Should the Supreme Court exercise jurisdiction via prohibition in a case involving discovery sanctions arising in the context of a deposition?
This writ of prohibition arises out of the deposition of a witness during a civil case. Petitioner alleges that Respondent’s attorney was engaging in “repetitious, unreasonably duplicative questioning.” Respondent counters that Petitioner’s attorney was making speaking objections and otherwise interfering with the progress of the deposition. Eventually, another attorney who appeared at the deposition on Respondent’s behalf interrupted, insisting that the judge be contacted to make rulings. Petitioner’s brief alleges that the attorney was “speaking out of turn and yelling and acting violently.” Petitioner also describes the attorney’s behavior as “irrational” and “belligerent.” Petitioner unilaterally terminated the deposition.
Thereafter, the parties filed cross motions with the trial court. Petitioner moved for a protective order terminating the witness’s deposition and restricting the conduct of Respondent’s attorney. Respondent, in turn, moved to compel, arguing that Petitioner had improperly terminated the deposition and impeded the progress of the deposition by asserting improper objections. Respondent also requested sanctions.
The trial court heard argument, aided by an audio recording from the court reporter and a cell phone video capturing part of the incident. It was the court’s belief that Respondent’s attorney advocated “aggressively” for his client, but was not acting inappropriately. Furthermore, the court found that Petitioner’s attorney “had no right to unilaterally cancel” the deposition and assessed sanctions of approximately $4,500. The court directed the parties to resume the deposition at a neutral site. Respondent states that the deposition was, in fact, completed without further incident.
Petitioner acknowledges that discovery orders are generally not reviewable on an interlocutory basis. However, review may be possible where there is “a purely legal issue, a clear cut error, inadequate alternative remedies and judicial economy issues.” State ex rel Ward v. Hill, 200 W.Va. 270, 275, 489 S.E.2d 24 (1997). According to Petitioner, “[t]he transcript, recording, and statements clearly demonstrate…violent, aggressive behavior” on the part of Respondent’s attorney. The trial court’s ruling not only deprives Petitioner of appropriate relief, but also “reward[s] outrageous behavior.”
Respondent alleges, first, that the issue is simply a discretionary discovery ruling that does not warrant review via an extraordinary writ. Furthermore, Respondent notes that the deposition in question was resumed and completed, rendering the entire issue moot. Regarding the merits, Respondent argues that, under Rule 30(b) of the Rules of Civil Procedure, Petitioner lacked the authority to terminate the deposition and should have immediately brought the issue before the trial court. By terminating the deposition, Petitioner delayed discovery in the case and forced Respondent to endure unnecessary time and expense.
It seems unlikely that the Supreme Court will wade into this discovery mess. Prohibition is not meant to provide an alternative to appeal. This is especially true where discovery disputes are concerned. Even the Hill exception does not provide a basis for exercising jurisdiction over this case. We are not dealing here with a “purely legal issue.” If anything, it is quintessentially a factual issue that was resolved by the trial court after reviewing the audio recording, video, and other proof. Thus, prohibition should not be an available remedy.