Mary McQuain, Esq.
Stuart Calwell, Esq.
Law Offices of Stuart Calwell, PLLC
Charleston, West Virginia
Attorneys for the Petitioner
Chanin Wolfingbarger Krivonyak, Esq.
James D. McQueen, Jr., Esq.
McQueen, Harmon & Murphy, L.C.
Charleston, West Virginia
Attorneys for the Respondent,
Rakesh Wahi, M.D.
Robert P. Fitzsimmons, Esq.
J. Michael Benninger, Esq.
The Honorable Paul Zakaib, Jr.
Judge of the Circuit Court of
Charleston, West Virginia
Richard D. Jones, Esq.
William S. Druckman, Esq.
James C. Peterson, Esq.
JUSTICE ALBRIGHT concurs and reserves the right to file a concurring opinion.
dissents and reserves the right to file a dissenting opinion.
1. 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
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).
2. W. Va. Code, 30-3C-3  . . . . grants a privilege to all the records
and proceedings of a review organization, but no privilege attaches to information,
documents or records considered by a review organization if the material is 'otherwise
available from original sources.' Syllabus point 3, in part, State ex rel. Shroades v. Henry,
187 W. Va. 723, 421 S.E.2d 264 (1992).
3. To effect a waiver of the privilege of confidentiality which attends
information and records properly the subject of health care peer review under West Virginia
Code §§ 30-3C-1 to -3 (1993), the Legislature has required that an individual must formally
indicate his intent to waive this confidentiality by executing a valid waiver. Syllabus point
3, Young v. Saldanha, 189 W. Va. 330, 431 S.E.2d 669 (1993).
4. Pursuant to the plain language of W. Va. Code § 30-3C-3 (1980) (Repl.
Vol. 1998), information, documents, and records ordinarily protected by the peer review
privilege lose their specter of confidentiality and may be accessed by third parties when (1)
said materials are otherwise available from original sources or (2) an individual [has]
execute[d] a valid waiver authorizing the release of the contents of his file pertaining to his
own acts or omissions.
5. Where the privilege encapsulating peer review materials has been lifted
because such information is available from an original source or the privilege has been
waived, such materials may still be rendered inaccessible if the tribunal in which such
information was introduced or reviewed has entered a protective order in accordance with
W. Va. Code § 30-3C-3 (1980) (Repl. Vol. 1998) to guard against their disclosure.
The petitioner herein, Richard Brooks [hereinafter referred to as Mr. Brooks], requests this Court to issue a writ of prohibition (See footnote 1) against the respondent herein, the Honorable Paul Zakaib, Jr., Judge of the Circuit Court of Kanawha County. Specifically, Mr. Brooks desires this Court to prevent the circuit court from enforcing its December 18, 2002, order whereby it sealed certain documents, from a related matter, that Mr. Brooks' counsel had obtained from the Circuit Court of Grant County pursuant to a Freedom of Information Act request. (See footnote 2) Upon a review of the parties' briefs, appendices, and arguments herein, we grant as moulded the requested writ. To the extent that the peer review documents contained in the Grant County jury trial record (1)(a) are available from an original source other than the peer review process or (b) are no longer protected by said privilege as a result of Dr. Wahi's waiver thereof and (2) have not been sealed by that tribunal, the petitioner may access such documents and make use thereof in his medical malpractice action against Dr. Wahi and CAMC. See generally W. Va. Code § 30-3C-3 (1980) (Repl. Vol. 1998). Whether or not such documents are exempt from the privilege or were sealed by the Grant County Circuit Court must be determined by the Circuit Court of Kanawha County.
Shortly after the incidents described above, Dr. Wahi left CAMC and moved to Grant County, West Virginia. At approximately the same time, CAMC undertook a peer review investigation of Dr. Wahi, due, in part, to the unfortunate outcome of Mr. Brooks' surgery and as a result of the unanticipated surgical outcomes of other patients treated by Dr. Wahi. (See footnote 3) After the conclusion of such peer review proceedings, an article was published in the Charleston Gazette newspaper which allegedly re-printed verbatim the contents of certain peer review documents in spite of the privilege that usually attaches to such records. (See footnote 4) In response to this article, Dr. Wahi filed a defamation action, in the Circuit Court of Grant County, against the Daily Gazette Company and CAMC claiming that the published information questioning his skill as a cardiothoracic surgeon jeopardized his ability to practice medicine in this State.
