648 S.E.2d 31
JUSTICE ALBRIGHT delivered the Opinion of the Court.
JUSTICE STARCHER and JUSTICE BENJAMIN concur and reserve the right to file
concurring opinions.
4. When individual case reserves information is set by an attorney or by a non-
lawyer representative with the primary intent of preparing for litigation, then the individual
case reserves information is subject to protection from discovery as opinion work product
pursuant to Rule 26(b)(3) of the West Virginia Rules of Civil Procedure.
5. For the purposes of Rule 26(b)(3) of the West Virginia Rules of Civil
Procedure, aggregate reserves documents compiled for specific litigation either by a lawyer
or by a non-lawyer representative are opinion work product and merit greater protection from
discovery. However, aggregate reserves documents not developed primarily in anticipation
of specific litigation but produced for general business purposes are not protected by the
work product rule.
6. Reserves documents determined to be opinion work product are generally
protected from disclosure under the provisions of Rule 26(b)(3) of the West Virginia Rules
of Civil Procedure unless the party seeking discovery demonstrates compelling need for the
materials, which shall include proof that the opinion materials qualify for a recognized
exclusion from application of the work product doctrine.
7. “When a trial court presiding over a third-party bad faith action makes its
determination of whether a document was prepared in anticipation of litigation, the trial court
should consider the nature of the requested documents, the reason the documents were
prepared, the relationship between the preparer of the document and the party seeking its
protection form discovery, the relationship between the litigating parties, and any other facts
relevant to the issue.” Syl. Pt. 12, in part, State ex rel. Allstate Ins. v. Gaughan, 203 W.Va.
358, 508 S.E.2d 75 (1998).
Albright, Justice:
For a second time in the underlying third-party bad faith action, Erie Insurance
Property & Casualty Company (hereinafter referred to as “Erie”) invokes the original
jurisdiction of this Court (See footnote 1) in order to obtain a writ of prohibition to bar the enforcement of
a discovery order of the Ohio County Circuit Court requiring disclosure of relevant reserves
information to the plaintiff below, Elizabeth Murfitt. This Court had granted Erie's earlier
request to prohibit the enforcement of a March 30, 2005, order regarding the reserves
information. State ex rel. Erie Ins. Prop. & Cas. Co. v. Mazzone, 218 W.Va. 593, 625 S.E.2d
355 (2005) (hereinafter referred to as “Erie I”). While Erie had asserted in Erie I that the
reserves information was protected from disclosure as opinion work product, we did not
reach the work product argument and instead granted the writ based on the more fundamental
problem that the threshold inquiry regarding relevancy had not been completed by the lower
court. See id. at Syl. Pt. 4. Erie renews its opinion work product argument in the request
now before this Court to prohibit the enforcement of the lower court's June 29, 2006, order,
which again requires disclosure of the reserves information. For the reasons explained
below, the relief in prohibition is denied.
Following our decision in Erie I, the lower court held a hearing on May 12,
2006, to address Ms. Murfitt's Renewed Motion to Compel Production of Reserve
Information. After hearing oral argument, the trial court, adhering to the direction provided
in Erie I, determined that the reserves information is relevant to Ms. Murfitt's claim that Erie
intentionally undervalued her claim in its settlement offers. (See footnote 3) Thereafter, the lower court
reaffirmed its previous determination that the reserves information was not excluded from
discovery under the principles of the work product doctrine. As indicated in the
Memorandum Opinion and Order dated June 29, 2006, the lower court found the doctrine
inapplicable because only the raw data regarding the reserves amounts and the dates those
amounts were calculated were being ordered disclosed rather than the reasoning and thought
process behind the reserves numbers. Additionally, the lower court in its June 29, 2006,
order found that “anticipation of litigation is not the primary motivating purpose for
establishing insurance reserves. . . .” The court below alternatively found that disclosure was
appropriate even if the reserves information was work product because Ms. Murfitt had
established the requisite level of need.
