ELECTRONICALLY SERVED

5/24/2024 2:54 PM Electronically Filed

05/24/2024 2:53 PM

1 James J. Pisanelli, Esq., Bar No. 4027

JJP@pisanellibice.com
2 Todd L. Bice, Esq., Bar No. 4534
TLB@pisanellibice.com
3 Debra L. Spinelli, Esq., Bar No. 9695
DLS@pisanellibice.com
4 Jordan T. Smith, Esq., Bar No. 12097
JTS@pisanellibice.com
5 Emily A. Buchwald, Esq., Bar No. 13442
EAB@pisanellibice.com
6 PISANELLI BICE PLLC
400 South 7th Street, Suite 300
7 Las Vegas, Nevada 89101
Telephone: 702.214.2100
8 Facsimile: 702.214.2101
9 Counsel for Plaintiff/Counterdefendant
Gypsum Resources, LLC
10
DISTRICT COURT
11
CLARK COUNTY, NEVADA
400 SOUTH 7TH STREET, SUITE 300

12
LAS VEGAS, NEVADA 89101

GYPSUM RESOURCES, LLC, a Nevada Case No.: A-23-871997-B

13 limited liability company; Dept. No.: XXXI
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14 Plaintiff, DECISION AND ORDER; FINDINGS OF

v. FACT AND CONCLUSIONS OF LAW
15
CLARK COUNTY, a political subdivision of
16 the State of Nevada; and CLARK COUNTY
BOARD OF COMMISSIONERS,
17
Defendants.
18
CLARK COUNTY, a political subdivision of
19 the State of Nevada; and CLARK COUNTY
BOARD OF COMMISSIONERS,
20
Counterclaimants,
21
v. Dates of Hearing: March 22, 2024;
22 April 8, 9, 15 & 17, 2024
GYPSUM RESOURCES, LLC, a Nevada
23 limited liability company,
24 Counterdefendant.
25
26 This matter came on for an evidentiary hearing on April 8, 9, 15 and 17, 2024, on
27 Gypsum Resources, LLC's ("Gypsum") Motion for Sanctions for Concealment and Destruction of
28 Evidence ("Motion"). The Court having considered Gypsum's Motion (filed February 21, 2024),

Case Number: A-23-871997-B

 1 Clark County and the Board of County Commissioners' (collectively the "County" or
2 "Clark County") Opposition to Motion for Spoliation Sanctions (filed March 6, 2024), Gypsum's
3 Reply to Motion (filed March 19, 2024), Gypsum's Supplemental Evidentiary Hearing Brief in
4 Support of Motion for Sanctions (filed April 2, 2024), Gypsum's Bench Memorandum Regarding
5 Appropriate Sanctions for Gypsum's Motion (filed April 16, 2024), the County's Opposition to
6 Plaintiff's Bench Memorandum Regarding Appropriate Sanctions (filed April 17, 2024), the
7 evidence presented, and the arguments of counsel, the Court makes the following findings of fact
8 and conclusions of law:
9 FINDINGS OF FACT
10 1. Gypsum owns approximately 2400 acres of real property located on and around
11 Blue Diamond Hill in Clark County (the "Property"). At the time of purchase, the Property was
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12 zoned RU, which allowed for the development of one unit per two acres. The Property is also an
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13 active gypsum mine.

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14 2. Gypsum and the County entered into the Stipulation and Settlement Agreement
15 Pursuant to Court Ordered Settlement Agreement Conference; Order ("Settlement Agreement") in
16 May 2010 to resolve prior litigation.
17 3. On August 17, 2011, the Clark County Board of Commissioners ("CCBC")
18 approved Gypsum's Concept Plan, which allowed for an increase in density up to 5,026 units. The
19 CCBC also imposed two conditions that were not part of the staff recommendations made prior to
20 the August 17, 2011 meeting. First, there would be "No access onto Highway 159." Second,
21 "Right-of-way approval from the BLM for primary access is required prior to approval of
22 Specific Plan."
23 A. Save Red Rock Litigation.
24 4. In December 2016, Clark County filed suit against Gypsum and Save Red Rock
25 ("SRR"), seeking declaratory relief regarding the validity of Gypsum's 2011 applications in
26 Clark County v. Gypsum Resources, LLC, A-16-747882-C ("SRR Litigation"). Justin Jones served
27 as counsel for SRR. (Id.)
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 1 5. On December 15, 2016, Mr. Jones, on behalf of SRR, sent an evidentiary
2 preservation letter to Clark County ("2016 Preservation Letter"). SRR demanded that
3 "Clark County, and its agents, including but not limited to, the Board of County Commissioners,
4 Planning Commissioners, and Comprehensive Planning Department, immediately and permanently
5 preserve any and all documents, as further defined herein in Clark County's possession, custody or
6 control, that in any way related to [Gypsum] and/or SRR, . . ." The 2016 Preservation Letter
7 repeatedly references text messages as communications that must be preserved. Despite
8 Clark County receiving the 2016 Preservation Letter, the County has failed to present any evidence
9 that it actually distributed the 2016 Preservation Letter.
10 6. The CCBC's conditions on Gypsum's applications were pertinent to Jones'
11 representation of SRR in the 2016 litigation. Indeed, on August 31, 2017, Jones sent a settlement
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12 proposal to the County and Gypsum, including a requirement that Gypsum would agree not to seek
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13 a waiver or modification of any condition that the CCBC had imposed on the 2011 Concept Plan.
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14 7. On March 29, 2018, the Nevada Supreme Court issued its decision in Comstock
15 Residents Association v. Lyon County Board of Commissioners, 14 Nev. 142, 414 P.3d 318 (2018)
16 ("Comstock"). The Court determined that when government entities, like county commissioners,
17 used private devices to conduct county business and perform their duties as public servants, those
18 communications were public records under the Nevada Public Records Act. Id. at 145-47, 414 P.3d
19 at 321-22.
20 B. Gypsum's Application for Waiver of Condition.
21 8. In October 2018, based on timing provided by Commissioner Brager per Jay
22 Brown's testimony, Gypsum submitted its applications for waiver of the conditions imposed by the
23 CCBC in 2011 – " No access onto Highway 159" and "Right-of-way approval from the BLM for
24 primary access is required prior to approval of Specific Plan." Specifically, Gypsum’s request
25 sought to shift the obligation to obtain right-of-way approval from the BLM to a later stage of the
26 development, which would enable the CCBC to vote on Gypsum's updated Specific Plan and
27 PFNA. The applications were set to be heard at the CCBC meeting on December 5, 2018.
28

