Club Vista Financial Services, L.L.C. v. Eighth Judicial District Court of the State of Nevada ex rel. County of Clark
276 P.3d 246
Nev.2012Background
- Club Vista and Scott Financial dispute a Manhattan West project loan default and related fraud/fiduciary claims.
- Club Vista hired Morrill and Aronson to evaluate whether to sue; they filed Nevada action on Club Vista’s behalf.
- Scott Financial subpoenaed Morrill for deposition as to factual basis; Morrill sought protective/dequash orders in Arizona and Nevada.
- Nevada discovery master recommended allowing Morrill’s deposition; district court adopted recommendation without Shelton analysis.
- Nevada Supreme Court granted writ in part to require evaluation under Shelton factors; Morrill’s status as Club Vista’s former counsel remained relevant.
- Petition remained pending with substitution of counsel for Club Vista and stay on deposition order; court stayed and then vacated stay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Shelton factors apply to depose opposing counsel in Nevada | Club Vista argues Shelton should apply to limit deposition. | Scott Financial urges flexible approach to permit attorney deposition. | Yes; adopt Shelton three-factor test. |
| Whether district court abused discretion by not applying Shelton factors | District court failed to analyze Shelton factors. | Court can proceed with limited discovery; privilege defenses available. | Remand to apply Shelton factors. |
| Whether information sought is obtainable by other means | Information only known to Morrill; no alternative sources. | Other witnesses and documents may suffice; avoid burden on attorney. | Depends on Shelton factor evaluation; not decided here. |
| Whether information is relevant, nonprivileged, and crucial | Evidence essential to support allegations; should depose Morrill. | Potential privilege and work-product concerns; cautious approach. | Subject to Shelton analysis; not resolved without it. |
| Whether Morrill’s withdrawal as trial witness affects availability of deposition | Withdrawal undermines need to depose; may preclude deposition. | Still may be percipient witness; facts may remain discoverable. | District court must reassess under Shelton with Morrill’s status in mind. |
Key Cases Cited
- Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986) (three-factor test for deposing opposing counsel: no alternative source, relevant nonprivileged info, crucial to case preparation)
- Wardleigh v. District Court, 111 Nev. 345, 891 P.2d 1180 (Nev. 1995) (prohibition is proper remedy to prevent improper discovery; protect privileges)
- In re Subpoena Issued to Dennis Friedman, 350 F.3d 65 (2d Cir. 2003) (second circuit discussion of attorney depositions and privacy concerns)
- Kerr v. Able Sanitary, 684 A.2d 961 (N.J. Super. Ct. App. Div. 1996) (considers factors for permitting attorney deposition; emphasizes potential burden)
- Nationwide Mut. Ins. Co. v. Home Ins. Co., 278 F.3d 621 (6th Cir. 2002) (criticizes broad or routine attorney depositions; cautions on burdens)