On August 14, 2006, Erie petitioned this Court for a writ of prohibition to bar
enforcement of the June 29, 2006, order. The petition asserts that by again issuing the
discovery order the lower court exceeded its legitimate powers and abused its discretion
because the material ordered to be produced is opinion work product, which Erie contends
should be treated as privileged material that Erie maintains should rarely, if ever, be subject
to disclosure. After finding a prima facie case had been established, on October 26, 2006,
this Court issued a rule against the circuit judge and Ms. Murfitt as respondents to show
cause why the writ prayed for should not be awarded. W.Va. Code § 53-1-5 (1933) (Repl.
Vol. 2000).
The Court FINDS and CONCLUDES that the raw data
indicating the reserve amounts and the dates said reserve
amounts were placed on the claim are not privileged. However,
the reasoning and the thought process behind the reserve
numbers are privileged as work product . . . .
The facts of this case indicate that anticipation of
litigation is not the primary motivating purpose for establishing
insurance reserves, as insurance companies are required by law
to establish reserves. Every claim presumably has some reserve
amount attached to it, regardless of whether the claim ends in
litigation or is resolved through other means. During her
deposition on February 16, 2006, claims supervisor Sandra
Barker testified that a reserve is “an amount of money or a dollar
amount that's set aside for payment of an injury claim or any
type of claim of [sic] any payment upon any claim.” Mrs.
Barker's description of reserves supports the Court's conclusion
that the potential for litigation is not the primary motivating
purpose for setting reserves, as they are set aside for “any type
of claim” and for “any payment upon any claim,” not limited to
those claims for which litigation is likely or anticipated.
Also significant is Erie's disclosure that Erie employees,
and not attorneys are involved in setting the reserve amounts.
In its answer to Plaintiff's First Set of Interrogatories, Erie
identified four individuals as being those that “participated in
the decisions regarding the setting of reserves in connection
with the claim brought by Elizabeth Murfitt.” . . . In Erie's
responses to Plaintiff's First Set of Interrogatories, each of . . .
[the named] individuals is identified as either an agent,
representative and/or employee of Erie that had involvement in
Mrs. Murfitt's claim.
The Court's decision is limited to the facts of the case
before it and it is not deciding that insurance reserve information
is discoverable in every case as a general matter. The Court is
persuaded that the reserve amounts ordered produced are
relevant to the Plaintiff's claims, particularly in light of the
Defendant's admission that the reserve amounts in this case
were driven by the specific facts of the underlying claim.
Pursuant to Rule 26(b)(3) of the West Virginia Rules of Civil
Procedure, the Court additionally FINDS that the party seeking
discovery has a substantial need of the materials and that the
party is unable to obtain the equivalent of the materials by other
means. (Citation and footnote omitted.)
A fair summary of the lower court's ruling then is that the subject reserves information is
discoverable for two reasons: (1) the reserves amounts and the dates on which the amounts
were set are not work-product because they were not set in anticipation of litigation, and (2)
if the reserves information is subject to Rule 26(b)(3) as work-product, substantial need and
inability to obtain the material elsewhere were demonstrated by Appellant.
In order to determine the propriety of the lower court's rulings, we initially
examine the work-product doctrine as set forth in Rule 26(b)(3) of the West Virginia Rules
of Civil procedure (hereinafter referred to as “Rule 26(b)(3)”) (See footnote 4) , with particular consideration
to the distinction between fact and opinion work product under the rule and whether and
under what circumstances other courts have treated reserves information as opinion work
product for discovery purposes.
We recognized in State ex rel. United Hospital Center, Inc. v. Bedell, 199
W.Va. 316, 327, 484 S.E.2d 199, 210 (1997), that the work product doctrine has its roots in
the United States Supreme Court decision of Hickman v. Taylor, 329 U.S. 495 (1947),
predating the adoption of Rule 26(b)(3). The underlying purpose for the protection afforded
by the doctrine as explained in Hickman, serves as guidance in our examination of the issue
now pending:
Not even the most liberal of discovery theories can justify
unwarranted inquiries into the files and the mental impressions
of an attorney.