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 1 9. In 2018, Justin Jones was still representing SRR in the SRR Litigation. He was also
2 a candidate to replace Commissioner Brager. Gypsum's development of the property was an
3 important issue in his campaign. On October 17, 2018, the day before Gypsum submitted its waiver
4 request, the Nevada Current published an article in which Jones stated that, if elected, he would,
5 "within his first 100 days" in office as a Clark County Commissioner, oppose Gypsum's application
6 to develop its property "and try to stop the project from proceeding."
7 10. On October 21, 2018, Jones emailed Jim Ferrence, the campaign manager for
8 Commissioner Steve Sisolak, chair of the CCBC, who was running for governor of Nevada. Jones
9 emailed Ferrence, in part, about the still-pending SRR Litigation, stating "[y]esterday, the Court
10 issued an order affirming [SRR's] standing to pursue its claim against the County and included
11 some unflattering language about County staff (and referencing Commissioner Sisolak) . . . . If the
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12 case goes to trial, it will likely be uncomfortable for Commissioner Sisolak, Commissioner Brager
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13 and County staff." Jones outlined Gypsum's applications for waivers that had been submitted earlier
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14 in the week, and stated he understood a board member for SRR spoke with and emailed
15 Commissioner Sisolak three days earlier stating that if Commissioner Sisolak would commit to vote
16 against the waiver of conditions sought by Gypsum, SRR would send notice of the support to its
17 entire email list, publish the same on social media and, if desired, appear with
18 Commissioner Sisolak expressing support for Sisolak's gubernatorial candidacy. Jones reiterated
19 this offer and added that if Commissioner Sisolak committed to deny Gypsum's waiver of
20 conditions, Jones had SRR's authorization to stipulate to dismiss all claims against the County in
21 the SRR Litigation. When Jones did not hear from Ferrence, he forwarded the email directly to
22 Sisolak.
23 11. Jones also sent a series of text messages to others about his proposed deal with
24 Commission Chairman Sisolak. In text messages obtained from Andy Maggi, the head of the
25 Nevada Conservation League who was blind copied on the October 21 email to Ferrence, Jones and
26 Maggi discussed the potential deal with Sisolak and the pressure Maggi was getting from large
27 donors to the Conservation League who wanted Sisolak to commit to voting against Gypsum. When
28 Jones had not heard from Sisolak by 6:00 p.m. on October 21, 2018, Jones texted Maggi "Well, I'm

4
 1 doing my part. If Sisolak doesn't want to play, then it[']s going to blow up in his face tomorrow."
2 Jones also said he sent texts to Ferrence, Sisolak, and Kami Dempsey, another individual who was
3 involved in Commissioner Sisolak's campaign for governor.
4 12. Jones testified that he was not aware of Commissioner Sisolak's position on
5 Gypsum's applications for waiver of conditions at the time he sent the email on October 21, 2018.
6 Jones further testified that he believed that SRR's offer of support in exchange for the commitment
7 to vote against Gypsum's applications was a thing of value to Commissioner Sisolak. Jones also
8 testified that, in addition to negotiating the agreement for Sisolak to issue a public statement about
9 his opposing Gypsum's waiver of conditions, Jones and Sisolak also negotiated the dismissal of the
10 SRR Litigation without involvement of the County's counsel.
11 13. On October 23, 2018, Sisolak and Ferrence drafted a statement to be issued through
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12 Clark County's public information office making it clear Sisolak would "oppose waiving" the
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13 conditions imposed by the CCBC in 2011, and that he would not be part of a vote regarding
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14 Gypsum's waiver request in December 2018, instead waiting until the two newly-elected
15 Commissioners would be on the Board.
16 14. Jones admitted that he thought that his proposal to Commissioner Sisolak had
17 "value," that Commissioner Sisolak used language similar to language Jones drafted when he
18 released his statement through the Clark County public information office, and that
19 Commissioner Sisolak did what SRR and Jones wanted him to do. After Commissioner Sisolak
20 released his statement on October 23, 2018, SRR and other environmental groups, including the
21 Nevada Conservation League, expressed support for Sisolak's public statement. The SRR litigation
22 was also dismissed shortly thereafter, just as Jones had outline.
23 15. On November 8, 2018, Jones was elected to the Clark County Commission to
24 replace Commissioner Brager and would take office in January of 2019. Even though Jones and
25 SRR had obtained a public statement from Sisolak committing to oppose waiving Gypsum's
26 conditions, Jones (who was no longer pro bono counsel for SRR) continued to work to ensure that
27 Gypsum's applications would not succeed. In an email on November 15, 2018, Jones wrote to
28 members of SRR that he "think[s] we have to keep our eye on the ball and simply smile and ignore

