J" 23 gj1 4L:; .. FILED. ORiG:pg[ OCT ocr i.ozoo
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1 Page 1 of ; 9 to 1 ORiG:pg[.. FILED RAR LEW BRANDON, JR., ESQ. Nevada Bar No. 0 JUSTIN W. SMERBER, ESQ. Nevada BarNo. 101 MORAN LAW FIRM, LLC 0 S. Fourth Street Las Vegas, Nevada / 0 - -facsimile Lbrandon@moranlawfirm.com Attorney for Defendants, BUDDHA ENTERTAINMENT, LLC, ASIA LAS VEGAS, LLC, STRATEGIC HOSPITALITY GROUP OF NEVADA, LLC, TAO ASIAN BISTRO, BUDDHA BEACH, LLC d/b/atao BEACH THOMAS GARABEDIAN, DISTRICT COURT CLARK COUNTY, NEVADA OCT J" gj1 L:; Mowi LAW F1RML1C vs. Plaintiff, LAS VEGAS SANDS CORP., a Nevada corporation; LAS VEGAS SANDS, LLC, a Nevada corporation dba VENETIAN, THE VENETIAN and VENETIAN RESORT HOTEL CASINO I PALAZZO RESORT HOTEL CASINO VENETIAN CASINO RESORT, LLC, a Nevada corporation dba VENETIAN RESORT HOTEL CAS[NO; VENETIAN INTERACTIVE, LLC, a Delaware corporation dba VENETIAN RESORT HOTEL CASINO I PALAZZO RESORT HOTEL CASINO; ASIA LAS VEGAS, LLC, a Delaware corporation dba TAO ASIAN BISTRO; STRATEGIC HOSPITALITY GROUP OF NEVADA, LLC, a Nevada corporation dba TAO ASIAN BISTRO and TAO NIGHTCLUB; BUDDHA BEACH, LLC, a Delaware corporation dba TAO BEACH; BUDDHA ENTERTAINMENT, LLC, a Delaware corporation dba TAP1GHTCLUB CASENO.: A DEPT. NO. : XV DISCOVERY COMMISSIONER REPORTAND RECOMENDATIONS r0san Soun-i TH STREET IAs VEGAS NEVADA 9! 01 PHONE 0 - Ecx: 0-0 ocr i.ozoo
2 Page of I.. DOESI-XX,andROE CORPORATIONS I - XX, inclusive, Defendants. DISCOVERY COMMISSIONER S REPORT AND RFCOMMENPATIO1NS HEARING DATE: SEPTEMBER, 009 AT 9:0 a.m. APPEARANCES: JUSTLN W. SMERBER, ESQ. of the MORAN LAW FIRM, LLC., 9 appearing on behalf of Defendant, BUDDAH ENTERTAINMENT, LLC, ASIA 10 LAS VEGAS, LLC, STRATEGIC HOSPITALITY GROUP OF NEVADA, LLC, and TAO ASIAN BISTRO, BUDDHA BEACH, LLC dfb/a TAO BEACH; PAUL KUDLER, ESQ. of CAP & KUDLER, appearing on behalf of Plaintiff, THOMAS GARABEDIAN. I. 1 FINDINGS 1 This hearing was scheduled as a result of Defendants Motion to Delay 1 Production of Surveillance Video Until After Plaintiff has Been Deposed. This 0 1 [ MORAN LAW FIRM ac matter involves an alleged personal injury incident, which allegedly occurred on Defendants premises. Defendants refused to disclose the surveillance videos pertaining to the incident, requesting that Plaintiff be deposed prior to disclosure of the video. Defendants contend that the subject surveillance videos contain potential impeachment evidence, and Defendants seek to preserve Plaintiff s testimony regarding the alleged incident prior to disclosure of the surveillance videos. Defendants do not dispute that the videos are discoverable evidence; however, merely seeks to delay production ofthe video until after Plaintiff s testimony regarding: 1 the incident; Plaintiffs actions before and after the 0 Sotrni TH STREET L.ks V&As, NEVADA 9101 PHONE 0 - F*x 0 -
3 Page of.. 1 incident; and Plaintiff s alleged injuries. Plaintiff disagreed with Defendants position regarding production of the surveillance videos. Plaintiff argues that "the subject video is a Hotel Security video and not a sub-rosa type video, and the exclusion of such materials based on the possibility that they may contain impeachment evidence quashes the purpose and intent of NRCP 1. 