Grand Canyon Skywalk Development LLC v. Steele
2:15-cv-00663
D. Nev.Jun 5, 2015Background
- The dispute arises from alleged defamatory public-relations activity surrounding the Grand Canyon Skywalk located on the Hualapai Indian Reservation; plaintiffs sued Scutari & Cieslak for orchestrating a media campaign that harmed plaintiffs’ reputations.
- Scutari & Cieslak asserted an advice-of-counsel defense and filed a third-party complaint seeking indemnity/contribution from the Hualapai Tribe; Gallagher & Kennedy is counsel for the Tribe.
- Scutari & Cieslak served a subpoena duces tecum on Gallagher & Kennedy seeking non-privileged communications between the firm and Scutari & Cieslak relevant to the advice-of-counsel defense.
- Gallagher & Kennedy moved to quash the subpoena asserting tribal sovereign immunity (and in reply argued tribal attorney-client privilege extended to communications with Scutari & Cieslak); Scutari & Cieslak clarified they do not seek privileged Tribe–counsel communications.
- The core legal question: whether tribal sovereign immunity bars enforcement of a civil subpoena served on a tribe’s counsel/agent (as distinct from the tribe itself), and whether any waiver or privilege prevents production.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether tribal sovereign immunity shields responses to a subpoena served on the Tribe’s attorneys/agents | Subpoena does not seek privileged Tribe–counsel communications; counsel/agents must comply | Gallagher & Kennedy: subpoena is barred by Hualapai Tribe sovereign immunity; cannot be compelled | Court: Sovereign immunity does not bar compliance by a tribal attorney/agent served individually; subpoena enforcement is allowed against counsel/agents here |
| Whether a subpoena served on an individual tribal officer/employee triggers tribal immunity | Subpoena to officers/employees should be enforceable (Ex parte Young/analogous precedent) | Tribe relied on cases where immunity protected tribal officials acting in official capacity | Court: Follows Tenth Circuit/Juvenile Male approach — subpoenas to individuals (not the tribe itself) do not automatically trigger tribal immunity |
| Whether the Tribe waived sovereign immunity for purposes of discovery | Scutari & Cieslak contended waiver issues relate to third-party complaint and urged discovery | Gallagher & Kennedy argued waiver prevents production | Court: Waiver issue pending before District Court; court deferred deciding waiver in relation to third-party complaint |
| Whether communications sought are privileged as Tribe–attorney communications | Scutari & Cieslak narrowed request to non-privileged communications with Scutari & Cieslak | Gallagher & Kennedy asserted in reply that communications with Scutari & Cieslak are privileged as consultant communications | Court: Would not decide privilege raised for first time in reply; privilege argument not considered on this motion |
Key Cases Cited
- Kiowa Tribe of Oklahoma v. Manufacturing Techs., Inc., 523 U.S. 751 (tribal sovereign immunity applies to off-reservation commercial activities)
- Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024 (tribal sovereign immunity described and reaffirmed absent congressional abrogation)
- Stock West Corp. v. Taylor, 942 F.2d 655 (9th Cir.) (scope of tribal immunity for attorneys depends on whether attorney acted as tribal official; discovery into duties may be permitted)
- United States v. James, 980 F.2d 1314 (9th Cir.) (tribal immunity can bar enforcement of subpoenas served on tribe)
- Alltel Commc’ns, LLC v. DeJordy, 675 F.3d 1100 (8th Cir.) (federal subpoena to tribe in private litigation is a "suit" triggering tribal immunity)
- Bonnet v. Harvest (U.S.) Holdings, Inc., 741 F.3d 1155 (10th Cir.) (subpoena served on tribe is a "suit" invoking immunity; subpoenas on individuals may be treated differently)
- Davis v. Littell, 398 F.2d 83 (9th Cir.) (tribal general counsel immune for official-capacity actions tied to internal governance)
- Caskill Dev. v. Park Place Entm’t, 206 F.R.D. 78 (S.D.N.Y.) (tribal sovereign immunity extends to tribal officials and attorneys acting in official capacity; waiver may be found in contract)