Historically, a lawyer is an officer of the court and is
bound to work for the advancement of justice while faithfully
protecting the rightful interests of his clients. In performing his
various duties, ... it is essential that a lawyer work with a certain
degree of privacy, free from unnecessary intrusion by opposing
parties and their counsel. Proper preparation of a client's case
demands that he assemble information, sift what he considers to
be the relevant from the irrelevant facts, prepare his legal
theories and plan his strategy without undue and needless
interference. That is the historical and the necessary way in
which lawyers act within the framework of our system of
jurisprudence to promote justice and to protect their clients'
interests. This work is reflected, of course, in interviews,
statements, memoranda, correspondence, briefs, mental
impressions, personal beliefs, and countless other tangible and
intangible ways _ aptly though roughly termed . . . as the “work
product of the lawyer.” Were such materials open to opposing
counsel on mere demand, much of what is now put down in
writing would remain unwritten. An attorney's thoughts,
heretofore inviolate, would not be his own.
Id. at 510-11. However, the Court in Hickman made clear that the work-product doctrine
provides qualified and not absolute immunity from disclosure. “[A]ll written materials
obtained or prepared by an adversary's counsel with an eye toward litigation are [not]
necessarily free from discovery in all cases. Where relevant and non-privileged facts remain
hidden in an attorney's file and where production of those facts is essential to the preparation
of one's case, discovery may properly be had.” Id. at 511. Following this direction, we held
in syllabus point seven of State ex rel. United Hospital Center, Inc. v. Bedell, that in order
“[t]o determine whether a document was prepared in anticipation of litigation and, is
therefore, protected from disclosure under the work product doctrine, the primary motivating
purpose behind the creation of the document must have been to assist in pending or probable
future litigation.” 199 W.Va. at 320, 484 S.E.2d at 203. Because the preparers of the
reserves information in the instant case were non-lawyers, we further note that Rule 26(b)(3)
extends work product protection to materials prepared by non-lawyers when the paramount
purpose for generating the materials is litigation. As explained by the United States Supreme
Court in United States v. Nobles, 422 U.S. 225 (1975):
At its core, the work-product doctrine shelters the mental
processes of the attorney, providing a privileged area within
which he can analyze and prepare his client's case. But the
doctrine is an intensely practical one, grounded in the realities
of litigation in our adversary system. One of those realities is
that attorneys often must rely on the assistance of investigators
and other agents in the compilation of materials in preparation
for trial. It is therefore necessary that the doctrine protect
material prepared by agents for the attorney as well as those
prepared by the attorney himself.
Id. at 238-39 (footnote omitted). This Court has likewise concluded that “[t]he purpose of
Rule 26(b)(3) is to narrow the ability to obtain trial preparation material by expanding the
coverage of the work product rule to include persons other than an attorney.” Syl. Pt. 6, in
part, In re Markle, 174 W.Va. 550, 328 S.E.2d 157 (1984). While authority to invoke the
protection of the work product doctrine generally rests exclusively with attorneys, we decided
in State ex rel. Allstate Insurance Co. v. Gaughan, 203 W.Va. 358, 508 S.E.2d 75 (1998),
that insurers defending third party bad-faith claims may invoke work product protection of
certain information in claims files. Insurers may raise the work product rule “where an
insured has signed a release of his/her claim file to a third-party litigant . . . [and] documents
in the insured's claim file that were generated prior to the filing date of a third-party's
complaint” are sought to be discovered. Id. at Syl. Pt. 11.
The work product doctrine provides a qualified immunity to two categories of
work products: fact and opinion. See In re Markle, 174 W.Va. at 556-57, 328 S.E.2d at 163.
Pursuant to the applicable provisions of Rule 26, fact work product includes any documents
or tangible things prepared by a party, or a party's representative, in anticipation of litigation.
Opinion work product encompasses those documents or tangible materials which contain
“the mental impressions, conclusions, opinions, or legal theories of an attorney or other
representative. . . concerning the litigation.” W.Va. R. Civ. P. 26(b)(3).
We observed in syllabus point seven of In re Markle that provisions of Rule
26(b)(3) distinguish the level of necessity that must be demonstrated in order to obtain
discovery of factual work product versus opinion work product. We then elaborated on the
distinction by stating:
Where factual work product is involved, the party demanding
production must show “a substantial need” for the material and
that he cannot obtain the same or its equivalent through other
means “without undue hardship.” Where opinion work product
is involved, the showing required to obtain discovery is even
stronger since the rule states that “the court shall protect against
disclosure of mental impressions, conclusions, opinions or legal
theories.” Rule 26(b)(3).