During the course of the Grant County proceedings, both Dr. Wahi and
(See footnote 5)
introduced into evidence the peer review documents alleged to have been divulged
in the newspaper article; these documents, as well as other peer review records, were also
admitted into evidence by the circuit court and published to the jury. Ultimately, the jury
concluded that Dr. Wahi had not proven the elements of his defamation claim and ruled in
favor of the remaining defendant, CAMC. Although the peer review documents placed in
evidence in support of the parties' respective positions were ostensibly protected by the
peer review privilege following the conclusion of the jury trial,
(See footnote 6)
there is no evidence before
this Court to indicate that any party made a written motion to seal the record of the trial
proceedings or that the Circuit Court of Grant County issued a written order placing such
record under seal. Although not apparent from the party's appendices in the instant
proceeding, Dr. Wahi and CAMC nevertheless maintain that the Circuit Court of Grant
County sealed the subject trial record by verbal order.
Thereafter, on October 8, 2002, Dr. Wahi and CAMC moved for dismissal
of Mr. Brooks' Kanawha County malpractice action due to failure to prosecute.
(See footnote 7)
defending this motion, Dr. Brooks' counsel filed a Freedom of Information Act [hereinafter
referred to as FOIA] request,
(See footnote 8)
on October 11, 2002, with the Circuit Clerk of Grant
County to obtain information from Dr. Wahi's defamation action. Specifically, attorneys
for Mr. Brooks requested
a. The Complaint filed in Civil Action No: 00-C-61,
Wahi v. CAMC filed in the Grant County Circuit Court;
b. The Answer or Answers filed by CAMC in this matter;
c. A transcript of the trial proceedings; [and]
d. The docket sheet for this Civil Action [00-C-61][.]
Counsel further asked that
[i]f access to these records [is] being denied pursuant to a Court Order, please provide a copy of that Order. Also please provide a copy of the Motion entered requesting the Court deny access to the record. If any other requested writings are withheld by your office, please provide a detailed description of the writings which the Court claims are exempt from disclosure and provide an itemized explanation specifying and indexing the exemption or exemptions of the West Virginia FOIA your office maintains are the basis for exempting each writing from disclosure with the description of the writings withheld.
In response to such request, the Grant County Circuit Clerk sent Mr. Brooks'
counsel all of the requested documents except for the jury trial transcript because no
transcript had yet been requested or prepared. Upon being apprised of this fact, counsel
then requested copies of the electronic recordings of the Grant County proceedings and the
exhibits therein, for which payment was tendered. During the fulfillment of this request,
Mary Comer, the certified court reporter who had recorded the Grant County proceedings,
discussed the release of such records with the Honorable Andrew N. Frye, Jr., Chief Judge
of the Circuit Court of Grant County, who had presided over said trial. In her affidavit, Ms.
Comer related that
[i]n a conversation with Judge Frye of Grant County on or about the last week of October or first week of November of 2002, [I] was advised that any documents which were a part of the court record were to be considered public records because there was never any order entered to seal the records or make the[m] confidential.
As a result, copies of both the jury trial exhibits and electronic recordings of the proceedings were forwarded to Mr. Brooks' counsel, who had said recordings transcribed by another certified court reporter.
On November 25, 2002, the Circuit Court of Kanawha County held a hearing
on CAMC's and Dr. Wahi's motions to dismiss Mr. Brooks' malpractice lawsuit for
inaction and failure to prosecute his case. Prior to said hearing, counsel for Mr. Brooks
filed the pleadings, exhibits, and trial transcript of the Grant County proceedings in the
Circuit Court of Kanawha County in support of his claims that Dr. Wahi had acted
negligently in his treatment of Mr. Brooks and that CAMC knew of Dr. Wahi's alleged
incompetence as a thoracic surgeon. By order entered December 18, 2002, the circuit court
denied the defendants' motion to dismiss finding that the plaintiff had engaged in sporadic
activity since this Court ruled on an earlier motion to dismiss three years ago, and further
finding that the harsh remedy defendants seek is not justified under the circumstances of
this case. However, during the course of said hearing,
counsel for defendant Wahi made an oral motion to the Court, joined by defendant CAMC, to seal the transcript of the November 25, 2002, hearing in this case, as well as the recent pleadings and exhibits filed by the plaintiff prior to the hearing, which pleadings and exhibits make reference to Dr. Wahi and the trial exhibits and trial testimony in . . . Wahi v. CAMC, Civil Action No. 00-C-61, in the Circuit Court of Grant County, West Virginia. After hearing argument of counsel on that issue, the Court, over the objection of plaintiff's counsel, GRANTED Dr. Wahi's request and ordered that the records and the pleadings filed by the plaintiff which make reference to Dr. Wahi and the civil action in Grant County be temporarily placed under seal. Accordingly, the records and pleadings filed by the plaintiff which make reference to Dr. Wahi in the civil action in Grant [C]ounty, as well as the transcript of the November 25, 2002, hearing in this matter, are hereby ORDERED SEALED UNTIL FURTHER ORDER OF THIS COURT AND UNTIL SUCH TIME AS THIS COURT HAS AN OPPORTUNITY TO HEAR ARGUMENT ON THE MERITS.