1 and all discovery procedures" An E.D.C.R.. conference was held on August, 009. Defendants Motion to Delay Production of Surveillance Video Until 9 After Plaintiffs Deposition has Been Conducted was filed on August, Plaintiff filed an Opposition to Defendants Motion and Defendant filed a Reply IL RECOMMENDATIONS The following are the Discovery Commissioner s Recommendations: IT IS HEREBY RECOMMENDED that Defendants Motion be 1 granted. While the Nevada Supreme Court has not specifically addressed this 1 issue, the Discovery Commissioner finds persuasive the Federal Cases cited in 1 Defendants Motion, including Snead v. American Export-Isbrandsten Lines, 0 1 iiic 9 F.R.D. 1, RD. Pa., Blyther v. Northern Lines, Inc. 1 F.R.D. 10, RD. Pa. and Daniels v. AMTRAK, 1 10 F.R.D. 10, 1 1 S.D.N.Y Specifically, the Discovery Commissioner agrees that the f i Ml See also Cabralv. Arruda, Ad Ri. 9 In cases where the plaintiffhas not been deposed, a surveilling party has the right to depose plaintiff before producing the surveillance materials. If depositions or other information regarding the plaintiffs injuries has not yet been obtained, and a discovery request for the production of surveillance materials is made, the surveilling party has the right to depose the party or witness surveilled before being required to produce the surveillance materials; BOYLE v. CSX TRANSP.. INC., 1 F.RD. S.D. W. Va. 9 Accordingly, in cases pending in this division in which surveillance material and information are sought in discovery, --I the surveilling party shall, after the passage ofsufficient time for deposing those surveilled, make MORAN LAW FIRM available for inspection and copying all films and tapes taken in connection with the surveillance. 0 SotrrN ri-i STREET Lu VEGAS, NEVADA 9101 PHONE: 0 - FAx: 0 -
4 Page of.. surveillance videos contain potential impeachment evidence, and Defendants should be able to preserve Plaintiffs testimony regarding the alleged incident, Plaintiffs actions, and Plaintiff s injuries prior to disclosure of the surveillance videos. The Discovery Commissioner does not find Plaintiffs argument persuasive that the holdings in the aforementioned cases are restricted to "sub rosa" type videos. The Discovery Commissioner feels that the impeachment value of the surveillance videos is not dictated by the purpose for which the video is created, i.e. premises surveillance or sub-rosa. / /1/ /1/ /1/ /1/ /// I/I MoRAN LAw FIRMEIC 0 soum TH STREET I&s vcs. NrswA 9101 PHONE 0 - Fs.x 0 Thomas v. TIN Railroad, 9 Mont. Dist. LEXIS Mont. Dist. Ct. 9 the Court concludes that before [Defendant] is required to make the material available to [Plaintiff], it should be given an opportunity to depose him. Ward v.csxtransp., F.R.D., 1 E.D.N.C. 9 allowing discovery of surveillance materials after the deposition of the plaintiff, but before trial, best meets the ends ofjustice and the spirit ofthe discovery rules to avoid surprise at trial. Donovan v. AXA Equitable Life Ins. Co., F.R.D. D. Mass. 00 [Defendant] does not challenge this notion, but rather seeks to delay production of I1 the video surveillance tapes in its possession until after the Plaintiffs deposition. [Defendant argues that the tapes are to be used as impeachment evidence and the Plaintiff should not have the opportunity to see the tape, potentially altering his testimony to reflect its content, prior to being deposed. Plaintiffs motion to compel is DENIED. By agreement of the Defendant, the surveillance materials are to be produced immediately following the completion of [Plaintiff s]deposition.?torre v. Newflaven OrthcilpcJ.fjac GrouR.P C., 9 Conn. Super. LEXIS 90 Conn. Super. Ct. Apr. 1 1, 9 In order to protect the value of surveillance films for impeachment purposes of a plaintiff who exaggerates his or her disabilities, it is probably necessary that disclosure only be made after a deposition is held of the plaintiff.
