No. 62512 

FILED 

MAY 2 9 2014 

CL 

BY 

E K. LiNDEMAN 

D= ERK 

130 Nev., Advance Opinion 57 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

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NEVADA 

LAS VEGAS DEVELOPMENT 

ASSOCIATES, LLC, A NEVADA 

LIMITED LIABILITY COMPANY; 

ESSEX REAL ESTATE PARTNERS, 

LLC, A NEVADA LIMITED LIABILITY 

COMPANY; INTEGRATED FINANCIAL 

ASSOCIATES, INC.; NEXBANK, SSB, A 

TEXAS-CHARTERED STATE SAVINGS 

BANK; WESTCHESTER CLO, LTD., A 

CORPORATION ORGANIZED UNDER 

THE LAWS OF THE CAYMAN 

ISLANDS; GLENEAGLES CLO, LTD., A 

CORPORATION ORGANIZED UNDER 

THE LAWS OF THE CAYMAN 

ISLANDS; STRATFORD CLO, LTD., A 

CORPORATION ORGANIZED UNDER 

THE LAWS OF THE CAYMAN 

ISLANDS; GREENBRIAR CLO, LTD., A 

CORPORATION ORGANIZED UNDER 

THE LAWS OF THE CAYMAN 

ISLANDS; EASTLAND CLO, LTD., A 

CORPORATION ORGANIZED UNDER 

THE LAWS OF THE CAYMAN 

ISLANDS; BRENTWOOD CLO, LTD., A 

CORPORATION ORGANIZED UNDER 

THE LAWS OF THE CAYMAN 

ISLANDS; JASPER CLO, LTD., A 

CORPORATION ORGANIZED UNDER 

THE LAWS OF THE CAYMAN 

ISLANDS; LONGHORN CREDIT 

FUNDING LLC, A DELAWARE 

LIMITED LIABILITY COMPANY; 

GRAYSON CLO, LTD., A 

CORPORATION ORGANIZED UNDER 

THE LAWS OF THE CAYMAN 

ISLANDS; AND RED RIVER CLO, LTD., 

A CORPORATION ORGANIZED 

UNDER THE LAWS OF THE CAYMAN 

ISLANDS, 

Petitioners, 

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vs. 

THE EIGHTH JUDICIAL DISTRICT 

COURT OF THE STATE OF NEVADA, 

IN AND FOR THE COUNTY OF 

CLARK; THE HONORABLE 

ELIZABETH GOFF GONZALEZ, 

DISTRICT JUDGE; AND THE 

HONORABLE MARK R. DENTON, 

DISTRICT JUDGE, 

Respondents, 

and 

KB HOME NEVADA INC., 

Real Party in Interest. 

Original petition for a writ of prohibition or mandamus 

challenging a district court order compelling discovery of purportedly 

privileged documents. 

Petition denied. 

Hutchison & Steffen, LLC, and Michael K. Wall and Patricia Lee, Las 

Vegas; Lackey Hershman, LLP, and Paul B. Lackey, Michael P. Aigen, 

and Kennedy Barnes, Dallas, Texas, 

for Petitioners. 

Pisanelli Bice, PLLC, and Todd L. Bice, James J. Pisanelli, Christopher R. 

Miltenberger, and Jordan T Smith, Las Vegas, 

for Real Party in Interest. 

BEFORE THE COURT EN BANC.' 

'The Honorable Kristina Pickering, Justice, voluntarily recused 

herself from participation in the decision of this matter. 

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OPINION 

By the Court, GIBBONS, C.J.: 

This court recently addressed the intersection of NRS 50.125 

and Nevada privilege law and concluded that "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." Las Vegas Sands Corp. v. Eighth Judicial Dist. Court, 130 Nev. 

„ 319 P.3d 618, 623 (2014). In this opinion, we address whether 

• 

NRS 50.125 applies to depositions as well as to in-court hearings. We 

conclude that it does. We therefore deny this petition for a writ of 

prohibition or mandamus. 

