Investigator Heads to the Nevada Supreme Court

by Kendra Budd, Editor

This isn’t the first time a private investigator has made it to a state’s Supreme Court, but it’s definitely one for the history books.

In our Spring 2023 issue of Working PI, we explored the case of Schieve vs. McNeely et al, wherein Hilary Schieve, the Mayor of Reno, Nevada, sued private investigator David McNeely after finding a GPS tracker on her vehicle.

Schieve discovered the device just a week before the city’s general election on Nov. 8, 2022 and filed her lawsuit almost immediately after she traced it back to McNeely. She accuses him, as well as his client, of invasion of privacy, violating Nevada’s anti-doxxing laws, trespassing, and civil conspiracy.

This case has made waves across the political spectrum in Reno as well as the the entire state of Nevada. Following the widespread press coverage of Schieve’s case, the Nevada legislature unanimously approved AB 356 over the summer, which makes it a crime to place a GPS tracker on a vehicle without the owner’s consent effective July 1, 2023 (with exceptions for law enforcement).

McNeely, as well as a number of PIs familiar with the case, maintain that McNeely acted within the scope of the law and did nothing wrong as the use of GPS trackers was still legal at the time.

While the civil litigation drags on, a key dispute between Schieve and McNeely centers around the disclosure of the identity of McNeely’s client. Schieve is seeking, and has won, a Court Order requiring McNeely to reveal who hired him as well as other information regarding his surveillance contract.

McNeely is now appealing to the Nevada Supreme Court—hoping to win a precedent citing investigator-client privilege in Nevada, which would protect him from divulging his client’s identity.

Here’s the latest information on this monumental case.

Backstory
In November 2022, just days before Reno’s general election, Schieve took her car to a local mechanic due to an oil leak. Her mechanic discovered a GPS tracking device that was “monitoring her every movement.” After removing the device from her car, Schieve brought it to the Sparks Police Department (PD). Sparks PD discovered the device was linked to licensed PI McNeely, who owns the agency 5 Alpha Industries.

Six weeks following the discovery, Schieve filed a civil lawsuit against McNeely, 5 Alpha Industries, and John Doe (the unidentified third-party who hired McNeely to track Schieve). The suit claimed that McNeely trespassed on her private property to install the tracker at John Doe’s request. In her interview with Sparks PD investigators, Schieve expressed concern about a privacy violation after seeing a white car for weeks outside her house.

Upon further investigation, Sparks PD cleared McNeely of physically surveilling Schieve, and confirmed that he only installed the GPS to her car and monitored its movements. Sparks PD also explicitly cleared McNeely of any criminal wrongdoing. One police investigator suggested that Schieve’s primary political enemy likely “uses PIs all over town” and that McNeely may not have been the only one surveilling her during the election cycle.

County Commissioner Joins In
In her initial interview with Sparks PD, Schieve speculated that one of her main political enemies had also hired private investigators to surveil many members of the Reno City Council and put trackers on their cars as well. A few months before Schieve discovered the GPS tracker on her car, infidelity rumors regarding Reno Councilman Oscar Delgado (who promptly resigned to “focus on his family”) and Mariluz Garcia (who was elected to the County Commission in Nov. 2022) were published in the Nevada Globe.

Schieve names the political kingmaker she believes hired McNeely and suggests to Sparks PD that he also had trackers put on Garcia’s car to uncover the affair and smear Garcia and Delgado. These political enemies were “trying to use our personal lives against us” to win political points, Schieve remarks.

It was later revealed that both McNeely and at least one other PI had conducted intensive surveillance on Garcia in an effort to confirm she actually lived in the District she was representing in the Nov. 2022 election.

But the plot thickens even further. After Schieve turned the GPS tracker over to Sparks PD, another politically-connected PI submitted a public records request with the police department and surprisingly received all of the location related data from McNeely’s tracker going back for nearly a year!

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This cunning PI then compared the locations and movements of the “targets” of McNeely’s GPS tracker and matched one of them to Washoe County Commission Chair Vaughn Hartung’s schedule. The tracking data shows the tracker left McNeely’s home at 2:42 a.m. on April 5, 2022 and was dropped off at Hartung’s home in the early hours of the morning. It stayed with Hartung’s vehicle for 122 days and captured 3,445 geospatial snapshots related to his activity. All of this information was then shared by the PI with a number of Nevada media organizations, including KUNR and APM Reports, who then published an interactive map showing Hartung’s vehicle movements over the four months the tracking data was available.

Roughly a month after this particular GPS tracker was removed from Hartung’s vehicle, the same tracker was placed on Schieve’s car.