Prior to these subsequent proceedings contemplated by the circuit court, and
before the court had issued its December 18, 2002, order, Mr. Brooks petitioned this Court,
on December 16, 2002, for a writ of prohibition seeking to prevent the circuit court from
enforcing its November 25, 2002, verbal orders sealing the Grant County records and the
Kanawha County hearing transcript.
(See footnote 9)
Albeit premature at the time of its initial filing,
(See footnote 10)
nevertheless considered Mr. Brooks' petition and issued a rule to show cause to evaluate
the merits of his claim for relief.
W. Va. Code § 53-1-1 (1923) (Repl. Vol. 2000). Accord Syl. pt. 1, State ex rel. United
Hosp. Ctr., Inc. v. Bedell, 199 W. Va. 316, 484 S.E.2d 199 (1997). When, as in the case sub
judice, the relator seeking such relief avers not that the lower tribunal lacks jurisdiction but
that the presiding judge has exceeded the bounds of his/her authority, the writ of
'prohibition [is used] . . . to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance.' Syllabus point 1, [in part,] Hinkle v. Black, 164 W. Va. 112, 262 S.E.2d 744 (1979). Syllabus point 1, in part, State ex rel. DeFrances v. Bedell, 191 W. Va. 513, 446 S.E.2d 906 (1994) [(per curiam)].
Syl. pt. 1, in part, State ex rel. Charleston Mail Ass'n v. Ranson, 200 W. Va. 5, 488 S.E.2d 5 (1997).
[i]n 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 satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.
Syl. pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996). Having enunciated the standard of review applicable herein, we proceed to consider the merits of the parties' arguments.
We are called upon, in this proceeding, to determine whether Mr. Brooks is
entitled to use the peer review information, which is ordinarily protected by a privilege
attaching thereto, contained in the Grant County trial records in his Kanawha County
lawsuit against Dr. Wahi and CAMC. To ascertain whether this privilege exists to preclude
Mr. Brooks from accessing these materials, we must consider whether the peer review
privilege is applicable to the information in question; whether, despite the existence of the
privilege, any exceptions apply to permit Mr. Brooks to review such documents; whether
the respondents waived such privilege by introducing these materials into evidence and
publishing this information to the jury in the Grant County action; and whether the records
of such proceeding were sealed upon the conclusion of the Grant County litigation thereby
prohibiting their disclosure to and use by Mr. Brooks' in his medical malpractice action.
The peer review privilege, which attaches to the records of a peer review
organization, has its origins in W. Va. Code § 30-3C-1, et seq. W. Va. Code § 30-3C-3
(1980) (Repl. Vol. 1998), which establishes said privilege, directs that
[t]he proceedings and records of a review organization shall be confidential and privileged and shall not be subject to subpoena or discovery proceedings or be admitted as evidence in any civil action arising out of the matters which are subject to evaluation and review by such organization and no person who was in attendance at a meeting of such organization shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of such organization or as to any findings, recommendations, evaluations, opinions or other actions of such organization or any members thereof: Provided, That information, documents or records otherwise available from original sources are not to be construed as immune from discovery or use in any civil action merely because they were presented during proceedings of such organization, nor should any person who testifies before such organization or who is a member of such organization be prevented from testifying as to matters within his knowledge, but the witness shall not be asked about his testimony before such an organization or opinions formed by him as a result of said organization hearings: Provided, however, That an individual may execute a valid waiver authorizing the release of the contents of his file pertaining to his own acts or omissions, and such waiver shall remove the confidentiality and privilege of said contents otherwise provided by this section: Provided, further, That upon further review by any other review organization, upon judicial review of any finding or determination of a review organization or in any civil action filed by an individual whose activities have been reviewed, any testimony, documents, proceedings, records and other evidence adduced before any such review organization shall be available to such further review organization, the court and the individual whose activities have been reviewed. The court shall enter such protective orders as may be appropriate to provide for the confidentiality of the records provided the court by a review organization and all papers and records relating to the proceedings had before the reviewing court.
