Electronically Filed 2/22/2019 1:46 PM Steven D. Grierson CLERK OF THE COURT Case Number: 04A493744 I. INTRODUCTION Defendant Las Vegas Sands Corp.'s latest attempt to shield its Chairman and Chief Executive Of?cer, Sheldon G. Adelson ("Adelson"), from deposition is predicated upon its apparent belief that this Court will ignore the law and simply accommodate Adelson's latest effort 2 3 4 5 to avoid providing testimony. LVSC ?rst attempts to avoid producing Adelson, noting that he has 6 previously been deposed and testi?ed at the two prior trials of this action. According to LVSC, 7 this somehow means that Adelson should not have to provide further testimony. That is a rather 8 incredible assertion for LVSC, since it has taken the opposite position with respect to Round Square 9 and Richard Suen. LVSC surely recalls its own representations just a month ago about how it 10 was "entitled" to retake the deposition of Round Square/Suen, despite the fact that Suen (like 1 Adelson) was previously deposed and testi?ed at both prior trials. Indeed, as noted in Round 12 Square's Motion to Compel Adelson to Appear for Deposition, it reminded this Court that LVSC 13 had touted its agreement to produce Adelson as justi?cation for why it was entitled to another 14 Round Square/Suen deposition. Tellingly, LVSC's motion for protective order ignores its prior 15 agreements and positions. 16 Next, LVSC claims that Adelson should be excused from further deposition based upon his 17 age/health. But that aspect of LVSC's motion is most notable for what it lacks. Notably, there is 18 no af?davit not one - from anyone familiar with Adelson's role as Chairman and CEO of LVSC 19 and how he is performing those duties today. No af?davit from any existing LVSC of?cers or 20 directors claiming that Adelson is not currently ful?lling his work duties or that he is not capable 21 of providing those services. No evidence whatsoever of Adelson's daily activities, his recent 22 travels, daily schedule, or who he is meeting with in performing his job duties. Again, as noted in 23 Round Square's motion to compel Adelson's attendance, LVSC's recent public statements plainly 24 belie any suggestion that he is not up to the?Chairman/CEO job and its duties. The lack of any 25 actual evidence on these critical facts is fatal to LVSC's latest self-serving actions to have one set 26 of rules for Adelson and one set for everyone else. 27 LVSC apparently hopes to distract ?'om the lack of actual evidence disputing Adelson's 28 ongoing role as company CEO by submitting a purported unswom letter from a doctor, one failing Pianist! 2 cu Renata) I?m: to specify Adelson's day-to-day activities or even when the doctor last saw him. Such a letter is not evidence of any nature, let alone meeting the extraordinary burden of a witness - in this case a central witness to avoid providing testimony. Any issues surrounding a witness' stamina to answer questions can appropriately be addressed by this Court in requiring the deposition to occur in reasonable installments and at a convenient location. Indeed, LVSC's suggestion that Adelson may not be available to testify at the time of trial is all the more reason why a video deposition to preserve his testimony is critical. II. ANALYSIS A. Adelson is Subject to Deposition to the Same Extent as Any Other Witness, Just Like Suen. 0 1 LVSC and Adelson's latest effort to avoid providing testimony does not exist in a vacuum. 12 Indeed, the Court need not look beyond the events of this litigation ignoring other cases where U) LVSC and Adelson have endeavored to avoid providing his testimony. This Court should recall the to which Adelson and LVSC went just three years ago to evade service of a subpoena p?n Lh and then going to the extraordinary of claiming that his testimony should not be video recorded because it would somehow pose a danger to his safety as a public ?gure. In fact, LVSC r?on?A went so far as to submit a declaration from a former high-ranking member of the United States' p?n 00 Secret Service agent, Brian Nagel, swearing to the purported terrorist risks associated with Adelson ?n testifying. But as before, once Round Square was permitted to challenge this self-serving 20 testimony, including through Round Square's right to cross-examine the witnesses, this Court 21 rejected LVSC's claims for suspension of the Court's rules and further ordered that Adelson would 22 be deemed served and required to appear at trial. 