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.
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.
THE COURT EN BANC
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.
AND PROCEDURAL HISTORY
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.
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.
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.
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
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.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, ...