No. 63444 

FILED 

AUG 0 7 2014 

K. LINIZMAN 

CLETRIAKLfl 

BY 

130 Nevi.. Advance Opinion 61 

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. 

Original petition for a writ of prohibition or mandamus 

challenging a district court order authorizing the use of purportedly 

privileged documents. 

Petition granted in part. 

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, Debra L. 

Spinelli, and Eric T. Aldrian, 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 former chief executive 

officer of a corporation, who is now suing his former employer, is within a 

"class of persons" entitled to access the corporation's privileged documents 

for use in the litigation. We conclude that a corporation's current 

management is the sole holder of its attorney-client privilege, and thus, 

Nevada law does not allow for a judicially created class of persons 

exception to attorney-client privilege. Accordingly, we grant petitioners' 

request for a writ of prohibition in part to prevent real party in interest 

from using the purportedly privileged documents in the underlying 

litigation. 

FACTS AND PROCEDURAL HISTORY 

This matter arises out of real party in interest Steven C. 

Jacobs's termination as president and chief executive officer of Sands 

China Ltd. On or near the same day he was terminated, Jacobs gathered 

approximately 40 gigabytes of documents in the form of e-mails and other 

communications (the documents), which Jacobs continues to possess. 

Approximately three months after his termination, Jacobs 

filed a complaint against petitioners Las Vegas Sands Corp. (LVSC) and 

Sands China Ltd., as well as nonparty to this writ petition, Sheldon 

Adelson, the chief executive officer of LVSC (collectively, Sands). In the 

complaint, Jacobs alleged that Sands breached his employment contract 

by refusing to award him promised stock options, among other things. 

'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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Almost nine months after filing his complaint, Jacobs 

disclosed, as an update on the status of document production, that he 

possessed the documents at issue in this writ petition. Shortly thereafter, 

the parties met and conferred regarding the documents, and Sands 

asserted that the material may be subject to Sands's attorney-client 

privilege and demanded that Jacobs return the documents. Jacobs, 

however, refused to return the documents. 

LVSC files a motion for a protective order and for return of the documents 

Approximately one month after Jacobs disclosed that he 

possessed the documents, LVSC filed a motion for a protective order and 

for return of the documents. 2Among LVSC's several arguments was that, 

after he was terminated, Jacobs had no right to possess documents that 

were subject to LVSC's attorney-client privilege. 

The district court expressed concern that it could not consider 

LVSC's motion in light of the stay that this court had imposed on the 

underlying litigation in connection with a previous writ petition that 

Sands China filed in this court. 3LVSC communicated to the district court 

that if the district court believed that entertaining the motion would 

Sands China did not join in the motion in order to avoid seeking 

affirmative relief from the district court and thereby• subject itself to the 

court's jurisdiction. 

30n August 26, 2011, this court granted Sands China's petition for a 

writ of mandamus, which challenged the district court's order denying 

Sands China's motion to dismiss it from the underlying action for lack of 

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, this court directed the district court to stay 

the underlying action until the district court held an evidentiary hearing 

on whether Sands China is subject to personal jurisdiction in Nevada. The 

underlying action is still stayed because the parties have not yet concluded 

jurisdictional discovery in preparation for the ordered evidentiary hearing. 

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violate the stay, then LVSC would withdraw the motion and instead file a 

second action challenging Jacobs's possession and use of the documents. 

LVSC files a second action in district court in an attempt to obtain a ruling 

on Jacobs's possession of the purportedly privileged documents 

Subsequently, LVSC filed a complaint (the second action) 

against Jacobs in the district court claiming theft/conversion of the 

documents and seeking preliminary and permanent injunctive relief. 

LVSC simultaneously filed a motion in the second action for a temporary 

restraining order and preliminary injunction or, in the alternative, for a 

protective order, again arguing that Jacobs took company documents 

containing attorney-client privileged communications without the 

authority to do so. The district court granted injunctive relief, prohibiting 

Jacobs from disseminating the documents to third parties for 14 days, in 

order, to allow. Sands to return to the original action and file an emergency 

writ petition with this court requesting a "carve out" from the underlying 

stay. 4Neither party challenged this decision before this court. 

