STATE EX REL. WESTBROOK HEALTH v. Hill, 28591.

• Decision Date: 02 July 2001
• Docket Number: No. 28591.,28591.
• Citation: 209 W.Va. 668,550 S.E.2d 646
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. WESTBROOK HEALTH SERVICES, INC., Petitioner, v. Honorable George W. HILL, Jr., Judge of the Circuit Court of Wood County, and Helen J. Wilson, Respondents.

550 S.E.2d 646

209 W.Va. 668

STATE of West Virginia ex rel. WESTBROOK HEALTH SERVICES, INC., Petitioner, v. Honorable George W. HILL, Jr., Judge of the Circuit Court of Wood County, and Helen J. Wilson, Respondents.

No. 28591.

Supreme Court of Appeals of West Virginia.

Submitted January 9, 2001.

Decided July 2, 2001.

Robert J. Kent, Esq., C. Edward McDonough, Esq., Bowles Rice McDavid Graff & Love, PLLC, Parkersburg, West Virginia, Attorneys for Westbrook.

Barbara G. Arnold, Esq., Parkersburg, West Virginia, Attorney for Wilson.

PER CURIAM:

Petitioner, Westbrook Health Services, Inc. (Westbrook), invokes this Court's original jurisdiction and seeks a writ of prohibition against the Honorable George W. Hill, Jr., Judge of the Circuit Court of Wood County, West Virginia, to prevent the enforcement of an order entered on November 14, 2000. The order granted Helen J. Wilson's motion to compel more complete discovery, motion to compel testimony, motion to compel production of documents, and motion for sanctions. We issued a rule to show cause and now deny the writ.

I. FACTS

Westbrook is a non-profit corporation that provides health care services by doing business in Wood County. The underlying claim arose when Ms. Wilson was laid off from employment with Westbrook on April 6, 2000 after working for the company for eighteen years. Wilson filed an action against the company on June 7, 2000, alleging a violation of the West Virginia Wage Payment and Collection Act¹ and employment discrimination based on age and/or sex.² The circuit court granted Wilson summary judgment on the wage payment and collection count. The remaining employment discrimination claim is pending before the circuit court and is the subject of this dispute.

Wilson served interrogatories and requests for production on Westbrook. She served subpoenas duces tecum on Stewart Phillips, her direct supervisor who serves as Developmental Disabilities Director for Westbrook, and Frances Murphy, secretary to the Executive Director of Westbrook. Wilson requested that Murphy furnish any document which gave or offered severance payment during the previous four years; any document offering employment, including alternative employment, during the previous five years; any document which mentioned Wilson; and Murphy's office calendars for the previous four years. The list of documents requested from Phillips is more extensive and includes severance pay descriptions, employee layoff explanations, job descriptions, minutes of staff meetings, budgets and financial statements, time sheets, job descriptions of positions which have been filled since April 6, 2000, and any document concerning Wilson. Due to privacy concerns, Westbrook objected to the production of documents which may contain confidential client and/or employee information.

Murphy was deposed on September 12, 2000; during her deposition, she stated that counsel for Westbrook was not her personal attorney. Phillips was deposed on September 14, 2000; during his deposition, counsel for Westbrook stated he did not represent Phillips personally but that "[Phillips] is a part of Westbrook Health Services, and so any communications between him, as management, and us, as counsel for Westbrook Health Services, is privileged." Wilson claims that counsel for Westbrook instructed Phillips not to answer a question alleging attorney-client privilege.³ Westbrook simply states that the corporation's employees were not instructed by counsel to refrain from answering questions that contained "clearly discoverable factual information." Westbrook contends the attorney-client privilege pertains to conversations regarding Westbrook's defense which took place between the witnesses and counsel for Westbrook.

On November 14, 2000, Wilson filed a motion to compel more complete discovery, motion to compel testimony, motion to compel production of documents, and motion for sanctions against Westbrook's counsel for instructing witnesses not to answer questions and for failing to produce the requested documents. After holding a hearing, the court granted the motions but allowed Westbrook to redact the names of clients⁴ from documents which must be produced. Reasonable attorney fees and costs expended to obtain the order were granted. Westbrook now asks this Court to prohibit the respondent judge from enforcing the order.

