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 case, I respectfully dissent.