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,
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.
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.
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
THE COURT EN BANC.
writ petition, we consider whether a Nevada district court
has authority to compel an out-of-state 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
AND PROCEDURAL HISTORY
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.
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.
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
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
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.
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,
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 ...