23 The latest assertions by LVSC/Adelson are even less meritorious, being based on no actual 24 evidence whatsoever. That probably explains why LVSC ?rst attempts to argue that Round Square 25 has no right to depose Adelson since he was previously deposed and appeared at the prior two trials. 26 (LVSC Mot. at p. 4.) But that is a rather incredible assertion, considering that LVSC takes the 27 exact opposite position in insisting that it is "entitled? to re-depose Suen/Round Square, even 28 though Suen too was previously deposed and testi?ed at the prior two trials. As this Court knows, 3 (1 um LVSC successfully argued to this Court that it is entitled to an additional deposition of Suen, even though he has not been designated to provide any new or additional testimony by Round Square. Contrary to its wants, there is not one set of rules for LVSC no deposition) and a ll different set of rules for Round Square e. an additional deposition). And, LVSC's assertion that it is now withdrawing any new testimony topics from Adelson is not only irrelevant, but also disingenuous. Again, Round Square did not designate Suen as providing any added testimony on new topics and yet LVSC insists that it is entitled to another deposition. Moreover, the recent depositions that have occurred in this case, particularly the new experts offered by LVSC, make Adelson's testimony particularly important. As this Court knows, many of LVSC's new experts 10 have relied upon efforts by LVSC to enter new gaming markets since the last trial, including Korea, 1 1 Singapore and Japan. Round Square had no opportunity to examine Adelson LVSC's Chairman 12 and CEO concerning his efforts to enter those markets, the approach he took, and the hi gh-ranking 13 government of?cials he courted in those jurisdictions, just as he did in Macau with the help of 14 I Round Square and its agents. Those matters are highly relevant and Round Square is entitled to 15 i obtain and preserve Adelson's testimony on subjects like that. Indeed, if there is a risk that Adelson 16 will not be available to testify live at trial, it is all the more critical that his deposition be taken so 17 that Round Square will have it available to present to the jury. 8 Simply put, LVSC's request for a rule concerning depositions one completely at odds with 19 what it advocated for its entitlement to re~depose Round Square/Suen must be rejected. 20 B. LVSC Presents No Competent Evidence for an Extraordinary Protective 2 1 Order. 22 As extensively outlined in Round Square's parallel motion to compel Adelson's deposition, 23 the law mandates an extraordinary evidentiary showing in order to justify a protective order that 24 precludes the taking of a deposition. Protective orders concerning the time, location and duration 25 of a deposition to accommodate any particularized needs of the witness are one thing. But a 26 protective order that would preclude the deposition altogether and thereby deprive the requesting 27 party of the witness' testimony on particular topics is altogether different. Such a protective order 28 4 cumumrm ll is rarely granted and then only upon a particularized showing - backed up by actual evidence that the deposition itself poses an actual genuine harm to the witness. (Round Square Mot. at p. 5.) Here again, LVSC makes no showing whatsoever that would permit depriving Round Square of preserving Adelson's testimony for trial. A?er all, Adelson is currently the Chairman and CEO of LV SC. The company has presented no evidence that Adelson is not ful?lling those roles today. It has presented no evidence that he is incapable of answering questions at a deposition, any different than he is capable of answering questions and giving directives to the various executives with whom he works. Notably, there is no evidence presented by LVSC that Adelson does not continue to regularly interact with executives in his role as CEO. Just like LVSC 10 has declined to provide any evidence disputing Adelson's capacity to travel and engage with people. 