Six days after the hearing in the second action, LVSC filed an 

emergency writ petition with this court requesting a limited lift of the stay 

in order to pursue a protective order barring the use of the privileged 

documents and requiring their return. This court denied LVSC's 

emergency writ petition. 

At a subsequent hearing in the second action, the district 

court made the determination that the subject matter was purely a 

jurisdictional discovery dispute that could be resolved in this case. 

Therefore, the district court dismissed the second action without 

4The district court labeled its order an "Interim Order," prohibiting 

Jacobs from disseminating the documents to any third party for 14 days. 

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prejudice, 5indicating that Sands must pursue its discovery claims in this 

case. Thereafter, LVSC stopped pursuing its complaint in the second 

action, and that action has been statistically closed. 

The district court subsequently ordered the parties to 

establish an electronically stored information (ESI) protocol in the instant 

action that (1) directed Jacobs to turn over copies of the documents to an 

independent ESI vendor, 5(2) allowed Jacobs and Sands to review the 

documents and assert any privilege, and (3) provided that the district 

court would then conduct an in-camera review to resolve any privilege 

disputes. 

After providing the documents to a court-ordered ESI vendor pursuant to 

an ESI protocol, Jacobs files a motion to return the documents 

After extensive motion practice, the district court entered a 

formal ESI protocol in which it appointed an independent ESI vendor, and 

ordered Jacobs to provide the ESI vendor a full mirror image of the 

documents. Pursuant to the ESI protocol, Sands received the documents 

from the independent ESI vendor, reviewed the documents for privileges, 

and completed a privilege log. Shortly after receiving Sands's privilege 

log, Jacobs filed a motion for the return of the documents from the 

independent ESI vendor. Jacobs argued that Sands's privilege log was 

deficient and asserted several improper privileges. Additionally, Jacobs 

argued that the "collective corporate client" approach to the attorney-client 

5The district court did not enter a written order dismissing the 

second action. 

6An ESI vendor is a neutral third party who stores potentially 

discoverable electronic information such that the parties can search, 

collect, and produce relevant documents and withhold privileged 

documents. See Jason Fliegel & Robert Entwisle, Electronic Discovery in 

Large Organizations, 15 Rich. J.L. & Tech. 7, 2009, at 25-27. 

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privilege applied, such that Sands could not "deprive Jacobs of access to 

the proof, particularly when he was a participant in its creation." 

Essentially, Jacobs argued that he was "the client" when he was directly 

involved in running Sands China, and therefore had a right to access and 

use any privileged documents that had been created while he was CEO of 

Sands China. 

In opposition, Sands argued that pursuant to NRS 49.045 and 

49.095, Sands was the sole holder of the attorney-client privilege, and it 

had not waived that privilege. 

The district court grants Jacobs's motion, ruling that Jacobs is 

among the "class of persons" legally entitled to view and use 

privileged documents that pertain to his tenure at Sands China 

The district court granted Jacobs's motion to return the 

documents from the independent ESI vendor based on the legal conclusion 

that Jacobs was within a class of persons legally allowed to view and use 

the purportedly privileged documents. The district court order stated that 

it did not need to address "whether any of the particular documents 

identified by [Sands] are subject to some privilege ... , whether Jacobs has 

the power to assert or waive any particular privileges that may belong to 

[Sands] . . . or whether [Sands] waived the privilege." Rather, the district 

court ruled: 

the question presently before this [c]ourt is 

whether Jacobs, as a former executive who is 

currently in possession, custody and control of the 

documents and was before his termination, is 

among the class of persons legally allowed to view 

those documents and use them in the prosecution 

of his claims and to rebut [Sands's] affirmative 

defenses and counterclaim, as these were 

documents that the former executive authored, 

received and/or possessed, both during and after 

his tenure. 

