The Nevada Supreme Court has been asked to intervene in a dispute over whether CityCenter has been trying to taint the jury pool in next year's trial over problems at the flawed Harmon Hotel tower.
Harmon general contractor Tutor Perini Building Corp. claims MGM Resorts International, half owner of the CityCenter complex where the Harmon sits on the Las Vegas Strip, has hired public relations operatives to plant negative news stories about Perini.
Perini says this is part of an initiative in which one former CityCenter attorney allegedly said Perini would be portrayed as the "scum of the earth.''
Perini, which is mired in litigation with CityCenter and MGM Resorts, says this PR campaign is part of a broader strategy to "try this case in the media.'' Since jurors may have to decide who's responsible for defects that CityCenter says have left the Harmon unuseable, both sides are interested in how potential jurors feel about the situation.
To pursue its theory that MGM Resorts is trying to influence the jury pool, Perini plans to take the depositions of the California-based litigation public relations experts at the firms Sitrick & Co. and GFBunting. It's also issued subpoenas for their documents related to CityCenter.
MGM Resorts and its attorneys say there's nothing improper with the retention of Sitrick and GFBunting and that the company beefed up its PR efforts related to the Harmon after Perini started publicly complaining in 2010 to then-Gov. Jim Gibbons and others about MGM Resorts' refusal to pay for hundreds of millions of dollars of work that MGM Resorts claims is defective.
Clark County District Court Judge Elizabeth Gonzalez, who is presiding over the massive lawsuit over unpaid Harmon invoices and defects at the Harmon, refused Oct. 5 to block Perini's probe of the PR campaign.
She rejected claims by CityCenter that Sitrick and later GFBunting were hired by CityCenter attorneys as "non-testifying litigation strategy consultants," meaning according to CityCenter that their CityCenter documents are protected by attorney-client privilege and that the PR executives couldn't be subjected to depositions for the same reason.
Gonzalez rejected those claims after CityCenter CEO Bobby Baldwin testified during a deposition that he understood the consultants were hired for business purposes by the MGM Resorts public affairs department. Baldwin later filed an affidavit saying he was mistaken and that they had been hired by CityCenter attorneys.
In an appeal of Gonzalez's order to the Nevada Supreme Court filed Tuesday, CityCenter attorneys said that if Perini is allowed to see Sitrick and GFBunting documents and take depositions of their officials, CityCenter will suffer "irreparable harm'' as privileged and confidential information will be disclosed to Perini.
The litigation consultants "were and are employed by CityCenter's counsel to assist counsel in communicating with and providing legal advice to CityCenter," CityCenter attorneys said in their appeal.
In a response filed Thursday, Perini attorneys disputed those arguments.
"CityCenter hired (the consultants) for the express purpose of manipulating the media and the public to think that Perini was the 'scum of the earth,''' Perini attorneys wrote in their filing.
The Supreme Court hasn't indicated when it may rule on the dispute.
The fight over the Harmon public relations efforts comes as both sides gather evidence for a trial set for June on claims by Perini that it's owed $191 million for work on the Harmon. That's part of the $490 million in overall damages Perini is claiming in its breach of contract suit against CityCenter for all of its work there.
MGM Resorts and CityCenter have countered that they owe nothing to Perini for the Harmon and that they should receive damages because Perini delivered a flawed building and CityCenter sustained losses in the form of lost revenue from the building.
It's unclear when the Harmon will be demolished, something Gonzalez has ruled can happen before the trial. There are uncertainties because CityCenter has proposed doing addtional testing and inspections of the building to confirm it's belief it's riddled with defects and could collapse in an earthquake.
The position of Sylmar, Calif.-based Perini is that CityCenter design flaws are to blame for problems with the 26-story, $275 million structure; that despite the problems the building is safe and that it can be repaired.