659 

F.3d 815, 825-26 (9th Cir. 2011). 

We determine that the district court appropriately concluded 

that the measures that manufacturers and PBMs have taken to protect 

their information are sufficient to meet the first prong of the DTSA. The 

district court noted that DHHS places significant limitations on who has 

access to the requested records and privatizes the information that is 

shared, and that manufacturers and PBMs have submitted requests for 

confidentiality to prevent the release of their trade secrets. This analysis is 

further bolstered by Borneman's declaration. In it, he notes that Sanofi 

restricts access to pricing information and rationale. He mentions that 

SUPREME COURT 

OF 

NEVADA 

(0) 1947A 440210 

12 
Sanofi shares this proprietary information only on a need-to-know basis and 

further protects these secrets by entering into nondisclosure agreements 

with employees who have access to them. In sum, these confidentiality 

provisions are sufficient to constitute "reasonable measures" at preserving 

the information's secrecy under the DTSA. Cf. InteliClear, 978 F.3d at 660- 

61. 

In the alternative, TNI maintains that manufacturers and 

PBMs have waived any trade secret protections they may have had by 

voluntarily submitting the requested documents to DHHS, relying on 

Amgen, Inc. v. California Health Care Services, 260 Cal. Rptr. 3d 873 (Ct. 

App. 2020). In Amgen, the California Court of Appeal considered whether 

pharmaceutical manufacturers lose trade secret protection for the priceincrease notices they submit pursuant to California S.B. 17. Id. at 876-77. 

In relevant part, S.B. 17 requires manufactures to provide 60 days notice 

to PBMs of an increase in drug prices. Id. at 878-79. The PBMs are required 

to notify large purchasers (i.e., those who provide coverage to over 500 

people) of the price increase. Id. A news entity made a public records 

request under California's analog to the NPRA for the price-increase 

notices. Id. at 877. Amgen filed a petition for writ of mandamus, invoking 

state trade secret privilege to block disclosure. Id. The court held that 

Amgen's disclosure of the price increases to the purchasers eroded the 

documents' trade secret protections, since no statutory or regulatory 

provision "requires the purchasers to keep the price increase notices 

confidential or otherwise restricts the purchasers' use of the information in 

the notices." Id. at 879. 

We are unpersuaded by TNI's citation to Amgen. Nevada law 

differs from California's with respect to trade secret protections. Whereas 

13 
the California statutory and regulatory provisions did not provide 

confidentiality protection for the requested information in Amgen, NAC 

439.735 permits manufacturers and PBMs to request confidentiality for any 

information they submit to DHHS that they believe constitutes a trade 

secret. See Amgen, 260 Cal. Rptr. 3d at 879; cf. Food Mktg. Inst. v. Argues 

Leader Media, U.S. „ 139 S. Ct. 2356, 2366 (2019) (determining 

that information is confidential where it is "both customarily and actually 

treated as private by its owner and provided to the government under an 

assurance of privacy"). Furthermore, it is fundamentally unfair to conclude 

that a manufacturer or PBM waives its trade secret protections in the 

requested records by submitting them to DHHS pursuant to S.B. 539—a 

mandate it is powerless to ignore. See Ctr. for Auto Safety v. Nat'l Highway 

Traffic Safety Admin., 244 F.3d 144, 149 (D.C. Cir. 2001) (concluding that 

an agency's legal authority to obtain records from a private party dictates 

whether the submission of those records is mandatory).5Therefore, because 

manufacturers and PBMs turned over these documents with the 

expectation of confidentiality, such disclosure is not inconsistent with our 

determination that the company has taken "reasonable measures" to keep 

the information secret with respect to the DTSA. See InteliClear, 978 F.3d 

at 660-61. 

We next consider the second step of the DTSA's trade secret 

test, which considers whether the owner derives economic value from the 

information's nondisclosure and whether the information is not "readily 

ascertainable through proper means" by an entity that can obtain economic 

SUPAEUE COURT 

OF 

NEVADA 

(0) 15147A AfalA 

5Indeed, NRS 439B.695 provides that DHHS may impose an 

administrative penalty on noncompliant manufacturers and PBMs for each 

day of their failure to conform with S.B. 539s disclosure requirements. 

