Wausau Business Insurance Company (hereinafter referred to as Wausau) invokes the original jurisdiction of this Court in order to obtain a writ of prohibition (See footnote 1) to prevent enforcement of that portion of a November 17, 2004, order of the Circuit Court of Marshall County that directs disclosure of materials Wausau alleges are protected by the attorney-client privilege and work-product doctrine. Wausau more specifically argues that the lower court erred as a matter of law by finding that Wausau waived any objection it had to the requested discovery by not raising its concerns either at the time it had filed a preliminary motion for a protective order as an attempt to restrict the scope of discovery or within the time prescribed by rule for response to discovery requests. Having completed our review of the written and oral arguments of the parties, we grant the requested relief.
you for your voice mail message of July 8, 2003, wherein you indicated that the
plaintiff is agreeable to an extension of the deadline for Wausau's responses
to the plaintiff's first set of discovery. Please allow this letter to confirm
our agreement to extend the date on which Wausau is required to respond to Plaintiffs'
First Set of Interrogatories and Request for Production of Documents to Wausau
Business Insurance Company, for an additional thirty days.
On July 18, 2003, Wausau filed a preliminary motion for a protective order under the provisions of West Virginia Rule of Civil Procedure 26(c), to question the relevancy of documents prepared after the underlying negligence claim had been filed. (See footnote 3)
Wausau secured additional agreement from the Clarks to extend the time to respond to the discovery requests while the protective order motion was pending. These agreements also took the form of confirmation letters generated by Wausau's counsel to the Clarks' counsel. One letter, dated August 4, 2003, provided for an extension until September 12, 2003; the second letter, dated September 10, 2003, addressed the extension as follows:
allow this letter to confirm your agreement to extend the date on which Wausau
is required to respond to Plaintiff's First Set of Interrogatories and
Request for Production of Documents to Wausau Business Insurance Company, until
two weeks after the Court's ruling on Defendant's motion for protective order
. . . . As we discussed, this extension will apply regardless of the Court's
By order dated October 1, 2003, Wausau's preliminary motion attempting to limit the scope of discovery through protective order was denied and Wausau was directed to respond to the discovery request within fourteen days from that date. Wausau responded on October 15, 2003, which response included objections to the requested discovery on the basis of attorney-client privilege and work-product doctrine. Although the unadulterated documents involving attorney-client privilege and work-product objections were withheld, Wausau redacted the materials and submitted a privilege log.
On January 22, 2004, the Clarks filed a motion
to compel discovery, claiming that Wausau had waived any additional objections
to the requested discovery beyond that related to the protective order motion
because the objections were not made within thirty days of service of the requests
as required by Rule 34 of the Rules of Civil Procedure. Wausau filed a response
to the motion on February 17, 2004, and on March 1, 2004, counsel for Wausau
forwarded unredacted copies of the documents listed on the privilege log for in
Oral argument regarding the Clarks' motion to compel was held on May 7, 2004, and the lower court granted the motion by order entered on November 17, 2004, which included the following conclusions:
parties disagree as to the terms and intent of their [discovery extension] agreement.
This is a situation not unlike others in litigation where parties have an agreement, don't reduce it to writing, or have it approved by the Court and later disagree as to the terms of the agreement.
When a situation arises and there is no correspondence or written memoranda to confirm the terms of the agreement, the Court must treat the case as if there were no agreement and apply the Rules strictly.
* * *
The Defendant's Motion for a Protective Order makes no mention of the fact that it reserves further argument on Plaintiffs' discovery requests. It singularly addresses the issue
of post-suit discovery. Consequently, the Court holds that the Defendant waived any objections to Plaintiffs' discovery requests other than post-suit conduct which the Court found must be produced . . . .
* * *
Having now addressed Defendant's argument and found it to be untenable, it is not necessary for the Court to examine the documents delivered to the Court for an in camera review.
It is from this order that Wausau seeks a writ of prohibition and for which this Court issued a rule to show cause order on January 13, 2005.
Syl. Pt. 3, State ex rel. U.S. Fidelity and Guar. Co. v. Canady, 194 W.Va. 431, 460 S.E.2d 677 (1995). In such instances, [a] writ of prohibition is available to correct a clear legal error resulting from a trial court's abuse of its discretion in regard to discovery orders. Syl. Pt. 1, State Farm v. Stephens, 188 W. Va. 622, 425 S.E.2d 577 (1992). And while
[a] circuit court's ruling on
discovery requests is reviewed for an abuse of discretion standard,  where
a circuit court's ruling turns on a misinterpretation of the West Virginia Rules
of Civil Procedure, our review is plenary. The discretion that is normally given
to a trial court's procedural decisions does not apply where the trial court
. . . applies the wrong legal standard.
Syl. Pt. 5, in part, State ex rel. Medical Assurance of West Virginia v. Recht, 213 W. Va. 457, 583 S.E.2d 80 (2003). Accordingly, our task in the case before us is to determine whether the lower court applied the wrong legal standard which would warrant this Court to issue the requested writ of prohibition.
A party served with a discovery request under Rule 34 ordinarily is required to respond within thirty days after service of the request. (See footnote 7) The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated. W.Va. R.Civ.P. 34 (b). The plain terms of the relevant discovery rules provide that a party served with a document request actually has four options:
(1) respond by agreeing to produce the requested
documents (W.Va. R.Civ.P. 34 (b));
(2) respond by objecting (W.Va. R. Civ.P. 34 (b));
(3) move for a protective order (W.Va. R.Civ. P. 26 (c) and 37 (d)); or
(4) do nothing and face imposition of sanctions (W.Va. R.Civ. P. 37 (d)).
In the instant case, Wausau, acting within the time allowed for response under Rule 34, first sought and obtained agreement from the Clarks' attorney to extend the response period. Thereafter Wausau filed its motion for a protective order, which sought a prefatory court determination about the parameters of discovery. Pending the outcome of the preliminary motion, Wausau sought and obtained further agreement from the Clarks about additional extension of the time in which to respond. It is true that the written extension agreements did not provide detail regarding the contents or nature of Wausau's response, but such would be largely unknown until after the preliminary court determination was made. Had the lower court granted Wausau the protective order it sought, there would be no need to raise objection to documents which were determined to be outside of the scope of discovery. While the language of Rule 34 contemplates that a singular response is made to a request for discovery, when a motion is made to ascertain or delineate the bounds of discovery, requiring such a unitary response would do little to promote the guiding purpose of the rules of civil procedure: to secure the just, speedy, and inexpensive determination of every action. W.Va. R.Civ.P. 1. Consequently, we hold that when a party, who has obtained an extension of time to answer discovery requests, files a motion for a protective order to limit the scope of discovery, the party need not raise all objections to discovery in the motion for a protective order. However, the trial court may, after giving due notice and an opportunity to respond, require submission of all potential objections incident to consideration of the motion for a protective order.
The Clarks contend
that the objections Wausau raised after the lower court refused to issue a protective
order came as a surprise since they did not intend the extension agreements to
include any alternative other than producing the requested materials. As previously
noted, there are four options available to a party responding to a discovery
request. All parties are put on notice of these options in the clear language
of the rules of civil procedure, and if a party desires to restrict those options
when agreeing to an extension in the response time, then the party should seek
to insert such limitation into the text of the agreement. In the case before
us, the Clarks' attorney could have made such clarification by return facsimile
transmission or other correspondence to Wausau. (See
footnote 8) If Wausau refused to agree with the requested limitation,
then the Clarks could have filed a motion pursuant to Rule 26 (f) requesting
the court to impose such a limitation.