Limits of a Court's Power - The Writ
“The inherent power of the court over attorneys is not limitless.” With this emphatic language, the Supreme Court recently held that a Nevada court lacks authority to compel an out-of-state attorney to appear in Nevada for a deposition as a nonparty witness, even where the attorney was earlier admitted pro hac vice in the matter. Quinn et al. v. Eighth Jud. Dist. Ct., 134 Nev. Adv. Op. 5 (February 8, 2018), involved a writ petition challenging a district court order that compelled California lawyers to appear in Las Vegas for depositions after a California court quashed the deposition subpoenas issued there. The Supreme Court considered the matter with unprecedented speed, directing the real parties-in-interest to file an expedited answer within four days of the petition’s filing and holding an en banc argument just three days later. The Court then issued a published opinion two months thereafter.
The petitioners were lawyers from the law firm Quinn Emanuel Urquhart & Sullivan based in California, who represented Elaine Wynn from January 2016 to March 2017 in Nevada litigation against Wynn Resorts and its general counsel Kimmarie Sinatra. Approximately six months after the Quinn Emanuel attorneys withdrew from representing Ms. Wynn, Ms. Sinatra filed what the Supreme Court characterized as a “retaliatory” abuse of process counterclaim arising from Ms. Wynn’s litigation actions while represented by Quinn Emanuel. Ms. Sinatra caused subpoenas to be issued in California pursuant to California’s version of the Uniform Interstate Depositions and Discovery Act (“UIDDA”) directing the Quinn Emanuel attorneys to appear for depositions in California.
After objecting and engaging in unsuccessful meet and confer efforts, the Quinn Emanuel attorneys filed a petition to quash the subpoenas in California superior court. The petition alleged defective service and argued that Ms. Sinatra sought protected attorney-client and work product information and could not satisfy the test to depose an opposing party’s counsel. Ms. Sinatra filed an ex parte application in the California court on shortened time to compel the depositions prior to the Nevada discovery deadline, which the California court denied but set the matter for hearing in the normal course.
Unsuccessful in California, Ms. Sinatra then filed a motion to compel in the Nevada court. The Quinn Emanuel attorneys opposed the motion, arguing among other things that, under UIDDA, the Nevada court did not have jurisdiction over an ongoing discovery dispute in California. Nevertheless, the Nevada court granted the motion to compel and ordered that the depositions take place in Las Vegas. The Quinn Emanuel attorneys petitioned the Supreme Court for a writ of mandamus or prohibition.
Thereafter, the California superior court held a hearing on Quinn Emanuel’s motion to quash and granted it. Determining that it had jurisdiction over the subpoenas, and applying the same test for attorney depositions used in Nevada, the California court concluded that Ms. Sinatra failed to establish a proper basis to depose the Quinn Emanuel attorneys. The California court also sanctioned Ms. Sinatra $10,000 for opposing the petition to quash without substantial justification.
In considering the writ petition, the Nevada Supreme Court analyzed three sources of law: the Nevada Rules of Civil Procedure, the UIDDA (adopted by both California and Nevada) and a court’s inherent authority over attorneys who appear before it. From the plain language of Nevada’s procedural rules, the Court readily concluded that “the subpoena power of Nevada courts over nonparty deponents does not extend beyond state lines.” The UIDDA overcomes that obstacle by requiring a party who seeks out-of-state discovery to submit a subpoena from the trial state (here, Nevada) to the clerk of court in the discovery state (here, California), who reissues it. Any motion practice to quash or enforce the subpoena must occur in the discovery state according to the law of that state.
In the Quinn decision, the Supreme Court noted that Ms. Sinatra initially complied with these UIDDA procedures and only strayed from them when the California court quashed the subpoenas. The Supreme Court held that her attempt to enforce the California subpoenas in a Nevada district court was improper because the California court maintained its jurisdiction over the discovery dispute. Under the UIDDA, the Supreme Court concluded, “the Nevada district court had no authority to grant her motion to compel.”
Faced with this jurisdictional hurdle, Ms. Sinatra argued that the Nevada court could exercise its inherent authority to order the Nevada depositions because, through their pro hac vice applications, the Quinn Emanuel attorneys subjected themselves to jurisdiction in Nevada. The Supreme Court likewise rejected this argument, stating that “the district court appeared to conflate personal jurisdiction with subpoena power.” Personal jurisdiction, the Court explained, is based on conduct that subjects an out-of-state party to Nevada jurisdiction, while the subpoena power allows the court to compel a nonparty witness. Where the Quinn Emanuel attorneys are not parties, the Court held, their pro hac vice admissions did not overcome the subpoena power limits.
As a final resort, Ms. Sinatra contended that a district court’s inherent authority over attorneys who practice before it authorizes the court to compel those attorneys to comply with discovery, similar to the authority to sanction, make referrals to the State Bar for misconduct and investigate conflicts. The Supreme Court rejected this argument as well, emphasizing that “[t]he inherent power of the court over attorneys is not limitless….” A court’s authority to regulate the legal profession does not include the power to compel an out-of-state nonparty witness to sit for a deposition. The mere fact that the nonparty witness is an attorney who appeared before the court does not alter this conclusion.