FILED 

FEB 27 2014 

T E K. LINUMAN 

PS 

•EPU4 

BY 

130 Nev., Advance Opinion 13 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

LAS VEGAS SANDS CORP., A NEVADA 

CORPORATION; AND SANDS CHINA 

LTD., A CAYMAN ISLANDS 

CORPORATION, 

Petitioners, 

vs. 

THE EIGHTH JUDICIAL DISTRICT 

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. 

No. 62489 

Original petition for a writ of prohibition or mandamus 

challenging a district court order compelling disclosure of purportedly 

privileged documents. 

Petition granted. 

Morris Law Group and Steve L. Morris and Rosa Solis-Rainey, Las Vegas; 

Kemp, Jones & Coulthard, LLP, and J. Randall Jones and Mark M. Jones, 

Las Vegas; Holland & Hart LLP and J. Stephen Peek and Robert J. 

Cassity, Las Vegas, 

for Petitioners. 

Pisanelli Bice, PLLC, and Todd L. Bice, James J. Pisanelli, and Debra L. 

Spinelli, Las Vegas, 

for Real Party in Interest. 

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BEFORE THE COURT EN BANC. ] 

OPINION 

By the Court, GIBBONS, C.J.: 

In this opinion, we consider whether a witness's review of 

purportedly privileged documents prior to testifying constitutes a waiver 

of any privilege under NRS 50.125, such that the adverse party may 

demand production, be allowed to inspect the documents, cross-examine 

the witness on the contents, and admit the evidence for purposes of 

impeachment. We conclude that it does. However, under the specific facts 

of this case, where the adverse party failed to demand production, 

inspection, cross-examination, and admission of the documents at or near 

the hearing in question and instead waited until well after the district 

court had entered its order, the demand was untimely under NRS 

50.125(1). Accordingly, we grant petitioners' request for a writ of 

prohibition to halt the production of the purportedly privileged documents. 

FACTS AND PROCEDURAL HISTORY 

Real party in interest Steven Jacobs filed an action against 

petitioners Las Vegas Sands Corp. and Sands China Ltd. and nonparty 

Sheldon Adelson, the chief executive officer of Las Vegas Sands 

(collectively, Sands), arising out of Jacobs's termination as president and 

chief executive officer of Sands's Macau operations. Jacobs alleged that 

Sands breached his employment contract by refusing to award him 

promised stock options, among other things. When the district court 

'The Honorable Kristina Pickering and the Honorable Ron 

Parraguirre, Justices, voluntarily recused themselves from participation 

in the decision of this matter. 

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denied Sands China's motion to dismiss for lack of personal jurisdiction, 

Sands filed a petition for a writ of mandamus with this court, challenging 

the district court's finding of personal jurisdiction. We granted the 

petition for a writ of mandamus due to defects in the district court's order 

and directed the district court to revisit the issue of personal jurisdiction, 

hold an evidentiary hearing, and issue its findings on personal 

jurisdiction. See Sands China Ltd. v. Eighth Judicial Dist. Court, Docket 

No. 58294 (Order Granting Petition for Writ of Mandamus, August 26, 

2011). 

As a result of Sands's conduct in the ensuing jurisdictional 

discovery process, the district court sua sponte ordered an evidentiary 

hearing to consider sanctions. At the hearing, the district court considered 

(1) whether Sands violated EDCR 7.60(b) by causing the district court and 

Jacobs to waste time and resources on the applicability of Macau's 

Personal Data Protection Act (MPDPA), and (2) whether Sands breached 

its duty of candor to the court. 2 

During the three-day sanctions hearing, Jacobs crossexamined former Las Vegas Sands attorney Justin Jones on the theory 

that Jones and another attorney had printed copies of e-mails from Jacobs 

2The MPDPA prohibits the transfer of personal data out of Macau, 

but testimony revealed that Sands had transported "ghost images" of 

important hard drives from Macau into the United States and that other 

data links were available between Macau and Las Vegas. Despite the fact 

that the information was already in the United States, Sands delayed 

discovery by asserting that it was having trouble obtaining authorization 

from Macau to transfer the data out of the country; it was forced to fly to 

Macau to• view the data; and as a result, it could not comply with its 

disclosure obligations. When the district court found out that the 

information had been in the United States all along, it ordered a sanctions 

hearing. 

