State ex rel. Wright v. Stucky

• Decision Date: 17 June 1999
• Docket Number: No. 25839.,25839.
• Citation: 205 W.Va. 171,517 S.E.2d 36
• Parties: STATE of West Virginia ex rel. David V. WRIGHT and Christopher David Wright, Petitioners, v. Honorable James C. STUCKY, Judge of the Circuit Court of Kanawha County, and Marcella Gherke, parent, next friend and legal guardian of George Adam Smoot, a minor, Respondents.
• Court: West Virginia Supreme Court

517 S.E.2d 36

205 W.Va. 171

STATE of West Virginia ex rel. David V. WRIGHT and Christopher David Wright, Petitioners, v. Honorable James C. STUCKY, Judge of the Circuit Court of Kanawha County, and Marcella Gherke, parent, next friend and legal guardian of George Adam Smoot, a minor, Respondents.

No. 25839.

Supreme Court of Appeals of West Virginia.

Submitted May 4, 1999.

Decided June 17, 1999.

Daniel W. Greear, Esq., Ellen R. Archibald, Esq., Kesner, Kesner & Bramble, Charleston, West Virginia, Attorney for Petitioners.

Debra C. Price, Esq., Charleston, West Virginia, Attorney for Respondent Marcella Gherke. STARCHER, Chief Justice:

In the instant case, we issue a writ of prohibition barring the enforcement of an order by the Circuit Court of Kanawha County. The order prohibited David and Christopher Wright from refusing to answer questions in a civil deposition based on their constitutional right not to give self-incriminating testimony.

I. Facts and Background

George Smoot, a minor (by his mother Marcella Gherke), filed a lawsuit against the petitioners David Wright and Christopher Wright, for injuries that George Smoot allegedly sustained in an assault. Criminal charges were also filed against the Wrights in connection with the alleged assault.

The Wrights agreed to respond to discovery requests in the Smoot/Gherke civil case, on the condition that the Wrights' criminal case was resolved by the time their discovery response in the civil case was due. When the criminal case was not resolved by the due date for the discovery responses, the circuit court (in the civil case) granted the Wrights a protective order, under Rule 26(c) of the West Virginia Rules of Civil Procedure, [1998]¹ excusing the Wrights from answering written discovery requests, based on the Wrights' assertion of their constitutional protection against compelled self-incrimination (we shall refer to this as their "self-incrimination right").

However, the circuit court denied the Wrights' request for a protective order with respect to their depositions. The circuit court concluded that W.Va.Code, 57-2-3 [1965]² would protect the Wrights' self-incrimination right in the depositions—and that therefore the Wrights could not refuse to answer questions posed to them in their civil depositions based upon their self-incrimination right. The circuit court also sealed and prohibited the distribution of the transcripts of the Wrights' depositions, and prohibited the dissemination of information obtained in those depositions.³ The Wrights filed a writ of prohibition with this Court, seeking to prevent the enforcement of that portion of the circuit court's order that bars the Wrights from refusing to answer deposition questions based on their self-incrimination right.

II. Standard of Review

This Court addressed the standard for determining the appropriateness of a writ of prohibition in Syllabus Point 1 of Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979):

In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance.

(Emphasis added.)

Additionally, we stated in Syllabus Points 2 and 3 of State ex rel. U.S. Fidelity and Guar. Co. v. Canady, 194 W.Va. 431, 460 S.E.2d 677 (1995):

2. "`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).

3. When 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.

Our review of legal issues in a writ of prohibition, of course, is de novo.

III. Discussion

The Fifth Amendment to the United States Constitution and Article III, Section 5 of the West Virginia Constitution prohibit the compelling of self-incriminating testimony in both criminal and civil proceedings— unless neither the testimony nor its fruits are available in a criminal proceeding. See Syllabus Point 1, State ex rel. Osburn v. Cole, 173 W.Va. 596, 319 S.E.2d 364 (1983). See also State v. Beard, 203 W.Va. 325, 507 S.E.2d 688 (1998)

; State ex rel. Palumbo v. Graley's Body Shop, Inc., 188 W.Va. 501, 425 S.E.2d 177 (1992).⁴

This constitutionally-based limitation on the use of compelled, self-incriminating testimony is commonly known as "use immunity." Beard, supra.