5
 1 [Commissioner Brager]. The waiver of conditions is the only thing that matters right now and
2 Gypsum needs 4 votes. We need to keep the calls and emails going to the commissioners and in
3 particular push on [Commissioner] Jim Gibson – without him, there is zero chance Gypsum can
4 proceed."
5 16. Gypsum's applications for the waivers of conditions, Specific Plan, and PFNA were
6 accepted and processed by the Department of Comprehensive Planning. The head of the
7 Department of Comprehensive Planning at the time was Nancy Amundsen. In advance of the
8 December 5, 2018 CCBC meeting, the Department of Comprehensive Planning published their
9 recommendation that both of the waivers of conditions, the Specific Plan, and the PFNA all be
10 approved by the CCBC. Before publication, the recommendations for approval had been reviewed
11 by Amundsen and Sami Real, the planning manager over the current planning division.
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12 17. On November 22, 2018, Amundsen texted Real: "BTW, Steve called me last night
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13 and stated that he doesn't remember telling us that Gypsum wouldn't be moving forward . . . I
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14 confirmed with Mario that I didn't just imagine it. Jay is confused, I am pissed, and Steve is . . . well
15 never mind . . . sorry to vent but this year needs to end! . . ." Real responded that she "thought he
16 said that at briefing too. Something about holding it. I can't get [Marilyn Kirkpatrick's] reaction
17 out of my head. I don[']t want her upset. The rest of the year is gonna be something . . . that's for
18 sure."
19 C. Commissioner Jones Takes Office and the Commission Denies Gypsum's
Applications.
20
21 18. Jones took office as the County Commissioner for District F on January 3, 2019. On
22 January 7, 2019, Jones submitted a request for an advisory opinion to the Nevada Commission on
23 Ethics ("NCOE") regarding a potential conflict of interest on Gypsum's pending applications. In
24 response to the NCOE's question about whether the issues litigated in the SRR Litigation were
25 pertinent to the matters to be heard by the CCBC, Jones stated that he "would not say that the issues
26 litigated are pertinent." This, despite making a settlement offer to resolve the SRR Litigation related
27 to the waivers of condition.
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 1 19. On January 18, 2019, at 2:00 a.m., Real sent Amundsen communications identifying
2 potential issues with Gypsum's Specific Plan. The Department of Comprehensive Planning had
3 twice published its recommendations that all four of Gypsum's applications should be approved,
4 and Real and Amundsen had reviewed and agreed with those recommendations.
5 20. On January 22, 2019, the NCOE issued its opinion that Jones was not required to
6 abstain from votes on Gypsum's applications, but was required to make a disclosure of his
7 representation of SRR for one year.1
8 21. After the hearing on Gypsum's applications was rescheduled from January 23, 2019
9 to April 17, 2019, the Department of Comprehensive Planning's staff recommendations were made
10 to change. Now, the Department of Comprehensive Planning recommended approval of the waiver
11 of the "No access onto Highway 159" condition and denial of the waiver of the " Right-of-way
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12 approval from the BLM for primary access is required prior to approval of Specific Plan" condition.
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13 The Department of Comprehensive Planning no longer included recommendations on the Specific

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14 Plan or the PFNA.

15 22. When asked why the staff recommendations of the waiver request changed, Real
16 testified "I don't recall why . . . I don't recall what discussions . . . took place to lead up to that."
17 Real testified that she would have talked to Amundsen about the staff recommendations.
18 Otherwise, Real did not know "if anybody asked for the changes to be made." Real also stated she
19 did not communicate directly with County Commissioners, but did not know if Amundsen had any
20 communications with County Commissioners including Jones. Real admitted she had signed off
21 on the staff recommendations initially recommending approval of Gypsum's requested waiver, she
22 did not recall telling anyone she disagreed with the original staff recommendations, and she did not
23 know what prompted the criticism of the Gypsum Specific Plan sent at 2:00 a.m. on January 18,
24 2019. Real also said she did not "know what led . . . [her] to all of a sudden just go in and relook
25
26 1
Further, the opinion states that "[t]he facts in this matter were obtained from documentary
27 and testimonial evidence provided by Jones. For the purposes of the conclusions offered in this
opinion, the Commission's findings of fact set forth below are accepted as true. Facts and
28 circumstances that differ from those presented to and relied upon by the Commission may result in
different findings and conclusions than those expressed in this opinion."

7
 1 to see where there were inconsistencies" and could point to nothing other than the fact that Jones
2 was now a Clark County Commissioner and her own curiosity that might have prompted her to do
3 so.
4 23. On April 17, 2019, the CCBC heard Gypsum's applications. On a motion by Jones,
5 the board voted to follow staff’s (now changed) recommendation and unanimously deny Waiver of
6 Condition No. 2.
7 24. The vote on Gypsum's application concluded at 2:56 p.m. By 6:09 p.m., all text
8 messages on Jones' phone at that time, which he was using to communicate as a Commissioner,
9 had been deleted.
10 D. The Federal Action.
11 25. Gypsum filed suit against the County on May 19, 2019 in 2:19-cv-00850-GMN-EJY
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12 (the "Federal Action"). On December 20, 2019, Gypsum sent a letter to the County regarding the
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13 County's initial disclosures. Gypsum also notified the County that on December 27, 2019, its
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14 representatives would be present at the Clark County Government Center to collect documents,
15 electronically stored information ("ESI"), and other data in the County's possession, custody, and
16 control. Gypsum also advised the County that it intended to image cell phones, and asked the
17 County to ensure that the business and personal cell phones of employees and Commissioners are
18 available for imaging, including those of Nancy Amundsen, Sami Real, Marci Henson, Justin Jones,
19 James Gibson, and Stephen Sisolak.
20 26. The County did not issue a litigation hold in the Federal Action for approximately a
21 year and a half, until August 2020 and, even then, it was only sent to the heads of the Department
22 of Comprehensive Planning and the Department of Comprehensive Works. The Clark County
23 Commissioners deposed all testified they were not asked to search for any electronic documents or
24 have not been instructed to cease destruction of electronic documents until, in some cases, shortly
25 before their depositions in the Federal Action.
26 27. Amundsen was deposed in the Federal Action on May 18, 2021. During her
27 deposition, Amundsen testified that she did not use text messages to communicate with her staff
28 about work. She also testified that she did not text with County Commissioners, the exception