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Based on this "class of persons" exception, the district court granted 

Jacobs's motion to return the remaining documents from the independent 

ESI vendor. Two days later, Sands filed this original petition for writ of 

prohibition or mandamus, asking that this court direct the district court to 

vacate its order permitting Jacobs to use the documents in the underlying 

litigation. 7 

DISCUSSION 

As a preliminary matter, Jacobs argues that writ relief is 

unavailable because Sands failed to appeal the district court's ruling in 

the second action. Jacobs argues that a district court's refusal to grant an 

injunction is immediately appealable and that "writ relief is not available 

to correct an untimely notice of appeal." Pan v. Eighth Judicial Dist. 

Court, 120 Nev. 222, 224-25, 88 P.3d 840, 841 (2004); see also Bradford v. 

Eighth Judicial Dist. Court, 129 Nev. „ 308 P.3d 122, 123 (2013). 

While this is generally a correct statement, in this case, the 

district court's interim order actually granted relief by prohibiting Jacobs 

from disseminating the documents to third parties for 14 days. This 

afforded Sands the time to use the ESI protocol in the underlying action to 

review the documents and assert any applicable privileges. In addition, 

the district court's ruling in the second action did not reach the merits of 

the "class of persons" exception to the corporate attorney-client privilege 

issue raised in this writ petition; it instead ruled that Sands needed to 

pursue its privileges in this case. Thus, any appeal of the district court's 

ruling in the second action would not preclude this current writ petition. 

As a result, we are not persuaded by Jacobs's argument that Sands should 

be estopped from filing this writ petition. 

7This court previously granted Sands's emergency motion to stay the 

district court order under NRAP 8(c) pending resolution of this petition. 

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Additionally, even if we were to construe the district court's 

order as adverse to Sands, the district court had not consolidated the 

motion for a temporary restraining order and preliminary injunction with 

the trial on the merits pursuant to NRCP 65(a)(2), and when it dismissed 

the second action, it did so without prejudice. 9Under these 

circumstances, LVSC could still obtain the permanent injunction 

requested in its complaint in the second action. NRCP 65; cf. Cal. State 

Univ., Hayward v. NCAA, 121 Cal, Rptr. 85, 92 (Ct. App. 1975); Art 

Movers, Inc. v. Ni W., Inc., 4 Cal. Rptr. 2d 689, 696 (Ct. App. 1992). In our 

view, Sands made a strategic decision to assert its privileges in this case—

a decision that coincided with the directions of the district court. 9 

Therefore, we conclude that Sands's writ petition is proper in this 

instance. 

We exercise our discretion to consider Sands's petition for a writ of 

prohibition 

"A writ of prohibition may issue to arrest the proceedings of a 

district court exercising its judicial functions when such proceedings are in 

9The district court stated that it was dismissing the complaint "for 

[Sands] to pursue it as a discovery dispute related to the jurisdictional 

evidentiary hearing issue" in the instant case. 

9Although Jacobs argues that Sands's failure to timely object to his 

possession of the documents should constitute a waiver of any privilege 

that Sands may be able to assert, the district court did not rule on this 

issue and made no findings of fact to this effect. The record before this 

court is unclear regarding the steps taken by Sands to preserve any 

privileges. We therefore decline to consider Jacobs's waiver-related 

arguments in opposition to this writ petition. See Ryan's Express Transp. 

Servs., Inc. v. Amador Stage Lines, Inc., 128 Nev. „ 279 P.3d 166, 

172 (2012) ("An appellate court is not particularly well-suited to make 

factual determinations in the first instance."). To the extent necessary to 

address Jacobs's waiver-related arguments, we direct the district court to 

make findings of fact and resolve whether Sands waived any privileges. 

