By Jennifer L. Braster
With minimal exception, when a party is involved in a lawsuit, the party is required to disclose to the other side those documents and information that are relevant to a claim or defense in the lawsuit. A key exception to this rule is whether a document or piece of information is privileged, and if so, whether that privilege serves as an absolute bar to the disclosure of otherwise relevant information and documents. Many litigants are familiar with the attorney-client privilege (for communications between an attorney and client) and work product doctrine (for documents prepared in anticipation of litigation), but other privileges, such as accountant-client and marital privilege, and exceptions to those privileges may also impact the disclosure of relevant information and records.
Nevada has codified its privileges in Nevada Revised Statutes Chapter 49. Importantly, Chapter 49 not only sets forth the privileges recognized in Nevada but also their exceptions. For example, NRS 49.095 defines the attorney-client privilege as follows: “A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications” between the client and attorney “[m]ade for the purpose of facilitating the rendition of professional legal services to the client.”
The statute also provides for five exceptions to the attorney-client privilege: (1) seeking the services of the lawyer to aid in a crime or fraud; (2) between parties pertaining to the same deceased client; (3) pertaining to a breach of the lawyer’s duty to the client; (4) concerning documents the lawyer is attesting to as a witness; and (5) relating to a common interest between the clients. NRS 49.115.
The Supreme Court of Nevada has recently reaffirmed that privileges should be “interpreted and applied narrowly.” Canarelli v. Eighth Jud. Dist. Ct. in & for Cnty. of Clark, 136 Nev. 247, 252, 464 P.3d 114, 120 (2020) (quoting Clark Cty. Sch. Dist. v. Las Vegas Review-Journal, 134 Nev. 700, 705, 429 P.3d 313, 318 (2018)). That being said, a party needs some degree of certainty as to whether communications will be protected or not, and the Supreme Court of Nevada has made it clear that it will not read in additional exceptions to privilege.
For instance, the court in Canarelli addressed whether or not a fiduciary exception to the attorney-client privilege, which would prevent a trustee from asserting privilege in a dispute with trust beneficiaries, will be recognized. The court very clearly answered no, reasoning that the legislature has already identified the five exceptions, and it will not create a sixth one by “judicial fiat.” 136 Nev. at 254, 464 P.3d at 121.
The Canarelli court did clarify that a document may be protected by the attorney-client privilege even if the actual document is not provided by the client to the attorney. The attorney-client privilege protects internal notes prepared by a client, even if not physically delivered to the attorney, so long as the content of the notes was previously or is thereafter communicated with counsel. Id. at 252, 464 P.3d at 120. Further, while facts are not privileged, facts that a party communicates in order to obtain legal advice are privileged. Id. at 253, 464 P.3d at 121.
As with the attorney-client privilege, there are exceptions to the application of the work product doctrine (as well as exceptions to the applications of other privileges), emphasizing the importance of knowledge of not only the privileges but their exceptions.
As with the attorney-client privilege, there are exceptions to the application of the work product doctrine (as well as exceptions to the applications of other privileges), emphasizing the importance of knowledge of not only the privileges but their exceptions. For example, with regard to the work product doctrine, NRCP 26(b)(3)(A) provides that a party may obtain disclosure of a document otherwise protected by the work product doctrine if the party demonstrates “it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Thus, like the attorney-client privilege, the work product doctrine is not absolute.
Other privileges may also preclude disclosure of relevant information, and litigants must familiarize themselves with these privileges to avoid inadvertent disclosure of privileged communications and/or potential waiver of the privilege due to such disclosure. For instance, communications between an accountant and client for the purpose of obtaining accounting services are also privileged. See NRS 49.185. Like the attorney-client privilege, there are also several exceptions set forth in NRS 49.205, including the crime-fraud exception and common-interest exception that apply to attorney-client communications as well.
The Nevada legislature has also enacted numerous other privileges, including, but not limited to, psychologist-patient privilege, doctor-patient privilege, marriage and family therapist-client privilege, victim’s advocate-victim privilege, clergy privilege, and marital privilege. See NRS 49.209, 49.225, 49.246, 49.2546, 49.255, and 49.295. The breadth of NRS Chapter 49 demonstrates the need to ensure that all documents and information produced in litigation are not covered by a privilege, as it is very difficult, if not impossible, to unring the bell.
About the author
Jennifer L. Braster is a founding partner at Naylor & Braster, a commercial litigation firm in Las Vegas, Nevada. Jennifer routinely practices in both the federal and state courts in Nevada and in the areas of commercial litigation, consumer finance, and appellate law. Contact her at 702-420-7000.
About the article
This article was originally published in the Communiqué (Sep 2026), the official publication of the Clark County Bar Association.
The articles and advertisements appearing in Communiqué magazine do not necessarily reflect the opinion of the CCBA, the CCBA Publications Committee, the editorial board, or the other authors. All legal and other issues discussed are not for the purpose of answering specific legal questions. Attorneys and others are strongly advised to independently research all issues.
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