Workman, Justice, dissenting:
I do not necessarily disagree with the majority's recitation
of the law applicable to this case. The difficulty with the
majority's approach, however, is that it crams a square peg into
a round hole. The facts and circumstances of this case simply do
not justify the harsh and ultimate sanction of dismissal with
prejudice. In short, I would hold that the circuit court abused
its discretion in this instance and that the Relator has
adequately demonstrated the standard required for granting a writ
of prohibition. Accordingly, I respectfully dissent.
The majority sets forth several factors to be weighed in determining whether a circuit court's exercise of discretion is appropriate in a given case. It is helpful, then, to consider those factors in conjunction with the record in this case. First, we are instructed to look at "the importance and materiality of the information that was not disclosed." State ex rel. Rusen v. Hill, No. 22441, slip op. at 14 (W. Va. Dec. 21, 1994). It must be emphasized that nowhere in the record did the Respondent ever give any good indication of how the requested information was even relevant, much less important and material. Aside from a conclusory statement at the March 11 hearing that
the documents were "essential," there does not appear to be any
suitable basis in the record for concluding that the documents
are either important or material.
Second, we must consider "the ability of the party to try
the case without the information or the nature of the prejudice
claimed by the failure to comply with the discovery order." Id.
Again, the Respondent's ability to try the case without the
requested information is left up for speculation. The record is
devoid of any hint as to how the missing documents would assist
the Respondent either in proving (1) her innocence or (2) an
affirmative defense. Further, it appears that some of the
documents requested by the Respondent after the Relator's March
21 discovery response may have been duplicative of materials the
Respondent had already received. See Relator's Pet. at 12.
As for any prejudice suffered from the Relator's failure to
comply with the circuit court's discovery order, the Respondent
has answered the question for us. The following exchange
occurred at a June 3, 1994, hearing on the Relator's motion to
reconsider the dismissal order:
JUDGE HILL: Tell me how the defendant has been prejudiced by the delay, other than psychologically?
MR. COSENZA: Well, other than psychologically, Your Honor, probably not.
Relator's Exhib. 5 at 7 (emphasis added). (See footnote 1)
Next, the Court looks to "the extent to which a continuance
or other lesser relief would delay the trial or otherwise impact
adversely the administration of justice." Slip op. at 14. The
majority sets forth an impressive number of less serious
alternatives to a dismissal with prejudice. Further, the
majority notes repeatedly that of all the tools at the disposal
of the circuit court, the dismissal sanction is to be used most
sparingly and only in the most egregious of cases. The majority
also notes that "[o]ur cases and the West Virginia Rules of
Evidence have declared an implicit preference for a continuance
when there has been a discovery violation." Id. at 15.
It is important to remember that at the time the dismissal
occurred, no new trial date had been set. Relator's Ex. 4 at 5.
Further, the circuit court clearly thought that a continuance
might still be appropriate, even when it was reconsidering this
matter after its dismissal order. At the hearing on the
Relator's motion to reconsider on June 3, 1994, the court suggested that it might still be willing to change its dismissal
ruling if all of the requested material had been provided by the
date of the hearing. Relator's Ex. 5 at 9. When one coalesces
(1) the supposed use of dismissal as a weapon of last resort, (2)
the "preference for a continuance," and (3) the record as a
whole, a rescheduling of the trial was clearly warranted.
Even if a sanction was necessary, however, the
administration of justice in this case would have been better
served if the circuit court employed a less severe sanction, such
as prohibiting the Relator from using the requested material at
trial. At least then this matter would have been decided on the
merits rather than on a mere procedural technicality.
(See footnote 2)
Fourth, we examine "the degree of negligence involved and
the explanation of the party's failure to comply with a discovery
request." Slip op. at 14. There is ample evidence in the record to support the conclusion that the Relator was doing her best
under the circumstances. Utilizing the majority's chronology,
the first discovery request under the second indictment was made
on October 7, 1993. The Relator responded over one week prior to
trial. When informed on November 23 by the Respondent that more
information was needed, the Relator undertook to gather the
information, and admittedly took some time to do so. Part of the
problem arose from Burger King's misunderstanding of the request.
When ordered at the March 11 hearing to produce the requested
documentation within ten days, the Relator did just that. She
did not learn that her document production was deficient,
however, until over one month later on April 27 when the
Respondent renewed her motion to dismiss.
(See footnote 3) The bottom line is
that while her efforts were not a model of efficiency, the
Relator was acting in good faith and substantially complied with
the court's discovery order.
The delay in the instant case was the result of honest
confusion and clerical errors occasioned by a voluminous amount
of information that spans over several months and consists of
hundreds and perhaps thousands of pages. The Relator could
likely have objected to the request but, in an effort to speed things along, simply tried her best to comply. The totality of
these circumstances should clearly have impacted on the circuit
Next, we must consider "the effort made by the party to
comply with the discovery order." Id. The preceding discussion
largely applies here as well. We are dealing not with an
outright refusal to comply, but rather good faith, substantial
(See footnote 4)
Sixth, we look to "the number of times the circuit court
ordered the party to comply with the discovery order." Id.
After examining the record and the majority's chronology, it
appears that there were no more than perhaps two such orders.
While this Court does not take wilful disobedience of circuit
court orders lightly, that is not what happened here. Again, it
must be remembered that the Relator substantially complied in
good faith with the result mandated by the circuit court.
Nevertheless, the court meted out the ultimate sanction.
Finally, we examine "the severity of the offense." Id. The
Respondent was charged with no less than twelve counts of
embezzlement. While not perhaps as serious as a violent crime, employee theft is a costly, pervasive and immensely serious
problem that continues to grow. See Wendy Zellner, Sticky
Fingers Are Rifling Through Retail, Business Week, Mar. 28, 1994,
at 36 (stating that "[c]ustomer and employee theft are
`increasing fairly dramatically' across the [retail] industry
. . . "). Such offenses cannot be ignored. Indeed, they must be vigorously deterred.
An examination of the applicable factors clearly
illustrates that the circuit court exceeded its discretion and
that its flagrant actions deprived the Relator and the citizens
of this State
(See footnote 5) of their right to prosecute the Respondent. While
I largely agree with majority's recitation of the law, the facts
do not warrant dismissal. I would grant the writ.