                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS



STATE OF WEST VIRGINIA ex rel.

GABRIELLE M.

Petitioner                                                            FILED

                                                                  October 6, 2016
vs) No. 16-0167 (Marion County 15-F-32)                               released at 3:00 p.m.
                                                                    RORY L. PERRY, II CLERK

                                                                  SUPREME COURT OF APPEALS

THE HONORABLE DAVID R. JANES,                                          OF WEST VIRGINIA


JUDGE OF THE CIRCUIT COURT OF
THE SIXTEENTH JUDICIAL CIRCUIT,
AND STATE OF WEST VIRGINIA
Respondents


                               MEMORANDUM DECISION

              This is a writ of prohibition proceeding filed under the original jurisdiction of
this Court by Petitioner, Gabrielle M.1, through counsel, Frances C. Whiteman. The
Petitioner seeks to have this Court prohibit enforcement of a ruling by the Circuit Court of
Marion County that requires the Petitioner to turn over her psychological report to the court
and State for sentencing purposes. A response in opposition to the writ was filed by the
State, through counsel, Jenifer L. Pigott.

               This Court has considered the parties’ briefs, the appendix submitted, and the
parties’ oral arguments. Upon consideration of the standard of review, the Court denies the
writ of prohibition. In view of prior precedent on the dispositive issue presented in this case,
a memorandum decision is appropriate under Rule 21 of the Rules of Appellate Procedure.



               1
                 Because of the sensitive nature of the facts in this case, this Court uses the
initials of the affected parties. See, e.g., State v. Edward Charles L., 183 W. Va. 641, 645
n.1, 398 S.E.2d 123, 127 n.1 (1990) (“Consistent with our practice in cases involving
sensitive matters, we use the victim’s initials. Since, in this case, the victim . . . [is] related
to the appellant, we have referred to the appellant by his last name initial.” (citations
omitted)).


                                                1

               The limited record in this proceeding indicates that the Petitioner was charged,2
on or about June 17, 2015, with two counts of child neglect creating a risk of injury, and two
counts of child neglect causing injury.3 In September of 2015, the Petitioner pled guilty to
all the charges. Prior to the scheduled sentencing hearing, a psychological evaluation and
risk assessment was arranged for the Petitioner by defense counsel. To facilitate the
psychological assessment, the Petitioner wanted the psychologist to review the medical
records of her two children, which had been generated during a prior child abuse and neglect
proceeding. The Petitioner also wanted to have her attorney discuss with the psychologist
the specifics of her case and other confidential information that involved the victims. The
Petitioner filed a motion seeking court approval to provide the psychologist with this
information. A hearing on the motion was held. The State opposed the motion. The trial
court entered an order denying that part of the motion that sought to have the psychologist
review the medical records of the victims. However, the trial court granted that part of the
motion seeking to discuss with the psychologist the specifics of the Petitioner’s case and
other confidential information that involved the victims. Specifically, the order stated:

                        Upon due consideration, the Court . . . does
                        hereby ORDER that the Defendant’s counsel may
                        discuss the explanation of the charges which the
                        Defendant pled to, with Dr. Fremouw, in written
                        and oral form, and Counsel may provide Dr.
                        Fremouw the police report as well as the
                        Department of Health and Human Resources
                        reports which were provided to counsel in a
                        separate civil matter.

               The Petitioner underwent the psychological assessment. After the Petitioner
had the psychological assessment done, she refused to disclose the report to the trial court
and State. A hearing was held over the Petitioner’s refusal to disclose the psychological
report. At the end of the hearing, the trial court ordered the Petitioner to disclose the report
to the State and court. The Petitioner thereafter filed this proceeding to prevent enforcement
of the disclosure order.




              2
                It appears that the Petitioner was charged through an information after waiving
the right to be prosecuted by an indictment.
              3
                  The victims were the Petitioner’s two children.

                                               2

              Our guidelines for issuing a writ of prohibition have been set forth as follows:

                             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.

Syl. pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).