FACTS 

The underlying action stems from a dispute between 

petitioners Las Vegas Development Associates, LLC; Essex Real Estate 

Partners, LLC; and Integrated Financial Associates, Inc. (collectively, 

LVDA), and real party in interest KB Home Nevada, Inc. (KB Home), 

arising out of a real estate transaction. 2In conducting discovery, KB 

Home noticed and took the deposition of Essex Real Estate Partners, 

LLC's principal, George Holman. Holman testified that before his 

deposition, he had reviewed two memoranda prepared by his attorneys, as 

well as his own handwritten notes, to refresh his recollection and prepare 

for the proceeding. Then, the following exchange occurred: 

Q. Okay. Did the documents. . . what was 

the purpose of reviewing all those 

documents? 

2Eleven intervenors joined this action. 

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A. To be prepared and to refresh my 

memory. 

Q. Did they all refresh your recollection? 

A. Yes. 

Q. Including the memo? 

A. Yes. 

Holman testified that the memoranda were summaries of conversations 

that he had with his attorneys regarding the issues in this case. KB Home 

then requested that Holman divulge the contents of the attorney-prepared 

memoranda along with Holman's own handwritten notes. Holman refused 

based on the attorney-client privilege and the work-product doctrine. 

On the second day of Holman's deposition, he again confirmed 

the intent behind reviewing his handwritten notes, stating: "I looked at 

them to refresh my recollection, yes." KB Home asked if the notes did in 

fact refresh his recollection about matters he expected to testify about that 

day. Holman responded affirmatively. KB Home again requested to 

inspect the notes, but Holman refused. Later in the deposition, Holman 

confirmed for a third time that the notes summarized conversations that 

he had with his attorneys and related to his testimony. In a later 

installment of his deposition, Holman stated that his intent behind 

reviewing the memoranda and notes was to refresh his "memory about the 

strategy of the case going forward." Throughout his deposition, Holman 

refused to divulge the contents of the attorney-prepared memoranda and 

his handwritten notes, on the grounds that they were privileged. 

KB Home filed a motion to compel production of the 

documents, arguing that NRS 50.125 mandates disclosure of any 

documents used before a deposition to refresh one's recollection. The 

district court agreed and granted KB Home's motion. LVDA filed a motion 

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for reconsideration, and the district court referred the matter to the 

discovery commissioner. While the matter was proceeding before the 

discovery commissioner, LVDA produced Holman's handwritten notes and 

provided a redacted version of the attorney-prepared memoranda. 

Nevertheless, the discovery commissioner ultimately recommended full 

production of the unredacted memoranda. The discovery commissioner 

found that "so much of the information was intertwined," that "it would be 

impossible to conclude what 'factual' information [Holman] relied on." 

Additionally, the discovery commissioner found that "Holman reviewed 

the entirety of the documents and relied upon them in their entirety in 

preparing for his deposition." LVDA filed a written objection to the 

discovery commissioner's report and recommendation. The district court 

ultimately affirmed and adopted the discovery commissioner's report and 

recommendation, ordering production of the unredacted attorney-prepared 

memoranda pursuant to NRS 50.125. 

The underlying proceedings have been stayed by the district 

court, and LVDA now seeks writ relief from this court, arguing that the 

district court abused its discretion in granting KB Home's motion to 

compel because: (1) KB Home did not lay a sufficient foundation to invoke 

NRS 50.125, (2) NRS 50.125 does not serve as a waiver of the attorneyclient privilege, (3) NRS 50.125 does not serve as a waiver of the workproduct doctrine. Additionally, in order to properly resolve this writ 

petition, we will address whether NRS 50.125 applies to depositions as 

well as to in-court hearings. 

DISCUSSION 

We exercise our discretion to consider this writ petition 

because this case presents a situation where "the assertedly privileged 

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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). Further, we note that a writ of prohibition is an 

appropriate remedy to correct an order that compels disclosure of 

privileged information. Valley Health Sys., L.L.C. v. Eighth Judicial Dist. 