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but did not retain the copies so that they could later claim they technically 

did not possess the documents, as the documents would have been in the 

United States in violation of Macau law. Jacobs noted that Jones's 

testimony had been fairly precise, and asked if Jones had reviewed his 

billing records before arriving at court that day. Following a work product 

objection, Jones responded affirmatively, explaining that he had done so to 

refresh his recollection as to certain dates, and that reviewing those 

records had in fact refreshed his recollection as to relevant dates. After 

another work product objection, Jones revealed that he had also reviewed 

e-mails that refreshed his memory as to the timing of events. 

Jacobs argued at the hearing that Nevada law requires a 

party to disclose any documents used to refresh a witness's recollection, 

and thus, the billing records and e-mails Jones used were openly 

discoverable. When Sands objected to the identification and examination 

of the e-mails based on the work product doctrine and the attorney-client 

privilege, the district court suggested that Jacobs file a motion requesting 

that the documents be produced. The district court indicated that it would 

hold argument and rule on the discovery issue at a later date. Two days 

later, and without deciding the discovery issue, the district court filed its 

order imposing sanctions on Sands. 

Jacobs filed his motion to compel production of the documents 

Jones used to refresh his recollection two months later. In this motion, 

Jacobs alleged that Jones had waived the work product doctrine and the 

attorney-client privilege when he refreshed his recollection with the 

purportedly privileged documents. Sands opposed the motion, arguing 

that NRS 50.125(1), which generally requires disclosure of a writing used 

to refresh a witness's memory, does not require automatic disclosure of 

privileged documents, and that the district court must employ a balancing 

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test to determine whether disclosure is in the interests of justice. 

Alternatively, Sands argued that the rights of production, inspection, 

cross-examination, and admission provided for in NRS 50.125(1) must be 

exercised at the hearing at which the witness testifies based on the 

documents. The district court heard arguments in chambers and entered 

an order compelling Sands to produce the documents. At Sands's request, 

the district court stayed enforcement of its order pending the resolution of 

these writ proceedings. 

DISCUSSION 

When the district court acts without or in excess of its 

jurisdiction, a writ of prohibition may issue to curb the extrajurisdictional 

act. Club Vista Fin, Servs., L.L.C. v. Eighth Judicial Dist. Court, 128 Nev. 

„ 276 P.3d 246, 249 (2012). Thus, even though discovery matters 

typically are addressed to the district court's sound discretion and 

unreviewable by writ petition, this court has intervened in discovery 

matters when (1) the trial court issues blanket discovery orders without 

regard to relevance, or (2) a discovery order requires disclosure of 

privileged information. Id. at & n.6, 276 P.3d at 249 & n.6 (explaining 

that discovery excesses are more appropriately remedied by writ of 

prohibition than mandamus); Valley Health Sys., L.L.C. v. Eighth Judicial 

Dist. Court, 127 Nev. 252 P.3d 676, 679 (2011); Schlatter v. 

Eighth Judicial Dist. Court, 93 Nev. 189, 193, 561 P.2d 1342, 1344 (1977). 

This case presents a situation where, if improperly disclosed, "the 

assertedly privileged information would irretrievably lose its confidential 

and privileged quality and petitioners would have no effective remedy, 

even by later appeal." WardLeigh v. Second Judicial Dist. Court, 111 Nev. 