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excess of the jurisdiction of the district court." Club Vista Fin, Servs., 

L.L.C. v. Eighth Judicial Dist. Court, 128 Nev. , & n.6, 276 P.3d 

246, 249 & n.6 (2012) (explaining that discovery excesses are more 

appropriately remedied by a writ of prohibition than mandamus). 

Although this court will generally decline to review issues involving 

discovery disputes, this court has elected to intervene in discovery matters 

when (1) the trial court issues a blanket discovery order without regard to 

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

information. Valley Health Sys., L.L.C. v. Eighth Judicial Dist. Court, 127 

Nev. „ 252 P.3d 676, 679 (2011). 

Although Jacobs already possesses the purportedly privileged 

documents, this case nevertheless presents a situation where, if Jacobs 

were improperly permitted to use the documents in litigation, "the 

assertedly privileged information would irretrievably lose its confidential 

and privileged quality and petitioners would have no effective remedy, 

even by a 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 at issue permits adverse use 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. , 

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289 P.3d 201, 204 (2012) ("Writ 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."). Accordingly, we now turn to the merits of Sands's petition. 

Standard of review 

Generally, discovery issues "are within the district court's 

sound discretion, and [this court] will not disturb a district court's ruling 

regarding discovery unless the court has clearly abused its discretion." 

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Club Vista, 128 Nev. at , 276 P.3d at 249. But here, the parties dispute 

the proper scope of the attorney-client privilege, which, in Nevada, is 

governed primarily by statute. See NRS 49.035-.115. Statutory 

interpretation 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); see also 

United States v. Richey, 632 F.3d 559, 563 (9th Cir. 2011) ("We review de 

novo the district court's rulings on the scope of the attorney-client 

privilege."). Therefore, our analysis surrounding the proper scope of the 

attorney-client privilege is subject to de novo review. 

The district court erred when it ruled that Jacobs may use Sands's 

assertedly privileged documents in litigation on the grounds that Jacobs 

was within a class of persons entitled to review Sands's privileged 

information 

Nevada privilege law grants the attorney-client privilege to the client 

corporation's current management 

"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. 187, 196, 234 P.3d 

912, 918 (2010). 

Here, Sands argues that the plain language of NRS 49.095 

unambiguously guarantees a client the right "to prevent any other person 

from disclosing" privileged communications. Thus, Sands argues that 

given the broad language used in the statute, Nevada law does not allow 

for a "class of persons," other than the client itself, to use or disclose 

privileged documents over a client's assertion of privilege. While we agree 

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that NRS 49.095 unambiguously guarantees a client the right "to prevent 

any other person from disclosing" privileged communications, we note that 

this right belongs to the client—a term defined by NRS 49.045. 

NRS 49.045 defines "client" as "a person, including a public 

officer, corporation, association or other organization or entity, either 

public or private, who is rendered professional legal services by a lawyer, 

or who consults a lawyer with a view to obtaining professional legal 

services from the lawyer." (Emphasis added.) In a corporate context, a 

client corporation is not a living entity that can make decisions 

independently—people have to make decisions on its behalf. Thus, the 

issue we are faced with is the appropriate scope of persons who have the 

authority to assert a corporation's privilege and whether an exception 

should exist when a corporation's current management attempts to assert 

the attorney-client privilege against a former officer or director. Other 

courts have addressed this issue, with varying results. 

We decline to adopt an exception to the attorney-client privilege based 

on a litigant's status as a former officer or director of a corporation 

Sands argues that the district court erred because the 

attorney-client privilege belongs exclusively to the client corporation's 

current management, and thus Jacobs's status as former CEO alone does 

not entitle him to access and use Sands's privileged communications in 

litigation. See Commodity Futures Trading Comm'n v. Weintraub, 471 

U.S. 343, 348-49 (1985); Montgomery v. eTreppid Techs., L.L.C., 548 F. 

Supp. 2d 1175, 1187 (D. Nev. 2008). Sands contends that the district 

court's order is inconsistent with the purpose of attorney-client privilege 

because allowing former employees to use the company's privileged 

documents against it in litigation would chill officers' and directors' 

willingness to communicate candidly with counsel. See Upjohn Co. v. 