8
 1 being Commissioner Sisolak. Amundsen testified that she had not been asked to search for text
2 messages related to the Gypsum litigation.
3 28. On May 25, 2021, Gypsum raised the issue of Ms. Amundsen’s testimony that she
4 has text messages that have not been searched and demanded production. On May 27, 2021, the
5 County stated that “[s]hould there be any other documentation obtainable from Nancy Amundsen
6 (whether duplicative of prior production or not) we will produce those [] along with any from
7 Ms. Real.” The County did not produce any text communications from either Amundsen or Real.
8 29. Real was deposed in the Federal Action on June 9, 2021. Real testified that she had
9 searched her text messages for the terms "Gypsum" and "Blue Diamond Hill" and had no text
10 messages with those terms. She also testified that she texted with coworkers about minor work
11 issues, like running late, but not substantive work issues like project applications. Real also testified
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12 that she did not delete text messages.

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13 30. On September 21, 2021, over Jones' opposition, the bankruptcy court entered its
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14 Order on Gypsum Resources, LLC's Amended Motion to Compel (1) a Full and Complete Response
15 to the Subpoenas Duces Tecum to Justin Jones and Jones Lovelock, and (2) a Forensic Image of
16 Justin Jones' Cell Phone and iCloud Account, granting Gypsum's request for a forensic image of
17 Jones' cell phone and iCloud account. Jones' iPhone and iCloud account were forensically imaged
18 on November 10, 2021, by Holo Discovery ("Holo"). Holo determined that the first text available
19 on Jones's phone was from April 17, 2019, at 6:09 p.m., indicating that all prior messages were
20 deleted.
21 31. On February 15, 2023, Gypsum submitted a request pursuant to the Nevada Public
22 Records Act to Clark County seeking text messages regarding County business between, among
23 others, Amundsen and Real, Real and the County Commissioners, and Amundsen and the
24 County Commissioners.
25 32. The County provided Amundsen's text messages regarding County business on
26 March 23, 2023. In response to Gypsum's request, Amundsen provided a limited number of text
27 messages with Commissioners, including Commissioner Marilyn Kirkpatrick and
28 Commissioner Michael Naft. Amundsen also had text messages with Marci Henson. The earliest

9
 1 text message Amundsen provided was January 17, 2023, just one month prior to Gypsum's request.
2 It also included communications with County Commissioners and texts related to County business,
3 which Amundsen had earlier testified she did not do. Amundsen's response to Gypsum's
4 February 2023 NPRA response did not include any communications with Real or any texts from
5 her County-issued work phone.
6 33. The County provided Real's text messages regarding County business on March 31,
7 2023. In response to Gypsum's request, Real provided more than 250 pages of text communications
8 with County employees, including more than 230 pages with Amundsen. To identify text
9 communications regarding County business, Real took screenshots of certain text messages, then
10 reviewed them with County counsel to determine which communications related to County
11 business. Redactions were applied on the basis of "personal" and "Confidential Employee Matter
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12 – HIPPA." In addition to a substantial number of text messages about County business and
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13 substantive matters before the Department of Comprehensive Planning – which Real testified
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14 during her deposition she did not text about – Real also had text messages that included the term
15 Gypsum. Other text messages discuss Gypsum's application in detail.
16 34. Real's text messages include approximately 225 days of gaps in text messages
17 around highly relevant dates in Gypsum's application, including between September 21 and
18 November 13, 2018, December 18, 2018 and February 6, 2019, February 19 and March 19, 2019,
19 March 21 and April 5, 2019, and April 12 and June 18, 2019.
20 35. Neither Amundsen nor Real produced text communications from their
21 County-issued cell phones in response to Gypsum's NPRA request. On May 11, 2023, the County
22 notified Gypsum that Amundsen's phone was no longer operational. On June 15, 2023, the County
23 provided Gypsum with information about the model of Real's County-issued cell phone.
24 E. The Present Action.
25 36. On June 6, 2023, Gypsum filed its complaint in the present action. The parties
26 agreed to utilize discovery from the Federal Action in the present action.
27
28

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 1 37. On December 19, 2023, Holo attempted to image Real and Amundsen's phone at the
2 Civil District Attorney's Office at the Clark County Government Center. Amundsen's Samsung
3 Galaxy S7 Phone is inoperable and no data on it can any longer be accessed.
4 38. Holo was able to access and image Real's Samsung Galaxy S7 Phone. Based on a
5 review of the time-stamped system log files, Real's phone had been reset to factory settings on
6 April 26, 2023 at 9:04 a.m, thereby erasing all data that had been stored on the device prior to that
7 time. There was no data, including text messages, remaining on Real's phone. Real's phone also
8 had activity for approximately an hour on May 10, 2023. There was no indication that Real's phone
9 had been used between May 10, 2023 and Holo imaging it on December 19, 2023.
10 39. Amundsen was deposed on February 8, 2024 and testified at the evidentiary hearing
11 on April 8, 2024. Despite her prior testimony that she only texted with Commissioner Sisolak,
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12 Amundsen admitted in court that she had in fact texted extensively with staff of the Department of
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13 Comprehensive Planning, including Real nearly every day. Amundsen also admitted that she texted
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14 directly with Commissioners, including Commissioners Sisolak, Kirkpatrick, Naft, Jones, and
15 McCurdy. Amundsen also texted with County counsel. Amundsen testified that no one had
16 informed her until 2023 of her obligation to preserve County business text messages on her personal
17 phone. However, in response to Gypsum's subpoena duces tecum in 2024, Amundsen was able to
18 produce some text messages from her iPad for limited periods of time.
19 40. Despite being provided a litigation hold letter in August 2020, Amundsen did not
20 preserve her text messages on her County-issued phone or her County business-related text
21 messages on her personal phone. Amundsen further testified that no one had imaged or even
22 searched her County-issued cell phone for documents related to Gypsum and its claims and
23 defenses. Amundsen could not recall when her County-issued phone stopped working.
24 41. Jones was deposed on February 26, 2024, and testified at the evidentiary hearing on
25 April 8, 2024. He testified that, following Holo's forensic review in November 2022, it was a fair
26 assumption that he had deleted all of his text messages. However, Jones claimed to have no
27 recollection of how the text messages were deleted. He testified that it was "possible" that he had
28