174 W.Va. at 556-57, 328 S.E.2d at 163 (footnotes omitted). We further observed in State
ex rel. Brison v. Kaufman, 213 W.Va. 624, 633, 584 S.E.2d 480, 489 (2003), that “[a]s
between the two, opinion work product is more scrupulously protected.” See also State ex
rel. Med. Assurance of West Virginia, Inc. v. Recht, 213 W.Va. at 467, 583 S.E.2d at 90
(identifying cases in which the heightened protection of opinion work product is
acknowledged); John F. Wagner, Jr., Protection from Discovery of Attorney's Opinion Work
Product under Rule 26(b)(3), Federal Rules of Civil Procedure, 84 A.L.R. Fed. 779 (1987). (See footnote 5)
Erie asserts that the lower court erred by applying the more relaxed fact work
product standard to the reserves information, which Erie maintains should in all relevant
instances be subject to review as opinion work product. If indeed the material at issue is
opinion work product, we agree that the lower court erred in applying the fact work product
standards. Our task now turns to the yet unanswered question in this jurisdiction of when
reserves information is considered opinion work product.
We find no authority to support Erie's implication that reserves information is
generally treated as opinion work product. Rather, courts addressing this issue have
undertaken a more close analysis of the circumstances under which the information is
gathered and the nature, if any, of attorney as well as non-lawyer representative involvement
in the collection process. Two federal cases (See footnote 6) with focused discussions on when reserves
information falls within the boundaries of opinion work product are particularly instructive: Simon v. G.D. Searle & Co., 816 F.2d 397 (8th Cir. 1987), and Rhone-Poulenc Rorer, Inc. v.
Home Indemnity Company, 139 F.R.D. 609 (E.D. Pa. 1991). (See footnote 7) We acknowledge that neither
case involved a third-party bad faith action or an insurer's right to invoke the work product
rule, but nonetheless find the reasoning of these courts helpful in dealing with the issue of
insurance reserves as opinion work product.
In Simon, the Eighth Circuit Court of Appeals had under consideration certified
questions arising from a pending products liability action. One of these questions involved
whether corporate risk management documents prepared by non-lawyer corporate officials,
but revealing aggregate information compiled from individual case reserves numbers
determined by lawyers, are subject to protection from discovery as opinion work product.
As related in the Simon opinion, an attorney set individual case reserves when Searle
received notice of a claim or suit with consideration of such factors as an estimate of
anticipated legal expenses, settlement value, length of time to resolve the case, and
geographic estimates. These reserves figures in turn were used by non-lawyer personnel in
Searle's risk management department for a variety of reserves analysis functions.
As a backdrop to its discussion, the court in Simon noted that work product
protection under the provisions of Rule 26 extends only to documents prepared in
anticipation of litigation. The court concluded that even though the risk management
documents in the case before it were not prepared in anticipation of litigation, they may still
be protected from discovery as opinion work product if the aggregate information disclosed
the individual case reserves calculated by Searle's attorneys. The court reasoned that when
“individual case reserve figures reveal the mental impressions, thoughts, and conclusions of
the attorney in evaluating a legal claim[] [,b]y their very nature they are prepared in
anticipation of litigation and, consequently, they are protected from discovery as opinion
work product. Hickman [v. Taylor], 329 U.S. at 512, 67 S.Ct. at 394; In re Murphy, 560
F.2d 326, 336 (8th Cir. 1977).” Id. at 401. However, based on the facts before it, the court
in Simon found that the aggregate reserves document assembled by non-lawyers was not
opinion work product because the individual case reserves figures were not readily
identifiable in the document. This result was reached because the aggregation was not a
direct compilation of the individual claim reserves figures but rather the result of the
application of a formula containing a number of other factors. In holding that the work
product doctrine did not bar discovery of the aggregate case reserves information contained
in the risk management documents before it, the court in Simon said: “The purpose of the
work product doctrine _ that of preventing discovery of a lawyer's mental impressions _ is
not violated by allowing discovery of documents that incorporate a lawyer's thoughts in, at
best, such an indirect and diluted manner.” Id. at 402. (See footnote 8)
The federal district court in Rhone-Poulenc had occasion to examine reserves
information as work-product when presented with a motion to compel by corporate
policyholders who were seeking information about an insurer's reinsurance for claims and
the reserves set for those claims in underlying “AIDS-related litigation.” 139 F.R.D. at 610.