United States, 449 U.S. 383, 389 (1981); Dexia Credit Local v. Rogan, 231 

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F.R.D. 268, 277 (N.D. Ill. 2004) ("To rule otherwise would defeat that 

expectation, and could chill the willingness of control group members to 

speak candidly on paper (or, these days, in electronic media) about 

privileged matters, knowing that some day one of their number may leave 

the control group and become adverse (whether through litigation or 

business activity) to the corporation."). 

The "collective corporate client" or "joint client" exception to 

corporate attorney-client privilege 

The collective corporate client exception to corporate attorneyclient privilege is based on the idea that there is one collective corporate 

client that includes the corporation itself as well as each individual 

member of the board of directors, rather than just the corporation alone. 

See Lane v. Sharp Packaging Sys., Inc., 640 N.W.2d 788, 815-16 (Wis. 

2002) (Abrahamson, C.J., dissenting); Montgomery, 548 F. Supp. 2d at 

1183, 1185. The theory is that "directors are collectively responsible for 

the management of a corporation and a corporation is an inanimate entity 

that cannot act without humans"; therefore "it is consistent with a 

director's role and duties that the director be treated as a 'joint client." 

Montgomery, 548 F. Supp. 2d at 1183. Thus, similar to the way in which 

parties with a common interest who retain a single attorney may not 

assert the attorney-client privilege against each other if they later become 

adverse, Livingston v. Wagner, 23 Nev. 53, 58, 42 P. 290, 292 (1895), the 

collective corporate client approach creates an exception to a corporation's 

attorney-client privilege by precluding a corporation from asserting its 

attorney-client privilege against a former director or officer. See Gottlieb 

v. Wiles, 143 F.R.D. 241, 247 (D. Colo. 1992). 

Jacobs argues that the district court's decision is amply 

supported by caselaw adopting the collective corporate client exception to 

corporate attorney-client privilege. Jacobs primarily relies on People v. 

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Greenberg, 851 N.Y.S. 2d 196, 200-02 (App. Div. 2008). In Greenberg, the 

New York Attorney General's office filed a complaint against MG and its 

former CEO and CFO for their involvement in alleged sham insurance 

transactions. The former CEO and CFO served document requests on AIG 

seeking documents created during their tenure as officers and directors of 

AIG for use in their defense. Id. at 197-98. In evaluating the issue, the 

court separated attorney-client communications into "two categories: 

general business matters and the four transactions at the heart of this 

action." Id. at 200. The court found that while the corporation's current 

board of directors controlled the attorney-client privilege regarding 

"general business matters," a former director may inspect records that are 

"necessary to protect their personal responsibility interests." Id. at 201. 

Thus, the court found that former executives were "within the circle of 

persons entitled to view privileged materials without causing a waiver of 

the attorney-client privilege" because they were "privy to, and on many 

occasions actively participated in, legal consultations regarding the four 

subject transactions . Id. at 201-02; see also Kirby v. Kirby, 1987 WL 

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"While the district court did not directly cite to Greenberg in its 

order, it appears that its order is primarily based on the analysis in 

Greenberg. In Greenberg, the court held that former corporate officers had 

a "qualified right" to access privileged corporate documents because those 

documents were needed by the officers to defend• themselves against 

allegations of malfeasance. Id. at 201-02 (emphasis omitted). Here, the 

only issue upon which discovery is being conducted is whether Sands 

China is subject to personal jurisdiction. In light of this fact, it is unclear 

how the Greenberg court's analysis led to the district court's conclusion 

that Jacobs is entitled to use any documents that he "authored, received 

and/or possessed, both during and after his tenure," in establishing 

personal jurisdiction over Sands China. To the extent that Sands may 

have placed any documents "at-issue," this court's analysis of at-issue 

waiver in Wardleigh v. Second Judicial District Court, 111 Nev. 345, 891 

P.2d 1180 (1995), provides the appropriate framework for resolving those 

issues. But at this point, it would be inappropriate for this court to 

continued on next page... 