               In this proceeding the Petitioner contends that disclosure of her psychological
report would violate the attorney-client privilege and work product doctrine. Assuming,
without deciding, that the attorney-client privilege and work product doctrine would prevent
disclosure of the psychological report, we find that the doctrine of judicial estoppel prevents
the application of those doctrines. See generally In re Berks Behavioral Health LLC, 500
B.R. 711, 721 (Bankr. E.D. Pa. 2013) (relying on judicial estoppel to prevent litigant from
asserting attorney-client privilege); Schering Corp. v. Mylan Pharm., Inc., No. CIV.A.
09-6383 JLL, 2011 WL 3651343, at *8 (D.N.J. Aug. 18, 2011) (“Mylan’s appeal with respect
to work product immunity is . . . barred by the doctrine of judicial estoppel.”).



                                               3

              We begin by noting that this Court has authority to invoke the doctrine of
judicial estoppel sua sponte:

                              We have invoked judicial estoppel, sua
                      sponte, based on our consideration of three
                      factors. First, it is generally recognized that “a
                      court, even an appellate court, may raise [judicial]
                      estoppel on its own motion in an appropriate
                      case.” Matter of Cassidy, 892 F.2d 637, 641 (7th
                      Cir.1990). See also Franklin D. Cleckley, Robin
                      J. Davis & Louis J. Palmer, Litigation Handbook
                      on West Virginia Rules of Civil Procedure § 8(c)
                      (Supp.2012) (“[J]udicial estoppel is an equitable
                      doctrine invoked by a court at its discretion.”).
                      Second, where inconsistent conduct is taken that
                      “is barred by . . . judicial estoppel, there are no
                      triable issues of fact as a matter of law.” Whitacre
                      P’ship v. Biosignia, Inc., 358 N.C. 1, 39, 591
                      S.E.2d 870, 895 (2004). Third, the record
                      presented in this appeal is sufficient for this Court
                      to determine the application of the doctrine.

Larry V. Faircloth Realty, Inc. v. Public Serv. Comm’n of W. Virginia, 230 W. Va. 482, 740
S.E.2d 77, 82 (2013). Although judicial estoppel usually is applied in civil cases, it can be
applied in a criminal case. See Beem v. McKune, 317 F.3d 1175, 1185 (10th Cir. 2003)
(“Judicial estoppel should be universally available because its underlying purposes . . . are
the same in both civil and criminal litigation – to protect the integrity of the judicial process
and to prevent unfair and manipulative use of the court system by litigants.”) (internal
quotations and citation omitted); United States v. Hoey, 34 F. App’x 290, 291 (9th Cir. 2002)
(“Hoey’s otherwise judicially estopped contention is without merit.”); State v. Towery, 186
Ariz. 168, 182, 920 P.2d 290, 304 (1996) (“Judicial estoppel is no less applicable in a
criminal than in a civil trial.”); State v. Washington, 142 Wis. 2d 630, 635, 419 N.W.2d 275,
277 (Ct. App. 1987) (“Washington’s inconsistent position presents a classic case of judicial
estoppel.”).

                The doctrine of “[j]udicial estoppel is a common law principle which precludes
a party from asserting a position in a legal proceeding inconsistent with a position taken by
that party in the same or a prior litigation.” In re C.Z.B., 151 S.W.3d 627, 633 (Tex. Ct. App.
2004). Under the doctrine, a litigant is “generally prevent[ed] . . . from prevailing in one
phase of a case on an argument and then relying on a contradictory argument to prevail in

                                               4

another phase.” Pegram v. Herdrich, 530 U.S. 211, 227 n.8, 120 S. Ct. 2143, 2154, n.8, 147
L. Ed. 2d 164 (2000). Thus,

                      “[w]here a party assumes a certain position in a
                      legal proceeding, and succeeds in maintaining that
                      position, he may not thereafter, simply because
                      his interests have changed, assume a contrary
                      position, especially if it be to the prejudice of the
                      party who has acquiesced in the position formerly
                      taken by him.”

