JAMES J. COTTER, JR., INDIVIDUALLY AND DERIVATIVELY ON BEHALF OF READING INTERNATIONAL, INC., Petitioner,
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.
petition for a writ of mandamus or prohibition challenging a
district court order requiring disclosure of certain
documents. Petition granted.
Law Group and Steve L. Morris and Akke Levin, Las Vegas;
Yurko, Salvesen & Remz, P.O., and Mark G. Krum, Boston,
Massachusetts, for Petitioner.
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
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.
THE COURT EN BANC. 
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
AND PROCEDURAL HISTORY
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.
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.
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. This petition for writ relief followed.
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