11
 1 text messages related to Gypsum and its application on his phone on April 17, 2019. Jones further
2 testified at the evidentiary hearing that he did not receive a preservation notice until August 2023.
3 42. Real was deposed on March 6, 2024 and testified at the evidentiary hearing on
4 April 8, 9, and 15, 2024. Real testified that she had seen the Gypsum text messages prior to her
5 May 2021 deposition, and that her prior testimony that she had no text communications that
6 included the search terms was not truthful. Real admitted that she unilaterally deemed certain text
7 messages as "personal," "sensitive personal," and "personal personal," among other categories. Real
8 testified that, when providing text messages to respond to Gypsum's February 2023 NPRA request,
9 she self-selected which texts to provide to County counsel, who further selected which text
10 communications to provide in response to Gypsum's request. When Real produced text messages
11 in response to Gypsum's subpoena duces tecum, she claimed that certain communications were lost
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12 when she transferred her text messages to a new phone in 2023. Additionally, Real, with the
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13 assistance of County counsel, had failed to provide text communications that directly discussed
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14 Gypsum and its application in response to Gypsum's February 2023 NPRA request.
15 43. Real also admitted that she had reset her County-issued cell phone after Gypsum's
16 February 2023 NRPA request, but could not recall the exact date she reset her phone. Real alone
17 reviewed the text communications on her County-issued cell phone, and determined that none of
18 them were responsive to Gypsum's February 2023 NRPA request, even though they included
19 Clark County Planning Commissioners and other members of the Department of Comprehensive
20 Planning. Real also testified that she told County counsel shortly after that she had deleted all of
21 the text communications. Gypsum did not learn of the deletion of Real's County-issued cell phone
22 until Holo imaged it on December 19, 2023.
23 44. Notwithstanding Gypsum’s document hold letter and request to image Real’s phone,
24 Real admitted that her phones had not been imaged prior to her deletion or her transfer to a new
25 phone in 2023.
26 45. Commissioner James Gibson was deposed on March 11, 2024 and testified at the
27 evidentiary hearing on April 15, 2024. Gibson testified that after he initially took office as a
28 County Commissioner in 2017, he had a separate County-issued cell phone. At some point in 2017

12
 1 or 2018, he decided to discontinue using the County-issued cell phone. County counsel advised
2 Gibson that was fine, so long as he was able to retrieve his County-related communications. Gibson
3 testified that, after the initiation of the Federal Action, no one asked him to preserve his cell phone.
4 He testified also that he could not recall if he any text messages related to Gypsum, other than text
5 messages with Commissioner Jones related to his resignation.
6 46. Commissioner Marilyn Kirkpatrick was deposed on March 11, 2024 and testified at
7 the evidentiary hearing on April 15, 2024. Kirkpatrick testified that, despite the County's
8 involvement in the SRR Litigation, the Federal Action, and the present action, her phone was set to
9 autodelete text communications; no one asked her to preserve text communications or change that
10 setting. Kirkpatrick cannot recall when she changed the autodelete setting, but she has text
11 communications on her cell phone from September 2023. Kirkpatrick acknowledged that she had
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12 previous text communications with Amundsen regarding Gypsum's land-use applications in 2022
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13 that had been deleted via the autodelete setting, and she does not know whether she had any earlier
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14 communications about Gypsum's applications.

15 47. If any Findings of Fact are properly Conclusions of Law, they shall be treated as if
16 appropriately identified and designated.
17 CONCLUSIONS OF LAW
18 1. "Spoliation occurs when a party fails to preserve evidence it knows or reasonably
19 should know is relevant to actual or anticipated litigation." MDB Trucking LLC v. Versa Products
20 Co., Inc., 136 Nev. 626, 630, 475 P.3d 397, 402 (2020) (citing Fire Ins. Exch. v. Zenith Radio Corp.,
21 103 Nev. 648, 651, 747 P.2d 911, 914 (1987)). "[C]ourts have inherent authority to manage the
22 judicial process so as to achieve the fair, orderly, and expeditious disposition of cases, which
23 empowers them to impose sanctions for pre-litigation spoliation of [evidence]." Id., 475 P.3d at 403
24 (citing Uniguard Sec. Ins. Co. v. Lakewood Eng'g & Mfg. Corp., 982 F.2d 363, 368 (9th Cir. 1992)).
25 2. In addition, NRCP 37(b) authorizes sanctions against a party who disobeys a court
26 order. Fire Ins. Exch., 103 Nev. at 651, 747 P.2d at 914; Young v. Johnny Ribeiro Bldg., Inc.,
27 106 Nev. 88, 92, 787 P.2d 777, 779 (1990). NRCP 37(b) does not usually apply to most
28 pre-litigation conduct. MDB Trucking, 136 Nev. at 630, 475 P.3d at 402-3. However, the parties