Court, 127 Nev. , n.5, 252 P.3d 676, 679 n.5 (2011); Las Vegas 

Sands, 130 Nev. at , 319 P.3d at 621. 

Standard of review 

Here, the parties dispute the district court's interpretation 

and application of NRS 50.125. 3Statutory interpretation presents a 

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

proceeding. Int? 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 

3NRS 50.125(1) provides: 

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. 

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statute is susceptible to more than one reasonable interpretation, it is 

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

statute's legislative history and "construing the statute in a manner that 

conforms to reason and public policy." Great Basin Water Network v. 

Taylor, 126 Nev. 187, 196, 234 P.3d 912, 918 (2010). 

KB Home laid a proper foundation to invoke NRS 50.125 

As a preliminary matter, LVDA argues that even if NRS 

50.125 requires production of documents otherwise protected by the 

attorney-client privilege and the work-product doctrine, KB Home did not 

lay the proper foundation to invoke the benefits of NRS 50.125 because KB 

Home did not establish the extent to which the documents refreshed 

Holman's recollection. LVDA primarily relies on Sipsas v. State, 102 Nev. 

119, 123, 716 P.2d 231, 233 (1986), in which this court determined that 

the district court abused its discretion in admitting a photograph pursuant 

to NRS 50.125(1)(d) when that photograph was not used to refresh the 

memory of the witness in question. This court concluded that although 

the witness "had previously viewed the photograph, it was not used, nor 

was it needed, to refresh [the witness's] recollection of the event." Id. at 

123, 716 P.2d at 234. Thus, "ftlhe photograph. . . was improperly 

admitted on the grounds of NRS 50.125(1)(d)." Id. 

LVDA's reliance on Sipsas is misplaced because that case 

involved a situation where the witness never indicated that he was unable 

to recall events, and therefore the photograph was clearly not used to 

refresh the witness's recollection at trial. See id. Here, KB Home 

established a foundation under NRS 50.125 because KB Home verified 

with Holman that he reviewed the two memoranda, the purpose for 

reviewing the memoranda, and the effect his review had in refreshing his 

recollection. 

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NRS 50.125(1) clearly states that "[i]f a witness uses a writing 

to refresh his or her memory, either before or while testifying, an adverse 

party is entitled to have it produced at the hearing. . ." (Emphasis 

added.) As the discovery commissioner noted, "it [was] clear that 

[Holman] reviewed the documents, including the alleged privileged 

documents to 'refresh his memory.' Therefore, this case is not one where 

the purported privileged communications did not refresh." Thus, we 

conclude that the district court did not abuse its discretion in finding that 

KB Home laid a proper foundation to invoke NRS 50.125. 

NRS 50.125 serves as a waiver of the attorney-client privilege and the 

work-product doctrine when a witness reviews such writings to refresh his 

or her recollection prior to testifying 

LVDA argues that NRS 50.125 does not serve as a waiver of 

the attorney-client privilege or the work-product doctrine because those 

protections apply "at all stages of the proceedings." NRS 47.020(2) 

(providing that "the provisions of [C]hapter 49 of MRS with respect to 

privileges apply at all stages of all proceedings"). 

We recently addressed the intersection of MRS 50.125 and 

Nevada privilege law in Las Vegas Sands Corp. v. Eighth Judicial District 

Court, 130 Nev. , 319 P.3d 618 (2014). In Las Vegas Sands, we noted 

that the language of NRS 50.125 is ambiguous, given its bare use of the 

term "a writing." Id. at , 319 P.3d at 622. In analyzing the statute, we 

compared MRS 50.125 to its federal counterpart, Federal Rule of Evidence 

(FRE) 612, and noted that "[w]hereas 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." Id. at , 319 P.3d at 623. Thus, 

without such discretionary language, "Nevada district courts lack 

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discretion to halt the disclosure of privileged documents when a witness 

uses the privileged documents to refresh his or her recollection prior to 

testifying." Id. 

