NV: Target of seizure may seek return of privileged documents during investigation

Even when documents are seized during an ongoing investigation, the target can seek return of privileged documents. The trial court erred in not “affording appellants an opportunity to challenge that determination [of lack of privilege] prior to disclosure.” In re Search Warrants Regarding Seizure of Documents, 139 Nev. Adv. Rep. 23, 2023 Nev. LEXIS 24 (Aug. 24, 2023):

Although we agree that the district court properly denied appellants’ request to quash and unseal the warrants, we conclude that the district court erred when it prematurely denied appellants’ return-of-property motion without giving appellants an opportunity to demonstrate privilege. We also conclude that the district court erred by adopting LVNIPD’s proposed search protocol, which allowed DFL to disclose potentially confidential communications to law enforcement based on its own unilateral determination of privilege without affording appellants an opportunity to challenge that determination prior to disclosure.

In reaching these conclusions, we recognize for the first time that Nevada’s return-of-property statute, NRS 179.085, allows a property owner to seek the return of privileged materials that have been seized pursuant to a valid search warrant, even when the government has an ongoing investigation. When a property owner files a return-of-property motion prior to the initiation of criminal proceedings, the Nevada Rules of Civil Procedure apply. In such cases, the property owner must comply with NRCP 26(b)(5), which requires both an express claim of privilege and a description of the privileged documents in a privilege log. However, the property owner need not produce a privilege log until they have been given access to the seized materials. Accordingly,’ we affirm in part, reverse in part, and remand.