Original petition for a writ of prohibition or mandamus challenging a district court order that required the disclosure of a private communication between a witness and plaintiffs counsel during a deposition.
Pisanelli Bice, PLLC, and Todd L. Bice, James J. Pisanelli, Debra L. Spinelli, Maria Magali Calderon, and Jordan T. Smith, Las Vegas, for Petitioner.
Kaempfer Crowell and Peter C. Bernhard and Lisa J. Zastrow, Las Vegas, for Real Party in Interest.
BEFORE HARDESTY, C.J., DOUGLAS and CHERRY, JJ.
This petition for extraordinary writ relief challenges a district court order requiring a witness for the plaintiff to disclose the substance of communications that took place between the witness and plaintiffs counsel during a break in the witness's deposition. To resolve it, we must decide whether a private communication between a witness and an attorney during a requested break in the witness's deposition is entitled to protection from discovery under the attorney-client privilege.
We hold that attorneys may confer with witnesses during requested recesses in depositions only to determine whether to assert a privilege. For the attorney-client privilege to apply to these conferences, however, counsel must state on the deposition record (1) the fact that a conference took place, (2) the subject of the conference, and (3) the result of the conference. In the instant case, we conclude that the communications between the witness and plaintiff's counsel during the break in the witness's deposition are discoverable because plaintiff's counsel requested the recess in the deposition and failed to make a sufficient, contemporaneous record of the privileged communications.
FACTS AND PROCEDURAL HISTORY
Petitioner Coyote Springs Investment, LLC, and real party in interest BrightSource Energy, Inc., entered into a lease for BrightSource to develop a solar energy generating facility on Coyote Springs' property. The parties negotiated the terms of the lease through several term sheets exchanged via email. The parties then finalized and executed the lease, and Coyote Springs created a lease summary for its bankers and appraisers. Roughly one year later, BrightSource sought to terminate the lease. In response, Coyote Springs informed BrightSource that the termination was ineffective in the absence of a lease termination fee. A dispute arose regarding the termination terms and whether just one or both of two conditions (the so-called tower height approval and transmission solution achievement conditions) had to be met before a termination fee could be imposed because the term sheets and the lease summary apparently contained language different from the actual lease as to those conditions. Subsequently, Coyote Springs sued BrightSource, arguing that the lease's termination was ineffective without payment of the termination fee.
The deposition discussions at issue
In preparation for trial, the parties deposed Harvey Whittemore, the former co-owner and manager of Coyote Springs.
Whittemore testified that he and Coyote Springs' general counsel, Emilia Cargill, negotiated the lease for Coyote Springs. Whittemore was questioned regarding the lease's termination provisions. Specifically, BrightSource's counsel asked Whittemore whether he had agreed to the termination provisions in the lease. Whittemore answered, " I believe that [the provision] appropriately reflects the definitions" of the lease to which the parties agreed. When asked again about the ...