Richards (Bobby) v. Dist. Ct. (State) ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
BOBBY RICHARDS, No. 67992
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF FILED
CLARK; AND THE HONORABLE
JOSEPH T. BONAVENTURE, JAN 28 2016
Respondents, TRACIE K. UNDEMAN
CLER9F SUPREME COURT
and
DEPUTY CLERK
THE STATE OF NEVADA,
Real Party in Interest.
ORDER GRANTING PETITION
This is an original petition for a writ of mandamus challengiag
an order of the district court granting a discovery request. Petitioner
Bobby Richards contends that the district court manifestly abused its
discretion in granting a discovery request for correspondence between
defense counsel and an expert witness. See NRS 34.160; Round Hill Gen.
Imp. Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981). We
elect to exercise our discretion to consider the merits of this petition
because Richards does not have an adequate remedy at law to address the
district court's action. See NRS 34.170 (providing that a "writ shall be
issued in all cases where there is not a plain, speedy and adequate remedy
in the ordinary course of law"). Although he could raise the evidentiary
ruling on appeal if he is convicted, forcing Richards to disclose non-
discoverable communication between his counsel and expert witness may
prejudice his ability to mount a defense. See Mitchell v. Eighth Judicial
Dist. Court, 131 Nev., Adv. Op. 21, 359 P.3d 1096, 1099 (2015) (noting that
this court has granted "extraordinary writ relief from orders allowing
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presents an unsettled and important issue of statutory privilege law");
State v. Eighth Judicial Dist. Court (Romano), 120 Nev. 613, 618, 97 P.3d
594, 597 (2004) (noting that this court has entertained extraordinary writs
to prevent improper discovery), overruled on other grounds by Abbott v.
State, 122 Nev. 715, 138 P.3d 462 (2006). Further, judicial economy
militates in favor of addressing the order despite the district court's failure
to reduce it to writing. See State v. Babayan, 106 Nev. 155, 175, 787 P.2d
805, 819 (1990) (providing that this court may entertain petition for
extraordinary relief, when judicial economy militates in favor of writ
review).
We conclude that Richards' petition has demonstrated that
our intervention is warranted because the district court manifestly abused
its discretion in ordering disclosure of the correspondence. See State v.
Eighth Judicial Din. Court (Armstrong), 127 Nev. 927, 931-32, 267 P.3d
777, 780 (2011) (providing that a manifest abuse of discretion occurs when
a district court clearly misinterprets or misapplies a law or rule). The
synopsis that the district court ordered disclosed was contained in
correspondence from Richards' counsel to a potential expert witness while
investigating possible defense theories. Thus, the correspondence is
squarely a "memorandum that [was] prepared by . . . the defendant's
attorney in connection with the investigation or defense of the case," NRS
174.245(2)(a), and therefore not subject to discovery or inspection. As
counsel did not intend to solicit the expert's opinion regarding the specific
facts of Richards' case, the synopsis was not rendered discoverable. See
Lisle v. State, 113 Nev. 679, 696, 941 P.2d 459, 471 (1997) (noting that a
party may waive the protection of NRS 174.245 by making testimonial use
of the protected documents), holding limited on other grounds by
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Middleton v. State, 114 Nev. 1089, 1117 n.9, 968 P.2d 296, 315 n.9 (1998).
Accordingly, we
ORDER the petition GRANTED AND DIRECT THE CLERK
OF THIS COURT TO ISSUE A WRIT OF MANDAMUS instructing the
district court to vacate its discovery order.
j.
Hardest
•
J.
Saitta
PICKERING, J. dissenting:
As I understand the record, Dr. Roitman is not merely "a
potential expert witness" with whom the defense was exploring "possible
defense theories" as the majority suggests, but a disclosed, testifying trial
expert. Given this fact, and the redacted disclosure ordered, I am not
convinced that the petitioner has demonstrated an adequate basis for this
court to intervene by extraordinary writ. See NRS 50.305 ("The expert
may testify in terms of opinion or inference and give his or her reasons
therefor without prior disclosure of the underlying facts or data, unless the
judge requires otherwise." (emphasis added)). I respectfully dissent.
cc: Chief Judge, The Eighth Judicial District Court
Hon. Joseph T. Bonaventure, Senior Judge
Law Office of Patricia M. Erickson
Attorney General/Carson City
Clark County District Attorney
SUPREME COURT Eighth District Court Clerk
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