Here, LVDA prepared Holman for his deposition by supplying 

him with two memoranda that LVDA asserts are attorney work-product 

and subject to the attorney-client privilege. Holman admittedly used 

those memoranda to refresh his memory before his deposition, which 

potentially shaped and influenced his deposition testimony. 4 

However, NRS 50.125 uses the term "hearing," without any 

indication as to whether the statute should apply to depositions. In order 

to properly resolve this writ petition, we must address whether NRS 

50.125 applies to depositions as well as in-court hearings. 

NRS 50.125's "hearing" language applies to depositions as well as to incourt hearings 

This court has not previously addressed whether depositions 

are included within the term "hearing" under NRS 50.125. Black's Law 

Dictionary defines hearing as "fal judicial session, usu[ally] open to the 

public, held for the purpose of deciding issues of fact or of law, sometimes 

4Additionally, we conclude that LVDA's argument that the district 

court was required to redact any mental impressions, opinions, or legal 

theories is without merit. The discovery commissioner conducted an in 

camera review of the redacted and unredacted memoranda and found that 

"Holman reviewed the entirety of the documents and relied upon them in 

their entirety in preparing for his deposition." In light of these findings 

and NRS 50.125's absolute language, we cannot say that the district court 

abused its discretion in affirming and adopting the discovery 

commissioner's recommendation that the memoranda be produced in their 

unredacted form. 

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with witnesses testifying." Black's Law Dictionary 788 (9th ed. 2009). A 

deposition is defined as "[a] witness's out-of-court testimony that is 

reduced to writing (usu[ally] by a court reporter) for later use in court or 

for discovery purposes." Id. at 505. Although the two terms may be 

defined to encompass different specific events, there is also a significant 

amount of overlap in terms of the functions they serve. See Chanos v. Nev. 

Tax Comm'n, 124 Nev. 232, 241, 181 P.3d 675, 681 (2008) ("[T]hough 

[definitions of hearing] var[y] . , they all share[ ] a common element: a 

hearing is an official gathering at which evidence is taken."). Because 

these two terms can reasonably be interpreted in both manners, we look to 

the legislative history for guidance. 

A search of the legislative history behind NRS 50.125 reveals 

that there was no discussion as to whether the Nevada Legislature 

intended depositions to be included within the term. See Hearing on S.B. 

12 Before the Senate Judiciary Comm., 56th Leg. (Nev., Feb. 10, 1971); 

Hearing on S.B. 12 Before the Joint Senate & Assembly Judiciary 

Cons., 56th Leg. (Nev., Feb. 11, 1971) (addressing concerns regarding 

various proposed rules of evidence, but not addressing the provisions of 

NRS 50.125). However, NRS 50.125 was submitted to the Nevada 

Legislature based on a draft version of Federal Rule of Evidence (FRE) 

612. Hearing on S.B. 12 Before the Senate Judiciary Comm., 56th Leg. 

(Nev., Feb. 10, 1971) ("There is a federal evidence code that is proposed; it 

is amended in some respects and this draft follows as closely as possible 

that code ... our work here is as close as can be to [the] federal code."). 

And although NRS 50.125 differs from FRE 612 insofar as NRS 50.125 

lacks a discretionary element, see Las Vegas Sands, 130 Nev. at , 319 

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P.3d at 623, both provisions refer to use of the writing at a "hearing." 5 

Thus, the federal decisions interpreting FRE 612 are instructive with 

regard to our consideration of this issue. Cf. Nelson v. Heer, 121 Nev. 832, 

834, 122 P.3d 1252, 1253 (2005) ("We have previously recognized that 

federal decisions involving the Federal Rules of Civil Procedure provide 

persuasive authority when this court examines its rules."). 

