Tzu-Wen Lin

Document Type

Case Summary

Publication Date

1-24-2023

Case Synopsis

In this opinion drafted by Justice Hardesty, the Court clarifies the burden of proof that district courts are to use when determining whether the crime-fraud exception should apply under NRS 49.115(1). The Court holds that the party seeking to invoke the crime-fraud exception must satisfy a two-part test which the party must show by a preponderance of the evidence: (1) “the client was engaged in or planning a criminal or fraudulent scheme when it sought the advice of counsel to further the scheme” and (2) the attorney-client communications for which production is sought are “sufficiently related to and were made in furtherance of the intended, or present, continuing illegality.” Furthermore, the Court found that the district court may determine that an in-camera review of the privileged document is necessary before deciding whether the crime-fraud exception applies. The Court held that the respondent had established by a preponderance of the evidence that the petitioner was engaged in fraud and properly moved for an in-camera review to analyze the second step. Additionally, it found that the district court properly granted disclosure of the privileged document in finding that the crime-fraud exception applied. Thus, the Court denied the petitioner’s petition for extraordinary relief.

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