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Nevada Lawyers Beware: Don’t Use Privileged Documents to Prep Your Client to Testify

Twice this year, the Nevada Supreme Court ruled that a party may be required to produce for inspection an otherwise privileged document used to refresh a witness’s recollection prior to or during the witness’s testimony at a hearing or deposition. These decisions serve as a reminder to Nevada lawyers to exercise extreme caution when prepping their witnesses for testimony, including deposition testimony. Avoid giving your clients any potentially privileged documents to review and rely upon during their testimony.

In February the February opinion for Las Vegas Sands Corp. v. The Eighth Judicial District Court, 130 Nev. ___, 319 P.3d 618 (2014), the Nevada Supreme Court was confronted with the following question: “[W]hether 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[?]” The court’s answer was “yes.”

The Nevada Supreme Court discussed at length Nevada’s statute on writings used to refresh one’s memory. 319 P.3d at 621-23. NRS 50.125(1) provides:

1.  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 court noted distinct differences between NRS 50.125 and its federal counterpart, Federal Rule of Evidence 612. Id. at 623. For example, FRE 612 provides that when a witness uses a writing to refresh his or her memory before testifying, the district court has discretion to decide whether justice requires the writing be produced. Id. (emphasis added). NRS 50.125, however, does not contain the same discretionary language found in FRE 612. Id. Nor does it draw any distinction between documents used prior to or while testifying. Id. The court reasoned that “[w]ithout such language, 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.” Id. Therefore, when properly invoked at a hearing, NRS 50.125 requires the disclosure of any document used to refresh a witness’s recollection before or while testifying—regardless of privilege. Id.

Importantly, in rendering its decision, the Nevada Supreme Court explained the “sole purpose of NRS 50.125 is to test the witness’s credibility at the hearing.” Id. at 624 (emphasis in original). In fact, the court explained that NRS 50.125 is a rule of evidence (not to be confused with a rule of discovery) because it seeks to promote the “search of credibility and memory” of a witness who is testifying. Consequently, the court cautioned that NRS 50.125 should not to be used as a discovery tool to produce documents after a witness’s credibility is no longer at issue. Id. Rather, the production of the document must occur at the hearing where the witness’s credibility can be tested. Id.

Three months later, in Las Vegas Development Associates, LLC v. The Eighth Judicial District Court, 130 Nev. __, 325 P.3d 1259 (2014), the Nevada Supreme Court extended the applicability of NRS 50.125(1) to depositions. In that case, real party in interest, KB Home Nevada, Inc. (“KB”) took the deposition of the Essex Real Estate Partners, LLC’s principal, George Holman. 325 P.3d at 1261. During his deposition, Holman testified that, in order to prepare for his deposition and refresh his recollection, he reviewed two memoranda prepared by his attorneys. Id. The memoranda were summaries of conversations that Holman had with his attorneys regarding the issues of the case. Id. Based upon Holman’s testimony, KB requested that he divulge the contents of the memoranda. Id. Holman refused, claiming the documents were protected by the attorney-client privilege and work-product doctrine. Id. The district court disagreed and ordered the production of the memoranda. Id. The Nevada Supreme Court affirmed the district court’s decision, finding that NRS 50.125(1) applies to depositions as well as in-court hearings.

The court attempted to define the term “hearing” as used in NRS 50.125. Id. at 1263-64. It found that the Nevada Legislature in drafting NRS 50.125 had attempted to model the statute after a (draft) version of the Federal Rules of Evidence and accordingly deemed federal decisions interpreting FRE 612 to be “instructive” to the issue. Id. at 1264. In its review of federal law, the court noted that federal courts had applied FRE 612 to depositions and deposition testimony by application of Fed. R. Civ. P. 30(c). That rule provides that “examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence.” Id. at 1264 (citing Sporck v. Peil, 759 F.2d 312, 317 (3d Cir. 1985)). After finding Fed. R. Civ. P. 30(c) to be “substantially similar” to NRCP 30(c), the court stated: “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.’” Id. at 1264-65. Therefore, the court concluded 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” – irrespective of any claimed privilege. Id. at 1265.

In Nevada, attorneys may assume that documents they have prepared and presented to their clients for review are privileged and considered work product. However, if the witness reviews the document and relies upon it to refresh his or her recollection for testimony at deposition or trial, the once privileged document containing the attorney’s confidential legal strategy and mental impressions will now be available to the adverse party to impeach the witness.

The take-a-away: To avoid possible disclosure, do not use privileged documents when prepping your witnesses for testimony. Attempt to communicate all privileged information verbally.

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About this Author

Jennifer K. Hostetler, Litigation Attorney, Lewis Roca Rothgerber Law Firm

Ms. Hostetler is an associate in the firm's Litigation Practice Group, focusing on commercial litigation and employment law. Ms. Hostetler's commercial litigation practice consists of assisting clients in a broad range of matters including commercial contract and tort disputes. Her labor and employment practice focuses on the defense of employers in state and federal court and before administrative agencies for claims brought under Title VII of the Civil Rights Act of 1964, Americans with Disabilities Act, and state and federal wage and hour laws.