345, 350-51, 891 P.2d 1180, 1183-84 (1995). Thus, we choose to exercise 

our discretion to consider this writ petition because the district court order 

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at issue compels disclosure of purportedly privileged information. See 

Valley Health, 127 Nev. at , 252 P.3d at 679; see also Aspen Fin. Servs., 

Inc. v. Eighth Judicial Dist. Court, 128 Nev. „ 289 P.3d 201, 204 

(2012) ("[W]rit relief may be available when it is necessary to prevent 

discovery that would cause privileged information to irretrievably lose its 

confidential nature and thereby render a later appeal ineffective."). 

Standard of review 

Here, the parties dispute the district court's interpretation 

and application of NRS 50.125. Statutory interpretation and application 

is a question of law subject to our de novo review, even when arising in a 

writ proceeding. Int'l Game Tech., Inc. v. Second Judicial Dist. Court, 124 

Nev. 193, 198, 179 P.3d 556, 559 (2008). "Generally, when a statute's 

language is plain and its meaning clear, the courts will apply that plain 

language." Leven v. Frey, 123 Nev. 399, 403, 168 P.3d 712, 715 (2007). But 

when a statute is susceptible to more than one reasonable interpretation, 

it is ambiguous, and this court must resolve that ambiguity by looking to 

legislative history and "construing the statute in a manner that conforms 

to reason and public policy." Great Basin Water Network v. Taylor, 126 

Nev. 234 P.3d 912, 918 (2010). 

When invoked at a hearing, NRS 50.125 requires disclosure of any 

document used to refresh the witness's recollection before or while 

testifying, regardless of privilege 

To resolve this appeal, we must determine whether the 

Nevada Legislature intended all writings, including privileged documents, 

to be produced for impeachment purposes when a witness uses the 

document to refresh his or her recollection prior to testifying. NRS 

50.125(1) provides for the production and introduction of writings used to 

refresh a witness's memory: 

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If a witness uses a writing to refresh his or her 

memory, either before or while testifying, an 

adverse party is entitled: 

(a) To have it produced at the hearing; 

(b) To inspect it; 

(c) To cross-examine the witness thereon; 

and 

(d) To introduce in evidence those portions 

which relate to the testimony of the witness for 

the purpose of affecting the witness's credibility. 

The intersection of NRS 50.125 and Nevada privilege law is an issue of 

first impression in Nevada. 3 

Sands argues that NRS 47.020 and NRCP 26(b)(3) guarantee 

that the work product doctrine and the attorney-client privilege apply at 

all stages of all proceedings except where they are "relaxed by a statute or 

procedural rule applicable to the specific situation." NRS 47.020(1)(a). To 

that end, Sands argues that NRS 50.125 does not "relax" any privilege 

because it does not specifically mandate the forfeiture of privileged 

3We note that this court addressed the interaction between NRS 

50.125 and privileged communications in Means v. State, 120 Nev. 1001, 

103 P.3d 25 (2004). In Means, a former client demanded work product 

from his former attorney, not the more common scenario where counsel 

representing an adverse party demands disclosure. Id. at 1009-10, 103 

P.3d at 30-31. Under the circumstances presented there, we concluded 

that disclosure of the documents in question was warranted. Id. at 1010, 

103 P.3d at 31. We take this opportunity to clarify that Means involved a 

unique factual situation where a former client attempted to obtain his 

former counsel's notes for the purposes of an ineffective assistance of 

counsel claim. Our narrow holding was consistent with our reliance on 

Spivey v. Zant, 683 F.2d 881 (5th Cir. 1982), a case holding that a former 

client is entitled to all portions of his former attorney's file and that the 

work product protection only applies when an adversary seeks materials. 

Id. at 885. Therefore, we conclude that Means is inapplicable to the case 

at hand. 

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documents when a witness uses those documents to refresh his or her 

memory before testifying. Alternatively, Sands argues that NRS 50.125 

only provides that an adverse party is entitled to a document at the 

hearing, and therefore, it cannot be used as a tool for obtaining discovery 

after the relevant hearing has concluded. Jacobs responds that NRS 

50.125 makes no exception for privileged documents and therefore applies 

to both privileged and nonprivileged documents. Additionally, Jacobs 

argues that NRS 50.125 lacks the discretionary prong that its federal 

counterpart, Federal Rule of Evidence (FRE) 612, contains. 4Thus, Jacobs 

asserts that any document used to refresh a witness's recollection before 

or during testimony must be disclosed. 