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 1 here have been involved in litigation in the Federal Action since May 2019. Although the present
2 action was not filed until June 6, 2023, the federal court issued orders governing discovery and
3 requiring preservation. Therefore, sanctions are appropriate under both the Court's inherent
4 authority and NRCP 37(b).
5 3. The Court has discretion in choosing the spoliation sanction. MDB Trucking,
6 136 Nev. at 631, 475 P.3d at 403, Stubli v. Big D. Int'l Trucks, Inc., 107 Nev. 309, 312,
7 810 P.2d 785, 787 (1991). "But fundamental notions of fairness and due process require that the
8 sanctions be just and relate to the specific conduct at issue. The dismissal of a case based upon the
9 destruction or loss of evidence, should be used only in extreme situations; if less drastic sanctions
10 are available, they should be utilized." MDB Trucking, 136 Nev. at 631, 475 P.3d at 403 (citations
11 omitted).
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12 4. "Factors a district court should consider before imposing case-terminating sanctions

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13 include: 'the degree of willfulness of the offending party, the extent to which the non-offending
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14 party would be prejudiced by a lesser sanction, the severity of the sanction of dismissal relative to
15 the severity of the discovery abuse, whether any evidence has been irreparably lost, the feasibility
16 and fairness of alternative, less severe sanctions, such as an order deeming facts relating to
17 improperly withheld or destroyed evidence to be admitted by the offending party, the policy
18 favoring adjudication on the merits, whether sanctions unfairly operate to penalize a party for the
19 misconduct of his or her attorney, and the need to deter both the parties and future litigants from
20 similar abuses.'" Id. (quoting Young, 106 Nev. at 93, 787 P.2d at 780).
21 5. "Essentially, the Young factors come down to the willfulness or culpability of the
22 offending party, the prejudice to the non-offending party caused by the loss or destruction of
23 evidence, and 'the feasibility and fairness of alternative, less severe sanctions.'" Id. (quoting Young,
24 106 Nev. at 93, 787 P.2d at 780). The court must also apply the appropriate standard of law.
25 Bass-Davis v. Davis, 122 Nev. 442, 228, 134 P.3d 103, 106 (2006).
26 6. As to the Young factor regarding the willfulness of the offending party, the Court
27 finds that there is both some negligent destruction and there is willful destruction of evidence.
28 Willful destruction "requires more than simple destruction of evidence and instead requires that

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 1 evidence be destroyed with the intent to harm the other party." Bass Davis, 122 Nev. at 452,
2 134 P.3d at 109; see also MDB Trucking, 136 Nev. at 632, 475 P.3d at 404.
3 7. The Court finds there was a willful destruction of evidence by Justin Jones. Jones
4 became a Clark County Commissioner on January 3, 2019. Before this date, communications on
5 Jones' phone (and iCloud account) were not conducted in the performance of his duties as a
6 County Commissioner and, therefore, were not within the custody or control of Clark County.
7 Comstock, 414 P.3d at 322. However, once Jones became a commissioner, the text communications
8 and other documents created in the performance of his duties were public records that he was, as a
9 public official, legally required to retain. Id. at 320-22; see also NAC 239.155(6); NRS 239.010(1).
10 8. By April 17, 2019, (1) Jones had replaced Brager and was now the Commissioner
11 representing the district covering Gypsum's Property on which Save Red Rock had opposed
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12 development, (2) the Department of Comprehensive Planning had issued the revised staff
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13 recommendations to deny Gypsum's waiver request, and (3) Sisolak was Governor of Nevada.
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14 At 2:56 p.m. on April 17, 2019, on a motion by Jones, the CCBC voted unanimously to deny
15 Gypsum's waiver of Condition No. 2. By 6:09 p.m., all text messages on the phone Jones used to
16 conduct Clark County Commissioner business were deleted.
17 9. The totality of the evidence presented leaves little doubt that the disappearance of
18 all texts from Jones' phone was the result of a purposeful act that was knowingly done to get rid of
19 relevant evidence. Jones acknowledges that after Holo's forensic examination of his phone in
20 November 2021, it was a fair assumption that he deleted all of his texts on April 17, 2019. Still,
21 Jones has never once offered any reasonable or reliable explanation for the disappearance of every
22 text on his phone just three hours after the vote to deny Gypsum's waiver request on April 17, 2019.
23 10. An objective view of the facts before the Court, and in the absence of any
24 explanation for the deletion of texts from a phone and account never outside of Jones' control, the
25 Court is left with one reason Jones would have acted as he did. Jones deleted all texts knowing the
26 role he played in achieving the vote to deny Gypsum the waiver it sought and he did not want his
27 dedicated involvement in this outcome, or his communications with the Sisolak campaign,
28 Commissioner Sisolak, or anyone else with whom he communicated about the deal he struck, to

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 1 come to light. Jones' texts with Sisolak and his campaign manager about the deal, as well as other
2 communications that have not been produced in response to a subpoena duces tecum, were deleted
3 on April 17, 2019.
4 11. Jones represented SRR in an effort to stop Gypsum's development of its property for
5 over two years. (Ex. 3.) While the SRR Litigation was pending, Jones was campaigning for his
6 Commissioner's seat. The lawsuit that Jones threatened would be "uncomfortable" for Sisolak was
7 dismissed in November 2019 shortly after the dates of the few recovered texts between Jones and
8 the Sisolak campaign from third parties. (Ex. 7.) The dismissal came less than two months before
9 Jones became a County Commissioner. Before Jones took office, he wrote his former clients at
10 SRR that he would attempt to talk to Amundsen – then director of Department of Comprehensive
11 Planning – about Gypsum's applications. (Ex.12.) Jones and Amundsen had text communications
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12 prior to April 17, 2019, which were deleted by both Amundsen and Jones. (Ex. 14.) Shortly after
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13 Jones became Commissioner, the Department of Comprehensive Planning staff who had twice
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14 recommended approval of Gypsum's waiver changed the recommendation to deny Gypsum's

