Electronically Filed

08/25/2022 6:57 PM

1 ORDR
2 EIGHTH JUDICIAL DISTRICT COURT
3 CLARK COUNTY, NEVADA
4 DUE DILIGENCE GROUP, LLC, a Case No. A-22-853953-W
limited liability company,
5 Dept. No. IX
Plaintiff,
6 vs.
7 LAS VEGAS METROPOLITAN POLICE
DEPARTMENT,
8
Defendant.
9
10

11 ORDER GRANTING PETITION FOR WRIT OF MANDAMUS IN PART, DENYING

PETITION IN PART, AND STAYING DISCLOSURE PENDING APPEAL
12

13 On June 10, 2022, Plaintiff-Petitioner Due Diligence Group, LLC, filed a

14 petition for a writ of mandamus asking this Court to compel Defendant-Respondent

15 Las Vegas Metropolitan Police Department (“LVMPD”) to disclose records responsive

16 to the Group’s requests NPR2022-0019318, NPR2022-0019319, and NPR2022-

17 0021998, namely e-mails between Sheriff Joe Lombardo and his campaign

18 consultants, Mike Slanker, Ryan Erwin, and former Lieutenant Governor Mark

19 Hutchinson. On July 1, 2022, LVMPD opposed the motion and made a counter-

20 motion to alternatively produce what is commonly referred to as a Vaughn Index (i.e.,

21 a privilege log in the open records litigation context). On July 8, 2022, the Group

22 filed a reply in support of its motion and an opposition to the countermotion, and on

23 July 13, 2022, the LVMPD filed a reply in support of its countermotion.

24 On August 17, 2022, the Court heard oral argument from counsel. Bradley S.

25 Schrager, Esq. of Wolf, Rifkin, Shapiro, Schulman & Rabkin and Maya Sequeria,

26 Esq. of Elias Law Group appeared on behalf of the Group. Jackie V. Nicholas, Esq. of

27 Marquis Aurbach appeared on behalf of the LVMPD. Also present and appearing on

28 behalf of the LVMPD was Matthew J. Christian, its assistant general counsel. The
1 Court subsequently issued an interim order directing an in camera inspection of the
2 e-mails at issue. On August 25, 2022, the LVMPD produced forty e-mails for the
3 Court’s in camera inspection. Having considered the motion and related briefs, all
4 pleadings and papers on filed, argument of counsel, and the e-mails produced for in
5 camera inspection, the Court GRANTS the petition in part, DENIES the petition in
6 part, and stays disclosure of any records, consistent with the following:
7 This case hangs on the meaning of “public records” and whether the e-mails
8 at issue constitute “public records” for purposes of the Nevada Public Records Act
9 (NPRA). The LVMPD has withheld certain e-mails between Sheriff Lombardo and
10 his campaign consultants claiming that they are not public records because they are
11 all personal in nature.
12 At NRS 239.010(1), the NPRA provides as follows: “Except as otherwise
13 provided in this section and … and unless otherwise declared by law to be
14 confidential, all public books and public records of a governmental entity must be
15 open at all times during office hours to inspection by any person ….” Id. (emphasis
16 added.) The key word here is “public.” The Nevada Legislature could have chosen to
17 omit the “public” descriptor in favor of mandating “all” books and records of a
18 governmental entity to be open for inspection, but that is not what the Legislature
19 did. Accordingly, the term “public” must have some meaning distinct from all
20 government books and records, and in this Court’s view, something less than all
21 government books and records, otherwise the Legislature could have omitted the
22 “public” descriptor.
23 Further supporting this view is the fact that the 1963 version of NRS
24 293.010(1) did not include the term “public” and instead mandated that “All books
25 and records of state, county and city officers of this state shall be open at all time
26 during office hours to inspection ….” The Legislature in 1965 amended the statute to
27 expressly include the term “public” so that “All public books and public records of
28 state, county, city, district, governmental subdivision and quasi-municipal

