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Cotter v. The Eighth Judicial District Court of State of Nevada

Supreme Court of Nevada

May 3, 2018

JAMES J. COTTER, JR., INDIVIDUALLY AND DERIVATIVELY ON BEHALF OF READING INTERNATIONAL, INC., Petitioner,
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 MARGARET COTTER; ELLEN COTTER; GUY ADAMS; EDWARD KANE; DOUGLAS MCEACHERN; WILLIAM GOULD; JUDY CODDING; MICHAEL WROTNIAK; AND READING INTERNATIONAL, INC., Real Parties in Interest.

         Original petition for a writ of mandamus or prohibition challenging a district court order requiring disclosure of certain documents. Petition granted.

          Morris Law Group and Steve L. Morris and Akke Levin, Las Vegas; Yurko, Salvesen & Remz, P.O., and Mark G. Krum, Boston, Massachusetts, for Petitioner.

          Cohen Johnson Parker Edwards and H. Stan Johnson, Las Vegas; Quinn Emanuel Urquhart & Sullivan, LLP, and Marshall M. Searcy and Christopher Tayback, Los Angeles, California, for Real Parties in Interest Margaret Cotter, Ellen Cotter, Guy Adams, Edward Kane, Douglas McEachern, Judy Codding, and Michael Wrotniak.

          Greenberg Traurig, LLP, and Mark E. Ferrario, Kara B. Hendricks, and Tami D. Cowden, Las Vegas, for Real Party in Interest Reading International, Inc.

          Maupin, Cox & LeGoy and Donald A. Lattin and Carolyn K. Rentier, Reno; Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhows, P.C., and Ekwan E. Rhow, Hernan D. Vera, and Shoshana E. Bannett, Los Angeles, California, for Real Party in Interest William Gould.

         BEFORE THE COURT EN BANC. [1]

          OPINION

          DOUGLAS, C.J.

         In this original petition for extraordinary relief, we consider whether documents disclosed to third parties constitute waiver of the work-product privilege. In considering this petition, we adopt the common interest rule that allows attorneys to share work product with third parties that have common interest in litigation without waiving the work-product privilege. Petitioner shared assertedly work-product material through emails with third parties who were intervening plaintiffs in the litigation, suing the same defendants on similar issues. Without reviewing the emails, the district court ruled that petitioner must disclose them based on his insufficient showing of common interest between him and the intervening plaintiffs. Because we conclude that petitioner and the intervening plaintiffs share common interest in litigation, the district court erred in concluding otherwise. We therefore grant petitioner's petition for extraordinary relief and direct the district court to refrain from compelling disclosure of the emails before it conducts an in camera review of the emails to establish clear findings concerning the work-product privilege.

         FACTS AND PROCEDURAL HISTORY

         From approximately 2000 to 2014, petitioner James Cotter served as the CEO and Chairman of the Board of Directors of Reading International, Inc. (Reading). After Reading terminated petitioner, he filed a complaint in the district court alleging breach of fiduciary duty against the following members of the Board of Directors of Reading: Margaret Cotter, Ellen Cotter, Guy Adams, Edward Kane, Douglas McEachern, William Gould, Judy Codding, and Michael Wrotniak (collectively, real parties in interest). Numerous Reading shareholders (the intervening plaintiffs) filed a derivative action in the district court against real parties in interest, asserting breach of fiduciary duty. Similar to petitioner, the intervening plaintiffs included allegations concerning petitioner's termination and other related events. The district court consolidated the two actions.

         During discovery, real parties in interest filed a motion to compel petitioner to produce a supplemental privilege log. The district court granted the motion and ordered petitioner to revise his privilege log and reserved a ruling on the production of any of the communications between the attorneys for petitioner and the intervening plaintiffs. Petitioner subsequently produced 350 communications, as well as a supplemental privilege log. The log labeled approximately 150 emails between Lewis Roca Rothgerber LLP, counsel for petitioner, and Robertson & Associates, counsel for the intervening plaintiffs, as work product. According to petitioner, these emails, dated from August 2015 to June 2016, constituted work product because they contained mental impressions of matters related to the case.

         Real parties in interest filed a motion to compel production of these emails, arguing that petitioner waived his claim of work-product protection by sharing these communications with the intervening plaintiffs. Real parties in interest also noted that there was no joint prosecution agreement or confidentiality agreement between the parties. The district court held oral arguments on the motion, though it did not conduct an in camera review of the emails. Ultimately, the district court determined that petitioner failed to show common interest between him and the intervening plaintiffs and, thus, ordered petitioner to produce the emails.[2] This petition for writ relief followed.

         DISCUSSION

         Writ relief is an extraordinary remedy, available when the petitioner has "no plain, speedy and adequate remedy at law other than to petition this court." Wardleigh v. Second Judicial Dist. Court,111 Nev. 345, 350, 891 P.2d 1180, 1183 (1995). This court may exercise its discretion to consider writ relief when presented with a situation where "the assertedly privileged information would irretrievably lose its confidential and privileged quality and petitioners would have no effective remedy, even by later appeal." Id. at 350-51, 891 P.2d at 1183-84. Furthermore, a writ of prohibition is a more appropriate remedy than mandamus to correct an order that compels the disclosure of privileged information. See id. at 350, 891 P.2d at 1183. Although this court rarely entertains writ petitions challenging pretrial discovery, "there are occasions where, in the absence of writ relief, the ...


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