Apparently the reserves material sought was all “established based on legal input”and
included individual case reserves as well as aggregated reserves information. Id. at 614.
With respect to individual case reserves information, the court in Rhone-Poulenc relied upon
the same authorities cited in Simon to reach a virtually mirror-image conclusion as the court
in Simon:
Although these risk management documents being sought
by plaintiffs may not have in themselves been prepared in
anticipation of litigation, they may be protected from discovery
to the extent that they disclose the individual case reserves
calculated by defendants' attorneys. The individual case reserve
figures reveal the mental impressions, thoughts, and conclusions
of an attorney in evaluating a legal claim. By their very nature
they are prepared in anticipation of litigation, and consequently,
they are protected from discovery as opinion work-product. Hickman v. Taylor, 329 U.S. 495, 512, 67 S.Ct. 385, 394, 91
L.Ed. 451 (1947); In re Murphy, 560 F.2d 326, 336 (8th Cir.
1977).
Id. (citations omitted). When such individual case reserves information is used in preparing
aggregate reserves information such as risk management documents, the court in Rhone-
Poulenc deviated from some of the conclusions reached in Simon by casting a broader net
as to the reserves documents falling within the work product rule's protection by holding:
[T]he aggregate reserve figures may give some insight into the
mental processes of the lawyers in setting specific case reserves.
This is inevitable, considering that these aggregates and
averages are based upon the attorney's evaluations of the value
of specific claims. Notably, this is not a situation where mental
impressions are merely contained within and comprise a part of
another document and can easily be redacted. Instead, the
aggregate and average figures are derived from and necessarily
embody the protected material. They could not be formulated
without the attorney's initial evaluations of specific legal claims.
Thus it is impossible to protect the mental impressions
underlying the specific case reserves without also protecting the
aggregate figures.
Additionally, the Rhone-Poulenc court went a step farther than the Simon court
by undertaking to dispel any misconception that the aggregate reserves information in the risk
management documents should be treated differently because non-lawyers developed the
documents. In this regard, the court in Rhone-Poulenc stated:
It can be argued, of course, that while this Court is
protecting the mental impression/opinion work product
concerning the attorney's evaluation of the reserve necessary for
each lawsuit that I should not grant similar protection to any risk
management department's opinion work-product concerning an
aggregate reserve necessary for the underlying litigation. I find
no basis in Rule 26(b)(3) for this distinction. Rule 26(b)(3)
requires a court to “protect against disclosure of the mental
impressions, conclusions, opinions or [other] legal theories of an
attorney or other representative of a party concerning the
litigation.” Thus protective work product is not confined to
information or materials gathered or assembled by a lawyer.
Instead, it includes materials gathered by any consultant, surety,
indemnitor, insurer, agent, or even the party itself. The only
question is whether the mental impressions were documented,
by either a lawyer or non-lawyer in anticipation of litigation.
139 F.R.D. at 615 (internal citations omitted).
In the case now pending, the information sought to be discovered is referred
to broadly by the parties as “reserves.” It is apparent from the Simon and Rhone-Poulenc opinions that categorizing reserves materials as individual claim reserves and aggregate
reserves is essential to a full examination of the issue raised. To lend clarity to our
discussion, the term “individual claim reserves” is defined as reserves set when an insurance
claim is made in an individual case, including any updates made to reserves in the individual
file as additional information about the claim becomes available. The term “aggregate
reserves” or “aggregate reserves document” means a document collecting a variety of
individual claim reserves. In either instance, it is apparent from the discussions in Simon and Rhone-Poulenc that the pivotal issue regarding when reserves information is subject to
broader protection from discovery as opinion work product is whether the information is
prepared in anticipation of particular litigation.
