Smith v. Scottsdale Ins. Co., 15-1002

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: PER CURIAM
• Parties: LEVERT SMITH; NELSON D. RADFORD, Co-Administrators of the Estate of Joseph Jeremaine Porter, Plaintiffs - Appellants, v. SCOTTSDALE INSURANCE COMPANY, Defendant - Appellee, and SCOTTSDALE INDEMNITY COMPANY; NATIONWIDE INSURANCE COMPANY, Defendants.
• Docket Number: No. 15-1002,15-1002
• Decision Date: 30 July 2015

LEVERT SMITH; NELSON D. RADFORD, Co-Administrators of
the Estate of Joseph Jeremaine Porter, Plaintiffs - Appellants,
v.
SCOTTSDALE INSURANCE COMPANY, Defendant - Appellee,
and
SCOTTSDALE INDEMNITY COMPANY; NATIONWIDE INSURANCE COMPANY, Defendants.

No. 15-1002

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Submitted: June 30, 2015
July 30, 2015

UNPUBLISHED

Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. Frederick P. Stamp, Jr., Senior District Judge. (5:12-cv-00086-FPS-JES)

Before GREGORY, DUNCAN, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Timothy F. Cogan, Patrick S. Cassidy, CASSIDY, COGAN, SHAPELL & VOEGELIN, LC, Wheeling, West Virginia, for Appellants. Thomas E. Scarr, Sarah A. Walling, JENKINS FENSTERMAKER, PLLC, Huntington, West Virginia; Denise D. Pentino, William E Robinson, Jacob A. Manning, DINSMORE & SHOHL, LLP, Wheeling,

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West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Levert Smith and Nelson Radford, as administrators of the Estate of Joseph Jermaine Porter (the "Estate"), appeal the district court's orders affirming the magistrate judge's denial in part of the Estate's motion to compel discovery and granting summary judgment to Scottsdale Insurance Company ("Scottsdale") on the Estate's claim under the West Virginia Human Rights Act, W. Va. Code §§ 5-11-1 to 5-11-20 (2013) ("WVHRA"). The claim arises from a civil rights lawsuit filed by the Estate against Scottsdale's insured, the City of Huntington, West Virginia (the "City"). See Smith v. Lusk, 533 F. App'x 280 (4th Cir. July 18, 2013) (No. 12-2063). We affirm.

I.

The Estate first challenges the district court's order denying in part its motion to compel discovery of portions of Scottsdale's claim file. District courts and magistrate judges are afforded substantial discretion in managing discovery. United States ex rel. Becker v. Westinghouse Savannah River Co., 305 F.3d 284, 290 (4th Cir. 2002). We review discovery rulings for an abuse of discretion. Kolon Indus. Inc. v. E.I. DuPont de Nemours & Co., 748 F.3d 160, 172 (4th Cir.), cert. denied, 135 S. Ct. 437 (2014). An abuse of discretion occurs when the district court's decision is "guided by erroneous legal

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principles" or "rests upon a clearly erroneous factual finding." Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999). We review de novo the district court's legal conclusion that the attorney-client and work product privileges are applicable. Hawkins v. Stables, 148 F.3d 379, 382 (4th Cir. 1998).

Because this is a diversity action, the elements of the attorney-client privilege are governed by West Virginia law. Fed. R. Evid. 501; Ashcraft v. Conoco, Inc., 218 F.3d 282, 285 n.5 (4th Cir. 2000) ("[I]n a diversity action the availability of an evidentiary privilege is governed by the law of the forum state."). Under West Virginia law, there are three elements necessary to establish this privilege: "(1) both parties must contemplate that the attorney-client relationship does or will exist; (2) the advice must be sought by the client from the attorney in his capacity as a legal advisor; [and] (3) the communication between the attorney and client must be intended to be confidential." State ex rel. Med. Assurance of W. Va., Inc. v. Recht, 583 S.E.2d 80, 84 (W. Va. 2003). This privilege also applies to communications between an attorney and a client that are shared with the client's insurance company. Id. at 89.

The Estate argues that when the attorney's activities in a discrimination case become an intimate part of the claimed discrimination, the privileged communications are discoverable,

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citing State ex rel. Westbrook Health Servs., Inc. v. Hill, 550 S.E.2d 646 (W. Va. 2001). However, "privileged matters, although relevant, are not discoverable. As a result of this rule, many documents that could very substantially aid a litigant in a lawsuit are neither discoverable nor admissible as evidence." Recht, 583 S.E. 2d at 84. Moreover, the Supreme Court of Appeals of West Virginia in Hill did not conclude that documents related to an attorney's actions in a discrimination case are per se outside the protection of the privilege; instead, the court found that the employer failed to meet the three-part test for application of the privilege. 550 S.E.2d at 650-51.

The Estate further argues, however, that Scottsdale impliedly waived attorney-client privilege because the attorneys' communications are "at issue" in this case. "A party may waive the attorney-client privilege by asserting claims or defenses that put his or her attorney's advice in issue." State ex rel. Brison v. Kaufman, 584 S.E.2d 480, 482 (W. Va. 2003) (internal quotation marks omitted). "[A]n attorney's legal advice only becomes an issue where a client takes affirmative action to assert a defense and attempts to prove that defense by disclosing or describing an attorney's communication." State ex rel. Marshall Cnty. Comm'n v. Carter, 689 S.E.2d 796, 805 (W. Va. 2010) (internal quotation marks

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omitted). We conclude that Scottsdale did not...