                          STATE OF WEST VIRGINIA
                        SUPREME COURT OF APPEALS

                                                                            FILED
State of West Virginia ex rel.                                      September 23, 2014
                                                                         released at 3:00 p.m.
City of Weirton,                                                       RORY L. PERRY II, CLERK
Petitioner                                                           SUPREME COURT OF APPEALS
                                                                          OF WEST VIRGINIA


v.) No. 14-0279 (Brooke County No. 11-C-50)

The Honorable David J. Sims,
Judge of the Circuit Court of Brooke County,
Respondent

                            MEMORANDUM DECISION

               Petitioner, the City of Weirton (AWeirton@), by counsel Thomas E. Buck,
invokes this Court’s original jurisdiction seeking a writ of prohibition to prevent the
Circuit Court of Brooke County from allowing respondent, Terry DiBacco, a former
police officer for Weirton, from taking the deposition of Dean Makricostas, a lawyer who
was not formally retained by Mr. DiBacco, but who nevertheless assisted Mr. DiBacco
following his placement on administrative leave by Weirton. Mr. DiBacco seeks to
depose Mr. Makricostas for the purpose of establishing that Weirton, through its lawyer,
Mr. Vince Gurrera, had required Mr. DiBacco to present only a general medical release,
as opposed to a mental health release, in order to be reinstated to his employment as a
police officer.

              This Court has considered the parties= briefs and the documents attached
thereto, the pertinent authorities, and oral argument. We find no new or significant
questions of law, and, upon application of the standards for issuing a writ of prohibition,
we find no grounds upon which to grant the requested writ. For these reasons, a
memorandum decision denying the writ of prohibition is appropriate under Rule 21 of the
Rules of Appellate Procedure.

             Mr. DiBacco had served as a Weirton police officer for more than fifteen
years when, in April 2009, Weirton placed him on administrative leave based upon his
mental health status.1 It appears that, following his placement on administrative leave,2
             1
             Weirton submits to this Court that the administrative leave was based upon the
recommendations of Mr. DiBacco=s mental health physicians.

                                            1
Mr. DiBacco enlisted the aid of his friend, Mr. Makricostas, to assist him in obtaining
reinstatement to his former position. Although Mr. Makricostas is a lawyer, documents
submitted to this Court by the parties indicate that Mr. Makricostas was never retained as
Mr. DiBacco=s lawyer.3 In fact, Mr. Makricostas later withdrew all assistance and
informed Mr. DiBacco that he would not be able to provide legal representation in this
matter.4 The nature of Mr. Makricostas= participation in Mr. DiBacco=s efforts to return
to work also was mentioned in an email authored by Mr. Gurrera, which stated, in part,
              I understand that Dean [Makricostas] is not technically
              representing Terry [DiBacco] but is trying to facilitate the
              meeting in order to establish and maintain a peaceful
              relationship between the parties and to give Terry [DiBacco]
              some guidance in how he is to proceed. I really appreciate
              Dean=s efforts. . . .

              While Mr. Makricostas was still attempting to assist in this matter, he was
apparently involved in at least one communication wherein Mr. Gurrera set out the
requirement for Mr. DiBacco=s reinstatement. Mr. DiBacco asserts that Mr. Gurrera
advised that only a medical release, as opposed to a mental health release, would be
required for his reinstatement.

               Sometime later, after the communication, Mr. DiBacco submitted to
Weirton a release from his family physician stating that he was under no physical
restrictions. His submission of this release did not result in his reinstatement to his
position as a Weirton police officer. Mr. DiBacco states that he was advised by Weirton
that he either had to apply for a disability pension or be terminated.5
              2
                Weirton states that Mr. DiBacco received full pay while he was on
administrative leave.
              3
                Mr. DiBacco did, however, refer to Mr. Makricostas as his lawyer when giving
deposition testimony.
              4
                Weirton had objected to Mr. Makricostas representing Mr. DiBacco because
Mr. Makricostas had represented other Weirton police officers and, according to Weirton, had
access to confidential privileged information. Mr. Makricostas therefore declined to provide
representation to Mr. DiBacco based upon the appearance of a conflict.
              5
              Weirton asserts that Mr. DiBacco applied for disability, and his claim was
granted by the Policeman=s Pension or Relief Fund of the City of Weirton on February 27,
2011.


                                             2
              Mr. DiBacco filed suit against Weirton and the Board of Trustees of the
Policeman=s Pension or Relief Fund of the City of Weirton claiming disability
discrimination under the West Virginia Human Rights Act.6 A primary issue in the case
is the type of medical release, physical or mental, that was required by Weirton for Mr.
DiBacco=s reinstatement. Mr. DiBacco asserts that he was never required by Weirton to
provide a mental health release. To support this assertion, Mr. DiBacco sought to take
the deposition of Mr. Makricostas.