II. DISCUSSION

Westbrook contends the attorney-client privilege attaches to communications between Phillips and Westbrook's counsel because Phillips is a managerial employee who directly supervised Wilson and to conversations concerning the defense of Westbrook which took place between Murphy and Westbrook's counsel. Westbrook alleges that privacy rights attach to employee and/or employment information;⁵ the objections to providing such information were valid and, therefore, cannot be the basis for sanctions. Westbrook maintains the respondent judge exceeded his legitimate powers (1) by finding that no attorney-client privilege attaches to conversations between Westbrook's counsel and managerial and supervisory employees; (2) by finding that no attorney-client privilege attaches to conversations between Westbrook's counsel and non-managerial employees; (3) by finding that no privacy rights attach to employee and/or employment information which may contain information that an employee or former employee expects will remain private; and (4) by awarding sanctions and/or attorney fees to Wilson based upon these erroneous findings.

Wilson contends the information she sought in the interrogatories is absolutely relevant to proving her claim. She maintains the information must, therefore, be provided. She also maintains that no attorney-client privilege exists between Westbrook's counsel and Westbrook's employees. We limited our review of this case to the issues of attorney-client privilege and the confidentiality of tax information regarding other employees of Westbrook. We believe that no attorney-client privilege exists between the employees of Westbrook and Westbrook's attorneys because the test established in State v. Burton, 163 W.Va. 40, 254 S.E.2d 129 (1979), and more recently reiterated in State ex rel. United Hosp. v. Bedell, 199 W.Va. 316, 484 S.E.2d 199 (1997), is not met. Furthermore, information concerning other employees is private and must be obtained by protective order.

It is well established that "`"[a] writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W.Va.Code, 53-1-1." Syl. pt. 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977).' Syl. pt. 2, State ex rel. Kees v. Sanders, 192 W.Va. 602, 453 S.E.2d 436 (1994)." Syllabus Point 1, State ex rel. United Hosp. v. Bedell, 199 W.Va. 316, 484 S.E.2d 199 (1997). In other words, Westbrook's "right to the extraordinary remedy of prohibition must clearly appear before it is entitled to such remedy." Id.,199 W.Va. at 324,484 S.E.2d at 207. Clearly, "` "[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 Mutual Automobile Insurance Co. v. Stephens, 188 W.Va. 622, 425 S.E.2d 577 (1992).' Syllabus Point 3, State ex rel. McCormick v. Zakaib, 189 W.Va. 258, 430 S.E.2d 316 (1993)." Syllabus Point 2, State ex rel. USF & G v. Canady, 194 W.Va. 431, 460 S.E.2d 677 (1995).

"The scope of discovery in civil cases is broad; however, privileged material is not subject to discovery." State ex rel. Shroades v. Henry, 187 W.Va. 723, 725, 421 S.E.2d 264, 266 (1992). Moreover, "[t]he attorney-client privilege is a common law privilege that protects communications between a client and an attorney during consultations." State ex rel. John Doe v. Troisi, 194 W.Va. 28, 35-36, 459 S.E.2d 139, 146-47 (1995) (citations omitted). This means that "[c]ommunications made in confidence either by an attorney or a client to one another are protected by the privilege." Canady, 194 W.Va. at 441, 460 S.E.2d at 687 (footnote omitted). Stated another way, the attorney-client privilege "is intended to ensure that a client remains free from apprehension that consultations with a legal advisor will be disclosed." Id., 194 W.Va. at 438, 460 S.E.2d at 684. However, before the attorney-client privilege applies to limit discovery, one must meet three minimum requirements.

These requirements are set forth in Syllabus Point 6 of State ex rel. United Hosp. v. Bedell, 199 W.Va. 316, 484 S.E.2d 199 (1997):

"`In order to assert an attorney-client privilege, three main elements must be present: (1) both parties must contemplate that the attorney-client relationship does or will exist; (2) the advice must be sought by the client from that attorney in his capacity as a legal advisor; (3) the communication between the attorney and client must be [intended] to be confidential.' Syllabus Point 2, State v. Burton, 163 W.Va. 40, 254 S.E.2d 129 (1979)." Syl. pt. 7, State ex rel. USF & G v. Canady, 194 W.Va. 431, 460 S.E.2d 677 (1995).

In the case sub judice, Westbrook cannot demonstrate that these three requirements have been met. During her deposition, Murphy specifically admitted that Westbrook's attorneys were not her attorneys. During Phillips' deposition, Wilson's attorney asked Mr. Kent, Westbrook's attorney, if he represented Phillips. Mr. Kent specifically answered, "No, we don't represent him personally[.]" Furthermore, Westbrook did not attempt to develop a line of questioning to show that either deponent ever sought advice from Westbrook's attorneys in their capacity as legal advisors.

Rather, during Phillips' deposition, counsel instructed him not to answer questions regarding "[a]nything we have talked about... because I would instruct you not to answer that...