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Toll v. Wilson

Supreme Court of Nevada

December 5, 2019

SAM TOLL, Petitioner,
v.
THE HONORABLE JAMES E. WILSON, DISTRICT JUDGE; ANDTHE FIRST JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF STOREY, Respondents, 135 Nev.Adv.Op. 58 and LANCE GILMAN, Real Party in Interest.

         Original petition for a writ of prohibition or mandamus challenging a discovery ruling compelling petitioner to disclose the identity of his sources in a tort action.

          John L. Marshall and Luke A. Busby, Ltd., Reno, for Petitioner.

          Flangas Dalacas Law Group and Gus W. Flangas and Jessica K. Peterson, Las Vegas, for Real Party in Interest.

          McLetchie Law and Margaret A. McLetchie, Las Vegas, for Amici Curiae The Nevada Press Association, The Reporters Committee for Freedom of the Press, The News Media Alliance, The Online News Association, The Media Institute, The Society of Professional Journalists, and Reporters Without Borders.

         BEFORE THE COURT EN BANC

          OPINION

          GIBBONS, C.J.

         Almost fifty years ago, the Nevada Legislature passed the news shield statute, NRS 49.275. The current version of the statute protects journalists who are associated with newspapers, periodicals, press associations, and radio and television programs from mandatory disclosure of confidential sources. Since the passage of the statute, the news media has undergone immense changes. Previously, most news outlets disseminated news via physically printed newspapers and magazines or by radio and television broadcasts. Now, in addition to these sources, independent bloggers disseminate news through personal websites. In light of this modernization of the news media, we are asked to determine whether digital media falls within the protections of NRS 49.275. We hold that it does, but we do not address the specific question of whether or not petitioner Sam Toll qualifies for such protection as a blogger. Therefore, we grant the writ petition in part, so that the district court can conduct further proceedings in light of our holding and reconsider whether Toll's blog falls within the protection of the news shield statute. Additionally, we deny the petition in part by holding that the district court did not act arbitrarily or capriciously when it granted the motion for limited discovery.

         FACTS AND PROCEDURAL HISTORY

         Toll runs an online blog that reports on current events in Virginia City, Nevada. Initially, this blog, thestoreyteller.online (The Storey Teller), focused on the then-pending recall election of Sheriff Gerald Antinoro. Toll expressed a counter-narrative to local news sources, which he felt were publishing stories that were critical of Antinoro. After the recall election, Toll continued publishing The Storey Teller. In addition to other current events, Toll took an interest in Storey County Commissioner Lance Gilman. Toll wrote several articles that were critical of Gilman and posted them on The Storey Teller. Specifically, Toll wrote and posted articles that alleged Gilman did not live in Storey County. In response to these articles, Gilman filed suit, alleging defamation per se against Toll.

         After some litigation, Toll filed a special motion to dismiss Gilman's action under the anti-SLAPP statute, NRS 41.660, together with a sworn declaration, claiming that his statements constituted a good faith communication in furtherance of the right to free speech on an issue of public concern. Gilman filed an opposition to this motion together with an affidavit arguing that even if the statements were good faith communications, the action should not be dismissed because he, in turn, could demonstrate with prima facie evidence a probability of prevailing on his defamation claim. The district court held that there was a potentially viable claim under the anti-SLAPP statute. According to the court, Gilman made a prima facie case for a probability of success on the merits as to the falsity of the residency statements and their damaging nature, but he failed to make such a showing for actual malice, which is required to prevail on a defamation claim against a public figure. The district court granted Gilman's motion for limited discovery on whether Toll had actual malice i when making these statements. The discovery was limited to information that would help discern whether Toll knew that the statements involving Gilman's residency were false or whether he acted with a high degree of, awareness that they were likely false.

         Once the limited discovery began, Gilman deposed Toll. During the course of the deposition, Gilman asked, among other things, why Toll believed that Gilman did not live in Storey County. Toll answered that he looked into the zoning of the Mustang Ranch, where Gilman claims to live, and determined that Gilman living there would violate zoning laws. Further, Toll stated that Gilman living in a trailer behind the Mustang Ranch was illogical, given Gilman's wealth. Toll said he asked people whether Gilman lived on the Mustang Ranch property and they told him he did not. Toll stated his sources told him that Gilman would leave the Mustang Ranch and head to Reno every night at 8:00 p.m. Another source allegedly told Toll that Gilman kept his possessions at a different property, where he truly lives. When Gilman asked who these sources were, Toll invoked the news shield statute under NRS 49.275 and refused to provide the identity of his sources. The deposition abruptly ended shortly thereafter.

         Gilman filed a motion to compel Toll to reveal his sources with the district court, arguing that the news shield statute does not apply to bloggers. The district court agreed and granted Gilman's motion to compel. The district court held while Toll is a reporter, he did not belong to a press association at the time of his comments. The court further held that Toll's blog did not qualify as a newspaper because it is not printed in physical form and therefore the news shield statute did not afford him any protection. Toll filed a petition for a writ of prohibition or mandamus, challenging that decision as well as the order allowing limited discovery.

         DISCUSSION '

         'When the district court acts without or in excess of its jurisdiction, a writ of prohibition may issue to curb the extrajurisdictional act." Las Vegas Sands Corp. v. Eighth Judicial Dist. Court,130 Nev. 118, 122, 319 P.3d 618, i 621 (2014). Therefore, even though discovery issues are traditionally subject to the district court's discretion and unreviewable by a writ petition, this court will intervene when the district court issues an order requiring disclosure of privileged information.[1]Id. We exercise our discretion to review this writ petition because it involves an issue of first impression in need of clarification, and addressing it will promote judicial economy in the proceeding below. See, e.g., Corp. of the Presiding Bishop, LDS v. Seventh Judicial Dist. Court,132 Nev. 67, 70, ...


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