14 
benefit from the information's disclosure. 18 U.S.C. § 1839(3). TNI 

contends that the requested documents, which contain pricing information 

on insulin medications, cannot be considered trade secrets because they do 

not provide economic value to the manufacturers and PBMs. TNI argues 

that no manufacturer enjoys an economic advantage from keeping insulin 

prices secret, pointing out that two manufacturers listed their insulin 

medications at identical prices in 2016. Because manufacturers list 

identical prices for the same insulin medication, TNI maintains that they 

enjoy no economic benefit from keeping those prices secret. 

We determine that the district court was within its discretion 

to conclude that the requested records, which identified "drug cost 

structure, marketing and advertising costs, rebate strategies, and profit 

information," comprised trade secrets under the DTSA because the 

manufacturers and PBMs "derive[ ] independent economic value . . . from 

[this information] not being generally known." 18 U.S.C. § 1839(3)(B). 

TNrs pointing to two different manufacturers listing insulin at the same 

price in 2016 is insufficient to prove that manufacturers do not derive 

economic value from the secrecy of their pricing regime, or even that every 

manufacturer prices insulin identically. Even if manufacturers did price 

insulin identically, Borneman's declaration attests to the fact that 

manufacturers could still glean an economic advantage over others by 

becoming privy to their costs and expenses. during production and 

marketing. And even though the fact that two manufacturers priced insulin 

identically is part of the public record, this does not deprive the 

manufacturers pricing scheme, more generally, from trade secret 

protection. See Mallet & Co., Inc. v. Lacayo, 16 F.4th 364, 386 (3d Cir. 2021) 

("Mnformation will not necessarily be deprived of protection as a trade 

15 
secret because parts of it are publicly available."). Thus, we conclude that 

the district court appropriately determined that manufacturers and PBMs 

gain an economic benefit by keeping the requested documents confidential 

from their competitors and the public. 

As we have noted before, "Mlle obligation to disclose . . . is not 

without limits." Republican Att'ys Gen. Asen v. Las Vegas Metro. Police 

Dep't, 136 Nev. 28, 31, 458 P.3d 328, 331 (2020). Since we hold that these 

documents are declared by law (i.e., the DTSA) to be confidential trade 

secrets, we conclude that they are exempt from disclosure under the NPRA. 

See NRS 239.010(1) (permitting public examination of governmental 

records unless those records are "declared by law to be confidential"); 

Republican Att'ys Gen. Ass'n, 136 Nev. at 31, 458 P.3d at 331 ("M he NPRA 

yields to more than 400 explicitly named statutes, many of which prohibit 

the disclosure of public records that contain confidential information."). 

We therefore conclude that the district court's denial of the writ 

petition was within its discretion. On the facts before us in the record, 

DHHS has dernonstrated that the requested records satisfy the DTSA's twostep test for confidentiality by showing that manufacturers and PBMs have 

taken reasonable measures to shield the requested records from disclosure 

and that these entities derive economic value from the requested records' 

secrecy.6 

SUPREME COURT 

OF 

NEVAOA 

(0) 1947A 411410 

6TNI also contends that the Eleventh Amendment's sovereign 

immunity protects DHHS and Whitley from suit in federal court if they 

release the requested records. Since we determine that the requested 

records are exempt from disclosure, we need not consider this hypothetical 

issue. See Echeverria v. State, 137 Nev., Adv. Op. 49, 495 P.3d 471, 475 

(2021) (reaffirming that this court lacks the authority to issue advisory 

opinions). 

16 
CONCLUSION 

The NPRA permits the disclosure of government documents 

that are not declared by law to be confidential. In this opinion, we hold that 

the requested documents are confidential under the DTSA and are thus 

exempted from disclosure under the NPRA. We also determine that TNI 

has not demonstrated that NAC 439.730-.740 are invalid regulations and 

that the district court reached the correct outcome in admitting James 

Borneman's declaration. For these reasons, we affirm the district court's 

judgment. 

J. 

s t i glic h 

We concur: 

C.J. 

J. 

Silver 

17 

LiZ4aA)