W. Va. Code, 30-3C-3  . . . . grants a privilege to all the records and proceedings of a review organization, but no privilege attaches to information, documents or records considered by a review organization if the material is otherwise available from original sources.
Syl. pt. 3, in part, State ex rel. Shroades v. Henry, 187 W. Va. 723, 421 S.E.2d 264 (1992).
In the case sub judice, it is undisputed that the documents at issue, which were
introduced into evidence in the Grant County proceeding, are records that were generated
during the course of CAMC's peer review of Dr. Wahi. See generally W. Va. Code § 30-
3C-1 (1975) (Repl. Vol. 1998) (defining [p]eer review). What remains to be ascertained,
however, is whether Mr. Brooks is entitled to review and utilize this information in his
lawsuit against Dr. Wahi and CAMC. Inherent in the plain language
(See footnote 12)
of the peer review
privilege itself are two mechanisms by which ordinarily privileged peer review documents
are nevertheless amenable to disclosure. First, the privilege permits a party to use in any
civil action, W. Va. Code § 30-3C-3, information, documents or records otherwise
available from original sources, id. To the extent that the subject documents sought by Mr.
Brooks may be obtained from sources extraneous to the peer review process, then, he is
entitled to review and use such information in the prosecution of his malpractice action.
See W. Va. Code § 30-3C-3; Syl. pt. 3, in part, State ex rel. Shroades v. Henry, 187 W. Va.
723, 421 S.E.2d 264. However, insofar as said materials are available solely from the peer
review process, such records are not available to Mr. Brooks. See W. Va. Code § 30-3C-3;
Syl. pt. 3, in part, Shroades, 187 W. Va. 723, 421 S.E.2d 264. In light of the limited record
evidence available to this Court in the instant original jurisdiction proceeding,
(See footnote 13)
the Circuit Court of Kanawha County to determine the availability of the controverted
information from sources other than the peer review process.
Second, the governing statute also permits the disclosure of otherwise
privileged materials if the privilege has been waived:
[A]n individual may execute a valid waiver authorizing the release of the contents of his file pertaining to his own acts or omissions, and such waiver shall remove the confidentiality and privilege of said contents otherwise provided by this section[.]
W. Va. Code § 30-3C-3. In this regard, we have held that
[t]o effect a waiver of the privilege of confidentiality
which attends information and records properly the subject of
health care peer review under West Virginia Code §§ 30-3C-1
to -3 (1993), the Legislature has required that an individual
must formally indicate his intent to waive this confidentiality
by executing a valid waiver.
Syl. pt. 3, Young v. Saldanha, 189 W. Va. 330, 431 S.E.2d 669 (1993). Cf. Terre Haute Reg'l Hosp., Inc. v. Basden, 524 N.E.2d 1306, 1312 (Ind. Ct. App. 1988) (observing that Indiana's statutory peer review privilege provides that waiver of the peer review privilege can be effectuated only by written waiver (citations omitted)). Without the ability to review the trial transcript in the Grant County proceedings, we cannot say with certainty that Dr. Wahi formally waived the peer review privilege as contemplated by our prior holding. See Syl. pt. 3, Young, 189 W. Va. 330, 431 S.E.2d 669.
Nevertheless, Dr. Wahi's actions in introducing these materials into evidence,
publishing them to the jury, and relying upon them to prosecute his defamation action
against CAMC indicate that he might well have effectuated an implied waiver of said
privilege. See Ara v. Erie Ins. Co., 182 W. Va. 266, 269, 387 S.E.2d 320, 323 (1989)
(Waiver may be established by express conduct or impliedly, through inconsistent
actions. (citations omitted)); Blue v. Hazel-Atlas Glass Co., 106 W. Va. 642, 650, 147 S.E.
22, 25 (1929) ([A] waiver may be express or it may be inferred from actions or conduct[.]
