explaining that bad faith defenses to coverage constitutes civil fraud vitiating the attorney-client privilege
How later courts described this case
- explaining that bad faith defenses to coverage constitutes civil fraud vitiating the attorney-client privilege
- '"In clear language, Rule 26 of the West Virginia Rules of Civil Procedure provides that privileged matters, although relevant, are not discoverable. As a result of this rule, many documents that could very substantially aid a litigant in a lawsuit are neither discoverable nor admissible as evidence. In determining what privileges or protections are applicable, we are obligated to look both at the rules themselves and to our statutory and common law.’ Syllabus point 12, SER Medical Assurance of West Virginia, Inc. v. Recht, 213 W.Va. 457, 583 S.E.2d 80 (2003).”
- "In an action for bad faith against an insurer, the general procedure to be followed to depose attorneys employed by the insurer is as follows: (1) The party desiring to take the deposition(s
- “ ‘[T]o 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.’ ” (Citations omitted.)
Written by the judges who cited it.
The opinion
McGRAW, Justice,
dissenting.
I dissent from the majority because I believe the trial court fairly afforded Allstate the opportunity to prove that the requested documents and testimony are protected by the attorney-client privilege or the work-product doctrine and further, correctly determined that the repeated assertions by Allstate’s counsel that the privileges applied, without more, were not legally sufficient.
As the trial court concluded, Allstate failed (or, more accurately, refused) to demonstrate that the information the plaintiff requested with respect to Allstate’s position on the critical issue of “stacking” involved legal advice, was intended to be confidential, and thus, was meant to be privileged. See Syl. pt. 7, United States Fidelity & Guaranty Co. v. Canady, 194 W.Va. 431 , 460 S.E.2d 677 (1995). These elements, which are required to assert the attorney-client privilege, are both basic and well-established. They are not optional. Nevertheless, Allstate utterly failed to satisfy them.
Because, in my view, the trial court committed no error in this ease, I respectfully dissent.