Nevada Supreme Court Reaffirms and Clarifies Sands Corp. Decision on Waiving Attorney-Client Privilege and the Work-Product Doctrine When Reviewing Documents to Refresh Recollection


Recently, we released a legal alert discussing the Nevada Supreme Court’s decision in Las Vegas Sands Corp. v. Eighth Jud. Dist. Ct., 130 Nev. Adv. Op. 13 (February 27, 2014), which addressed the intersection of NRS 50.125 and Nevada privilege law. In Sands, the Court held that reviewing a document for the purpose of refreshing one’s memory prior to or during testimony serves as a waiver to the attorney-client privilege and the work-product doctrine under 50.125, allowing the adverse party to demand production of the document, inspect it, cross-examine the witness on the contents and admit the document into evidence for the purpose of impeachment. However, the Court left open the important question of whether its ruling applied only to in-court hearings or whether the ruling extended to depositions.

In Las Vegas Development Associates, LLC v. Eighth Jud. Dist. Ct., 130 Nev. Adv. Op. 37 (May 29, 2014), the Nevada Supreme Court both reaffirmed its decision in Sands and held that NRS 50.125 applies to deposition testimony as well as to in-court hearings. The Court was persuaded by the language in FRCP 30(c) and NRCP 30(c), which both state that deposition examination and cross-examination of witnesses may proceed as permitted at the trial. “Given that depositions proceed as permitted at trial, we see no reason why writings used to refresh the memory of a witness before or during a deposition should be treated different than those used by a witness before or at the trial.” Thus, the Court determined that NRS 50.125 applies to depositions and deposition testimony as well as to in-court hearings by operation of NRCP 30(c).

The Court’s decisions in Sands and in Las Vegas Development Associates underscore the importance of properly preparing witnesses to give testimony under any circumstance.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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