5 Page of.. IT IS FURTHER RECOMMENDED that Plaintiff shall be deposed prior to Defendants production of the surveillance videos. Once Plaintiff has signed his deposition transcript, or the applicable time for signing has expired, then Defendants shall have two business days to produce the surveillance videos. Dated this j day of October, DISCOVERY COMMISSIONER Submitted by: MO LAW FIRM, LLC JUSflN W. M1tRBER, ESQ. Neva&t Bar No.: S. Fourth Street Las Vegas, Nevada 9101 Attorney for Defendant, BUDDAH ENTERTAINMENT, LLC ASIA LAS VEGAS, LLC, STRATEGIC HOSPITALITY GROUP OF NEVADA, LLC, TAO ASIAN BISTRO, BUDDHA BEACH, LLC cl/b/a TAO BEACH Approved by: CAP & KUDLER p ohed. DONALD KUDLER, ESQ. Nevada BarNo W. Charleston Blvd. Las Vegas, Nevada 910 Attorney for Plaintiff, THOMAS GARABEDIAN IMEI MoiAN LAW FIItMLLC 0 Soum TH STREET Lks Va&s, NEvADA 9101 PHONE 0 - Fix: 0
6 Page ot it SEPr-OQ9 NON la:9 PM an Law Firm FAX NO. P. 0 IT IS FURTHER RECOMMENDED! that Plaintiff shall be deposed prior to Defendants production of the surveillance videos Once Plaintiff has signed his deposition transcript, or the applicable time for signing has expired, then Defendants shall have two business days to produce the surveillance videos. Dated this day of October, 009. N DISCOVERY OMM1SSIONEIt Subitted by: MO LAW FIRM, LLC Approved by: CAP & ICUDLER JUSTINW. S RBER,ESQ, Nevada Bar No.: 01 0 S. Fourth Strek Las Vegas, Nevada l01 Attorney for Oefendaik BUPDAH ENTERTAINMENT, LLC ASIA LAS VEGAS, LL STRATEGIC HOSPITALiTY GROUP O NEVADA, LLC, TAO ASIAN BISTRCiBUDDHA BEACH, LLC dlb/a TAO D A D ICUDLER, *SQ Nevada BarNo W. Charleston Blvd. Las Vegas, Nevada 910 Attorney for Plaintiff, THOMAS GARABEDIAN
7 Page of I.. NOTICE Pursuant to NRCP I. 1d, you are hereby notified you have five days from the date you receive this document within which to file written objections. [Pursuant to E.D.C.R.. 1 an objection must be filed and served no more than five days after receipt of the Discovery Commissioner s Report. The Commissioner s Report is deemed received when signed and dated by a party, 9 his attorney or his attorney s employee, or days after mailing to a party or his 10 attorney, or three days after the Clerk of the Court deposits a copy of the 1 Report in a folder ofa party s lawyer in the Clerk s office.] 1 A copy ofthe foregoing Discovery Commissioner s Report was:. 1 _ Mailed to the following counsel at the following address on the dayof, ;K Placed in the folder of Donald Kudler, Esq. of Cap & Kudler counsel for the Plaintiff, Justin W. Smerber, Esq. of the Moran Law Firm, LLC 1 counsel for the Defendants, in the Clerk s office on the j day of STEVEN D. GRIERSON BcLLIe MORAN LkwFIRM 0 Soum m Us VEOM, NEvADA 9101 PHONE 0 - FAx: 0 -
![Clerk of the Court deposits a copy of the 1 Report in a folder ofa party s lawyer in the Clerk s office.] 1 A copy ofthe foregoing Discovery Commissioner s Report was:.](/docs-images/41/8625814/images/page_7.jpg "1 _ Mailed to the following counsel at the following address on the dayof,009. 1 1 ;K Placed in the folder of Donald Kudler, Esq. of Cap & Kudler counsel for the Plaintiff, Justin W. Smerber, Esq.")
8 Page of,, a I CASE NAME : OCtc1a 1. CASE NUMBER:k Zfl%TTh S ORDER The Court, having reviewed the above report and recommendations prepared by the Discovery Commissioner and, The parties having waived the right to object thereto, Iek No timely objection having been received in the office of 9 the Discovery Commissioner pursuant to E.D.CR..f, 10 Having received the objections thereto and the written 1] arguments in support of said objections, and good cause appearing, IT IS HEREBY ORDERED the Discovery Commissioner s Report 1 and Recommendations are affirmed and adopted. 1 IT IS HEREBY ORDERED the Discovery Commissioner s Report and Recommendations are affirmed and adopted as modified 1 in the following manner. attached hereto IT IS HEREBY ORDERED that a hearing on the Discovery Commissioner s Report is set for 009, at a.m. 1 DATED this day of DISICT JUDGE Xb is er
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