Looking at the language of NRS 50.125, we conclude that the 

language "a writing" is ambiguous because the phrase could be interpreted 

to mean any writing, privileged or unprivileged. "[Al writing" could also 

be interpreted under NRS 47.020 to exempt privileged documents because 

under NRS 47.020, a privilege applies "at all stages of all proceedings" 

except where it is "relaxed by statute or procedural rule applicable to the 

specific situation." NRS 47.020(1). Therefore, we consider the statute's 

legislative history. 

4Similar to NRS 50.125, FRE 612(b) provides that when a witness 

uses a writing to refresh his or her memory, "an adverse party is entitled 

to have the writing produced at the hearing, to inspect it, to cross-examine 

the witness about it, and to introduce in evidence any portion that relates 

to the witness's testimony." But FRE 612(a) differentiates between 

instances when a witness uses a writing to refresh memory while 

testifying as opposed to before testifying. In situations when a witness 

uses a writing to refresh his or her memory prior to testifying, it is within 

the district court's discretion to decide whether justice requires the writing 

to be produced. FRE 612(a)(2). 

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NRS 50.125 differs significantly from FRE 612 

The Nevada Legislature has not amended NRS 50.125 since 

its passage in 1971. At that time, the language of the statute was chosen 

based on a draft version of FRE 612. Hearing on S.B. 12 Before the 

Senate Judiciary Comm., 56th Leg. (Nev., February 10, 1971). During the 

United States Congress's consideration of the draft rules, however, it 

amended FRE 612(a) to make production of writings used by a witness to 

refresh recollection before testifying subject to the discretion of the court 

"in the interests of justice, as is the case under existing federal law." H.R. 

Rep. No. 93-650, at 13 (1974), reprinted in 1974 U.S.C.C.A.N. 7075, 7086. 

Congress implemented this change because it did not want to require 

wholesale production of documents used before testifying, as doing so 

"could result in fishing expeditions." Id. NRS 50.125 does not contain this 

discretionary prong. 

The legislative history of NRS 50.125 does not shed light on 

whether the Nevada Legislature intended to require automatic disclosure 

despite a document's privileged status. But the legislators who worked on 

Nevada's evidence code noted that they wanted the code to promote "the 

search for truth," that "as much evidence as can come out, should come 

out," and therefore, they attempted to limit exceptions. Hearing on S.B. 

12 Before the Senate Judiciary Comm, 56th Leg. (Nev., February 10, 

1971). 

Sands argues that the difference in the text between FRE 612 

and NRS 50.125 is slight and does not affect the outcome of the case and 

that Nevada courts should have discretion on a case-by-case basis to 

balance the adverse party's need for the writing against the important 

public interests in protecting privileged documents. Jacobs responds that 

unlike FRE 612, NRS 50.125 draws no distinction between documents 

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used prior to and while testifying, and contains no provision for the 

exercise of discretion. Further, Jacobs argues that even under federal 

cases that apply the discretionary prong, the weight of authority mandates 

disclosure of the privileged documents. 

We conclude that the differences between NRS 50.125 and 

FRE 612 are significant. Whereas FRE 612 permits the district court's 

exercise of discretion to preclude disclosure of privileged documents used 

to refresh a witness's recollection before testifying, no such discretionary 

language exists in NRS 50.125. Without such language in NRS 50.125, 

Nevada district courts lack discretion to halt the disclosure of privileged 

documents when a witness uses the privileged documents to refresh his or 

her recollection prior to testifying. In the 40 years since the passage of 

FRE 612, the Nevada Legislature has had the option to bring NRS 50.125 

in line with the federal rule by adding a discretionary prong, but has not. 

Thus, we conclude that NRS 50.125 mandates that documents relied on 

before and during testimony to refresh recollection be treated the same. 

