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Motion granted MCJ to quash one set of subpoenas
Posting Date: 01/27/2014

By Barbara Ellestad

Without hearing the merits of the case, Eighth District Court Judge Abbi Silver granted the Mesquite Citizen Journal (MCJ) and Barbara Ellestad their Motions to Quash four subpoenas issued in a criminal case against Michael Winters, Michael Johnson, and Robert Coache.

Winters is the former General Manager of the Virgin Valley Water District (VVWD), Johnson is the former VVWD Chief Hydrologist, and Coache is a retired deputy state engineer with the Nevada Division of Water Resources. The three men have been charged in a 50-count indictment for allegedly taking $1.3 million dollars in bribe money to help wealthy Bunkerville rancher John Lonetti sell water rights to Southern Nevada Water Authority.

Lonetti has not been charged in the criminal case but is a defendant in a civil lawsuit brought by the VVWD against all four men. Additionally, Winters alone is charged in another criminal case alleging misconduct by a public official.

The MCJ and Ellestad were served Dec. 16 with six subpoenas by Winters court-appointed attorney T. Augustus Claus asking for all documents, records, tangible things, and electronically produced information like audio recordings and videotapes for all articles published and unpublished about anything connected to the Water District.

The subpoenas also requested computer hard drives, computer discs, chips, microchips, cassettes, cd-roms, and “any other device which may be used to store or hold information” from the MCJ and Ellestad.

The original subpoenas demanded that all the material be delivered to Claus’ office within three days.

Additionally, Claus issued four more subpoenas to the MCJ and Ellestad on Jan. 15 asking that all the materials be delivered to the District Court by Jan. 23 with an affidavit verifying the delivery be submitted to Claus’ office. That was one day after another judge called the original subpoenas into question based on their construction.

On Dec. 18, Scott Halvorsen, attorney for the MCJ and Ellestad, filed Motions to Quash the subpoenas based on NRS 49.275, also known as the Nevada News Media Shield Law (NMSL), which protects reporters and editors from having to reveal anything about any person or subject on which they have ever written or not written.

The Nevada NMSL, one of the strongest in the nation, also says newspaper reporters and editors cannot be compelled to disclose any information or sources procured or obtained for news articles published or unpublished.

A hearing before Judge Silver was scheduled for Jan. 23. However, Claus did not file an Opposition to the Motions to Quash until Jan. 22. Judge Silver then rescheduled the hearing for Jan. 30.

On Jan. 24 she granted the Motions to Quash from the MCJ and Ellestad and denied a Counter-Motion for Order to Produce without prejudice from Winters attorney. “This Court has previously stated that the criminal case of State of Nevada v. Michael Winters is stayed pending the outcome of the related civil case in Department 32. As such, any discovery issues must be brought before Judge Bare in the civil case,” Judge Silver wrote.

Judge Silver put the criminal case against Winters, Johnson, and Coache on hold until the civil case against the three men and Lonetti has been decided by a jury trial now set to begin April 23. Judge Rob Bare is the presiding judge in the civil case.

Ellestad, as Editor and Publisher of the Mesquite Citizen Journal, appeared before Eighth District Court Judge Michael Villani on Jan. 23 who is the presiding judge in Winters’ sole indictment on misconduct. Winters’ attorney had issued matching subpoenas in that case also.

Villani heard oral arguments from Halvorsen and Claus about the validity of MCJ’s claim as a legitimate newspaper, thereby protected by the NMSL.

Claus argued that because the MCJ does not have a printed paper version of its daily publication, it’s not covered under the NMSL and therefore Ellestad is not protected as a reporter or editor. He claimed the MCJ is a blog and not a true newspaper according to Black’s Law Dictionary, saying only newspapers that publish legal notices qualify.

Halvorsen argued that the MCJ and Ellestad are protected under the NMSL even though the MCJ is online only. “Neither the definition cited from Black’s Law Dictionary nor that cited from NRS 238.020 require a newspaper be published in print nor that they publish legal notices.”

Claus also argued that Ellestad relinquished her NMSL protection, therefore giving up MCJ’s protection, when she testified to a Grand Jury in 2010 in Winters’ indictment on misconduct charges.

Halvorsen pointed out to Judge Villani that Ellestad was not working as a reporter in 2010 when she testified to the Grand Jury and that the MCJ did not exist until a year later. Ellestad’s Grand Jury testimony was based on her work as a stringer reporter for the Mesquite Local News from June 2007 to July 2008.

“Mr. Winters (Claus) argues in the Opposition that Ellestad has impliedly waived her right to invoke the NMSL and cites cases asserting that the attorney-client privilege can be impliedly waived,” Halvorsen wrote in his court filing and argued to Judge Villani.

However, Halvorsen added that prior case law “makes clear that the waiver provisions of NRS 49.385 do not apply to the NMSL. A valid waiver requires that the person have knowledge that he or she is waiving a right. MCJ did not exist at the time of the grand jury testimony and could not have knowingly or impliedly waived its rights. Ellestad could not have waived her protections under NMSL.”

“Additionally, she could not have knowingly or impliedly waived the NMSL with respect to anything she gathered or disseminated as a reporter after the grand jury testimony because she could not have prospectively known what she was waiving,” Halvorsen said.

He also pointed out that Claus had referred to “journalist Barbara Ellestad” in a court document filed in the civil case.

Claus argued that Ellestad had given certain reporter notes, articles, and audio recordings to the Clark County District Attorney’s office in conjunction with her grand jury testimony and that he wanted a copy of them for Winters’ defense.

Deputy District Attorney Marc DiGiacomo told Judge Villani during the hearing that everything his office had received from Ellestad had been distributed to all attorneys in the associated criminal and civil cases. “Mr. Claus already has the audio recording because he supplied it to the VVWD counsel just a few weeks ago,” DiGiacomo remarked.

Judge Villani ended the hearing saying he would issue a written ruling regarding the case in the next few weeks. He requested both attorneys provide case law supporting their arguments to his office.

Meanwhile, the MCJ and Ellestad will appear before Judge Bare on Feb. 6 on the same issues in the civil case.

For clarity:

Judge Michael Villani, presiding in the criminal case alleging Winters’ misconduct of a public official;

Judge Abbi Silver, presiding in the criminal case alleging Winters, Johnson, and Coache of conspiracy and bribery;

Judge Rob Bare, presiding in the civil case alleging intentional misconduct against Winters, Johnson, Coache and Lonetti.

For more background information see these MCJ articles:

Legal Defense Fund established for MCJ

MCJ Editor Publisher slapped with six subpoenas in Water District lawsuit

MCJ Editor Publisher slaps back at subpoenas in Water District lawsuits

MCJ Court Hearing delayed, new subpoenas issued

They said the MCJ is a news source – Editorial

Timeline of events in VVWD legal cases – includes links to associated articles on Water District lawsuits

 

 
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