IN THE SUPREME COURT OF THE STATE OF NEVADA

LAS VEGAS REVIEW-JOURNAL, INC.; No. 85553

KEITH MOYER; GLENN COOK;
ANASTASIA HENDRIX; BRIANA
ERICKSON; AND ARTHUR KANE,
Appellants, FILE
vs.
THE STATE OF NEVADA; ROBERT OCT 0 5 2023
TELLES; AND LAS VEGAS
METROPOLITAN POLICE
DEPARTMENT,
Res • ondents.

ORDER OF REVERSAL AND REMAND

This is an appeal from a district court order dissolving a
preliminary injunction in an action seeking the return and/or protection of
certain property. Eighth Judicial District Court, Clark County; Michelle
Leavitt, Judge.
FACTS
After the murder of Jeff German, a reporter working for
appellants (collectively referred to as the Review-Journal), respondent Las
Vegas Metropolitan Police Department (LVMPD), obtained and executed a
search warrant permitting the seizure of numerous electronic devices and
other property belonging to German. The Review-Journal later filed a
complaint under NRS 179.085 seeking the return of the seized devices and
any other relevant property, claiming that any journalistic information the
devices contained or that LVMPD otherwise seized was not subject to
disclosure due to various journalistic privileges and must be returned to the
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 injunction that prevented LVMPD and respondent the State of Nevada
(collectively Metro) from inspecting, searching, or reviewing any
information on the seized devices that might otherwise be subject to a
journalistic privilege. On Metro's motion the district court later dissolved
that injunction and put in place a search protocol allowing employees of
LVMPD and the Clark County District Attorney's office to first review the
materials on any seized devices for those relevant to the criminal
prosecution, and to thereafter provide the Review-Journal imaged copies of
any materials that a reasonable person would understand may constitute
journalistic materials for the Review-Journal to assert any claimed
privilege. In doing so, the district court also rejected the Review-Journal's
and the defendant in the related criminal trial, respondent Robert Telles',
joint motion for a different search protocol order. The Review-Journal now
appeals that decision. See NRAP 3A(b)(3) (making an order dissolving an
injunction independently appealable).3-

lWe reject Metro's argument that the order is not appealable. Even
if we considered the search protocol as separate from the dissolution of the
prelirninary injunction, it would still be appealable as it was contained
within an otherwise appealable order. See Vaile u. Vaile, 133 Nev. 213, 217,
396 P.3d 791, 794-95 (2017) (declining to dismiss an appeal challenging a
vexatious litigant determination because that determination was included
in an otherwise appealable order regarding child support).
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 DISCUSSION
Standing
Metro argues that the Review-Journal lacks standing to seek
return of the seized devices or to assert any journalistic privileges over the
material on the devices. Reviewing de novo, we disagree. Arguello v. Sunset
Station, Inc., 127 Nev. 365, 368, 252 P.3d 206, 208 (2011) (holding that
standing issues are reviewed de novo).
As to the return of seized property, NRS 179.085(1) allows "[a]
person aggrieved by . . . the deprivation of property"2 to seek its return in
district court. "Property" under this statutory scheme "includes documents,
books, papers and any other tangible objects." NRS 179.015. It would be
absurd to conclude that the property the Review-Journal wants returned
would fall under the statute if it were printed materials or in another
tangible form but would be excluded because it only exists in electronic form
stored on a device that is otherwise subject to the statute. See Young v. Nev.
Garning Control Bd., 136 Nev. 584, 586, 473 P.3d 1034, 1036 (2020) (noting
that this court generally interprets statutes based on their plain language
unless "the plain meaning would provide an absurd result" (internal
quotation marks omitted)); accord 90 C.J.S. Troyer and Conversion § 14
(2023) (recognizing, in the context of conversion claims, that despite
electronic documents not being tangible property they mav still be subject
to conversion claims and that "the needs of the digital age could prompt the
courts to revisit the scope of a conversion cause of action in the future").

2Any argument that the Review-Journal lacks standing because it

does not own the property in question fails as the statute confers standing
broadly to any party "aggrieved" without requiring that the party hold an
ownership interest in the property. NRS 179.085(1).
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 As to the privilege issue. NRS 49.275 provides that "[n]o
reporter, former reporter or editorial employee of any newspaper, periodical
or press association" may be forced to disclose information gathered in the
person's professional capacity or the source of any information gathered.
The statute's purpose is to "protect[] confidentiality during and after the
news gathering process." Las Vegas Sun, Inc. v. Eighth Judicial Dist. Court,
104 Nev. 508, 511, 761 P.2d 849, 851 (1988), overruled on other grounds by
Aspen Fin. Servs., Inc. v. Eighth Judicial Dist. Court, 129 Nev. 878, 313
P.3d 875 (2013) and Diaz v. Eighth Judicial District Court, 116 Nev. 88, 993
P.2d 50 (2000). It is also designed "to enhance the newsgathering process
and to foster the free flow of information encouraged by the First
Amendment to the U.S. Constitution." Diaz, 116 Nev. at 99, 993 P.2d at 57.
To hold that the privilege NRS 49.275 creates ends with German's death is
not required by the statute's plain text and would be directly contrary to the
statute's purpose. We therefore hold, consistent with courts elsewhere, that
the Review-Journal has standing to assert the privilege provided by NRS
49.275 in this case.3

