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Quinn v. Eighth Judicial District Court of State of Nevada

Supreme Court of Nevada

February 8, 2018

JOHN B. QUINN, AN INDIVIDUAL; MICHAEL T. ZELLER, AN INDIVIDUAL; MICHAEL L. FAZIO, AN INDIVIDUAL; AND IAN S. SHELTON, AN INDIVIDUAL; AND ELAINE P. WYNN, AN INDIVIDUAL, Petitioners,
v.
THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE ELIZABETH GOFF GONZALEZ, DISTRICT JUDGE, Respondents, and KIMMARIE SINATRA, AN INDIVIDUAL; WYNN RESORTS, LIMITED, A NEVADA CORPORATION, Real Parties in Interest.

         Original petition for a writ of prohibition or mandamus challenging a district court order granting a motion to compel depositions.

          McDonald Carano LLP and Pat Lundvall, Las Vegas, for Petitioners John B. Quinn, Michael T. Zeller, Michael L. Fazio, and Ian S. Shelton.

          Lewis Roca Rothgerber Christie LLP and Daniel F. Polsenberg, Joel D. Henriod, and Abraham G. Smith, Las Vegas; Greenberg Traurig, LLP, and Mark E. Ferrario and Tami D. Cowden, Las Vegas; Sidley Austin, LLP, and James M. Cole, Washington, D.C.; Sidley Austin, LLP, and Scott D. Stein, Chicago, Illinois, for Petitioner Elaine P. Wynn.

          Brownstein Hyatt Farber & Schreck LLP and Mitchell J. Langberg, Las Vegas; Pisanelli Bice PLLC and Todd L. Bice, James J. Pisanelli, and Debra L. Spinelli, Las Vegas; Glaser Weil Fink Howard Avchen & Shapiro LLP and Robert L. Shapiro, Los Angeles, California, for Real Parties in Interest.

         BEFORE THE COURT EN BANC.[1]

          OPINION

          HARDESTY, J.

         In this writ petition, we consider whether a Nevada district court has authority to compel an out-of-state[2] attorney to appear in Nevada for a deposition as a nonparty witness in a civil action pending in Nevada state court where the attorney has appeared pro hac vice in the action. We conclude that it does not. Because the district court lacked authority to compel the out-of-state nonparty witnesses to be deposed, we grant the writ petition and vacate the district court's order.

         FACTS AND PROCEDURAL HISTORY

         This writ petition arises from ongoing litigation in Nevada state court involving Wynn Resorts, Ltd., and Elaine Wynn. Petitioners John B. Quinn, Michael T. Zeller, Michael L. Fazio, and Ian S. Shelton (collectively, Quinn Emanuel attorneys) are attorneys at the law firm of Quinn Emanuel Urquhart & Sullivan, LLP, a firm based in California, who represented Elaine in the Wynn Resorts litigation from January 2016 to March 2017. All four attorneys are California residents and were granted pro hac vice admission in Nevada for the purpose of that litigation. While represented by Quinn Emanuel, Elaine asserted claims against real parties in interest Kimmarie Sinatra (general counsel for Wynn Resorts) and Wynn Resorts.

         In September 2017, approximately six months after Quinn Emanuel had withdrawn from representing Elaine, Sinatra filed a retaliatory "abuse of legal process" counterclaim against Elaine, alleging that the abuse of process began in early 2016 when Elaine retained Quinn Emanuel to represent her. The counterclaim alleged that, through Quinn Emanuel, Elaine attempted to intimidate Sinatra into accepting a settlement proposal, filed a pleading asserting frivolous and false claims against her, and abused the discovery process. In October 2017, pursuant to California's Uniform Interstate Depositions and Discovery Act, Sinatra caused deposition subpoenas to be issued in California directing the Quinn Emanuel attorneys to appear for deposition in California in late October.

         The Quinn Emanuel attorneys objected to the California subpoenas and, after unsuccessful meet and confer efforts, filed a petition to quash the subpoenas in the California superior court on October 23. The petition alleged, among other things, that service of the subpoenas was defective and that Sinatra sought information that was protected by attorney-client privilege and work-product privilege and could not satisfy the test to depose an opposing party's counsel. Sinatra filed an ex parte application in the California court to compel the depositions and shorten the time on hearing the petition so that the Quinn Emanuel attorneys could be deposed before the November 3 discovery cutoff date in the Nevada action. The attorneys opposed the application and sought sanctions. The California court denied Sinatra's request on October 27, explaining that such short notice was never appropriate and was especially not appropriate here where there were attorney-client privilege issues and where a shortened time schedule would deprive the moving parties "of due process and would certainly deprive the court of time to fully consider and prepare the motion."

         On October 30, Sinatra filed in the Nevada district court a motion to compel depositions and requesting an order shortening time. Sinatra asserted that the Quinn Emanuel attorneys had attempted to evade service of the subpoenas and had filed a frivolous petition to quash the subpoenas in the California court, and, since the California court refused to hear the matter until after the discovery cutoff date, she was asking the Nevada court to hear the matter on shortened time and to order the attorneys to appear for deposition in Nevada by the discovery cutoff date. The motion further asserted that, because the Quinn Emanuel attorneys had appeared before the district court as counsel for Elaine in this case, the district court had personal jurisdiction over them. The motion also argued that the district court's power under NRCP 37(a) to enter an order compelling discovery and the court's discretion over discovery matters provided the district court with the authority to grant the motion. The Quinn Emanuel attorneys opposed the motion, arguing that the Nevada district court had no jurisdiction over the California discovery dispute. The district court granted the request to shorten time and set a hearing for November 6.

         At the hearing, petitioners' counsel argued that the Quinn Emanuel attorneys all reside in California and were issued California subpoenas, and there is no rule of procedure, statute, or rule of practice that allows the Nevada district court to compel the depositions and usurp the power of the California court over this discovery dispute. Petitioners' counsel further argued that the district court did not have jurisdiction over the dispute under the Uniform Interstate Depositions and Discovery Act, which had been adopted by both California and Nevada, because the matter was pending in the California superior court, which had already exercised jurisdiction over the matter and denied a similar request by Sinatra. Petitioners' counsel asked the district court to decline hearing the motion and let it be heard in California pursuant to the uniform act and full faith and credit and comity principles. The district court found that it had jurisdiction over the attorneys because they had appeared in Nevada court in this case on a pro hac vice basis. The district court granted Sinatra's motion to compel the depositions of the attorneys and ordered the depositions to take place in Las Vegas. The district court entered a stay of its order to allow petitioners to file a writ petition with this court.

         After the petitioners filed the instant writ petition, the California superior court held a hearing on the petition to quash the subpoenas and granted it. The California court concluded that it had jurisdiction over the subpoenas, applied a three-prong test identical to that used in Nevada for determining the propriety of attorney depositions, [3] and found that Sinatra failed to establish a proper basis for deposing the Quinn Emanuel attorneys. The California court also found that Sinatra's opposition to the petition to quash was without substantial justification and thus ordered Sinatra to pay sanctions in the amount of $10, 000 to the attorneys. The parties ...


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