Aparicio v. Baumann, No. 3:13-cv-00281 (D. Nev. Jan. 21, 2014) [click for opinion]
In a case involving a car accident in Nevada, Defendant brought a motion for a protective order over written and oral statements that Defendant made to its insurer. Plaintiff is a Nevada resident, and Defendant is a Canadian who resides in British Columbia ("BC"). On his return to BC, Defendant corresponded with his insurer about the accident, who took Defendant's written and oral statements. Defendant sought an order to protect the statements based on the Canadian doctrine of litigation privilege, which protects records that came into existence for the dominant purpose of preparing for, and advising on, or conducting litigation that was under way or in reasonable prospect at the time the record was made.
The court cited Federal Rule of Evidence 501 and the general rule that "a federal court sitting in diversity applies the choice of law rules of the state in which it sits." Therefore, it found that it was to apply Nevada's choice-of-law rules. Accordingly, the court applied Nevada's four-part "most significant relationship" test to determine which rules applied to the statements in question.
Relying on the following facts, the court found that BC had the most significant relationship to the statements that Defendant gave to its insurer: (1) Defendant had only minimal contacts with Nevada, and the statements were made in BC to the insurer, which likewise had no connection to Nevada; (2) even though the statements were material to the action, evidence about the accident could be obtained through the usual discovery routes; (3) the protection of work product is well established in Nevada and in BC; and (4) both parties to the statements were BC citizens, the statements were made in BC and the insurer regularly relied on this privilege in anticipation of litigation. The court thus found that the test weighed in favor of applying Canadian litigation privilege to the statements.