Hubbard v. State Farm Indem. Co., 213 W. Va. 542, 552 n.21, 584 S.E.2d 176, 186 n.21
(2003) (quoting New Hampshire v. Maine, 532 U.S. 742, 749, 121 S. Ct. 1808, 1814, 149
L. Ed. 2d 968 (2001)). See also Syl. pt. 2, West Virginia Dep’t of Transp., Div. of Highways
v. Robertson, 217 W. Va. 497, 618 S.E.2d 506 (2005). “Although judicial estoppel also
protects the opposing party from unfair strategy, the point of the doctrine is not the
connection between the parties, but the connection between one party and the court.” Swahn
Grp., Inc. v. Segal, 183 Cal. App. 4th 831, 847, 108 Cal. Rptr. 3d 651, 664 (2010).

                The facts of this case clearly show that the Petitioner obtained a favorable
ruling from the trial court to allow her to reveal confidential information to the psychologist,
with the understanding that the psychological report would be turned over to the court for
consideration at sentencing. Specifically, the Petitioner set out the following in her motion-
brief to the trial court:

                      The benefit to the Court of a psychological
                      evaluation and risk assessment is that the Court
                      will have an indication of the Defendant’s risk of
                      re-offending or criminogenic needs. Criminogenic
                      needs are the characteristics or circumstances
                      (such as antisocial attitudes, beliefs, thinking
                      patterns, and friends) that research has shown are
                      associated with criminal behavior, but which a
                      person can change (i.e., they are dynamic). The
                      psychological evaluation will be another tool for
                      the Court to use in determining whether or not the
                      Defendant may be a better candidate for probation
                      or for prison time. The evaluation will be much
                      better at helping the Court making a sentencing
                      determination because it will identify any

                                               5

                      circumstances and mental health issues affecting
                      the defendant’s behavior at the time of the subject
                      offenses.

               Based upon the above representations by the Petitioner that she would allow
the psychological report to be used by the court in sentencing her, the trial court denied the
State’s objections and permitted the Petitioner to disclose to the psychologist information
about the criminal case and DHHR reports from a separate civil proceeding. In the
Petitioner’s brief to this Court, she admits that defense “[c]ounsel did discuss the explanation
of the Defendant’s charges with Dr. Fremouw, and did provide Dr. Fremouw with the police
report and the DHHR reports.”

                 After obtaining a favorable ruling from the trial court allowing disclosure of
confidential information to the psychologist, in exchange for a specific promise to turn over
the psychological report for sentencing purposes, the Petitioner now asserts for the first time
that the psychological report is protected from disclosure by the attorney-client privilege and
the work product doctrine. We are gravely concerned by the Petitioner’s blatant attempt to
insult the integrity of the judicial process by pretending that her promise to the court did not
exist. It is precisely this type of shenanigan that judicial estoppel cuts off at the knees. “The
doctrine estops a party from playing ‘fast-and-loose’ with the courts or to trifle with the
proceedings.” Quinn v. Sharon Corp., 343 S.C. 411, 416, 540 S.E.2d 474, 477 (Ct. App.
2000) (citation omitted). Judicial estoppel “preserve[s] the integrity of the courts by
preventing a party from abusing the judicial process through cynical gamesmanship.”
Browning v. Levy, 283 F.3d 761, 776 (6th Cir. 2002) (internal quotations and citation
omitted). See also Reynolds v. C.I.R., 861 F.2d 469, 472 (6th Cir. 1988) (“The purpose of
the doctrine is to protect the courts from the perversion of judicial machinery.” (internal
quotations and citation omitted)). The Petitioner came to the trial court with a promise to
disclose the psychological report to the court, if the court allowed the Petitioner to reveal
certain information to the psychologist. In making this promise to the court, the Petitioner
implicitly waived any attorney-client privilege and work product protections the
psychological report may have had. However, now that the report has been generated, the
Petitioner has changed her mind about disclosure and is seeking the protection of those
privilege doctrines. We will not allow this. It is “patently wrong to allow a person to abuse
the judicial process by first [advocating] one position, and later, if it becomes beneficial, to
assert the opposite.” M. Perez Co. v. Base Camp Condominiums Ass’n No. One, 111 Cal.
App. 4th 456, 463, 3 Cal. Rptr. 3d 563, 569 (2003) (internal quotations and citation omitted).

