United States District Court, D. Nevada
RKF RETAIL HOLDINGS, LLC, a Delaware limited liability company, Plaintiff,
TROPICANA LAS VEGAS, INC., a Nevada corporation, Defendant
ORDER RE: MOTION TO COMPEL (ECF NO. 85)
FOLEY, JR. United States Magistrate Judge
matter is before the Court on Plaintiff RKF Retail Holdings,
LLC's (“RKF”) Motion to Compel Defendant
Tropicana Las Vegas, Inc. (“Tropicana”) to
respond to Plaintiff's Fifth Request for Production of
Documents (ECF No. 85), filed on March 16, 2017. Defendant
Tropicana filed its Opposition (ECF No. 94) on April 7, 2017,
and Plaintiff filed its Reply (ECF No. 97) on April 21, 2017.
The Court conducted a hearing in this matter on May 5, 2017.
filed its action against Tropicana on July 28, 2014. RKF
Retail Holdings, LLC v. Tropicana Las Vegas, Inc., Case
No. 2:14-cv-01232-APG-GWF, Complaint (ECF No. 1).
RKF alleged that it entered into an exclusive agency contract
with Tropicana in August 2012 pursuant to which RKF would act
as Tropicana's broker to lease space in a retail shopping
center to be built on Tropicana's hotel-casino premises
in Las Vegas. Pursuant to the agency agreement, RKF performed
substantial work to market the project and obtain letters of
intent from prospective tenants. Id. at ¶¶
12-18. RKF performed other services for Tropicana outside the
scope of the agency agreement, including developing budgets
for the project, tenant construction manuals, design,
architectural and signage criteria, premises delivery
conditions and other materials to assist Tropicana.
Id. at ¶ 19. RKF alleges that despite allowing
RKF to perform services pursuant to the contract, Tropicana
“had no intention of immediate development of the
Premises, but rather procured RKF's services in marketing
and cultivating interest in its potential development by
means of fraudulent misrepresentations of fact.”
Id. at ¶ 21. RKF alleges that Tropicana
wrongfully terminated the exclusive agency contract on March
26, 2014 and repudiated its obligation to pay RKF commissions
based upon the leasing work that it had undertaken.
Id. at ¶¶ 24-25. Tropicana denied
RKF's allegations and asserted in a counter-claim that
RKF misrepresented its ability to secure tenants for the
proposed shopping center. Tropicana stated that had it known
the true extent of RKF's experience and contacts, it
would not have hired RKF. Counterclaim (ECF No. 10),
¶ 10. On July 29, 2015, RKF filed a separate lawsuit
against Eastern Real Estate, LLC, (“Eastern”)
which alleged that Eastern induced and conspired with
Tropicana to terminate RKF's exclusive agency contract so
that Tropicana and Eastern could then proceed with the
development. RKF Retail Holdings, Inc. v. Eastern Retail,
LLC, Case No. 2:15-cv-1446-APG-GWF, Complaint
(ECF No. 1). These two actions were consolidated on May 10,
2016. As of this date, a retail shopping center has not been
built, although it may again be in the process of
asserts in its motion to compel that Penn Gaming acquired
ownership of Tropicana in late August 2015. Before and after
the merger, Tropicana provided information about these
lawsuits to Penn Gaming, including information regarding
reserves that Tropicana had set on the case. On November 14,
2016, RKF served its fifth request for production of
documents which seeks “[a]ll documents and
communications between Tropicana and Penn Gaming concerning
the Litigation, including but not limited to those concerning
(i) RKF; (ii) Eastern; (iii) the claims or allegations
asserted in the Pleadings; and (iv) any contingency funds
considered and/or monies set aside in connection with the
Litigation.” Motion (ECF No. 85), Exhibit
A. Tropicana objected to this request on the grounds
that it is irrelevant, and that the requested documents and
information are protected from disclosure by the
attorney-client privilege, the work product doctrine, the
accountant-client privilege and the common interest doctrine.
