State ex rel. Marshall Cty. Com'n v. Carter, No. 35272.

• Court: Supreme Court of West Virginia
• Writing for the Court: Benjamin
• Citation: 689 S.E.2d 796
• Parties: STATE of West Virginia ex rel. MARSHALL COUNTY COMMISSION and Marshall County Communication 911, Petitioners v. Phyllis H. CARTER, Administrative Law Judge, West Virginia Human Rights Commission and John R. Briggs, Respondents.
• Decision Date: 29 January 2010
• Docket Number: No. 35272.

689 S.E.2d 796 STATE of West Virginia ex rel. MARSHALL COUNTY COMMISSION and Marshall County Communication 911, Petitioners
v.
Phyllis H. CARTER, Administrative Law Judge, West Virginia Human Rights Commission and John R. Briggs, Respondents. No. 35272. Supreme Court of Appeals of West Virginia. Submitted January 13, 2010. Decided January 29, 2010. Concurring Opinion of Justice Workman February 1, 2010.

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Syllabus by the Court

1. "The general procedure involved with discovery of allegedly privileged documents is as follows: (1) the party seeking the documents must do so in accordance with the reasonable particularity requirement of Rule 34(b) of the West Virginia Rules of Civil Procedure; (2) if the responding party asserts a privilege to any of the specific documents requested, the responding party shall file a privilege log that identifies the document for which a privilege is claimed by name, date, custodian, source and the basis for the claim of privilege; (3) the privilege log should be provided to the requesting party and the trial court; and (4) if the party seeking documents for which a privilege is claimed files a motion to compel, or the responding party files a motion for a protective order, the trial court must hold an in camera proceeding and make an independent determination of the status of each communication the responding party seeks to shield from discovery." Syllabus Point 2, State ex rel. Nationwide Mut. v. Kaufman, 222 W.Va. 37, 658 S.E.2d 728 (2008).

2. When a party to a case brought under the West Virginia Human Rights Act, W. Va.Code §§ 5-11-1 to 5-11-21, asserts that a communication sought to be discovered is privileged, the administrative law judge should conduct an in camera inspection of the requested materials to determine whether the communication is privileged.

3. "A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect." Syllabus Point 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951).

4. The provision of the Open Governmental Proceedings Act, W. Va.Code §§ 6-9A-1 to 6-9A-12, that recognizes a specific and limited right of governing bodies to meet in an executive session which is closed to the public is not intended to prevent the legitimate discovery in a civil action of matters discussed in an executive session which are not otherwise privileged.

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5. "The West Virginia Rules of Evidence remain the paramount authority in determining the admissibility of evidence in circuit courts. These rules constitute more than a mere refinement of common law evidentiary rules, they are a comprehensive reformulation of them." Syllabus Point 7, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).

Thomas E. Buck, Esq., Jason P. Pockl, Esq., Bailey & Wyant, Wheeling, WV, for Petitioners.

Darrell V. McGraw, Jr., Esq., Attorney General, Jamie S. Alley, Esq., Senior Assistant Attorney General, Civil Rights Division, Charleston, WV, for Respondents.

BENJAMIN, Justice:

The petitioners and defendants below, the Marshall County Commission and Marshall County Communication 911, seek extraordinary relief to prevent the enforcement of an order entered by Respondent Chief Administrative Law Judge Phyllis H. Carter in a claim brought by Respondent John R. Briggs under the State Human Rights Act. The order complained of by the petitioners directs them to produce for in camera inspection by the administrative law judge an audio recording of an executive session meeting in which the petitioners discussed hiring an applicant to fill one of two vacancies in the Marshall County Communication 911 Department. The petitioners argue before this Court that the audio recording in question is protected from disclosure for the purpose of an in camera inspection by an executive session privilege, the attorney-client privilege, and the work product doctrine. For the reasons that follow, we deny the writ requested.