11 Indeed, it is the absence of any such evidence - despite LVSC and Adelson knowing its high 12 relevance here that is most dispositive. See NRS 47.250 (stating presumption "[t]hat evidence 13 will?Jlly suppressed would be adverse if produced"); see also Bass-Davis v. Davis, 122 Nev. 422, 14 445, 134 P.3d 103, 105 (2006). 15 Nor does the conclusory unswom letter from Adelson's purported doctor mask the lack of 16 actual evidence. Most notable is what that letter does not say: It does not say that Adelson is 17 incapable of serving in his capacity as Chairman and CEO of a publicly-traded company. It does 18 not say that there are any restrictions upon him traveling. It does not say that there are any 19 restrictions on him holding meetings. It does not say that there are any restrictions upon him 20 making business decisions, decisions that, at his level, can impact the lives of thousands of 21 employees and shareholders. It does not say that he is incapable of making important decisions. 22 Tellingly, the only actual activity it references as discouraging is a "deposition," the one thing that 23 Adelson is trying to avoid. In other words, for those things that Adelson wants to do and that will 24 bene?t him ?nancially such as running the business anything goes. But for the one thing that 25 he routinely seeks to avoid having to provide testimony it is somehow an undue burden. But 26 since the law entitles the public to every person's testimony, the law provides no immunity from 27 testifying short of genuine mental incapacity, something no one claims for Adelson. Greenspun v. 28 Eighth Jud. Dist. CL, 91 Nev. 211, 215, 533 P.2d 482, 485 (1975). mm? 5 Dore-a +3.1 Putnam cs Reeve: r11 fan i LVSC and Adelson's efforts to avoid providing sworn testimony in litigation has become a matter of routine. But at least in the last instance, LVSC pretended to create the appearance of legitimacy to those efforts by submitting sworn testimony, even if it later collapsed under challenge. Here, LVSC presents not a single affidavit from anyone to substantiate any inability to provide testimony. A conclusory letter does not even come close to what the law commands] CONCLUSION LVSC's request for a deposition rule different than the one it enlisted to re-depose Suen must be rejected. Adelson?s well-known opposition to providing swom testimony is not a legitimate basis for avoiding a deposition. Indeed, any suggestion that he may not be available to testify at trial is all the more reason why this Court must order him to appear for a deposition, as a deposition can be conducted in reasonable intervals and at a convenient location thereby minimizing any inconvenience. DATED this 22nd day of February, 2019. PISANELL By: NELLI, ESQ, Bar No. 4027' DD L. BICE, ESQ, Bar No. 4534 EBRA L. SPINELLI, Es ., Bar No. 9695 400 South 7th Street Las Vegas, Nevada 89101 JOHN A. ESQ. SPENCER PERS SON, ESQ. MICHELLE L. MELLO, ESQ. NORTON ROSE FULBRIGHT US LLP 555 South Flower Street, Forty-First Floor Los Angeles, California 90071 Attorneys for Plaintiff Additionally, this letter is plainly inadmissible hearsay in any event. In re Marriage of Kutinnc, 538 862, 366 (1989) (reversing trial court's admission and reliance upon doctor's letter because a "letter is hearsay as to its contents and is not admissible unless it falls within one ofthe exceptions to the hearsay rule"). 6 I CERTIFICATE OF SERVICE 2 I HEREBY that I am an employee of Pisanelli Bice PLLC, and that on this 22nd 3 day of February, 2019, I caused to be served via the Court's e-Iiling/e-servicc system, true and 4 correct copies of the above and Ibregoing OPPOSITION TO DEFENDANT LAS VEGAS 5 SANDS MOTION FOR A PROTECTIVE ORDER TO PREVENT PLAINTIFF 6 FROM SHELDON G. ADELSON to the following: 7 James I. immerson. Esq. 8 JIMMERSON LAW FIRM, P.C. 415 South 6th Street, #100 9 Las Vegas, NV 39101 10 Richard A. Sauber, Esq. Jennifer S. Windem, Esq. I I ROBBINS, RUSSELL, ENGLERT 1301 Street, N.W., Suite 41 I-L 12 Washington, DC 20006 13 75% WM. 14 An employee oI?gVisancili Bice PLLC excess 7