(citation omitted)). Ordinarily, in situations such as the one presently before the Court, the
recognition of an implied waiver is disfavored because of the accompanying infringement
upon the right to confidentiality which the privilege was designed to protect. See, e.g.,
Hoffman v. Wheeling Sav. & Loan Ass'n, 133 W. Va. 694, 713, 57 S.E.2d 725, 735 (1950)
(A waiver of legal rights will not be implied except upon clear and unmistakable proof of
an intention to waive such rights. (internal quotations and citation omitted)). See also
Franklin D. Cleckley, I Handbook on Evidence for West Virginia Lawyers § 5-1(B), at 5-4
(4th ed. 2000) (By creating privileges we acknowledge that other societal values_such as
privacy, the desire to encourage effective medical care . . ., or governmental
efficiency_sometime take precedence over the goal of ascertaining the truth in legal
proceedings.). Where, however, a party entitled to such a privilege avails himself of the
allegedly privileged information in such a way as to reveal its contents to third parties
without regard for maintaining the confidentiality thereof, it may be said that such party has
effectuated an implied waiver thereof. In effect,
[i]mplied waiver nullifies a privilege whenever disclosure of a privileged communication threatens to vitiate the continued confidentiality of the privileged material or would, if the privilege were recognized, be unfair to an opposing litigant.
Comment, Developments in the Law_Privileged Communications, 98 Harv. L.Rev. 1450, 1629-30 (1985). See also Cleckley, supra, § 5-4(C), at 5-76 (Most courts continue to state the rule of implied waiver in absolute form_any disclosure of a confidential communication outside a privileged relationship will waive the privilege as to all information related to the same subject matter.). But see 735 Ill. Comp. Stat. Ann. 5/8-2102 (1987) (West Main Vol. 1992) (indicating that, under Illinois peer review privilege statute, [t]he disclosure of any [peer review] information or data, whether proper, or improper, shall not waive or have any effect upon its confidentiality); Mulder v. Vankersen, 637 N.E.2d 1335, 1339-40 (Ind. Ct. App. 1994) (noting that, pursuant to Indiana peer review privilege statute, under which [t]he peer review privilege may only be waived by the execution of a waiver in writing, a breach of confidentiality does not cause the peer review privilege to be waived (citations omitted)).
The case presently before us presents a unique situation. On the one hand,
we previously have been reluctant to find anything other than a formal waiver sufficient
to overcome the protections of the peer review privilege. See Syl. pt. 3, Young v. Saldanha,
189 W. Va. 330, 431 S.E.2d 669. On the other hand, the facts of the case sub judice are
radically different than those with which we were faced in Young. In Young, wherein we
required a formal waiver of the peer review privilege, the physician and the hospital
involved therein repeatedly requested the presiding court to enter protective orders to
ensure the peer review documents at issue retained their confidentiality by remaining under
seal. See Young, 189 W. Va. at 332 & 336, 431 S.E.2d at 671 & 675. To this end, we
observed that five distinct orders were entered for the purpose of protecting information
from public disclosure. Additionally, . . . both parties to the litigation 'consistently
transmitted the pleadings to the circuit court with notations that the entire file was under
seal.' Id., 189 W. Va. at 335 n.9, 431 S.E.2d at 674 n.9. In short, we concluded that the
parties asserting the peer review privilege in Young did everything in their power to
preserve the confidentiality of the peer review records that were obtained. Id.
Furthermore, there is no indication that the parties in Young sought to introduce such
evidence during the underlying proceedings or to formally place such documents on the
By contrast, the parties in the instant proceeding have not been overtly diligent in seeking to maintain the confidentiality of the challenged documents. During the underlying jury trial, both Dr. Wahi and CAMC introduced these records as exhibits in support of their respective cases; the circuit court admitted them into evidence; and they were published to the jury. But see In re University of Texas Health Ctr. at Tyler, 44 Tex. Sup. Ct. J. 38, 41, 33 S.W.3d 822, 827 (2000) (per curiam) (recognizing that [a]n involuntary production of [peer review] documents d[oes] not constitute a waiver of the peer review privilege (citation omitted)); Riverside Hosp., Inc. v. Garza, 894 S.W.2d 850, 857 (Tex. App. 1995) (same). In addition to actively relying on these presumedly confidential materials, the parties actively placed them into the record of the court proceedings, which, to the extent that the information before us permits us to make such an evaluation, were not closed to the public. Furthermore, unlike the parties in the Young case who so diligently and thoroughly sought to preserve the sanctity of the privileged documents by repeatedly requesting and receiving protective orders to keep such records under seal, the parties in the instant proceeding took such few efforts to obtain a protective order that that issue, in itself, is disputed. Rather than having a record replete with written protective orders, and motions therefor, the indicia that a protective order was ever requested, much the less actually issued, in the Grant County proceedings remains sketchy at best and far from definitively certain. (See footnote 14) In the absence of such scrupulous and guarded treatment of the documents claimed to remain under the rubric of the peer review privilege, we are less concerned about enforcing the spirit of this statutory protection when the parties in whom said privilege has been reposed appear to have cast it aside without regard for the consequences of their inaction. Rather, it would seem the more prudent course to follow would be to afford the allegedly privileged documents the same degree of protection that the parties holding said privilege accorded them by failing to exercise the necessary guarded caution requisite to preserving the sanctity of the privileged materials and ensuring that their confidentiality remained intact. Accordingly we direct the Circuit Court of Kanawha County to also resolve the issue of whether Dr. Wahi voluntarily or impliedly waived the peer review privilege attached to the materials at issue herein as that tribunal has before it the record evidence necessary to make a definitive determination thereof. To the extent that Dr. Wahi did effectuate such a waiver, said materials are available to Mr. Brooks for use in his Kanawha County medical malpractice action.
