LARRY L. BERTSCH; AND LARRY L. BERTSCH CPA & ASSOCIATES, Petitioners,
THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE KENNETH C. CORY, DISTRICT JUDGE, Respondents, and JAY BLOOM, Real Party in Interest.
petition for a writ of mandamus challenging a district court
order denying petitioners' motion to dismiss.
Paul Laxalt, Attorney General, and Frederick J. Perdomo,
Senior Deputy Attorney General, Carson City; Pico Rosenberger
and James R. Rosenberger, Las Vegas, for Petitioners.
Gutierrez Ayon PLLC and Joseph A. Gutierrez and Luis A. Ayon,
Las Vegas, for Real Party in Interest.
PICKERING, HARDESTY and PARRAGUIRRE, JJ.
party in interest Jay Bloom sued petitioners Larry L. Bertsch
and Larry L. Bertsch CPA & Associates (collectively,
Bertsch) for Bertsch's actions as a court-appointed
special master in a lawsuit in which Bloom was a party. The
district court rejected Bertsch's defense of absolute
quasi-judicial immunity and denied his motion to dismiss
original petition for a writ of mandamus, we consider whether
a person must seek leave of the appointing court prior to
filing suit in a non-appointing court against a
court-appointed accountant in his capacity as special master.
we extend the Barton doctrine to a
court-appointed accountant in the capacity of special master,
we require an individual to seek leave of the appointing
court prior to filing suit in a non-appointing court against
a court-appointed special master for actions taken in the
scope of his court-derived authority. Thus, we grant the
AND PROCEDURAL HISTORY
October 11, 2011, Bertsch was appointed as special master by
the district court in a lawsuit between Vion Operations, LLC,
and Bloom (the Vion litigation). The order stated that
Bertsch was to provide forensic accounting services, but
would not be personally liable for acts performed as a
special master, except in the event of gross negligence,
fraud, or willful misconduct.
Bertsch filed his preliminary report, but before he filed his
final report, Vion's counsel, Lionel Sawyer & Collins
(LSC), disclosed to the district court, on August 29, 2012,
that it had also represented Bertsch "during the second
half of 2011." On October 18, 2012, Bertsch filed his
final report. Included in this report were statements
relating to how certain companies associated with Bloom had
the "earmarks of a Ponzi scheme."
two hours after Bertsch filed his final report, Bloom filed a
motion to disqualify LSC as counsel for the plaintiffs,
alleging a conflict of interest with Bertsch. On the next
day, October 19, 2012, Bloom issued a subpoena duces
tecum to Bertsch seeking "any and all documents,
emails, and communications with any and all parties to this
litigation." Bloom also noticed a deposition of Bertsch
for November 20, 2012.
moved for a protective order to prevent disclosure of
document information and to quash the notice of deposition.
The district court granted Bertsch's motion for a
protective order in part, finding that Bertsch was not to be
treated as an expert witness, but ordered that Bertsch and
LSC produce all communications in the matter "for the
period between August 1, 2011 and December 17, 2012."
The district court reserved ruling on whether to quash the
notice of deposition directed at Bertsch.
to the district court's order, Bertsch produced documents
related to his communications with LSC. Based on the content
of these documents, Bloom filed a motion to disqualify
Bertsch on February 12, 2013. In this motion. Bloom requested
that the district court strike Bertsch's report, and for
sanctions, arguing that Bertsch's final report was not
truly independent because, prior to its submission, 18
versions of the report were exchanged between Bertsch and
counsel for Vion with no copies provided to, and therefore no
input from, Bloom or any-other party. Bloom further argued
that Bertsch and LSC worked in concert for the purpose of
building a case against Bloom and the other defendants.
Bloom's motion contained various emails allegedly
supporting his claims that Bertsch ...