13 

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14862, at *7 (Del. Ch. July 29, 1987) (holding that the directors of a closely 

held corporation, collectively, were the client and that joint clients may not 

assert the attorney-client privilege against one another);" Gottlieb, 143 

F.R.D. at 247 (concluding that because the plaintiff was a chairman of the 

board and CEO when the documents were created, he was "squarely 

within the class of persons who could receive communications" from the 

corporation's counsel "without adversely impacting the privileged or 

confidential nature of such material"). 

"The entity is the client" approach 

Sands primarily cites two cases for its proposition that the 

corporation's current management is the sole holder of the attorney-client 

privilege: Weintraub, 471 U.S. 343, and Montgomery, 548 F. Supp. 2d 

1175. In Weintraub, the Supreme Court considered whether managers of 

a bankrupt corporation could assert the attorney-client privilege on behalf 

of the corporation or if, instead, the right to assert and waive the privilege 

passed to the bankruptcy trustee. 471 U.S. at 349. The Court framed the 

issue before it as "which corporate actors are empowered to waive the 

corporation's privilege." 12 Id. at 348. The Court explained that for solvent 

...continued 

address such a fact-intensive issue that would hinge on the content of 

individual• documents, and whether Sands placed such a document at 

issue. See Ryan's Express Transp. Servs., Inc. v. Amador Stage Lines, Inc., 

128 Nev. , 279 P.3d 166, 172 (2012). 

"While this is an unpublished disposition, many courts across the 

country have cited to this case. See, e.g., Milroy v. Hanson, 875 F. Supp. 

646, 648 (D. Neb. 1995). 

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12Weintraub specifically addressed which party has the power to 

control attorney-client privilege during the pendency of a bankruptcy. 471 

U.S. at 349. However, its analysis of corporate attorney-client privilege 

has been cited outside the context of bankruptcy. See Montgomery, 548 F. 

Supp. 2d at 1183; Milroy, 875 F. Supp. at 649-50 (citing Weintraub for the 

continued on next page... 

14 

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corporations, the power to waive attorney-client privilege rests with the 

corporation's officers and directors. 13 Id. "The managers, of course, must 

exercise the privilege in a manner consistent with their fiduciary duty to 

act in the best interests of the corporation and not of themselves as 

individuals." Id. at 348-49. The Court reasoned that "when control of a 

corporation passes to new management, the authority to assert and waive 

the corporation's attorney-client privilege passes as well." Id. at 349. 

Thus, the Court concluded that "[d]isplaced managers may not assert the 

privilege over the wishes of current managers, even as to statements that 

the [displaced managers] might have made to counsel concerning matters 

within the scope of their corporate duties." Id. As a result, a former 

officer and director "who is now neither an officer nor a director. . . retains 

no control over the corporation's privilege." Id. at 349 n.5. 

Similarly, in Montgomery, the federal district court for the 

district of Nevada found that a former officer may not access his former 

employer's privileged communications for use in his lawsuit against his 

former employer. 548 F. Supp. 2d at 1187. Dennis Montgomery, the 

plaintiff, who was a member 14and former manager for eTreppid, 

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...continued 

proposition that "[a] dissident director is by definition not 'management' 

and, accordingly, has no authority to pierce or otherwise frustrate the 

attorney-client privilege when such action conflicts with the will of 

[current] 'management"). 

1-3More accurately, the Court noted that the parties agreed that the 

power to waive attorney-client privilege rests with the corporation's 

officers and directors. See Weintraub, 471 U.S. at 348-49. But it appears 

that the Court implicitly supported these conclusions because it cited to 

additional legal authority to support them. Id. 

mThe respondent in that case, eTreppid, is an LLC, not a 

corporation. 548 F. Supp. 2d at 1177. However, the court determined that 

eTreppid's structure was most similar to that of a corporate structure, and 

continued on next page... 

