Cotter ex rel. Reading Int'l, Inc. v. Eighth Judicial Dist. Court of State
Cotter ex rel. Reading Int'l, Inc. v. Eighth Judicial Dist. Court of State
Opinion of the Court
In this original petition for extraordinary relief, we consider whether documents disclosed to third parties constitute waiver of the work-product privilege. In considering this petition, we adopt the common interest rule that allows attorneys to share work product with third parties that have common interest in litigation without waiving the work-product privilege. Petitioner shared assertedly work-product material through emails with third parties who were intervening plaintiffs in the litigation, suing the same defendants on similar issues. Without reviewing the emails, the district court ruled that petitioner must disclose them based on his insufficient showing of common interest between him and the intervening plaintiffs. Because we conclude that petitioner and the intervening plaintiffs share common interest in litigation, the district court erred in concluding otherwise. We therefore grant petitioner's petition for extraordinary relief and direct the district court to refrain from compelling disclosure of the emails before it conducts *231an in camera review of the emails to establish clear findings concerning the work-product privilege.
FACTS AND PROCEDURAL HISTORY
From approximately 2000 to 2014, petitioner James Cotter served as the CEO and Chairman of the Board of Directors of Reading International, Inc. (Reading). After Reading terminated petitioner, he filed a complaint in the district court alleging breach of fiduciary duty against the following members of the Board of Directors of Reading: Margaret Cotter, Ellen Cotter, Guy Adams, Edward Kane, Douglas McEachern, William Gould, Judy Codding, and Michael Wrotniak (collectively, real parties in interest). Numerous Reading shareholders (the intervening plaintiffs) filed a derivative action in the district court against real parties in interest, asserting breach of fiduciary duty. Similar to petitioner, the intervening plaintiffs included allegations concerning petitioner's termination and other related events. The district court consolidated the two actions.
During discovery, real parties in interest filed a motion to compel petitioner to produce a supplemental privilege log. The district court granted the motion and ordered petitioner to revise his privilege log and reserved a ruling on the production of any of the communications between the attorneys for petitioner and the intervening plaintiffs. Petitioner subsequently produced 350 communications, as well as a supplemental privilege log. The log labeled approximately 150 emails between Lewis Roca Rothgerber LLP, counsel for petitioner, and Robertson & Associates, counsel for the intervening plaintiffs, as work product. According to petitioner, these emails, dated from August 2015 to June 2016, constituted work product because they contained mental impressions of matters related to the case.
Real parties in interest filed a motion to compel production of these emails, arguing that petitioner waived his claim of work-product protection by sharing these communications with the intervening plaintiffs. Real parties in interest also noted that there was no joint prosecution agreement or confidentiality agreement between the parties. The district court held oral arguments on the motion, though it did not conduct an in camera review of the emails. Ultimately, the district court determined that petitioner failed to show common interest between him and the intervening plaintiffs and, thus, ordered petitioner to produce the emails.
DISCUSSION
Writ relief is an extraordinary remedy, available when the petitioner has "no plain, speedy and adequate remedy at law other than to petition this court." Wardleigh v. Second Judicial Dist. Court,
In this case, without writ relief, compelled disclosure of petitioner's assertedly privileged communication will occur and petitioner would have no effective remedy, even by subsequent appeal. Accordingly, we exercise our jurisdiction to entertain this writ petition.
In considering this petition, discovery rulings are reviewed for an abuse of *232discretion. Club Vista Fin. Servs., LLC v. Eighth Judicial Dist. Court ,
Petitioner asserts that the work-product privilege is applicable and that he did not waive the privilege because he shares common interest in litigation with the intervening plaintiffs. In response, real parties in interest claim that the district court correctly concluded that no common interest exists between petitioner and the intervening plaintiffs. We conclude the district court erred and that common interest exists between petitioner and the intervening plaintiffs.
The work-product privilege "protects an attorney's mental impressions, conclusions, or legal theories concerning the litigation, as reflected in memoranda, correspondence, interviews, briefs, or in other tangible and intangible ways." Wardleigh,
In particular, numerous jurisdictions have recognized a broad common interest rule, allowing attorneys to share work product with other counsel for clients with the same interest without waiving the privilege. See, e.g., United States v. Gonzalez,
For the common interest rule to apply, the "transferor and transferee [must] anticipate litigation against a common adversary on the same issue or issues" and "have strong common interests in sharing the fruit of the trial preparation efforts." Am. Tel. & Tel. Co .,
Here, the record demonstrates that petitioner and the intervening plaintiffs, whose actions were consolidated, were all shareholders of Reading and asserted derivative claims against real parties in interest. The intervening plaintiffs have never filed claims against petitioner in this case. It is also unlikely that the intervening plaintiffs would disclose the work-product material to the real parties in interest given that petitioner and the intervening plaintiffs filed similar claims against the real parties in interest. Thus, we conclude that petitioner and the intervening plaintiffs anticipated litigation against a common adversary-real parties in *233interest-on similar issues concerning breaches of fiduciary duty, and they shared a sufficiently strong common interest in litigation as a matter of law.
As a result, we conclude that the district court erred in ruling that petitioner must disclose the emails based on finding an insufficient showing of common interest between him and the intervening plaintiffs. Accordingly, we grant petitioner's writ of prohibition and direct the clerk of this court to issue a writ instructing the district court to refrain from compelling disclosure of the emails until it reviews the emails in camera to evaluate whether they contain impressions, conclusions, opinions, and legal theories of counsel, as required pursuant to the work-product privilege.
We concur:
Cherry, J.
Gibbons, J.
Hardesty, J.
Parraguirre, J.
Stiglich, J.
Approximately one week after the hearing on the motion to compel, petitioner filed an emergency motion for stay pending resolution of his writ petition, pursuant to NRAP 8 and 27(e). Later that same day, this court granted the emergency motion. See Cotter v. Eighth Judicial Dist. Court, Docket No. 71267 (Order Directing Answer and Granting Motion for Stay, Sept. 15, 2016). In light of this opinion, we lift this court's prior stay.
Reference
- Full Case Name
- James J. COTTER, Jr., individually and derivatively on behalf of Reading International, Inc. v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK and the Honorable Elizabeth Goff Gonzalez, District Judge, and Margaret Cotter Ellen Cotter Guy Adams Edward Kane Douglas Mceachern William Gould Judy Codding Michael Wrotniak and Reading International, Inc., Real Parties in Interest.
- Cited By
- 5 cases
- Status
- Published