I. FACTS

In December 2007, Petitioner Marshall County Communication 911 advertised for applications to fill two telecommunication operator positions. Several applications were received and several applicants, including Respondent John R. Briggs, were interviewed for the positions. Mr. Briggs, who is legally blind, subsequently was informed that he would not be hired for one of the available positions.

Mr. Briggs thereafter filed a complaint with the State Human Rights Commission alleging discrimination based on his disability. According to the complaint, Mr. Briggs informed the Marshall County Commission that several options were available for accommodating his disability. Mr. Briggs alleged that he is well qualified to be a telecommunication operator and has several years experience in that position. Mr. Briggs concluded that the fact that he was not hired despite his experience and qualifications indicates that he was discriminated against because of his disability in violation of the State Human Rights Act.¹

During discovery, in preparation for proceedings before an administrative law judge (hereafter "ALJ"), Mr. Briggs requested a copy of any recording of the executive session in which the Marshall County Commission discussed filling the final telecommunication operator position. The petitioners objected to the production of an audio recording of the session pursuant to an alleged executive session privilege, the attorney-client privilege, and the work product doctrine. After a hearing on the matter, the ALJ assigned to hear the case decided to conduct an in camera review of the requested recording to determine whether and/or to what extent the recording contained privileged material.

The petitioners thereafter filed a motion for declaratory judgment and an appeal of the ALJ's decision in the Circuit Court of Marshall County. This petition was dismissed on jurisdictional grounds. The petitioners also appealed the ALJ's decision to the Commissioner of the Human Rights

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Commission. This appeal was ultimately denied and the ALJ's decision was affirmed.

Thereafter, a revised order was entered by the ALJ requiring in camera disclosure of the allegedly privileged material to the ALJ by August 28, 2009. The petitioners then filed the instant petition for a writ of prohibition with this Court. On October 8, 2009, this Court granted a rule to show cause against the respondents returnable before this Court on January 13, 2010, directing the respondents to show cause, if any, why a writ of prohibition should not be awarded against Respondent ALJ.

II. STANDARD OF REVIEW

The Petitioners assert before this Court that the ALJ below exceeded her legitimate powers in ordering the disclosure of allegedly privileged material for in camera review. We have previously recognized that "[w]hen a discovery order involves the probable invasion of confidential materials that are exempted from discovery under Rule 26(b)(1) and (3) of the West Virginia Rules of Civil Procedure, the exercise of this Court's original jurisdiction is appropriate." Syllabus Point 3, State ex rel. U.S. Fidelity and Guar. Co. v. Canady, 194 W.Va. 431, 460 S.E.2d 677 (1995). Also, we have held that "[a] writ of prohibition is available to correct a clear legal error resulting from a trial court's substantial abuse of its discretion in regard to discovery orders." Syllabus Point 1, State Farm v. Stephens, 188 W.Va. 622, 425 S.E.2d 577 (1992). Finally, with regard to determining the appropriateness of issuing a writ of prohibition, this Court has held:

In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.

Syllabus Point 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996). With these principles to guide us, we proceed to address the issues raised by the petitioners.

III. DISCUSSION

We begin our discussion with the general proposition that parties to a proceeding under the West Virginia Human Rights Act "may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action." 77 C.S.R. § 2-7.17.a. (Jan. 1, 1999).² The petitioners assert that the audio recording of the executive session at issue is not discoverable nor available for in camera inspection by the ALJ because it contains privileged material. According to Rule 501 of the West Virginia Rules of Evidence, "[t]he privilege of a witness, person, government, state, or political subdivision thereof shall be governed by the principles of the common law except as modified by the Constitution of the United States or West Virginia, statute or court rule."³ This rule "limits privileges to those

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provided for by the Constitution, statute, or common law." Franklin D. Cleckley, Vol. 1, Handbook on Evidence for West Virginia Lawyers, § 5-1(C)(2) at 5-10 (2000).

A.

In the instant...