              After Mr. DiBacco filed a subpoena to take the deposition of Mr.
Makricostas, Weirton filed a motion for a protective order and a motion to quash the
subpoena. By order dated March 6, 2014, the Circuit Court of Brooke County denied
the same. The circuit court expressly stated that it made Ano findings or conclusions as
to whether the alleged statements made by Mr. Gurrera are admissible under the Rule
[sic] of Evidence.@ The circuit court explained that, while compromise and offers of
compromise are generally not admissible under Rule 408 of the West Virginia Rules of
Evidence, Rule 408 does not address their discoverability or define them as privileged
communications. Thus, the circuit court reasoned, Awithout some context in which the
statements regarding a release were made, the Court is unable to rule on the admissibility
of the statements.@ Moreover, because of the Afactual dispute as to what type of release
[Weirton] was requiring the Plaintiff to produce,@ the circuit court found that Athere exists
the likelihood that admissible evidence will be generated by the deposition.@
Accordingly, the circuit court concluded that,
              . . . Mr. Makricostas= deposition may to [sic] be taken as part
              of discovery to determine the ultimate issue of whether any of
              the evidence is admissible under the Rules of Evidence.
                      10) The Court concludes that the Rules of Evidence do
              not preclude the taking of the deposition of Mr. Makricostas.
                      11) However, the Court may, upon completion of
              discovery, preclude the admission of the evidence should this
              matter proceed to trial.

Weirton then filed the instant petition seeking a writ of prohibition to prevent Mr.
DiBacco from deposing Mr. Makricostas.

              AProhibition lies only to restrain inferior courts from proceeding in causes

              6
                 While the Board of Trustees of the Policeman=s Pension or Relief Fund of the
City of Weirton is a co-defendant in the proceedings below, that entity was not named in the
instant petition for writ of prohibition and has not taken a position on the issue herein raised.


                                               3
over which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding
their legitimate powers and may not be used as a substitute for writ of error, appeal or
certiorari.@ Syl. pt. 1, Crawford v. Taylor, 138 W. Va. 207, 75 S.E.2d 370 (1953).
Weirton claims that the lower tribunal has exceeded its legitimate powers. Therefore,
                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, in part, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).

               Weirton characterizes this case as one in which a plaintiff seeks to take the
discovery deposition of his own former lawyer regarding the substance of unsuccessful
pre-suit settlement negotiations between the parties. Based upon this characterization,
Weirton argues that the deposition would violate West Virginia Rule of Evidence 408
and West Virginia Rule of Civil Procedure 26(b)(1); would have a chilling effect on
future settlement negotiations throughout the State of West Virginia; and would
undermine the public policy of West Virginia favoring settlement negotiations. Weirton
reasons that Rule 408 precludes the admission of A[e]vidence of conduct or statements
made in compromised negotiations.@ Thus, Weirton argues, because discovery must be
reasonably calculated to lead to the discovery of admissible evidence pursuant to Rule
26(b)(1), and because, under Weirton=s theory, the deposition of Mr. Makricostas would
be inadmissible as settlement negotiations pursuant to Rule 408, the deposition should be
prohibited.

             Respondent, Mr. DiBacco, presents a different characterization of the
underlying facts. He states that he sought the help of his friend, Mr. Makricostas, to
learn what would be required by Weirton for him to return to his employment. Mr.
Makricostas never officially represented Mr. DiBacco and ultimately advised Mr.
DiBacco that he would be unable to provide representation due to Weirton=s objection
based upon a conflict of interest. Mr. DiBacco argues that Weirton failed to present

                                             4
evidence that the statements about which he seeks to depose Mr. Makricostas were part
of any compromise, and there is no such evidence. Mr. DiBacco asserts that pre-claim
communications between employers and employees are routinely allowed into evidence
in employment cases.

                The circuit court resolved the issue herein raised, in part, by pointing out
that Rule 408 addresses the admissibility of compromise offers, not whether such offers
are discoverable. We find this conclusion was unnecessary insofar as Weirton has
merely asserted, without supporting evidence, that Mr. Makricostas engaged in settlement
negotiations on behalf of Mr. DiBacco. In this case, there simply was no evidence in
the record to indicate that Mr. Gurrera and Mr. Makricostas engaged in settlement
negotiations. 7 Nevertheless, as the circuit court correctly concluded, the fact that
evidence obtained from Mr. Makricostas= deposition may ultimately be inadmissible does
not prohibit its discovery. A[U]nder Rule 26(b)(1) of the West Virginia Rules of Civil
Procedure, discovery is not limited only to admissible evidence, but applies to
information reasonably calculated to lead to the discovery of admissible evidence.@ Syl.
pt. 4, in part, State Farm Mut. Auto. Ins. Co. v. Stephens, 188 W. Va. 622, 425 S.E.2d 577
(1992). The circuit court expressly found that the deposition of Mr. Makricostas was
likely to lead to admissible evidence given the factual dispute regarding the type of
release requested by Weirton; however, the circuit court deferred any decision regarding
admissibility until such time as additional evidence obtained during discovery revealed
the nature of the communications at issue. We find no error in the circuit court’s
reasoning.

               AA 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.@ Syl.
pt. 1, State Farm, 188 W. Va. 622, 425 S.E.2d 577. Because we find no clear legal error
resulting from a substantial abuse of discretion on the part of the circuit court, we deny
the requested writ of prohibition.

                                                                                Writ Denied.




              7
                While Weirton has set out persuasive arguments for prohibiting the taking of
depositions of lawyers regarding their participation in settlement negotiations, we need not
address those arguments in this case insofar as we find no evidence that the communications at
issue were settlement negotiations.


                                              5
ISSUED: September 23, 2014

CONCURRED IN BY:

Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




                                 6