3 See,e.g., Cukier v. Am. Med. Ass'n, 630 N.E.2d 1198, 1200-01 (1ll. Ct.
App. 1994) (concluding that a medical journal and its editor met the
definition of "reporter" under Illinois' news shield statute); Marketos v. Am.
Emp'rs Ins. Co., 460 N.W.2d 272, 281 (Mich. Ct. App. 1990) (considering a
newspaper's raising of the news shield privilege without concern that the
newspaper was not "[a] reporter or other person" (quoting Mich. Comp.
Laws § 28.945(1)), but concluding the statute did not apply for other
reasons); Gastman, D.O. v. N.J. Newspapers Co., 603 A.2d 111, 114 (N.J.
Sup. Ct. App. Div. 1992) (recognizing that the state's news shield statute's
language did not include news organizations but concluding that the news
organization had standing regardless because "[t]he privilege would be
easily circumvented were [the court] to bar the corporate entity from
invoking [the law's] benefit"); Castellani v. Scranton Times, L.P., 956 A.2d
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 The search protocol
Turning to the substantive merits of this appeal, we first
address the scope of the Review-Journal's privilege under NRS 49.275.
That statute provides a privilege against the disclosure of "any published or
unpublished information obtained or prepared [in a] person's professional
capacity in gathering, receiving or processing information for
communication to the public, or the source of any information procured or
obtained by such person." The Review-Journal argues that this statute
provides an absolute privilege against the disclosure of any journalistic
information obtained by Metro in the execution of the search warrant or
that, if the privilege is not absolute, no countervailing interests outweigh
the privilege in this case. Despite this argument, the Review-Journal
asserts that the adoption of its proposed search protocol would alleviate its
concerns about its privilege being violated, such that it would not seek to
have all journalistic materials returned to it immediately. Metro concedes
that the property in its possession likely contains journalistic materials
subject to the statute.4

937, 943 (Pa. 2008) (considering a joint assertion by a newspaper and

reporter of privilege under Pennsylvania's news shield statute without
noting any concerns with the newspaper's standing). But see
Waterloo/Cedar Falls Courier v. Hawkeye Cmty. Coll., 646 N.W.2d 97, 102
(Iowa 2002) (concluding that a news organization lacked standing to waive
the privilege under Iowa's news shield statute because "[t]he [news
organization] is not the holder of the reporters' privilege, but the privilege
is strictly held by the editors and is subject to waiver only by their actions").

4Metro asserts that the Review-Journal waived any privilege under

NRS 49.275 by emailing certain journalistic information to LVMPD
immediately after German's death. See Diaz, 116 Nev. at 95, 99-100 & n.5,
993 P.2d at 54, 58 & n.5 (discussing waiver under the news shield statute).
But, to satisfy the policy underlying the statute, any waiver would
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 We have already recognized that the privilege under the news
shield statute is not absolute "when a defendant's countervailing
constitutional rights are at issue, in which [case] the news shield statute
might have to yield so that justice may be served." Diaz, 116 Nev. at 101,
993 P.2d at 59; see also Aspen Fin. Servs., 129 Nev. at 885, 313 P.3d at 879-
80 (quoting Diaz with approval but concluding no such rights were at issue
in the case); 2 David M. Greenwald et al., Testimonial Privileges § 8:6 (3d
ed. 2023) (recognizing that a majority of• courts to consider the issue of
whether a news shield privilege is absolute "have held that the privilege
may not be applied in an absolute fashion [when confronted by a defendant's
invocation of the Sixth Amendment right to obtain evidence by compulsory
process,] but must instead be balanced against the defendant's need for the
information"). Although the privilege is not absolute, the search protocol
entered by the district court constitutes an abuse of discretion because it
allows that privilege to be violated before the court has the opportunity to
weigh the privilege against any assertion of countervailing constitutional
rights. See MEI-GSR Holdings, LLC v. Pepperrnill Casinos, Inc., 134 Nev.
235, 240-41, 416 P.3d 249, 255 (2018) (holding that discovery decisions are
reviewed for an abuse of discretion). Indeed, it allows LVMPD and the
district attorney's office—entities within which the Review-Journal asserts
it has confidential sources from whom it receives information under the
promise of confidentiality—to review the journalistic materials
immediately, thus irreparably destroying any privilege the Review-Journal