In summary, as to that portion of the governing statute recognizing that materials subject to the peer review privilege may nevertheless become available to third parties, we hold that, pursuant to the plain language of W. Va. Code § 30-3C-3 (1980) (Repl. Vol. 1998), information, documents, and records ordinarily protected by the peer review privilege lose their specter of confidentiality and may be accessed by third parties when (1) said materials are otherwise available from original sources or (2) an individual [has] execute[d] a valid waiver authorizing the release of the contents of his file pertaining to his own acts or omissions. Consequently, we grant as moulded Mr. Brooks' petition for a writ of prohibition and direct the circuit court to ascertain whether the subject materials are available from an original source extraneous to the peer review process or whether Dr. Wahi waived the peer review privilege attached to the subject materials thereby rendering them available to Mr. Brooks.
Despite our examination of the manner in which the protections of the peer
review privilege may be obviated, there remains a final protective mechanism which, if it
is in place, would preempt any disclosures heretofore permitted under the foregoing
analysis. In the conclusory sentence of W. Va. Code § 30-3C-3, the Legislature mandates
[t]he court shall enter such protective orders as may be appropriate to provide for the confidentiality of the records provided the court by a review organization and all papers and records relating to the proceedings had before the reviewing court.
(Emphasis added). Given the plain nature of this language, (See footnote 15) we hold that where the privilege encapsulating peer review materials has been lifted because such information is available from an original source or the privilege has been waived, such materials may still be rendered inaccessible if the tribunal in which such information was introduced or reviewed has entered a protective order in accordance with W. Va. Code § 30-3C-3 (1980) (Repl. Vol. 1998) to guard against their disclosure.
Thus, the question remains whether such a protective order was, in fact,
entered by the Grant County Circuit Court. In the above-quoted statutory language, the
Legislature directs that the presiding court shall enter a protective order or orders.
W. Va. Code § 30-3C-3 (emphasis added). Ordinarily, the word shall has a mandatory,
directory connotation. See State v. Allen, 208 W. Va. 144, 153, 539 S.E.2d 87, 96 (1999)
(Generally, 'shall' commands a mandatory connotation and denotes that the described
behavior is directory, rather than discretionary. (citations omitted)); Syl. pt. 1, Nelson v.
West Virginia Pub. Employees Ins. Bd., 171 W. Va. 445, 300 S.E.2d 86 (1982) (It is well
established that the word 'shall,' in the absence of language in the statute showing a
contrary intent on the part of the Legislature, should be afforded a mandatory
connotation.). However, the statutory directive thereafter qualifies its directive to said
court by requiring the court to enter such protective orders as may be appropriate to
provide for the confidentiality of the controverted materials. W. Va. Code § 30-3C-3
(emphasis added). Given this permissive language, it is apparent that the Legislature
afforded the tribunal in which the peer review documents were subject to review some
modicum of discretion to determine to what extent a protective order is warranted and the
precise scope and effect thereof. Absent further guidance from the Legislature in this
regard, we will refer to our customary rules governing the sealing of court proceedings. See
Syl. pt. 4, Smith v. State Workmen's Comp. Comm'r, 159 W. Va. 108, 219 S.E.2d 361
(1975) ('That which is necessarily implied in a statute, or must be included in it in order
to make the terms actually used have effect, according to their nature and ordinary meaning,
is as much a part of it as if it had been declared in express terms.' Syllabus point 14., State
v. Harden, 62 W. Va. 313, 58 S.E. 715 (1907).). See also Syl. pt. 6, in part, State ex rel.