2
1 corporation officers and offices of this state (and all departments thereof), the
2 contents of which are not otherwise declared by law to be confidential, shall be open
3 at all times during office hours to inspection ….”
4 Neither party spent much time discussing the plain language of the statute in
5 their briefs nor how such language may impact the “public record” definition,1
6 perhaps because both parties believe the term already defined for these purposes.
7 Indeed, both parties urged the Court to rely on Blackjack Bonding for purposes of
8 defining “public record” because, there, the Nevada Supreme Court held that “this
9 information is a public record because it concerns the provision of a public service
10 and is within the agency’s legal control.” LVMPD v. Blackjack Bonding, 131 Nev. 80,
11 82, 343 P.3d 608 (2015). In this Court’s view, however, the parties missed a
12 distinction between Blackjack Bonding and this case.
13 There, the records at issue were generated by a private telecommunications
14 provider that had contracted with Clark County to provide telephone services to
15 inmates and to make records of the inmates’ calls available to the governmental
16 agency operating the jail. Recognizing that NRS 239.001(4) mandates public access
17 to “records relating to the provision of those [public] services” that are provided by
18 “private entities” on behalf of a governmental entity, the Nevada Supreme Court held
19 the documents at issue to be a public record. Id. at 85.
20 Here, there is no private entity providing public services; there is only the
21 government. And while the LVMPD’s records concerning the provision of their public
22 services would certainly constitute public records (as what defines a private entity’s
23 public records would surely define a governmental entity’s public records), the Court
24 is left without binding guidance as to whether “public records” as related to a
25 governmental entity includes something more. Accordingly, the Court turns to the
26
27
1The LVMPD did briefly state that “Nevada law makes clear that not every record in
the government’s possession is a public record for purposes of the NPRA.”
28

3
1 term’s plain meaning. Merriam-Webster’s Online Dictionary2 defines “public record”
2 in the first instance as “a record required by law to be made and kept” and in the
3 second instance as “a record by a public officer or a government agency in the course
4 of the performance of a duty.” The latter is consistent with Blackjack Bonding.
5 Applying those definitions here, the Court holds that e-mails between Sheriff
6 Lombardo and his campaign consultants of a wholly personal nature would not
7 constitute public records open to inspection. The Court’s holding is consistent with
8 prior case law, e.g., Reno Newspapers v. Gibbons, 127 Nev, 873, 266 P.3d 623 (2011)
9 (implicitly recognizing that personal nature of emails was proper basis for
10 withholding records under the NPRA), as well as the purpose of the NPRA, which “is
11 to ensure the accountability of the government to the public by facilitating public
12 access to vital information about governmental activities.” DR Partners v. Board of
13 County Commissioner, 116 Nev. 616, 6 P.3d 465 (2000) (emphasis added).
14 The Court now addresses the Group’s specific arguments in response to the
15 LVMPD’s withholding of records. The Group advanced two primary arguments.
16 First, the Group asserted that the “representative sample” of e-mails produced
17 by the LVMPD concern the provision of public services, and as such, the remaining e-
18 mails withheld by the LVMPD must also concern the provision of public services and
19 thus constitute “public records.” In response to this argument, the LVMPD asserted
20 that the e-mails produced did not constitute a “representative sample,” but rather
21 properly disclosed e-mails that touch upon the provision of a public service and, thus,
22 in an abundance of caution were produced. The LVMPD further explained that the
23 language in its response letters, perhaps suggesting that the disclosed e-mails might
24 constitute a “representative sample,” was simply language poorly or inartfully
25 2 Nevada’s appellate courts routinely rely on dictionary definitions, including
26 Merriam-Webster’s Online Dictionary, in defining the plain meaning of words. See,
e.g., Terry v. Sapphire Gentlemen's Club, 130 Nev. 879, 883, 336 P.3d 951, 954 (2014)
27 (defining “control” for purposes of NRS 608.011); Yturbide v. City of Reno, 491 P.3d
27 (Nev. App. 2021) (defining “unsuccessful” in the context of NRS 616C.555(9)).
28

4
1 chosen. The Court ordered the in camera inspection to resolve the confusion and
2 discrepancy resulting from the LVMPD’s inartful language.
3 The in camera inspection consisted of forty (40) e-mails provided to the Court
4 by the LVMPD.3 The Court finds that nearly all the e-mails are personal in nature,
5 do not concern the provision of public services, were not required to be made and kept
6 by law, and/or were not made in the course of performance of the Sheriff’s duties.
7 There are, however, a few e-mails the Court finds to concern the provision of public
8 services and/or were made in the course of performance of the Sheriff’s duties,
9 namely e-mails numbered 26, 33, 34, and 35. These e-mails could arguably be
10 exempt from disclosure under the deliberative process privilege; however, that
11 privilege applies only if the government can “identify an agency decision or policy to
12 which the documents contributed.” DR Partners v. Bd. of Cnty. Comm’rs of Clark
13 Cnty., 116 Nev. 616, 623, 6 P.3d 465, 469 (2000). The LVMPD has failed to do so.
14 Accordingly, these e-mails must be disclosed.
15 Second, the Group asserted that the Court should consider not only the e-
16 mails’ content but the e-mails’ context in determining whether they constitute public
17 records. More specifically, the Group argued that even if e-mails’ content do not
18 concern the provision of public services, what is relevant here is the emails’ context.
19 The Group asserted that because Sheriff Lombardo wrote e-mails to his campaign
20 consultants using his government email account during what the Group describes as
21 “government time,” the e-mails constitute public records as they will show the alleged
22 impropriety of Sheriff Lombardo’s work-time political activities. In support of its
23 position, the Group cited NRS 281A.020,4 NAC 284.650(9),5 NAC 284.770(2),6 and
24 3 On August 25, 2022, the LVMPD filed declarations from Charles Jivapong,
25 Sergeant assigned to the Public Records Unit at the LVMPD, and Matthew
Christian, Assistant General Counsel at the LVMPD, attesting to the search and
26 production of the emails.