15 waiver. No one has offered an explanation for why this recommendation was changed. No
16 plausible explanation for these events is offered to the Court.
17 12. Consistent with the Federal Magistrate's conclusions, this Court finds that
18 Commissioner Jones willfully destroyed evidence and did so because he viewed that evidence as
19 being favorable to Gypsum. Jones anticipated that Gypsum would take action following the
20 April 17, 2019 vote. After all, Jones admitted that that was one of the reasons he sought an opinion
21 from the Nevada Commission on Ethics.
22 13. The Court finds there was no willful or negligent destruction of evidence by
23 Commissioner Gibson. Gibson's undisputed testimony is that he has not destroyed anything relative
24 to this case.
25 14. The Court finds that there was no willful destruction of evidence by
26 Commissioner Kirkpatrick. The Court does not find that Kirkpatrick's automatic delete setting on
27 her phone through 2023 rises to the level of willfulness. Additionally, there has not been a showing
28 that evidence related to Gypsum was actually destroyed.

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 1 15. The Court finds that there was a willful destruction of evidence by Nancy
2 Amundsen. Neither Nancy Amundsen nor the County provided a reasonable explanation regarding
3 the failure to search or preserve her County-issued phone, which has now become inoperable. In
4 addition, Amundsen's initial deposition testimony that she did not text with her staff or
5 County Commissioners was proven inaccurate, as others in the County produced extensive text
6 communications with Amundsen, including a series of texts specifically about Gypsum and about
7 Real's deposition in the Federal Action. (Ex. 31.) Amundsen herself admitted that she texted nearly
8 daily with Real.
9 16. There was inconsistent testimony about whether Amundsen received a litigation
10 preservation letter in August 2020 related to the Federal Action. The Court takes the County's
11 position that Amundsen received the August 2020 litigation preservation letter, as well as the
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12 County's position that even though it did not specifically articulate texts, that it was intended by its
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13 broad ESI to include texts. Amundsen, as the department head, would have known that she needed
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14 to maintain text communications on her phones. Despite Amundsen's knowledge of her obligation
15 to preserve text messages, text communications on both her County-issued phone and personal
16 phone have been willfully destroyed.
17 17. The Court finds that there was a willful destruction of evidence by Sami Real. The
18 Court finds Real provided no explanation for her deletion of her County-issued phone on April 26,
19 2023, five days after the Magistrate Judge's order that specifically addressed Real, other than it was
20 intent to harm and with regard to this litigation. Real also self-selected what text communications
21 she was going to provide to County counsel to respond to Gypsum's February 2023 NPRA request,
22 as well as what she was not going to provide. (See Ex. 31.) Real also provided no explanation for
23 her self-categorization of her text communications, and using that categorization as a basis not to
24 provide those text communications either during discovery or in response to Gypsum's
25 February 2023 NPRA request.
26 18. Real's statements during her initial deposition on June 9, 2021 that she had no text
27 communications that included the terms "Rhodes" or Gypsum" were not true. (See Ex. 31
28 at CC-586.) Real had text communications that included the term Rhodes that were clearly related

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 1 to County business. (Id.) This Court finds that making a unilateral determination to not provide
2 information, and then having some of that additional information then being lost or destroyed, meets
3 the willfulness standard set forth in MDB Trucking, 136 Nev. at 632, 475 P.3d at 404.
4 19. Although Real produced a large number of text messages with Amundsen, there
5 were gaps in these text communications on Real's personal phone during relevant time periods for
6 the processing of Gypsum's application, including for waiver of condition. Real did not provide a
7 relevant explanation for the change from her July 2021 testimony that there are no text messages
8 regarding Gypsum and she did not delete text messages.
9 20. The Court finds that the willful destruction of evidence should be attributed to the
10 County based on the positions of the individuals who willfully destroyed evidence. The individuals
11 who willfully destroyed evidence – a County Commissioner and the former and current directors
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12 of the Department of Comprehensive planning – can be held accountable here as County

LAS VEGAS, NEVADA 89101

13 representatives. The Court finds that there is the nexus based on the prior testimony, including
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14 from Commissioner Jones, regarding the Commissioners' reliance on Staff Recommendations

15 when they voted on April 17, 2019.
16 21. In imputing the conduct to the County, the Court relies on additional evidence
17 presented to it since the Federal Magistrate's order on April 21, 2023. This includes the additional
18 texts provided in response to Gypsum's February 2023 NPRA request, including Exhibit 31, the
19 result's of Holo's imaging of Amundsen and Real's phones, and the evidence presented during the
20 evidentiary hearing.
21 22. As to the Young factor regarding the prejudice to the non-offending party caused by
22 the loss of destruction of evidence, there is obviously prejudice for lost information including
23 inability to determine the extent of what has been lost. Gypsum has been prejudiced by not having
24 the benefit of information regarding the individuals who are responsible for the change to the staff
25 recommendation following Jones being sworn in on January 3, 2019. The extent of prejudice at
26 this juncture is unknown, because there is no independent verifiable basis to determine the extent
27 of the prejudice, but there is prejudice to the non-offending party.
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 1 23. As to the Young factor regarding the feasibility and fairness of a sanction short of
2 striking the County's answer, the Court finds that a less severe sanction is feasible and fair. The
3 Court must also apply the appropriate standard of law. Bass-Davis, 122 Nev. at 228, 134 P.3d at
4 106. The dismissal of the case, based on the destruction or loss of evidence, should be used only in
5 extreme situations. The Court finds that striking Defendants' answer is too severe a sanction based
6 on the nature of the texts available and the partial mitigation by some County employees. The
7 Court also cannot affirmatively deem facts admitted based on what was provided to the Court.
8 24. As to the Young factor regarding the policy of adjudicating cases on the merits, that
9 is part of the Court's analysis when it looks at the feasibility of alternative, less severe sanctions.
10 25. As to the Young factor, whether sanctions unfairly operate to penalize a party for the
11 misconduct of his or her attorney, the Court finds that this does not apply here. The issues with the
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12 County counsel involves a lack of follow-through and ensuing that that the policies and retention
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13 obligations were actually communicated and followed through, rather than any intentional
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14 misconduct.
15 26. The Court's sanction will address the Young factor intended to deter both parties and
16 future litigants from similar abuses.
17 27. Based on the County's willful destruction of evidence that was adverse to the
18 County, the Court enters a rebuttable presumption. Bass-Davis, 122 Nev. at 448, 134 P.3d at 107.
19 When "the presumption that the evidence was adverse applies, and the burden of proof shifts to the
20 party who destroyed the evidence. To rebut the presumption, the destroying party must then prove,
21 by a preponderance of the evidence, that the destroyed evidence was not unfavorable. If not
22 rebutted, the fact-finder then presumes that the evidence was adverse to the destroying party." Id.
23 (internal citations omitted).
24 28. The Court finds that a strong presumption in the form a pre-jury instruction is
25 appropriate here, informing the jury of the rebuttable presumption, the nature of the destruction,
26 and would walk through what actually is the evidence that was willfully suppressed, i.e. text
27 messages on the phones of Sami Real, Nancy Amundsen, Commissioner Justin Jones, and the dates
28

