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Aspen Financial Services, Inc. v. Eighth Judicial Dist. Court of State ex rel. County of Clark

Supreme Court of Nevada

November 27, 2013

ASPEN FINANCIAL SERVICES, INC., A Nevada Corporation; Aspen Financial Services, LLC, A Nevada Limited Liability Company; and Jeffrey B. Guinn, an Individual, Petitioners,
v.
The EIGHTH JUDICIAL DISTRICT COURT OF THE STATE of Nevada, in and for the COUNTY OF CLARK; and the Honorable Allan R. Earl, District Judge, Respondents, and Dana Gentry, An Individual, Real Party in Interest.

Page 876

Bailey Kennedy and John R. Bailey, Joseph A. Liebman, and Brandon P. Kemble, Las Vegas, for Petitioners.

Campbell & Williams and Donald J. Campbell, Las Vegas, for Real Party in Interest.

McLetchie Law and Margaret A. McLetchie, Las Vegas, for Amici Curiae.

BEFORE THE COURT EN BANC.[1]

OPINION

DOUGLAS, J.:

In this opinion, we address whether a district court properly quashed a subpoena based on Nevada's news shield statute, NRS 49.275, which protects journalists from being required to reveal information gathered in their professional capacities in the course of developing news stories. We conclude that a request for protection under NRS 49.275 may be raised, as it was here, by a reporter's attorney in a motion to quash a subpoena, without the need to file a supporting affidavit, so long as the motion demonstrates that the information sought by the subpoena is facially protected by the news shield statute. Here, the privilege was properly asserted,

Page 877

and petitioners have failed to identify any circumstances to overcome its application. Accordingly, we deny the petition for extraordinary writ relief.

FACTS AND PROCEDURAL HISTORY

Petitioners Aspen Financial Services, Inc., and Aspen Financial Services, LLC (collectively, the Aspen entities), are Nevada businesses specializing in mortgage brokerage and loan servicing, and petitioner Jeffrey Guinn is the majority owner of the Aspen entities.[2] Aspen was sued in the district court by investors alleging that Aspen had breached various statutory, contractual, and fiduciary duties.[3] Aspen denied the allegations and filed numerous counterclaims, including claims of defamation, disparagement of business, and breach of contract. As relevant here, Aspen claimed that Dana Gentry, a local television reporter who was not a party to the action below, but who is the real party in interest to the writ petition, helped the investors investigate and prepare their lawsuit in order to manufacture news stories intended to embarrass Aspen. Aspen also alleged that Gentry received personal favors from the investors and their associates in connection with these news stories. During discovery in the investor litigation, Aspen served a subpoena on Gentry requesting information relating to alleged gifts provided to Gentry by the investors, work performed on Gentry's home by the investors, and the circumstances leading to Gentry's news station employing the son of two of the investors.

After being served with the subpoena, Gentry filed a motion in the district court to quash it. Gentry argued that the information sought was protected by Nevada's news shield statute, NRS 49.275, which protects journalists from being required to reveal certain information gathered in the course of preparing news stories. Aspen opposed the motion by making two arguments. First, as a threshold matter, Aspen argued that the district court erred in granting Gentry's motion to quash because Gentry failed to support her motion with an affidavit demonstrating the applicability of the news shield statute to the information sought. Second, Aspen asserted that Nevada's news shield statute only applies to a reporter acting in his or her professional capacity and that the subpoena did not request any information gathered by Gentry in preparation for a news story, as Gentry had never run a story regarding her personal relationship with the investors. In referring to the subpoena, however, the opposition indicated that Aspen believed that the gifts referenced in the subpoena were provided to Gentry in exchange for favorable news coverage. Gentry filed a reply to the opposition, contending that the information was within the scope of the statute.

The district court granted the motion to quash, concluding that the information at issue fell within the protection of the news shield statute. The court noted, however, that Aspen may be entitled to some of the information if it could prove in a private evidentiary hearing that such information was " absolutely necessary" to Aspen's case. The court further indicated that it was concerned with the potential of the subpoena to harm Gentry's credibility. Aspen now requests that ...


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