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United States District Court for the District of Nevada
August 13, 2015, Decided; August 13, 2015, Filed
Case Nos.: 2:15-cv-01189-JAD-GWF; 2:13-cv-00596-JAD-GWF
This matter is before the Court on Gallagher & Kennedy, P.A. and The Hualapai Indian Tribe's (hereinafter "Gallagher & Kennedy") Motion to Quash Plaintiff's Subpoena to Glen Hallman (#1), filed on May 28, 2015. Plaintiffs filed their Opposition (#21) on June 29, 2015. Gallagher & Kennedy filed its Reply (#23) on July 17, 2015. The Court conducted a hearing in this matter on July 22, 2015.
This action arises out of a long-running dispute relating to the Grand Canyon Skywalk ("Skywalk"). See Order (#125) in Case No. 2:13-cv-00596-JAD-GWF. Plaintiffs allege that Defendants David John Cieslak, Nicholas Peter Scutari and Scutari & Cieslak Public Relations, Inc. (hereinafter collectively referred to as "Scutari & Cieslak"), together with individual members of the Hualapai Tribal Council, conspired to conduct a public relations/news media campaign to falsely accuse the Plaintiffs of having breached their contracts with the Hualapai Tribe. The alleged purpose of the conspiracy was to gain support for the Tribal Council's enactment of an eminent domain ordinance and the subsequent [*4] condemnation of Plaintiffs' contractual rights. Plaintiffs allege that the Tribe hired Scutari & Cieslak to formulate the public relations campaign against Plaintiffs. As part of this campaign, Scutari & Cieslak, or Tribal officials following scripts prepared by Scutari & Cieslak, falsely stated that Plaintiffs breached their contract "to complete certain critical elements of the Skywalk — including water, sewer and electricity" when, in fact, it was the Tribe's responsibility to provide these elements. Defendants also allegedly made other statements that impugned the honesty of Plaintiffs. Complaint (#1), ¶¶ 60-80. Scutari & Cieslak allege as an affirmative defense that they acted in good faith upon advice of counsel in making the allegedly defamatory statements. Answer to Complaint (#70), pg. 12. The counsel referred to in this affirmative defense were attorneys in the law firm of Gallagher & Kennedy who represented the Tribe and its officers in the various disputes and litigation with Plaintiffs.1
This Court previously denied Gallagher & Kennedy's motion to quash a subpoena duces tecum served by Defendants Scutari & Cieslak which seeks documents relating to communications between Gallagher & Kennedy and Scutari & Cieslak. Order (#125). Gallagher & Kennedy filed an objection to the undersigned's order on June 19, 2015 which is currently pending before the District Judge. The instant motion to quash involves a deposition subpoena that Plaintiffs served on Glen Hallman, an attorney who was formerly employed by Gallagher & Kennedy. Mr. Hallman engaged in communication with Scutari & Cieslak with respect to the statements that were published about the Plaintiffs. Plaintiffs state that they seek only to question Mr. Hallman about his communications with Scutari & Cieslak. They do not seek to discover privileged communications between the Tribe and Mr. Hallman. Opposition (#21), pgs. 2, 6. Gallagher & Kennedy states that as part of its representation of the Tribe, it recommended that the Tribe hire Scutari & Cieslak to manage media contacts [*6] in connection with the litigation. Motion (#1), pg. 2. It also states that Mr. Hallman was "an attorney assisting the Tribe in carrying out its fundamental sovereign and legislative powers, including the exercise of eminent domain. Because this role was in the nature of an official function involving matters of internal governance, the Tribe's immunity extends to him and this Court has no jurisdiction to compel compliance with the subpoena." Reply (#23), pg. 2. Gallagher & Kennedy also argues that Mr. Hallman's communications with Scutari & Cieslak are protected from disclosure by the Tribe's attorney-client privilege and by the attorney work-product doctrine.
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2015 U.S. Dist. LEXIS 107457 *; 2015 WL 4773585
GRAND CANYON SKYWALK DEVELOPMENT LLC, et al., Plaintiffs, vs. DAVID JOHN CIESLAK, NICHOLAS SCUTARI and SCUTARI & CIESLAK PUBLIC RELATIONS, INC., Defendants.
Subsequent History: Objection overruled by, Affirmed by, in part, Dismissed by Grand Canyon Skywalk Dev., LLC v. Cieslak, 2016 U.S. Dist. LEXIS 29520 (D. Nev., Mar. 7, 2016)
Prior History: Grand Canyon Skywalk Dev. LLC v. Steele, 2014 U.S. Dist. LEXIS 1550 (D. Nev., Jan. 6, 2014)
Tribe, consultant, subpoena, communications, tribal, sovereign immunity, public relations, attorney-client, employees, legal advice, documents, entity, hired, courts, media, functional equivalent, immunity, tribal official, privileged, discovery, waived, public relations firm, motion to quash, non-party, campaign, circumstances, disclosure, advice, state official, work-product