A related, statutorily-based limitation on the evidentiary use of certain self-incriminating statements is created by W.Va.Code, 57-2-3 [1965]. This statute, which was relied upon by the circuit court in the instant case, states:

In a criminal prosecution other than for perjury or false swearing, evidence shall not be given against the accused of any statement made by him as a witness upon a legal examination.

We have never held that the limitation on the use of certain statements that is created by W.Va.Code, 57-2-3 [1965] is as broad as or co-extensive with constitutionally-based "use immunity." The language of W.Va. Code, 57-2-3 [1965] addresses only the admissibility of a statement in court, and does not address a statement's possible "use" for other purposes related to a criminal investigation or prosecution.⁵

Similarly, while a circuit court under Rule 26(c) has the power to grant a protective order limiting the use of a civil deposition— as the circuit court did in the instant case—it does not appear that we have ever held that such an order confers broad criminal "use immunity" with respect to the contents of the statement. Nor have we held that such a protective order necessarily binds or limits the rights of parties who are strangers to the litigation—such as public criminal investigators and prosecutors.

Other courts addressing the issue have consistently held that a civil protective order sealing a deposition does not automatically bar the obtaining or use of the deposition in a criminal context. See, e.g., In re Grand Jury Subpoena, 836 F.2d 1468 (4th Cir.1988),

cert. denied,

487 U.S. 1240, 108 S.Ct. 2914, 101 L.Ed.2d 945 (1988), where the court held that the issuance of a Rule 26 protective order in a civil proceeding is not grounds to quash a grand jury subpoena for the deposition transcript.⁶

In a statement that is particularly pertinent to the instant case, the Fourth Circuit in In re Grand Jury Subpoena said:

In contrast with a grant of immunity, the government may not use a protective order to compel a witness to testify during a criminal or civil proceeding. Absent a grant of immunity, the deponents were entitled, with or without a protective order, to assert their fifth amendment privilege in answer to potentially incriminating questions in a civil proceeding.

836 F.2d at 1471 (emphasis added).

We conclude from the foregoing discussion that neither the statutory limitation created by W.Va.Code, 57-2-3 [1965], nor a protective order under Rule 26(c) of the West Virginia Rules of Civil Procedure, provide the "use immunity" protection that permits a court to require a person to answer questions in civil discovery, over a constitutional objection based on the Fifth Amendment to the United States Constitution and Article III, Section 5 of the West Virginia Constitution, where the answers to the questions may be self-incriminating.

In the instant case, the circuit court's order that is challenged by the petitioners was premised on the court's conclusion that the petitioners—by virtue of the court's Rule 26(c) protective order and the limitations imposed by W.Va.Code, 57-2-3 [1965]—would have an immunity with respect to their answers to deposition questions that was fully protective of their constitutional self-incrimination right.

Because we have held that this legal conclusion by the circuit court was erroneous, we must find that the circuit court erred in issuing its order based upon such a premise. We therefore grant the requested writ and prohibit the enforcement of the circuit court's order to the extent that the order requires the petitioners to make discovery responses—including the giving of answers to questions at depositions—over the petitioners' bona fide assertion of the constitutional right to remain silent about information that might tend to be self-incriminating.⁷

Writ Granted as Moulded.

1. Rule of Civil Procedure 26(c) [1998] states in pertinent part:

the court ... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense ...

2.W.Va.Code, 57-2-3 [1965] states:

In a criminal prosecution other than for perjury or false swearing, evidence shall not be given against the accused of any statement made by him as a witness upon a legal examination.

3. The circuit court's order, in pertinent part, read as follows:

The Court, after hearing arguments of counsel and after review of the record with respect to the Motion for Protective Order, does find that the deposition testimony sought by the Plaintiff is protected under West Virginia Code § 57-2-3, and does, accordingly DENY the Defendants' Motion for a Protective Order regarding the...