               To be clear, if the Petitioner wished to preserve any claim to the attorney-client
privilege and work product doctrine, she should have stated expressly in her motion to the
court that she reserved the right not to turn over the report because of those doctrines. No

                                               6

such preservation of rights was asserted. Consequently, the Petitioner cannot change her
position on the disclosure of the psychological report simply because she may not like its
contents. See Jarrard v. CDI Telecommunications, Inc., 408 F.3d 905, 915 (7th Cir. 2005)
(“Judicial estoppel is intended to protect the courts from the litigatory shenanigans that would
result if parties could, without limitation or consequence, swap litigation positions like hats
in successive cases based on simple expediency or self-benefit. Judicial estoppel shields the
courts from being the instrument of such misconduct.”).

                                                                                  Writ denied.



ISSUED: October 6, 2016

CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Allen H. Loughry II

DISSENTING: Justice Brent D. Benjamin, dissenting and writing separately.


Benjamin, Justice, dissenting:

                The majority incorrectly relies on the doctrine of judicial estoppel to deny the
petitioner extraordinary relief, opting instead to uphold the directive below that she disclose
to the circuit court and to her adversary privileged information and proprietary work-product
that she fears will prove detrimental at sentencing. Absent any indication that defense
counsel here “intentionally misled the court to gain unfair advantage,” Zinkand v. Brown, 478
F.3d 634, 638 (4th Cir. 2007) (citation and internal quotation marks omitted), the doctrine
simply has no application. Indeed, “[t]his bad faith requirement is the ‘determinative
factor.’” Id. (quoting John S. Clark Co. v. Faggert & Frieden, P.C., 65 F.3d 26, 29 (4th Cir.
1995)).

              Zinkand was a civil rights action alleging that the defendant police officer used
excessive force against the plaintiff during a drug arrest. The trial court granted summary
judgment to the officer on the ground of judicial estoppel, determining that the plaintiff had
previously entered an Alford plea to a criminal charge of resisting arrest stemming from the
same incident. The Fourth Circuit reversed, noting that the trial court specifically declined

                                               7

to “suggest[] subjective bad faith on the part of Mr. Zinkand.” 438 F.3d at 638. The court
of appeals observed simply that “[w]ithout bad faith, there can be no judicial estoppel.” Id.
The bad-faith rule of Zinkand has been applied on multiple occasions by both federal district
courts in West Virginia.

               Without question, defense counsel hoped to persuade the circuit court to her
point of view by representing that the proposed psychological evaluation and risk assessment
would ultimately be of benefit at sentencing. The court, however, should have been savvy
enough “to discount the hyperbole of an advocate,” United States v. Vaccaro, 115 F.3d 1211,
1216 (5th Cir. 1997), and decline to hold counsel’s frustrated expectations against her client.
To suppose that the circuit court was somehow duped into granting the defendant’s motion
strains credulity. Had the court truly experienced an epiphany as the result of counsel’s
entreaties that the defendant’s psychological state would be the preeminent consideration at
sentencing, it should have ordered its own independent examination.

               Moreover, the motion’s grant was no boon to the defendant; she did not need
the circuit court’s permission to show her psychologist the police report or to discuss her
first-hand knowledge of the factual basis supporting the offenses with which she was
charged. The abuse-and-neglect casefile evidently contained some confidential information
directly pertaining to the children that may have been useful to the psychologist, but we have
not been apprised as to the nature of that information or how it ultimately benefited the
defendant. In short, one who would cast defense counsel’s advocacy as a fraud upon the
court should come to realize that: (1) the court could not have justifiably relied on counsel’s
impassioned representations; and (2) counsel received little in the way of material benefit for
her client.

               The criminal defense bar ought to be able to confidently develop expert
services and opinions on behalf of their clients for sentencing purposes without fear that the
information thereby derived, if proved harmful instead of useful, will fall into the hands of
the prosecution. The adversary process and its attendant safeguards, including time-honored
privileges and the work-product doctrine, does not cease to exist once a criminal defendant
has pleaded guilty or is found to be so. Unfortunately, the majority’s well-intentioned efforts
in this instance to improve the flow of relevant information to the circuit court will, in the
longer term, perversely and inevitably impede the truth-seeking function of sentencing
proceedings and render them less accurate by chilling the efforts of criminal defense lawyers
to effectively advocate for their clients.

              For all the foregoing reasons, I respectfully dissent from the majority opinion.



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