We therefore decline to read a discretionary element into NRS 50.125 

where the Legislature has provided none. 

Additionally, allowing privilege to prevail at this stage of a 

witness's testimony would place an unfair disadvantage on the adverse 

party. Sands's interpretation of NRS 50.125 would encourage witnesses to 

use privileged writings to refresh recollection in an attempt to shield the 

witness from any meaningful cross-examination on his or her testimony. 5 

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5We have previously observed that "the attorney-client privilege was 

intended as a shield, not a sword." Wardleigh v. Second Judicial Dist. 

Court, 111 Nev. 345, 354, 891 P.2d 1180, 1186 (1995) (internal quotation 

marks omitted). It would be unfair to allow a witness to rely on a 

privileged document to refresh his or her recollection, and then disallow 

continued on next page... 

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Such an interpretation of NRS 50.125 would inhibit the cross-examining 

party from investigating discrepancies between the writing and the 

witness's testimony, and as such, would serve to inhibit "the search for 

truth." 

The Nevada Legislature enacted NRS 50.125 to allow an 

adverse party to inspect and use the document to test a witness's 

credibility at the hearing. Thus, we conclude that where a witness 

refreshes his or her recollection with privileged documents, the witness 

takes the risk that an adversary will demand to inspect the documents. 

Therefore, when invoked at a hearing, we conclude that NRS 50.125 

requires disclosure of any document used to refresh the witness's 

recollection before or while testifying, regardless of privilege. See 

Wardleigh, 111 Nev. at 354-55, 891 P.2d at 1186 (indicating that the 

"attorney-client privilege is waived when a litigant places information 

protected by it in issue through some affirmative act for his own benefit" 

(internal quotations omitted)). However, as explained below, Jacobs did 

not properly invoke NRS 50.125 at the sanctions hearing, rendering the 

issue of Jones's credibility a moot point. 

We note that Jones's reliance on the purportedly privileged 

documents for the purposes of refreshing his recollection would have only 

...continued 

the cross-examiner to know the extent to which that document influenced 

or contradicts the witness's testimony. See James Julian, Inc. v. Raytheon 

Co., 93 F.R.D. 138, 146 (D. Del. 1982) ("The instant request constitutes 

neither a fishing expedition into plaintiffs files nor an invasion of 

counsel's 'zone of privacy.' Plaintiffs counsel made a decision to educate 

their witnesses by supplying them with the [privileged documents], and 

the Raytheon defendants are entitled to know the content of that 

education."). 

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required disclosure of the documents to opposing counsel upon appropriate 

request under NRS 50.125, and would not constitute any further waiver of 

the work product doctrine or the attorney-client privilege that would have 

made the documents discoverable at a later point. See Marshall v. U.S. 

Postal Serv., 88 F.R.D. 348, 351 (D.D.C. 1980) ("[U]se of a document for 

recollection purposes requires only the disclosure of the document to 

opposing counsel, and [the] disclosure does not, in and of itself, constitute 

any further waiver of the attorney-client privilege."). 

The district court abused its discretion when it ordered the production of 

purportedly privileged documents because the request was untimely and 

Jones's credibility was no longer at issue 

Sands argues that NRS 50.125 was designed to ensure that an 

adverse party has a full and fair opportunity to test the witness's 

credibility when the witness's testimony is based on recollection that was 

refreshed by examining particular writings. Sands points out that when 

the district court entered its order compelling production of the documents 

in question, there was no longer any need or opportunity to test Jones's 

credibility because the hearing was already over and the district court had 

issued its sanctions order. Jacobs argues that the fact that the district 

court made its decision post-hearing does not impair Sands's production 

requirements. 

NRS 50.125(1) plainly states that the adverse party is entitled 

to have a document used to refresh the witness's recollection produced at 

the hearing, to allow inspection and cross-examination based on the 

document, and to permit the adverse party to introduce the document into 

evidence "for the purpose of affecting the witness's credibility." As the 

United States Court of Appeals for the Third Circuit has noted, "[FRE] 612 

is a rule of evidence, and not a rule of discovery. Its sole purpose is 

evidentiary in function 'to promote the search of credibility and memory." 