Cohen v. Manchin, 175 W. Va. 525, 336 S.E.2d 171 (1984) (Each word of a statute should
be given some effect and a statute must be construed in accordance with the import of its
language. Undefined words and terms used in a legislative enactment will be given their
common, ordinary and accepted meaning.); Syl. pt. 4, State v. General Daniel Morgan Post
No. 548, V.F.W., 144 W. Va. 137, 107 S.E.2d 353 (1959) (Generally the words of a statute
are to be given their ordinary and familiar significance and meaning, and regard is to be had
for their general and proper use.).
Typically, court records are considered to be public documents. Thus,
'[u]nless a statute provides for confidentiality, court records shall be open to public
inspection.' Syllabus Point 2, in part, Richardson v. Town of Kimball, 176 W. Va. 24, 340
S.E.2d 582 (1986). Syl. pt. 5, State ex rel. Garden State Newspapers, Inc. v. Hoke, 205
W. Va. 611, 520 S.E.2d 186 (1999). This general accessibility to records of court
proceedings is based upon the open courts provision of the West Virginia Constitution and
the interpretation thereof by this Court. See W. Va. Const. art. III, § 17 (The courts of this
State shall be open, and every person, for an injury done to him, in his person, property or
reputation, shall have remedy by due course of law; and justice shall be administered
without sale, denial or delay.); Syl. pt. 4, State ex rel. Garden State Newspapers, Inc. v.
Hoke, 205 W. Va. 611, 520 S.E.2d 186 (The open courts provision of Article III, Section
17 of the Constitution of West Virginia guarantees a qualified constitutional right on the
part of the public to attend civil court proceedings.). From these humble constitutional
origins, various statutes and procedural rules have further recognized the public's right to
access court documents and proceedings. See, e.g., W. Va. Code § 29B-1-2(3) (1977)
(Repl. Vol. 1998) (defining judicial department as [p]ublic body subject to the
disclosure requirements of the West Virginia Freedom of Information Act); W. Va. Tr. Ct.
R. 10.04 (permitting FOIA access to court files and records that constitute public
records). See also Syl. pt. 1, Daily Gazette Co., Inc. v. West Virginia Bd. of Med., 177
W. Va. 316, 352 S.E.2d 66 (1986) (recognizing, under W. Va. Code § 30-3-14(o) (1986) (Repl. Vol. 1986), openness of Board of Medicine proceedings where there is made a
preliminary determination that probable cause exists to substantiate charges of disciplinary
[t]he qualified public right of access to civil court proceedings guaranteed by Article III, Section 17 of the Constitution of West Virginia is not absolute and is subject to reasonable limitations imposed in the interest of the fair administration of justice or other compelling public policies.
Syl. pt. 6, in part, State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W. Va. 611, 520 S.E.2d 186.
In order to limit such public access by sealing court records in a particular
proceeding, a special request must be made by the party seeking such protection, and the
presiding tribunal must enter an order to that effect. Specifically, Rule 10.03(a) of the West
Virginia Trial Court Rules directs that,
[u]pon motion by either party named in any civil action, the court may limit access to court files. The order of limitation shall specify the nature of the limitation, the duration of the limitation, and the reason for the limitation. Upon motion filed with the complaint, accompanied by a supporting affidavit, limitation of access may be granted ex parte.
Cf. W. Va. R. Civ. P. 26(c) (describing procedure by which party may obtain protective order with regard to discovery matters). This requirement of a definite and specific order is based upon the longstanding principle recognizing that a court speaks only through its orders. State ex rel. Kaufman v. Zakaib, 207 W. Va. 662, 671, 535 S.E.2d 727, 736 (2000) (citations omitted). See also State v. White, 188 W. Va. 534, 536 n.2, 425 S.E.2d 210, 212 n.2 (1992) ([H]aving held that a court speaks through its orders, we are left to decide this case within the parameters of the circuit court's order. (citations omitted)). In other words, [c]ourts of record can speak only by their records, and what does not so appear does not exist in law. Syl. pt. 3, Hudgins v. Crowder & Freeman, Inc., 156 W. Va. 111, 191 S.E.2d 443 (1972). Accord Syl. pt. 4, State ex rel. Mynes v. Kessel, 152 W. Va. 37, 158 S.E.2d 896 (1968). See also Syl. pt. 5, in part, Parkway Fuel Serv., Inc. v. Pauley, 159 W. Va. 216, 220 S.E.2d 439 (1975) (A court of record speaks only through its records[.]).