27
4 NRS 281A.020(1) states that “It is hereby declared to be the public policy of this
State that: (a) A public office is a public trust and shall be held for the sole benefit of
28 the people. (b) A public officer or employee must commit himself or herself to avoid
(continued...)
5
1 alleged Sheriff Lombardo violated these provisions and codes.
2 The Group also urged the Court to rely on Clark County School District v. Las
3 Vegas Review Journal, 134 Nev. 700 (2018), as guiding authority for its “context”
4 argument. At oral argument the Group asserted that this Court should adopt the
5 reasoning employed in Clark County School District because the court, there, found
6 that overriding concerns about the trustee’s inappropriate behavior in violation of
7 policy and law compelled disclosure of what would otherwise be personal documents.
8 But those are not the facts of Clark County School District. The records at issue in
9 Clark County School District were not personal documents; they were indisputably
10 public records, specifically investigative records. The question that district court,
11 and later the Supreme Court, had to answer was whether despite being public
12 records, the school district could withhold and/or redact portions of the records under
13 an exception, namely a confidentiality law, the deliberative process privilege, and/or
14 the common law balancing test.
15 Finding Clark County School District to be inapposite, the Court is left with
16 the unique “context” argument the Group advances to be law, which as far as the
17 Court can tell, is a matter of a first impression. This argument effectively asks the
18 Court to hold that documents of personal nature, which otherwise do not constitute
19 public records, become public records if created for the purpose of engaging in
20 restricted political activity using a government resources on government time. The
21 Court declines to do. While it is undisputed that Sheriff Lombardo engaged in
22 ________________________
(...continued)
23 conflicts between the private interests of the public officer or employee and those of
the general public whom the public officer or employee serves.”
24 5 NAC 284.650(9) states that “Appropriate disciplinary or correction action may be
25 taken for any of the following causes … prohibited political activity.”

26
6 NAC 284.770 states in relevant part that “[N]o employee may … (2) Engage in
political activity during the hours of his or her state employment to improve the
27 chances of a political party or a person seeking office, or at any time engage in
political activity to secure a preference for a promotion, transfer or increase in pay.”
28

6
1 political activity using his government email account, the Group has provided no
2 basis upon which to obtain disclosure of what would otherwise be non-public records
3 merely because the Sheriff may have violated policies on conflicts of interest, political
4 activity, and/or personal use of government e-mail accounts.7
5 Based on the foregoing, the Court ORDERS as follows:
6 1. The petition and related motion for an order on the petition are granted
7 with respect to e-mails numbered 26, 33, 34, and 35 only.
8 2. E-mails numbered 26, 33, 34, and 35 must be disclosed, but based on the
9 representation of LVMPD’s counsel that it intends to appeal any disclosure
10 order, the Court stays this order to and through September 9, 2022, to
11 allow the LVMPD to file its appeal and a motion to stay with the Nevada
12 Supreme Court.
13 3. The Court denies LVMPD’s counter-motion to produce a Vaughn Index as
14 moot.
15

16

17

18

19

20

21

22

23

24

25

26 7 To be clear, the Court makes no finding as to whether Sheriff Lombardo violated

27 any laws, regulations, policies, or codes by using his LVMPD e-mail account to e-mail
his campaign consultants.
28

7
 1
CSERV
2
DISTRICT COURT
3 CLARK COUNTY, NEVADA
4

6 Due Diligence Group LLC, CASE NO: A-22-853953-W

Plaintiff(s)
7 DEPT. NO. Department 9
vs.
8
Las Vegas Metropolitan Police
9
Department, Defendant(s)
10

11
AUTOMATED CERTIFICATE OF SERVICE
12
This automated certificate of service was generated by the Eighth Judicial District
13 Court. The foregoing Order was served via the court’s electronic eFile system to all
14 recipients registered for e-Service on the above entitled case as listed below:

15 Service Date: 8/25/2022

16 Krista Busch kbusch@maclaw.com

17
Bradley Schrager bschrager@wrslawyers.com
18
Dannielle Fresquez dfresquez@wrslawyers.com
19
Daniel Bravo dbravo@wrslawyers.com
20
Jackie Nichols jnichols@maclaw.com
21

22 Melissa Shield mshield@wrslawyers.com

23 Sherri Mong smong@maclaw.com

24

25

26

27

28