United States District Court, D. Nevada
WEKSLER UNITED STATES MAGISTRATE JUDGE
before the court is Defendant Jonathan Hanley's Motion to
Quash Subpoena (ECF No. 196), filed on March 12, 2019. The
receiver who issued the subpoena responded (ECF No. 197) on
March 15, 2019. Mr. Hanley did not file a reply. Instead, Mr.
Hanley filed a motion for leave to amend his motion to quash
with supplemental exhibits (ECF No. 200) on March 22, 2019,
which is also presently before the court. The receiver
responded (ECF No. 203) on April 5, 2019, and Mr. Hanley
replied (ECF No. 204) on April 12, 2019.
parties are familiar with the facts of the case and the court
will repeat them here only as necessary.
Home Loan Counselors (AHLC) and Modification Review Board
(MRB) are co-defendants of Mr. Hanley's in this case.
They are also in receivership. (See ECF No. 55 at 18
(“Thomas W. McNamara shall continue to serve as
receiver of the Receivership Entities with full powers of an
equity receiver.”).) At issue is a subpoena that the
receiver issued to Parsons Behle & Latimer PLC (Parsons),
the firm that allegedly previously represented MRB and AHLC,
and critically, also Mr. Hanley. The subpoena seeks the
client files of MRB and AHLC.
Hanley moves to quash this subpoena on the grounds that the
client files of MRB and AHLC contain attorney-client
privileged information. (ECF No. 196 at 2.)
receiver responds that Mr. Hanley's motion should be
denied on multiple grounds, including that (1) Parsons
jointly represented MRB, AHLC, and Mr. Hanley. And because of
this joint representation, the attorney-client privilege does
not protect MRB and AHLC's files from disclosure to the
receiver; (2) even if Mr. Hanley's attorney-client
privilege previously protected the documents at issue, they
have been disclosed to MRB and AHLC, so they are no longer
protected by the attorney-client privilege; and (3) Mr.
Hanley did not properly meet and confer with the receiver
under the Local Rules before filing this motion.
(See ECF No. 197.) The receiver also requests that
the court impose sanctions on Mr. Hanley for
“frivolous” and “abusive litigation
conduct.” (Id. at 5.)
noted above, Mr. Hanley did not file a reply in support of
his motion to quash but instead filed a motion to amend his
motion to quash with supplemental exhibits under LR 15-1.
(See ECF No. 200.) Mr. Hanley attached several
engagement letters and emails to this motion that he asserts
“define the scope of the attorney client
relationship.” (ECF No. 200 at 1). Mr. Hanley appears
to suggest that Parsons never jointly represented MRB, AHLC,
and himself. (See id.) He writes that a “new
engagement letter, which included receivership entities[, ]
was never entered into by Hanley despite repeated requests
from Parsons to execute. Parsons withdrew their
representation from Hanley when it became clear that Hanley
did not intend for them to represent MRB & AHLC (the
entities identified in the subpoena).” (ECF No. 200 at
receiver responded to Mr. Hanley's motion, arguing that
it should be denied on multiple grounds. (ECF No. 203.) The
receiver argues that as a procedural matter, it was improper
for Mr. Hanley to file his motion for leave to amend.
(Id. at 2.) Substantively, the receiver argues that
Mr. Hanley's new motion fails to establish that the
receiver's subpoena should be quashed. (Id.)
This is so, accordingly to the receiver, because (1) a signed
contract is not necessary under Nevada law to create an
attorney-client relationship; (2) Mr. Hanley's motion
does not refute what Parson's attorney Jeffrey Corey
stated under oath - that Parsons understood itself to be
jointly representing Mr. Hanley and the two receivership
entities; (3) Mr. Hanley's statement that an unsigned
engagement letter confirms that Parsons did not represent Mr.
Hanley and the two receivership entities is merely a legal
interpretation from a non-lawyer; and (4) even if Parsons
never jointly represented Mr. Hanley and the receivership
entities, the documents at issue have already been disclosed
to the receivership entities, so the attorney-client
privilege has been waived. (Id. at 3-5.)
Hanley's reply largely reiterates the points he made in
his opening briefs. (See ECF No. 204.)
Motion to Amend
Hanley moves to amend his motion to quash under LR 15-1.
Local Rule 15-1, however, discusses how to properly move to
amend pleadings, not motions. Accordingly, Mr. Hanley did not
properly move under LR 15-1 to amend his motion to quash.
court notes that parties may file supplemental briefs and/or
evidence with leave of court for good cause shown under Local
Rule 7-2(g). Because Mr. Hanley is a pro se
litigant, the court considered whether he demonstrated good
cause for the court to consider the additional evidence
submitted. The only explanation offered by Mr. Hanley for
needing to supplement was that it took “some time for
the new exhibits to be discovered[, ] . . . which were
believed to have been destroyed . . . .” (ECF No. 200
at 2.) This explanation is too vague for the court to find
good cause to allow Mr. Hanley to amend his motion; the court
does not know why Mr. Hanley believed the exhibits were
destroyed or why it took additional time for the exhibits ...