In the case sub judice, the parties concede that there is no written order
whereby the Grant County Circuit Court sealed either the peer review trial exhibits or the
jury trial transcript in which such documents were introduced and otherwise referenced.
Mr. Brooks maintains that because there is no such written order, it may be presumed that
no such order was ever issued and thus, the records he obtained from Grant County were
properly the subject of his FOIA request. Responding to Mr. Brooks' argument, the
respondents represent that, despite the absence of a written directive sealing the record of
the Grant County proceedings, the circuit court nevertheless issued a verbal order to this
effect. Because this Court recently held in Moats v. Preston County Commission, 206
W. Va. 8, 521 S.E.2d 180 (1999), that a verbal order enunciating a court's ruling is as
effective as if said ruling had been memorialized in a written order, the respondents claim
that the documents which Mr. Brooks seeks to use in his medical malpractice action against
Dr. Wahi and CAMC are sealed, protected from disclosure, and unavailable to him.
We agree with the respondents' characterization of our recent holding in
Moats. Specifically, we held in that case that
[a]n oral order has the same force, effect, and validity in the law as a written order. In other words, the actual physical possession of a written order is not required to effectuate said order.
Syl. pt. 2, Moats v. Preston County Comm'n, 206 W. Va. 8, 521 S.E.2d 180. This ruling was based upon our similar holding that, [g]enerally, an order is effective when a court announces it. Syl. pt. 1, id. Inherent in these rulings are the added considerations that the parties affected by a verbally-rendered order also be aware of its existence and the terms thereof. See Moats, 206 W. Va. at 12-13, 521 S.E.2d at 184-85. However, we are not convinced that Moats definitively resolves the query herein as to whether the Grant County records were actually sealed. Despite the respondents' representations that the circuit court entered a verbal order sealing the record of the Grant County proceedings, Mr. Brooks has submitted an affidavit wherein the court reporter who recorded the jury trial indicated that the Grant County Circuit Court had not entered a protective order. In her affidavit, the court reporter averred
[i]n a conversation with Judge Frye of Grant County on or about the last week of October or first week of November of 2002, [I] was advised that any documents which were a part of the court record were to be considered public records because there was never any order entered to seal the records or make the[m] confidential.
Given the original jurisdiction posture of this case, however, we do not have a complete record before us, and, thus, we cannot review the transcript of the Grant County proceedings to determine whether Judge Frye did or did not issue a verbal ruling sealing such proceedings. In light of the parties' disparate representations as to the existence of such an order and our inability to resolve this quandary based upon the information at our disposal, we cannot conclusively find that the Grant County Circuit Court did, or did not, seal the record of the proceedings held in that court. Accordingly, we grant as moulded Mr. Brooks' requested writ of prohibition and direct the Circuit Court of Kanawha County to conduct further proceedings herein to ascertain whether the documents released to Mr. Brooks pursuant to his FOIA request were protected by a protective order or by an order sealing such records based upon its examination of the transcript of the Grant County proceedings. (See footnote 16) In making this determination, the circuit court should additionally consider the requirements for the entry of such a protective order set forth in W. Va. Code § 30-3C-3 and W. Va. Tr. Ct. R. 10.03.
Before concluding our decision of this case, we wish to comment upon a final
matter that causes us great concern. Although we applaud the zeal with which counsel has
represented petitioner Brooks in this matter and recognize the predicament they faced in
light of the circuit court's stated refusal to stay the underlying proceedings pending his
ruling upon the respondents' motion for a protective order, we do not wish to give the
impression that we condone counsel's actions in seeking relief from this Court without
affording the circuit court an opportunity to enter an order memorializing the rulings from
which their client now seeks relief. It would also have been preferable to have permitted
the circuit court to have conducted further proceedings regarding the respondents' motions
rather than prematurely requesting extraordinary relief from this Court, which has resulted
in lengthy and protracted litigation and has necessitated duplicitous efforts by this Court
and the Circuit Court of Kanawha County. In short, [j]udges are not like pigs, hunting for
truffles, State v. Honaker, 193 W. Va. 51, 56 n.4, 454 S.E.2d 96, 101 n.4 (1994) (internal
quotations and citations omitted), and neither are the members of this Honorable Court.
Thus, future litigants are encouraged to first exhaust remedies available to them in lower
tribunals, if any so exist, before initiating original jurisdiction proceedings herein.
Writ Granted as Moulded.