                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS

State of West Virginia ex rel.
M. Andrew Brison,
Petitioner
                                                                                       FILED
vs.) No. 19-0689 (Kanawha County 16-C-1590)                                          May 22, 2020
                                                                                      released at 3:00 p.m.
                                                                                  EDYTHE NASH GAISER, CLERK
The Honorable Carrie L. Webster, Judge of the                                     SUPREME COURT OF APPEALS
                                                                                       OF WEST VIRGINIA
Circuit Court of Kanawha County;
and David F. Nelson, Sr.,
Respondents



                               MEMORANDUM DECISION
        Petitioner, M. Andrew Brison, by counsel, Daniel R. Schuda, seeks to invoke the original
jurisdiction of this Court to prohibit the Circuit Court of Kanawha County from enforcing its order
denying his request for discovery of a settlement agreement reached between Respondent David
F. Nelson, Sr. and Brison and Nelson’s former law firm as well as related documents. In his
petition, Petitioner alleges that the circuit court committed clear legal error by finding that
communications between adverse parties to a settlement agreement, as well as the settlement
agreement itself, are protected from discovery by both the attorney-client privilege and the work
product doctrine. Respondent Nelson filed a response, by counsel, Paul M. Stroebel. Respondent
Judge Webster made no appearance.

         As more fully explained herein, we agree that the circuit court misapplied both the attorney-
client privilege and the work product doctrine. However, since the circuit court ruled that the
documents in question were not relevant, and the circuit court’s order correctly applied the rules
of civil procedure, Petitioner did not establish that the circuit court’s rulings were clearly erroneous
as a matter of law. Accordingly, this case satisfies the “limited circumstance” requirement of Rule
21(d) of the Rules of Appellate Procedure and is appropriate for memorandum decision.

        In May 2010, Allen, Kopet & Associates, PLLC 1 (“AK”) acquired the Charleston law firm
of Francis, Nelson & Brison, PLLC (“FNB”). All of the named partners of FNB, R. Ford Francis,
David N. Nelson, and M. Andrew Brison, were retained by AK in its Charleston Office. As a part
of the agreement, AK agreed to pay off – but not assume – a commercial note in the amount of
approximately $375,000.00, personally signed for by Francis, Nelson, and Brison. If Francis,
Nelson, or Brison were to leave AK early, they would be required to pay to AK a monetary penalty
that decreased over time.


       1
           At some point, Allen, Kopet & Associates was renamed to Allen & Newman, PLLC.
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        As it had agreed, AK began making payments on the commercial note. All was well until
Brison left AK in July 2013. Under the terms of his agreement with AK, the penalty due for his
departure was $50,000.00; however, Brison, never paid the penalty to AK. Thereafter, Nelson left
AK in November 2013. Similarly, the penalty due for his departure was $50,000.00, and Nelson
did not pay the penalty at that time.
       After Brison and Nelson left AK, AK stopped making payments on the commercial note,
leaving an outstanding balance of approximately $100,000.00. Because AK stopped making
payments, both interest and penalties began to accrue. The holder of the note, Fifth Third Bank,
contacted Nelson and informed him that AK had stopped making payments, and that Fifth Third
was going to call the note. Thereafter, Brison refused to pay any portion of the note; Nelson then
demanded that AK pay the note, but later decided to pay it in full to forestall litigation.
        After making that payment, Nelson brought suit against AK & Brison. The allegations
against AK were resolved in a confidential settlement agreement, as part of which, AK assigned
its rights to collect the penalty owed AK to Nelson. After securing the assignment, Nelson
amended his complaint, alleging three claims against Brison: 1) The breach of contract/penalty
payment assigned to Nelson by AK; 2) Unjust enrichment, in that Nelson paid Brison’s share of
the debt to Fifth Third Bank; and 3) Breach of fiduciary duty.
       In discovery, Brison sought many items, including the settlement agreement between
Nelson and AK as well as written communications between Nelson’s counsel and AK’s counsel
during those settlement negotiations. Nelson objected on attorney-client and work product
grounds. The circuit court reviewed the settlement agreement in camera and held that the
settlement agreement was shielded from discovery by the attorney-client privilege and work
product doctrine and further that the “document itself does not contain any discussion or
representation regarding any specific facts integral or relevant to the claims between Nelson &
Brison.”
       As for the request for other written documents or communications between Nelson and
AK, the circuit court did not review those documents but nonetheless concluded that the work
product doctrine applied to them, as well. The circuit court also concluded that these documents
were not relevant:
              The principal argument raised is that [Brison] may have a right to an offset
       [against] Nelson’s recovery from [AK] from any judgment obtained against Brison.
       This contention ignores the fact that Nelson has brought both breach of contract
       and Wage Payment and Collection Act claims against [AK], which were separate
       and distinct from his claims against Brison regarding the departure penalty and
       commercial loan.
It is from entry of this order that Brison appeals.
       We first address the circuit court’s application of the attorney-client privilege and the work
product doctrine. To establish attorney-client privilege we have held that:

       [T]hree 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

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       client from the 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, in part, State v. Burton, 163 W.Va. 40, 254 S.E.2d 129 (1979). For work product
to attach under West Virginia Rule of Civil Procedure 26(a)(3), “documents and tangible things .
. . prepared in anticipation of litigation” are only discoverable upon a showing of “substantial need
of the materials . . . and that the party is unable without undue hardship to obtain the substantial
equivalent of the materials by other means.” W.V.R.C.P., Rule 26(a)(3). We have adopted a test

                To determine whether a document was prepared in anticipation of litigation
       and, is therefore, protected from disclosure under the work product doctrine, the
       primary motivating purpose behind the creation of the document must have been to
       assist in pending or probable future litigation.