necessarily be limited to the disclosed information, see id. at 99, 993 P.2d at
55; Las Vegas Sun, 104 Nev. at 511, 761 P.2d at 851, and we conclude that
the waiver of the privilege as to that information does not otherwise affect
our decision herein.
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 may have. See Willey Health Sys., LLC v. Eighth Judicial Dist. Court, 127
Nev. 167, 172, 252 P.3d 676, 679 (2011) (recognizing that no remedy at law
CC
can restore the privileged nature of the information, because once such
information is disclosed, it is irretrievable"); In re Sealed Search Warrant &
Application for a Warrant by Tel. or Other Reliable Elec. Means, 11 F.4th
1235, 1247 (11th Cir. 2021) ("Once the government improperly reviews
privileged materials, the damage to the Intervenors' interests is 'definitive
and complete." (quoting DiBella v. United States, 369 U.S. 121, 124 (1962))).
Moreover, despite procedures included in the district court's
protocol to otherwise preserve the privilege, including a confidentiality
order placed on the search team, the search team "also possesses a
conflicting interest in pursuing the investigation, and, human nature being
what it is, occasionally some [search]-team [members] will make mistakes
or violate their ethical obligations." In re Grand Jury Subpoenas 04-124-03
& 04-124-05,. 454 F.3d 511, 523 (6th Cir. 2006) (discussing United States v.
Noriega, 764 F. Supp 1480 (S.D. Fla. 1991), wherein a search team turned
over information to the government investigating team thereby destroying
any privilege). Permitting the search to proceed would therefore allow "the
government's fox [to be] left in charge of the appellants' henhouse." Id. The
Nevada Court of Appeals recognized as much in In re Search Warrants re
Seizure of Documents, Laptop Computers, Cellular Telephones, & Other
Digital Storage Devices, wherein it rejected a search protocol allowing a
LVMPD search team to conduct the first review of items potentially subject
to attorney-client privilege. 139 Nev., Adv. Op. 23, P.3d (Nev. Ct.
App. 2023). Based on the foregoing, we reject the district court's search
protocol insofar as it allows LVMPD and the district attorney's office to
conduct the search.
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 Instructions on remand
As a remedy for the improper search protocol entered by the
district court, the Review-Journal asks that we direct the district court to
enter the search protocol that it and Telles jointly requested. This we
decline to do. Instead, we direct the district court on remand to enter a
search protocol that: (1) uses the Review-Journal and Telles' search team
consisting of the Honorable Peggy A. Leen (retired) as the Special Master
and David Roger, general counsel of the Police Protective Association, as
the Assistant Special Master ("the Special Master search team"); and (2)
allows the Special Master search team to employ a single technology service
provider to assist with the technical aspects of the review. Both the Special
Master search team and any technology service provider must be subject to
a protective order. The district court must consider NRCP 53(g) in
determining how to apportion costs for the Special Master search team.
Otherwise, the remaining provisions and the procedure for resolving any
disputed claim of privilege in the district court's search protocol order
adequately protects any privilege the Review-Journal may be able to assert
and we do not disturb those provisions or procedures.
The dissolution of the preliminary injunction
In entering the search protocol, the district court also dissolved
the preliminary injunction prohibiting Metro from searching the seized
devices. Because we conclude that the district court abused its discretion
in entering the search protocol, we reverse the dissolution of the
preliminary injunction until the district court enters a new search protocol
that complies with this order so that any privilege the Review-Journal may

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 hold remains intact. See Shores v. Global Experience Specs., Inc., 134 Nev.
503, 505, 422 P.3d 1238, 1241 (2018) (discussing preliminary injunctions).
Based on the foregoing, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.5

Cadish

Pt , J.
Pickering Bell

cc: Hon. Michelle Leavitt, District Judge

Hon. Susan Johnson, District Judge
Lansford W. Levitt, Settlement Judge
Ballard Spahr LLP/Denver
Ballard Spahr LLP/Las Vegas
Chesnoff & Schonfeld
Ballard Spahr LLP/Phoenix
Clark County District Attorney
Marquis Aurbach Chtd.
Liesl K. Freedman
Matthew J. Christian
Robert Telles
Lewis Roca Rothgerber Christie LLP/Las Vegas
McDonald Carano LLP/Reno
Eighth District Court Clerk

5Any petition for rehearing must be filed within seven (7) days of the
date of this order. If one is not timely filed, the clerk of this court shall issue
the remittitur ten (10) days from the date of this order.
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