Public Employees’ Retirement System of Nevada v. Reno Newspapers, Inc., 129 Nev. Adv. Op. 88 (November 14, 2013)

Before the Court en banc. Opinion by Justice Parraguirre.
In this appeal from a district court order granting a petition for a writ of mandamus, the Court addressed whether individual retiree files that are maintained by Public Employees’ Retirement System of Nevada (“PERS”) are subject to public access. In 2011, the Reno Gazette-Journal (“RGJ”) submitted a public records request to PERS in furtherance of an investigation into government expenditures and the public cost of the retiree pensions. PERS rejected the request asserting that the records were confidential and RGJ responded with a writ petition in district court on the basis that the information was not confidential because it was compiled from public documents. The district court granted RGJ’s petition, concluding that the records sought (e.g. names of retirees, names of government employers, salaries, hire and retirement dates, amounts of pension payments) were not confidential under the applicable statutes (NRS 286.110(3) and 286.117), and further ordered PERS to produce a report that contained the requested information. PERS appealed. The Court considered the scope of confidentiality set forth in NRS 286.110(3), which states, in part: “[t]he official correspondence and records, other than the files of individual members or retired employees,…are public records and are available for public inspection.” (emphasis added). The Court held that the limitation in NRS 286.110(3) must be construed narrowly and only protects an individual’s file itself, but not all information therein merely because it exists in an individual’s file. For example, if the information is contained in other reports, media, etc., the information is not confidential just because the same information exists in an individual’s file. The Court acknowledged that other statutes, rules, or caselaw could form an independent basis for confidentiality; however, PERS did not identify any separate legal authority that would preclude RGJ’s request. The Court also rejected PERS’ alternative argument that the district court erred in concluding that the government’s interest in maintaining confidentiality of the individuals’ files did not outweigh the public’s interest in access to the information. The Court noted that the rationales proffered by PERS (greater risk of identity theft and elder abuse if records disclosed) were not supported by sufficient evidence that actual harm would occur and were merely speculative. The Court vacated the district court’s order to the extent it required PERS to create or customize reports by searching or compiling information. Affirmed in part, vacated in part. (Kristen T. Gallagher, Associate in the Las Vegas office of McDonald Carano Wilson LLP).

Blanco v. Blanco, 129 Nev. Adv. Op. 77 (Oct. 31, 2013)

Before the Court en banc. Opinion by Justice Hardesty.
In this appeal from a divorce decree entered by default in the district court, the Court considered the propriety of case-concluding discovery sanctions for failure to respond to discovery requests when the case involves child custody and child support claims. The Court concluded that case-terminating discovery sanctions were impermissible in cases involving child custody and child support because the sole consideration of the court in such matters is the child’s best interest; other sanctions, such as contempt, monetary sanctions, and attorney’s fees, are still available in such cases. The Court also concluded that case-concluding discovery sanctions were permissible in the claims for property division, spousal support, and attorneys’ fees, but that any such sanction must comply with the procedural due process requirements of Young v. Johnny Ribeiro Bldg, Inc. and Foster v. Dingwall. Thus, a trial court must determine whether the discovery sanction is warranted and whether the sanction relates to the claims at issue in the violated discovery order, and then must support the sanction with an explanation of the pertinent factors guiding such determination. Although the factual determinations regarding property division often necessitate an evidentiary hearing, a trial court may render a decision on spousal support and attorneys’ fees without such a hearing. Because the Court held that case-concluding sanctions were impermissible in child custody and support matters, and because the district court did not conduct the appropriate Young/Foster analysis, the entry of a divorce decree by default was improper. Reversed and remanded for further proceedings. (Rory T. Kay, Associate in the Las Vegas office of McDonald Carano Wilson LLP.)

Vanguard Piping v. Eighth Jud. Dist. Ct., 129 Nev. Adv. Op. 63 (Sept. 19, 2013)

Before the Court en banc (Justice Parraguirre recused). Opinion by Justice Hardesty.
In this original petition for writ of mandamus or prohibition, petitioners Vanguard Piping Systems, Inc., Viega, LLC, Industries, Inc., and Viega, Inc. (collectively, Vanguard) challenged a district court order compelling Vanguard to produce all insurance policies that might be used to satisfy a judgment against Vanguard in a construction defect action brought by Aventine-Tramonti Homeowners Association (the HOA). Vanguard contended that it was not required to disclose insurance policies purchased by its German parent companies, Viega GmbH and Viega International GmbH, because Vanguard’s primary insurance policies were sufficient to cover any judgment that might be entered against Vanguard. Following the plain language of the rule and applying the federal courts’ interpretation of the similar federal rule, the Court held that NRCP 16.1(a)(1)(D) requires parties to disclose any insurance agreement that may be used to satisfy a judgment; “[t]he rule does not mention agreements with policy limits sufficient to satisfy a judgment, nor does it distinguish between primary and secondary insurance policies.” Moreover, permitting parties to determine which insurance agreements are relevant “overlooks the fact that it is impossible to foresee all possible circumstances in which the primary insurance policies will be subject to liability and potentially exhausted by other judgments.” Thus, pursuant to NRCP 16.1(a)(1)(D), a party is required to disclose all insurance policies that may be liable to pay a portion of a judgment, regardless of whether it has already disclosed policies with limits that exceed its potential liability. Petition denied. (Patrick J. Murch, Associate in the Las Vegas office of McDonald Carano Wilson.)

Club Vista Financial Servs. v. Dist. Ct., 128 Nev. Adv. Op. 21 (May 17, 2012)

Before the Court En Banc (Justice Parraguirre recused). Opinion by Chief Justice Cherry.
In this petition for writ of mandamus or prohibition, the Court considered whether, and under what circumstances, a party to a lawsuit may depose an opposing party’s former attorney. The Court discussed the inherent policy concerns surrounding the deposition of a party’s attorney and noted that many jurisdictions disfavor the practice of taking the deposition of a party’s attorney. As such, because of the potential to create an undue burden, the Court concluded that such depositions should only be permitted in “exceptionally limited circumstances.” Therefore, the Court adopted a stringent framework established by the Eighth Circuit in Shelton v. American Motors Corp., 805 F. 2d 1323 (8th Cir. 1986) rather than a flexible standard as proposed by the real parties in interest. The Court held that a party seeking to depose opposing counsel has the burden of proving that: (1) no other means exist to obtain the information than to depose opposing counsel; (2) the information is relevant and nonprivileged; (3) and the information is crucial to the preparation of the case. The Court also indicated that the district court should consider whether the attorney is a percipient witness to the facts giving rise to the complaint. In light of these considerations, the Court directed the district court to consider whether the deposition would be permissible when analyzed under the Shelton framework. Petition granted in part. (Amanda M. Perach, Associate in the Las Vegas office of McDonald Carano Wilson.)