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 1 that the County-issued and personal phones no longer had text messages. The parties will prepare,
2 and the Court will approve, the pre-jury instruction to be provided at the start of trial.
3 29. A rebuttable presumption under Bass-Davis advising that the evidence suppressed
4 would be adverse if produced meets the needs under Young, NRCP 37(b), and the Court's inherent
5 authority because it is accurate and provides the relationship with regard to who the individuals
6 who willfully destroyed evidence are and their role within the determination process. It still allows
7 the case to be adjudicated on the merits, giving Defendants the opportunity to rebut the presumption
8 and fully evaluate the actual claims at issue. The Court finds that this is not a circumstance where
9 the willful destruction of evidence should result in case terminating sanctions, and instead it is
10 feasible and fair to award alternative, less severe sanctions.
11 30. The Court's analysis and ruling is the same under the Court's inherent authority and
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12 under NRCP 37(b).

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13 31. If any Conclusions of Law are properly Findings of Fact, they shall be treated as if
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14 appropriately identified and designated.

15
ORDER
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Based upon the foregoing FINDINGS and CONCLUSIONS, the Court hereby GRANTS
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Gypsum's Motion as set forth herein.
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IT IS SO ORDERED
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Respectfully submitted by:
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Dated this 24th day of May, 2024. Dated this 24th day of May, 2024.
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PISANELLI BICE PLLC OLSON CANON GORMLEY & STOBERSKI
4
5 By: /s/ Todd L. Bice By: /s/ Thomas D. Dillard, Jr.
James J. Pisanelli, Esq., #4027 Thomas D. Dillard, Jr. Esq., #6270
6 Todd L. Bice, Esq., #4534 9950 West Cheyenne Avenue
Debra L. Spinelli, Esq., #9695 Las Vegas, Nevada 89129
7 Jordan T. Smith, Esq., #12097
Emily A. Buchwald, Esq., #13442 DEPUTY DISTRICT ATTORNEY
8 400 South 7th Street, Suite 300 Robert T. Warhola, Esq., #4410
Las Vegas, Nevada 89101 500 Grand Central Parkway
9 Las Vegas, Nevada 89155
Attorneys for Plaintiff/Counterdefendant
10 Gypsum Resources, LLC Attorneys for Defendants/Counterclaimants
Clark County and Clark County Board of
11 Commissioners
400 SOUTH 7TH STREET, SUITE 300

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LAS VEGAS, NEVADA 89101

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 1
CSERV
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DISTRICT COURT
3 CLARK COUNTY, NEVADA
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6 Gypsum Resources LLC, CASE NO: A-23-871997-B

Plaintiff(s)
7 DEPT. NO. Department 31
vs.
8
Clark County, Defendant(s)
9

10

11 AUTOMATED CERTIFICATE OF SERVICE

12 This automated certificate of service was generated by the Eighth Judicial District
Court. The foregoing Decision and Order was served via the court’s electronic eFile system
13 to all recipients registered for e-Service on the above entitled case as listed below:
14
Service Date: 5/24/2024
15
Tom Dillard tdillard@ocgas.com
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Nan Langenderfer nlangenderfer@ocgas.com
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Todd Bice tlb@pisanellibice.com
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19 Debra Spinelli dls@pisanellibice.com

20 Emily Buchwald eab@pisanellibice.com

21 Ashley Ellison are@pisanellibice.com
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Robert Warhola robert.warhola@clarkcountyda.com
23
Wendy Fiore wfiore@ocgas.com
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Kimberly Peets kap@pisanellibice.com
25

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Tamara Peterson tpeterson@petersonbaker.com

27 James Pisanelli lit@pisanellibice.com

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Jordan Smith jts@pisanellibice.com
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Candace Carlyon ccarlyon@carlyoncica.com
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Dawn Cica dcica@carlyoncica.com
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5 Nancy Rodriguez nrodriguez@carlyoncica.com

6 Cristina Robertson crobertson@carlyoncica.com

7 Linda Roth lroth@ocgas.com
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Jessica Kaufman jkaufman@ocgas.com
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Pamela Sutton pamela.sutton@clarkcountyda.com
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Aubree Green aubree@gypsumresources.com
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12 Natasha Sharma nsharma@carlyoncica.com

13 Clarise Wilkins pblit@petersonbaker.com

14 Julia Melnar jmelnar@petersonbaker.com

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Alexandra Mateo anm@pisanellibice.com
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Monice Campbell mycase@envision.legal
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Steven Silva ssilva@nossaman.com
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