As a result of these revelations, Hartung joined Schieve’s lawsuit against McNeely as a co-plaintiff.

According to the suit, Hartung only discovered that the GPS tracker had been installed on his vehicle after the media published detailed maps of his locations over the four-month period. The vehicle that had the tracker on it was often used by Hartung’s wife and daughter, including trips in which Hartung was not in the car. The suit alleges that the location data included “private” locations that were visited by his family members.

“This type of conduct should not be tolerated in Nevada and I hope that the full force of the law is brought to stop this kind of unwarranted stalking and harassment of public officials and their families,” Hartung told the Reno Gazette-Journal.

Identity of the PI’s Client
A central part of Schieve and Hartung’s case is an effort to reveal who McNeely’s client is, i.e. who hired McNeely to surveil them. They want to include McNeely’s client in their lawsuit for damages but also to out his client publicly as the individual responsible for what they argue is a campaign of harassment and stalking. When Sparks PD originally interviewed McNeely to explore if any laws were broken, he told the Sparks officers that he would not reveal the name of his client unless a court issued a subpoena for that information.

District Court Judge David Hardy, the judge in Schieve’s suit, ordered him to do exactly that.

Within 60 days of her lawsuit, Schieve won a Court Order to serve her subpoena to reveal McNeely’s client. Instead of turning over the identity of his client, Judge Hardy’s order set off a flurry of legal filings by McNeely’s attorneys in an effort to avoid this disclosure.

McNeely makes a series of arguments for why he should not have to reveal the identity of his client, including that the disclosure of his client would ruin his business, the identity of his client is a trade secret, and an investigator-client privilege exists to protect his client’s identity.

In response, Schieve argues that there simply does not exist a client-investigator privilege under Nevada law. “Nevada’s privilege law does not recognize a private investigator–client relationship or protect communications between a private investigator and client as privileged,” write her attorneys. There are some states that do recognize an investigator-client privilege, with McNeely citing Michigan as an example. However, Nevada does not.

Schieve further argues that while a list of customers may be a trade secret, the identity “of a single customer in the private-investigator industry cannot be a trade secret as every individual in Nevada could potentially be a customer.”

Lastly, Schieve and Hartung also argue that time is of the essence, writing that McNeely’s casual approach to discovery “is inconsistent with the very real risks [we] face from potentially having an unidentified individual continue to surveil [us] and violate [our] privacy.”

McNeely Appeals to NV Supremes
Judge Hardy ultimately found all of McNeely’s arguments insufficient, ordering that John Doe’s identity be revealed.

The identity of McNeely’s client “is not protected from disclosure by any privilege, it is not a trade secret entitled to protection from discovery, and is discoverable,” the Court affirmed.

“The public has a legitimate and significant interest in knowing about actions that place our elected officials at greater risk for harm and potentially impact their ability to perform the functions for which they were elected,” wrote Discovery Commissioner Wesley Ayers. This resulted in McNeely appealing to the Nevada Supreme Court, urging the highest court in the state to allow him to keep his client’s identity a secret. McNeely first filed his appeal to the Nevada Supreme Court in May 2023 and there has been an outbreak of court filings over the summer.

John Doe Speaks
Almost immediately after McNeely appealed to the Nevada Supreme Court, John Doe filed a fiery motion with the Court, still concealing his identity. Doe came out swinging—framing the case as one of politicians seeking to silence oppositions, evade scrutiny, and denigrate his First Amendment rights.

“The right to engage in anonymous political conduct is a cornerstone of liberty… and Political conduct includes the right to hire an investigator to investigate public officials,” Doe writes.

Doe argues that he, as a private citizen, hired McNeely to investigate “allegations of misconduct—an issue that would be of public interest and importance if true.” Instead of making baseless accusations against elected officials, Doe explains that he “took a logical, reasonable, and legal step to further his First Amendment rights to speech and to petition: he hired [McNeely] to investigate [Schieve and Hartung] and determine whether there was any substance to the allegations.”

Doe cites a myriad of cases involving free speech and political cases involving PIs, including the precedent that “hiring a private investigator can also be considered protected under the right of free speech.”

Doe points to “decades of case law” that indicates a citizen’s right to engage in a wide array of anonymous political activities, including protections against disclosure of associational memberships, the right to distribute campaign literature anonymously, the right to anonymous political canvassing, the right to make anonymous charitable donations, and so on. Doe’s argument, consequently, is that his hiring of a private investigator to surveil and gather information about politicians is political conduct that is entitled to anonymity and protection under the First Amendment.

Furthermore, Doe explains that he hired McNeely to surveil and collect information on Schieve and Hartung, but never directed him to place GPS trackers on their vehicles or otherwise did not know “what investigative tools or techniques [he] would employ.”