Id. at Exhibit B. On January 10, 2017, RKF
served a subpoena duces tecum on Penn Gaming which commanded
it to produce the same documents sought in the request for
production to Tropicana. Id. at Exhibit D.
Penn Gaming objected to this subpoena on the same grounds as
Tropicana. Id. at Exhibit E. Tropicana
subsequently produced privilege logs on March 10, 2017
listing the allegedly privileged communications between it
and Penn Gaming before and after the August 2015
acquisition/merger. Id. at Exhibit C.
Although RKF's motion sought production of communications
before and after the August 2015 merger, it has since dropped
its demand for post-merger communications.
privilege logs prepared on behalf of Tropicana and Penn
Gaming list (1) the identification numbers of the document,
(2) the date the document was sent, (3) the names of the
sender(s) and recipient(s), (4) the identities of persons who
were sent copies of the document, (5) the privileges claimed,
and (6) a description of the document. Exhibit C.
The descriptions are brief, e.g. “[c]ommunication
regarding status of RKF litigation;”
“[c]ommunications regarding due diligence requests
containing reference to RKF litigation;” or
“[c]ommunication regarding due diligence requests
containing reference to RKF litigation and various litigation
reserves.” Id. The privilege logs asserted the
common interest doctrine and attorney-client privilege, but
not the work-product doctrine, as to a significant number of
pre-merger documents. The logs also asserted the work-product
doctrine in conjunction with the common interest doctrine and
attorney-client privilege to other pre-merger documents.
and Penn Gaming did not submit any affidavits in response to
RKF's motion to compel to further describe the documents
or the factual basis for their privilege claims. Tropicana
states in its opposition that “relying on the
attorney-client privilege and the protection of the common
interest doctrine in engaging in such communications,
Tropicana and Penn Gaming discussed the status of the
litigation and issues relating to the litigation with the
understanding that Penn Gaming would be acquiring this new
subsidiary along with this litigation.”
Opposition (ECF No. 94), pg. 3. Tropicana's
counsel represented at the hearing that the listed documents
consist primarily of emails or correspondence between
Tropicana's and Penn Gaming's attorneys.
a federal action such as this based on diversity of
citizenship jurisdiction, state law governs attorney-client
privilege claims.” Kandel v. Brother Intern.
Corp., 683 F.Supp.2d 1076, 1081 (C.D.Cal. 2009) (citing
Fed.R.Evid. 501; Star Editorial, Inc. v. United States
District Court for Central District of California
(Dangerfield), 7 F.3d 856, 859 (9th Cir. 1993);
Oakes v. Halvorsen Marine Ltd., 179 F.R.D. 281, 284
(C.D.Cal. 1998)). See also Elizabeth Retail Properties,
LLC v. KeyBank National Assn., 2015 WL 6549616, *2
(D.Or. Oct. 28, 2015). Nevada law governs the state law
claims and defenses in this action.
Revised Statute (NRS) § 49.095 states:
A client has a privilege to refuse to disclose and to prevent
any other person from disclosing confidential communications:
1. Between himself or his representative and his lawyer or
his lawyer's representative.
2. Between his lawyer and the lawyer's representative.
3. Made for the purpose of facilitating the rendition of
professional legal services to the client, by him or his
lawyer to a lawyer representing another in a matter of common
attorney-client privilege is waived when the client
voluntarily reveals the confidential communication to a
person outside the scope of the attorney-client relationship.
Wardleigh v. Second Judicial Dist. Court, 111 Nev.
345, 891 P.2d 1180, 1186 (1995); Manley v. State,
115 Nev. 114, 979 P.2d 703, 707 (1999). NRS § 49.095.3
extends the protection of the attorney-client privilege to
communications between the client's lawyer and a lawyer
representing another in a matter of common interest-where the
communication is “[m]ade for the purpose of
facilitating the rendition of professional legal services to
the client.” The parties have not cited and the Court
has not found a Nevada Supreme Court decision that interprets
the scope of this provision in the context of a case such as
Nidec Corp. v. Victor Co. of Japan, 249 F.R.D. 575
(N.D. Cal. 2007), a case that applied the federal common ...