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requested discovery, in response to which eTreppid asserted the attorneyclient privilege. Id. at 1177. Montgomery claimed that as a member and 

former manager, he was a "joint client," and as such, eTreppid could not 

assert the attorney-client privilege against him with respect to privileged 

communications created during his tenure as a manager. Id. The 

Montgomery court analyzed a number of cases on each side of the issue, 

and concluded that 

[T]he Milroy [15] [and Weintraub] line of cases are 

more persuasive. It makes sense that the 

corporation is the sole client. While the 

corporation can only communicate with its 

attorneys through human representatives, those 

representatives are communicating on behalf of 

the corporation, not on behalf of themselves as 

corporate managers or directors. Moreover, the 

court finds very convincing the language in 

...continued 

therefore treated it as a corporation for the purposes of its privilege 

analysis. Id. at 1183. 

15In Milroy, the plaintiff Michael Milroy, an active member of the 

board of directors and minority stockholder of a corporation, sued several 

other directors and majority stockholders based on claims related to 

alleged violations of their fiduciary duty. 875 F. Supp. at 647. Milroy 

requested discovery, which the corporation—via a majority vote of the 

other directors—refused based on attorney-client privilege. Id. Milroy 

asked the federal court to adopt the collective corporate client exception to 

corporate attorney-client privilege because he was an active director and 

thus belonged to the entity that controls the corporation. Id. at 648. The 

court found that no exception should apply to the normal rule that "since 

the majority decision of the board of directors of a Nebraska corporation 

'controls' the corporation. .. an individual director is bound by the 

majority decision and cannot unilaterally waive or otherwise frustrate the 

corporation's attorney-client privilege if such an action conflicts with the 

majority decision of the board of directors." Id. Thus, "[a] dissident 

director is by definition not 'management' and, accordingly, has no 

authority to pierce or otherwise frustrate the attorney-client privilege 

when such action conflicts with the will of 'management." Id. at 649-50. 

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Weintraub, which states that the privilege belongs 

to the corporation, can be asserted or waived only 

by management, and that this power transfers 

when control of the corporation is transferred to 

new management. 

Also important to the court's decision is the 

fact that Montgomery, like the former director 

in Milroy, is not suing on behalf of eTreppid or in 

his capacity as a former manager or officer. 

Rather, Montgomery is suing to benefit himself 

individually—a perfectly acceptable position, but 

not one which should entitle him to eTreppid's 

attorney-client privileged communications. Like 

the "dissident" director in Milroy, Montgomery 

is now adverse to eTreppid and may not 

obtain privileged documents over the objection of 

current management. Moreover, even though 

Montgomery would have had access to such 

documents during his time at eTreppid, he still 

would have been duty-bound to keep such 

information confidential. 

Id. at 1187. 

We decline to adopt an exception to the attorney-client privilege based 

on a litigant's status as a former officer or director of a corporation 

It appears that the modern trend in caselaw follows the 

Weintraub, Milroy, and Montgomery line of cases. See Montgomery, 548 F. 

Supp. 2d at 1186 (noting that "many more courts have rejected the 

reasoning in Gottlieb than in Milroy"); Nunan v. Midwest, Inc., No. 

2004/00280, 2006 WL 344550, at *7 (N.Y. Sup. Ct. January 10, 2006) 

("Although there is discredited authority to the contrary. . . most of the 

more recent cases embrace the view that, when a former officer or director 

is suing the company for his or her own personal gain, the privilege 

belongs to the corporation and if asserted is effective to prevent disclosure 

to the former officer or director." (internal citations omitted)). 