Lastly, Doe makes a dramatic appeal requesting protection under the First Amendment that is worth quoting in full:

In fact, it is the minority view, including behavior that is deemed highly offensive to the majority of people, that most often needs protection under the First Amendment. John Doe's conduct here—hiring the Investigator Defendants to investigate Plaintiffs—is not popular. But that does not mean that his conduct is unprotected or that he is not entitled to relief. John Doe's hiring of the Investigator Defendants was an act in furtherance of his First Amendment rights to free speech and to petition. As is his desire to remain anonymous while engaging in such protected conduct. John Doe therefore has a First Amendment privilege against the discovery of documents leading to his identification, and Plaintiffs have failed to demonstrate that their need for the discovery outweighs his compelling First Amendment interests. 

Who is John Doe?
So, who is John Doe anyway? In her interview with Sparks PD, Schieve made a comment suggesting she already has an idea about who she thinks it is. “You know who I think it is? Beadles. I think it’s Beadles,” Schieve commented to the investigators.

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Robert Beadles has made a name for himself in Nevada politics. Moving from California to Reno in 2020, Beadles has funded two unsuccessful recall campaigns against Washoe County officials, one involving Hartung, and is rumored to have spent over one million dollars on political activities. Citing campaign finance records, The Nevada Independent indicates that Beadles and his company Coral Bay reported spending at least $114,000 on investigative services, research and observation in 2022. He also operates a blog where he refers to Schieve as “Hide’n Hillary Schieve.” He is currently suing three Washoe County officials in state court, alleging voter fraud and seeking to get them removed from their positions as well as his election grievances addressed. “I have no problem spending millions of dollars to replace you all. I have no problem doing it because we’ve got to get our county back,” Beadles told the Washoe County Commissioners last year.

Could Schieve be right that it’s Beadles? We’ll have to wait and see!

GPS Law Changes
As a result of this case, a bill criminalizing the installation of GPS tracking devices on personal vehicles received bipartisan support in the Nevada legislature and was signed into law by Nevada Governor Joe Lombard.

Assembly Bill 356 (AB 356) makes it a misdemeanor to install a mobile tracking device on a motor vehicle of another person without their consent, with a second offense being categorized as a gross misdemeanor and a third offense a category C felony. Today, 24 states have already employed similar legislation including Washington, California, and more.

The bill was sponsored by Republican Jill Dickman and Democrat Selena La Rue Hatch. The two gave a presentation to the Legislature saying the bill would benefit “individuals experiencing domestic violence and/or abuse, victims of harassment, victims of stalking, all Nevadans.”

Both Schieve and Hartung cited recent violence against elected officials, including two officials who were shot to death this year in New Jersey, (Eunice Dwumfour and Russell D. Heller), and the homes of three officials in New Mexico were shot at. Schieve did a victory lap after the bill’s passage. “I think you should be allowed a level of privacy. I can’t even begin to tell you how my heart started racing when I was told that they found that [GPS device]. I’m looking over my shoulder all the time. It brings on a whole other level of concern where you think someone wants to physically harm you.

Why would you need to know where I’m at all the time if you didn’t want to physically harm me? This wasn’t about politics. This was about people’s safety,” Schieve said.

She hopes criminalizing secret GPS trackers in Nevada will help anyone who could be stalked.

Final Thoughts
This case has already had far-reaching effects across the state, making Nevada the latest state to ban the use of GPS trackers on vehicles.

It also raises fascinating questions regarding how our justice system should balance the rights of private citizens to hold their politicians accountable, investigate misconduct, and engage in anonymous political activities, while ensuring that our political figures can maintain their physical safety and be free from harassment and threats.

The veracity of Schieve and Hartung’s invasion of privacy and trespass claims have yet to be proven in Court, but this case also highlights the clear distinction between criminal conduct and civil liability. While McNeely’s actions and use of a GPS tracker were not illegal in Nevada (at the time), that does not mean that he and his client will not have liability or at least legal exposure related to the claims they are facing. This is a case that PIs should consider carefully—there are many actions one might take in business or in an investigation that are not illegal but that may create liability and the potential for a lawsuit. Criminal conduct and civil liability are two different things.

We will be watching closely to see how this case develops!

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Stay safe out there!

About the Author
Kendra Budd is the Editor of Working PI magazine and the Marketing Coordinator for OREP, a leading provider E&O insurance and General Liability policies for private investigators—trusted by over 12,000 professionals. She graduated with a BA in Theatre and English from Western Washington University, and with an MFA in Creative Writing from Full Sail University. She is currently based in Seattle, WA.