Federal courts interpreting FRE 612 have concluded that the 

rule applies to depositions and deposition testimony by operation of FRCP 

30(c), which provides that "examination and cross-examination of a 

deponent proceedS as they would at trial under the Federal Rules of 

Evidence." See, e.g., Sporck v. Fell, 759 F.2d 312, 317 (3d Cir. 1985) 

(explaining that FRE 612 "is applicable to depositions and deposition 

testimony by operation of Federal Rule of Civil Procedure 30(c)"); Heron 

Interact, Inc. v. Guidelines, Inc., 244 F.R.D. 75, 76 (D. Mass. 2007); Magee 

v. Paul Revere Life Ins. Co., 172 F.R.D. 627, 637 (E.D.N.Y. 1997); James 

Julian, Inc. v. Raytheon Co., 93 F.R.D. 138, 144 (D. Del. 1982); see also 

Doxtator v. Swarthout, 328 N.Y.S.2d 150, 152 (App. Div. 1972) ("We think 

it a sound rule that writings used prior to testifying for the purpose of 

refreshing the memory of a witness be made available to the adversary 

5FRE 612 provides in relevant part: 

[VVilien a witness uses a writing to refresh 

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. 

(Emphasis added.) 

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whether at the trial or at pre-trial examination." (internal citations 

omitted)). 

The portion of FRCP 30(c) that federal courts have relied upon 

to apply FRE 612 to deposition testimony states that "examination and 

cross-examination of a deponent proceed as they would at trial under the 

Federal Rules of Evidence." FRCP 30(c) (emphasis added). Similarly, 

NRCP 30(c) states that "[e]xamination and cross-examination of witnesses 

may proceed as permitted at the trial under the provisions of Rule 43(b)." 6 

(Emphasis added.) Based on our review of both NRCP 30(c) and FRCP 

30(c), we conclude that the two provisions are substantially similar 

because both provide that deposition examinations proceed as permitted 

at trial. 

Given that depositions proceed as permitted at trial, we see no 

reason why writings used to refresh the memory of a witness before or 

during a deposition should be treated differently than those used by a 

witness before or at "the trial." We find the federal caselaw on this issue 

to be persuasive and conclude that NRS 50.125 applies to depositions and 

deposition testimony as well as to in-court hearings by operation of NRCP 

30(c), See Hallmark v. Eldridge, 124 Nev. 492, 498, 189 P.3d 646, 650 

(2008) (stating that "federal court decisions discussing [an analogous 

federal rule of evidence] may provide persuasive authority" to help this 

court interpret its own rules). 7 

6NRCP 43(b) provides that a "solemn affirmation" may be accepted 

in lieu of an oath. 

7Unlike in Las Vegas Sands, this "hearing" has not been completed 

and the finder of fact has not yet ruled on the underlying issue. See Las 

Vegas Sands, 130 Nev. at , 319 P.3d at 624. Thus, because Holman's 

deposition can be resumed, he can still be cross-examined on the writing, 

continued on next page . . . 

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Therefore, we conclude that when a witness uses a privileged 

document to refresh his or her recollection prior to giving testimony at a 

deposition, an adverse party is entitled to have the writing produced at the 

deposition pursuant to NRS 50.125. KB Home is entitled to know the 

contents of those memoranda in order to properly cross-examine Holman 

as to their accuracy, truthfulness, and their influence on his testimony. 

As a result, we conclude that the district court did not err in granting KB 

Home's motion to compel production of the attorney-prepared 

memoranda. 8 

CONCLUSION 

We conclude that reviewing a document for the purpose of 

refreshing one's memory prior to or during testimony serves as a waiver to 

the attorney-client privilege and the work-product doctrine under NRS 

50.125, allowing the adverse party to demand production of the document, 

inspect it, cross-examine the witness on the contents, and admit the 

document into evidence for the purpose of impeachment. We also conclude 

that NRS 50.125 applies to deposition testimony as well as to in-court 

hearings. As a result, we conclude that the district court properly 

compelled the production of the documents that Holman used to refresh 

. . . continued 

and the writing can be produced, inspected, and used for crossexamination for the purpose of assessing Holman's credibility. 

8We have considered the parties' remaining arguments and conclude 

they are without merit. 

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his recollection prior to his deposition, and we therefore deny this petition 

for a writ of prohibition or mandamus. 

Gibbons 

We concur: 

Hardesty 

tect4-4; 

J. 

J. 

Douglas 

Saitta 

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