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More importantly, we• are persuaded by the policy behind the 

Weintraub, Milroy, and Montgomery lineS of cases and conclude that it is 

consistent with Nevada privilege law. Allowing a former fiduciary of a 

corporation to access and use privileged information after he or she 

becomes adverse to the corporation solely based on his or her former 

fiduciary role is entirely inconsistent with the purpose of the attorneyclient privilege. 16We believe such a situation would have a perverse 

chilling effect on candid communications between corporate managers and 

counsel. Cf. Whitehead v. Nev. Comm'n on Judicial Discipline, 110 Nev. 

380, 410, 873 .P.2d 946, 965 (1994) (recognizing that the attorney-client 

privilege's purpose "is to protect confidential communications between 

attorney and client"). We therefore decline to recognize the collective 

corporate client exception to a corporation's attorney-client privilege and 

conclude that Jacobs may not use Sands's privileged documents in 

litigation over Sands's current management's assertion of the attorneyclient privilege. 

Thus, we conclude that the district court erred when it applied 

the collective corporate client approach to find that Jacobs was within a 

class of persons legally allowed to use Sands's purportedly privileged 

documents in the prosecution of his claims. We therefore grant Sands's 

petition for a writ of prohibition in part and direct the district court to 

vacate its June 19, 2013, order granting the return of the documents from 

160ther courts have expressed similar concerns. See, e.g., 

Montgomery, 548 F. Supp. 2d at 1187; Davis v. PMA Cos., Inc., No. CIV11-359-C, 2012 WL 3922967, at *6 (W.D. Okla. Sept. 7, 2012) ("It seems 

paradoxical to allow a party to access information previously available to 

that individual only because of his or her role as a fiduciary once that 

party is adverse to the corporation and no longer required to act in the 

corporation's best interests."). 

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the independent ESI vendor. We note that the district court has yet to 

make a determination as to whether Sands's assertions of privilege are 

proper. As it previously indicated that it would do, the district court 

should resolve any disputes regarding Sands's privilege log by conducting 

an in-camera review of the purportedly privileged documents to determine 

which documents are actually protected by a privilege. 17 

CONCLUSION 

We conclude that a corporation's current management controls 

the privilege "to refuse to disclose, and to prevent any other person from 

disclosing, confidential communications." This precludes a finding that 

there is a class of persons outside the corporation's current officers and 

directors who are entitled to access the client's confidential or privileged 

information over the client's objection for use in litigation. Therefore, we 

conclude that the district court erred when it employed the collective 

corporate client exception to corporate attorney-client privilege in ruling 

that Jacobs, solely based on his former executive position with Sands 

17Because the district court resolved the underlying motion without 

addressing Jacobs's objections to various assertions of privilege, the 

district court should evaluate each of Jacobs's objections and determine 

the factual and legal validity of Sands's assertions of privilege. We note 

that documents that were not sent to legal counsel for the purpose of 

rendering legal advice, such as instances in which legal counsel was 

merely copied, are not protected by the attorney-client privilege. See 

Lindley v. Life Investors Ins. Co. of Am., 267 F.R.D. 382, 390 (N.D. Okla. 

2010); ABB Kent-Taylor, Inc. v. Stallings & Co., Inc., 172 F.R.D. 53, 57 

(W.D.N.Y. 1996). Similarly, as noted above, to the extent that Sands may 

have placed any documents "at-issue," this court's analysis of at-issue 

waiver in Wardleigh v. Second Judicial District Court, 111 Nev. 345, 891 

P.2d 1180 (1995), provides the appropriate framework for resolving those 

issues. 

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J. 

J. 

China, was legally allowed to use the purportedly privileged documents 

over of Sands's claim of privilege. 

We therefore grant Sands's writ petition in part and direct the 

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

to halt the return to Jacobs of the pur7 edly privileged documents. 2.. 18 

C.J. 

Gibbons 

We concur: 

R---Lt tali-Ask \ -

Hardesty 

Douglas 

J. 

J. 

isSands's alterative request for a writ of mandamus is denied. In 

light of our resolution of this writ petition, we vacate the stay imposed by 

our October 1, 2013, order. 

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