Petitioner, M. Andrew Brison, was a 13% owner of a law firm known as Francis, Nelson & Brison. Respondent, Nelson, was a 37% owner. All the partners in the firm guaranteed certain loans that the firm had obtained. In 2010, FNB was acquired by another firm, Allen, Kopet & Associates. AK&A agreed to pay FNB’s debt, but the agreement also contained a penalty provision if any of the FNB attorneys left the firm early.
Petitioner left the firm in July, 2013. AK&A asserted its right to the early departure penalty, but did not pursue it. Respondent left the same year and, again, AK&A did not pursue the penalty.
In October, 2016, Respondent sued AK&A for breach of contract. Respondent reached a settlement agreement with AK&A under which Respondent was assigned AK&A’s penalty claim against Petitioner, Brison. Petitioner served discovery, including a request for production of the settlement agreement and related papers. Respondent objected, citing the attorney/client and work product privileges. Petitioner moved to compel, but the trial court entered an order denying Petitioner’s motion. Petitioner now seeks relief via prohibition.
Did the trial court commit clear error by refusing to compel production of a settlement agreement and related papers in a breach-of-contract case involving former law partners?
The trial court’s order contained two rulings. First, the requested documents were protected from discovery by the attorney/client and work product privileges. Second, in any event, the documents were not relevant to any of the claims asserted by Petitioner against Respondent.
With respect to the privilege issues, the Supreme Court found that the trial court erred. Communications “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.” Even if the privilege otherwise applied, the voluntary disclosure of the communications to a third party operated as a waiver of the privilege--rendering the documents discoverable. The same analysis applies to the work product privilege. Any protection was waived because the documents were “exchanged between two adverse parties.”
Nevertheless, the documents were not subject to discovery because they were not, in fact, relevant. As the Supreme Court has noted before, relevancy is a “threshold issue regarding all discovery.” State Farm Mut. Automobile Ins. Co. v. Stephens, 188 W.Va. 622, 425 S.E.2d 577 (1992). Judges are given broad discretion in making relevancy determinations. Therefore, rulings on the issues of relevancy are reviewed under an abuse-of-discretion standard. Because Petitioner could not show that the trial court committed "clear error," he was not entitled to prohibition relief.
Obviously, a memorandum opinion carries little precedential value. The importance of this opinion to litigators lies in the fact that it confirms a simple truth--prohibition is not a substitute for appeal. Once the Supreme Court determined that the documents under review were not privileged, the case became nothing more than a dispute over the trial court’s relevancy rulings. That is not enough to trigger prohibition relief. Attorneys beware!