Syllabus Point 7, State ex rel. United Hosp. Center, Inc. v. Bedell, 199 W.Va. 316, 484 S.E.2d 199
(1997). We would note that the circuit court correctly performed an in camera review of the
settlement agreement to determine if the attorney-client privilege or work product doctrine applied
to it. See Syllabus Point 2, State ex rel. Nationwide Mut. Ins. Co. v. Kaufman, 222 W. Va. 37, 658
S.E.2d 728 (2008).

        Notwithstanding that the circuit court followed the correct procedure in this matter, its
conclusion that the attorney-client privilege and work product doctrine prevented discovery of
documents that are exchanged between adverse parties to a lawsuit was clearly erroneous. An
email from one lawyer to another, adverse, lawyer about a settlement agreement is not protected
by the attorney-client privilege because there is no attorney-client relationship between them; no
legal advice is contained in documents exchanged outside the attorney-client relationship; and the
disclosure of documents or other information to adverse third parties destroys any privilege that
might attach. Even if we assume the documents were attorney-client communications, “[t]he
attorney-client privilege may be waived if disclosure of privileged communications is made to
third parties.” Syllabus Point 12, Marano v. Holland, 179 W.Va. 156, 366 S.E.2d 117 (1988).

        A similar result applies to the work product doctrine: even if a document was prepared by
an attorney actively engaged in a lawsuit, the very moment that document was provided to adverse
third parties, any protections afforded by that doctrine were waived. Simply put, there is no
protection from disclosure of documents by the work product doctrine, when those documents are
exchanged between two adverse parties. See State ex rel. McCormick v. Zakaib, 189 W. Va. 258,
261 n. 7, 430 S.E.2d 316, 319 n. 7 (1993). Thus, the circuit court was incorrect to conclude that
the documents in question were protected from disclosure by either the attorney-client privilege or
the work product doctrine.

        However, our analysis does not end there. The circuit court specifically found, after in
camera review, that the documents were irrelevant to this matter. Under the West Virginia Rules
of Civil Procedure:

              Parties may obtain discovery regarding any matter, not privileged, which is
       relevant to the subject matter involved in the pending action, whether it relates to

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       the claim or defense of the party seeking discovery or to the claim or defense of
       any other party, including the existence, description, nature, custody, condition and
       location of any books, documents or other tangible things and the identity and
       location of persons having knowledge of any discoverable matter. It is not ground
       for objection that the information sought will be inadmissible at the trial if the
       information sought appears reasonably calculated to lead to the discovery of
       admissible evidence.

W.Va. R. Civ. P. 26(b)(1).

              A threshold issue regarding all discovery requests is relevancy. This is so
       because “[t]he question of the relevancy of the information sought through
       discovery essentially involves a determination of how substantively the information
       requested bears on the issues to be tried.” Syl[labus] P[oin]t 4, in part, State Farm
       Mut. Auto. Ins. Co. v. Stephens, 188 W.Va. 622, 425 S.E.2d 577 (1992).

State ex rel. Erie Ins. Prop. & Cas. Co. v. Mazzone, 218 W. Va. 593, 596, 625 S.E.2d 355, 358
(2005). Because the circuit court’s finding is in the context of a discovery dispute, rather than an
admissibility issue, the relevancy determinations made by the circuit court were necessarily that
the documents sought by Nelson were not “relevant to the subject matter involved in the pending
action.” W.V.R.C.P., Rule 26(b)(1). In that light,

              A circuit court’s ruling on discovery requests is reviewed [under] an abuse
       of discretion standard; but, where a circuit court’s ruling turns on a
       misinterpretation of the West Virginia Rules of Civil Procedure, our review is
       plenary. The discretion that is normally given to a trial court’s procedural decisions
       does not apply where the trial court makes no findings or applies the wrong legal
       standard.

Syllabus Point 5, State ex rel. Medical Assurance of West Virginia v. Recht, 215 W. Va. 457, 583
S.E.2d 80 (2003). We have also clearly held that before this Court will grant extraordinary relief,
there are five elements that we must examine to determine whether prohibition is proper:

               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



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       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). In this case,
we believe it clear that Petitioner’s failure to establish the third prong of Hoover – whether the
circuit court’s order is clearly erroneous as a matter of law – is dispositive. Here, in making its
determinations, the circuit court laid out its findings in a written order which clearly stated that the
documents in question were not relevant. From that order, we do not conclude that the circuit
court incorrectly applied the rules of civil procedure. Thus, the circuit court was not clearly
erroneous as a matter of law.

       Accordingly, Petitioner did not establish a clear legal right to the relief requested, and the
extraordinary remedy of a writ of prohibition is denied.


                                                                                          Writ denied.

ISSUED: May 22, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




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