At least some of the information former gambling mogul Steve Wynn is suing to keep out of a Massachusetts Gaming Commission investigative report stems from 2014 court proceedings involving Wynn and interviews that top Nevada lawyers familiar with Wynn's legal issues gave to the commission's chief investigator, the commission's lawyer said Thursday.
Nevada Judge Elizabeth Gonzalez ruled last week that some of the commission's findings in its months-long investigation into sexual misconduct allegations against Wynn, which Wynn has argued were improperly obtained by investigators, cannot be released until the lawsuit Wynn filed is resolved. Wynn filed his suit in November, as the commission was preparing to make public its findings.
David Mackey, an attorney from Boston-based firm Anderson Kreiger representing the Gaming Commission, said Wynn's initial complaint was based around documents Wynn Resorts provided to the Gaming Commission "relating to a particular legal proceeding that had taken place back in 2014" that Wynn claimed should be protected by a common defense agreement.
"We did not believe that the documents were protected by a common interest agreement and Wynn Resorts represented to the [Investigations and Enforcement Bureau] that it did not believe the documents were protected by a common interest agreement," Mackey said.
Mackey said he and fellow commission attorney Melissa Allison also presented arguments in court "related to a right Mr. Wynn asserted in his alleged confidentiality in the proceedings that happened in 2014 independent of the attorney-client privilege and then with respect to some personal information he asserted was covered by [the Health Insurance Portability and Accountability Act] and other privacy rights."
Wynn has also argued that Karen Wells, the commission's top investigator, flagrantly violated his attorney-client privilege and common interest agreement when she asked several witnesses about the 2014 legal proceedings. Mackey said that claim "involves in large measure the interviews of these lawyers ... who were familiar with the issues at stake, they were, as we understand it, among the most well-respected members of the Nevada bar."
He added, "I do want to make our perspective on one issue clear today. As we've publicly argued, we absolutely do not believe that Mr. Wynn's allegation that Director Wells somehow flagrantly invaded the common interest privilege is supported by the facts here."
Mackey said the Gaming Commission is still waiting for Gonzalez to issue a written order confirming her ruling last week barring the commission from releasing its report if it contains the information that Wynn has claimed is privileged. He said no future hearing dates have yet been set.
"The case is going to continue in trial court there in Nevada. We will have the opportunity to file motions to dismiss in the case, a schedule has not yet been set for that," he said. "We are going to continue to do everything we can do to defend the commission and Director Wells."
After Mackey's update Thursday, Executive Director Edward Bedrosian confirmed that the commission's investigation was substantially complete when Wynn filed suit to block its release.
"Yes, with the caveat that, quite frankly, some of the stuff that is happening now may be an additional portion of the evidence you have to consider at an adjudicatory hearing," he said.
Bedrosian said commissioners would have a chance to meet in a private executive session at the end of Thursday's meeting "for discussion about litigation strategy and ... more detailed information."
Wynn and his former company's Encore Boston Harbor project in Everett dominated the commission agenda Thursday. In addition to the update on the Wynn lawsuit, Bedrosian also updated the commission on the staff's work to coordinate with Encore to ensure its opening is a smooth one, even while the Wynn suitability review unfolds.
"We established early on that proceeding on parallel paths with our Region A licensee was in the best interest of the commonwealth," Bedrosian said Thursday, referring to Wynn Resorts. "That meant that while the suitability review was ongoing the Encore property continued to be built and was getting ready for a 2019 opening."
Encore Boston Harbor in Everett has said it plans to open in June and an official from the casino project told the Gaming Commission on Thursday that the project is 90 percent complete and is on track to open in 164 days.
Asked if he expects the Wynn lawsuit to be resolved through the courts within 164 days, Bedrosian said, "Boy, I hope so" and added that it remains the commission's goal to try to get this resolved "as quickly as we can."
But if the Wynn lawsuit or the commission's review of Wynn Resorts' suitability is not completed within 164 days, would the Gaming Commission allow the roughly $2.6 billion Encore Boston Harbor casino in Everett to open its doors?
"I have no comment on that right now," Bedrosian said Thursday.