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Sporck v. Peil, 759 F.2d 312, 317 (3d Cir. 1985) (quoting FRE 612 advisory 

committee note); see also Derderian v. Polaroid Corp., 121 F.R.D. 13, 17 

(D. Mass. 1988) (indicating that FRE 612 "is a rule of evidence, not a rule 

of discovery"); A,guinaga v. John Morrell & Co., 112 F.R.D. 671, 683 (D. 

Kan. 1986) (same). 6Although Jacobs argues that Sands's misconduct is 

ongoing, we are convinced that permitting such an untimely motion would 

encourage the types of "fishing expeditions" that both the Nevada 

Legislature and Congress sought to avoid with NRS 50.125 and FRE 612. 

The sole purpose of MRS 50.125 is to test the witness's credibility at the 

hearing, and the statute clearly states that the production must occur at 

the hearing. 

Here, the district court order compelling production of the 

purportedly privileged documents effectively turns MRS 50.125 into a 

discovery tool that has no relation to testing any witness's credibility. The 

district court read MRS 50.125 too broadly when it ordered the production 

of the billing entries and e-mails two months after Jones left the stand and 

after it issued its sanctions order. This is evident in the district court 

order's language, which states that "[phirsuant to NRS 50.125, once a 

document is used by a witness to refresh his recollection, then that 

document is subject to discovery." This reading of NRS 50.125 ignores the 

"at the hearing" language and turns the statute into a general rule of 

discovery, not a rule of evidence. See Derderian, 121 F.R.D. at 17. As a 

result, we conclude that the district court abused its discretion by 

6We note that despite the differences between FRE 612 and NRS 

50.125, the two provisions serve the same fundamental purpose. Thus, we 

find this authority persuasive inasmuch as it relates to the proper purpose 

of MRS 50.125. 

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mandating the production of the purportedly privileged documents after it 

had issued its sanctions order. See Skender v. Brunsonbuilt Constr. & 

Dev. Co., 122 Nev. 1430, 1435, 148 P.3d 710, 714 (2006) (explaining that a 

district court abuses its discretion if its decision "exceeds the bounds of 

law or reason"). 

Under these facts, when the district court indicated that it 

wanted briefing and would defer ruling on the issue, Jacobs should have 

noted that NRS 50.125 required the district court to rule on his request at 

the hearing. Alternatively, Jacobs should have submitted his motion 

immediately following the hearing to ensure that Jones could be put back 

on the stand and cross-examined regarding the contents of the purportedly 

privileged documents before the district court issued its ruling. 

However, because the district court already issued its ruling 

on the sanctions issue, the issue of Jacobs's credibility became a moot 

point and there was no evidentiary reason to produce the documents. 

Thus, this is precisely the scenario in which "writ relief. . . is necessary to 

prevent discovery that would cause privileged information to irretrievably 

lose its confidential nature and thereby render a later appeal ineffective." 

Aspen Fin. Servs., Inc., 128 Nev. at , 289 P.3d at 204. 

CONCLUSION 

We conclude that upon a timely request, NRS 50.125 

mandates production of documents used by a witness to refresh his or her 

recollection prior to testifying, regardless of privilege. However, 

considering these facts, Jacobs's request for production of the documents 

was not timely because the district court had already issued its ruling on 

the underlying sanctions issue. We therefore grant Sands's petition and 

direct the clerk of this court to issue a writ of prohibition ordering the 

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district court to halt the production of the purportedly privileged 

documents. 7 

Gibbons 

We concur: 

%,egalLA. , 

Hardesty 

Dr_3-69 14a 

Douglas 

Cheri 

Saitta 

7 In light of this disposition, we need not address the parties' other 

arguments, and Sands's alternative request for a writ of mandamus is 

denied. 

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