With specific regard to individual claim reserves, the mutual finding of the Simon and Rhone-Poulenc courts regarding the circumstances under which individual case
reserves are considered opinion work product is in line with this Court's general
proclamations regarding the work product doctrine as earlier discussed. As a result, we
conclude that when individual case reserves information is set by an attorney or by a non-
lawyer representative with the primary intent of preparing for litigation, then the individual
case reserves information is subject to protection from discovery as opinion work product
pursuant to Rule 26(b)(3).
It is equally apparent that aggregate reserves documents compiled for specific
litigation by a lawyer or by a non-lawyer representative are prepared in anticipation of
litigation and are subject to protection as opinion work product. Accordingly, we hold that
for the purposes of Rule 26(b)(3) aggregate reserves documents compiled for specific
litigation either by a lawyer or by a non-lawyer representative are opinion work product and
merit greater protection from discovery. However, aggregate reserves documents not
developed primarily in anticipation of specific litigation but produced for general business
purposes are not protected by the work product rule. See State ex rel. United Hosp. Center,
Inc. v. Bedell, 199 W.Va. 316, 484 S.E.2d 199 (1997). We do not close the door to the
possibility that there may be exceptional situations when aggregate reserves documents
which include individual reserves information developed for general litigation purposes or
for a particular class of cases may be entitled to protection from discovery as opinion work
products. Under such unique circumstances, it remains within the sound discretion of the
reviewing court to determine if the work product rule is implicated because the thought
processes of an attorney or other representative about the case then pending are in jeopardy
of disclosure.
Once reserves documents are determined to be opinion work product, the
reviewing court treats the material as any other opinion work product. Such materials remain
generally protected from disclosure under the provisions of Rule 26(b)(3) unless the party
seeking discovery demonstrates to the reviewing court compelling need for the materials,
which shall include proof that the opinion materials qualify for a recognized exclusion from
application of the work product doctrine.
Although we have adopted these standards regarding reserves information in
light of the work product doctrine, we do not find that they have application in the present
case. No question is raised in this case regarding Erie's right as an insurer defending a third
party bad faith action to resist the discovery of documents it believes to be opinion work
product. Syl. Pt. 11, State ex rel. Allstate Ins. Co. v. Gaughan, 203 W.Va. 358, 508 S.E.2d
75 (1998). In order to succeed in its effort, Erie bears the burden to adequately demonstrate
that the reserves information at issue is indeed opinion work product worthy of protection
from discovery. Syl. Pt. 4, State ex rel. U. S. Fid. & Guar. Co. v. Canady, 194 W.Va. 431,
460 S.E.2d 677 (1995). As this Court has often stressed, “the work product rule traditionally
operates to protect documents prepared in anticipation of litigation.” Gaughan, 203 W.Va.
at 374, 508 S.E.2d at 91. As noted early in our discussion, a document is considered
prepared in anticipation of litigation in the context of a work product analysis when the
primary motivation for creating the document is “to assist in pending or probable future
litigation.” Syl. Pt. 7, State ex rel. United Hosp. Ctr., Inc. v. Bedell, 199 W.Va. at 320, 484
S.E.2d at 203. This “[d]etermination of whether a document was prepared in anticipation of
litigation or in the ordinary course of business is a factual one,” which is examined on a case-
by-case basis. Id. at 328, 484 S.E.2d at 211. In the particular context of an insurer seeking
work product protection of documents in an insurance claim file in a third-party bad faith
action, we held in Gaughan that the factors a reviewing court in such circumstances should
consider to determine whether a document was prepared in anticipation of litigation include
“the nature of the requested documents, the reason the documents were prepared, the
relationship between the preparer of the document and the party seeking its protection from
discovery, the relationship between the litigating parties, and any other facts relevant to the
issue.” Syl. Pt. 12, in part, 203 W.Va. at 362, 508 S.E.2d at 79.
The language of the June 29, 2006, order at issue reveals that the lower court
adhered to these principles of law in reaching its conclusion “that the raw data indicating the
reserve amounts and the dates said reserve amounts were placed on the claim are not
privileged.” It is clear from the language of the June 29, 2006 order, that the lower court
considered the factors set forth in Gaughan to conclude that the reserve information in the
instant case was not prepared in anticipation of litigation:
The facts of this case indicate that anticipation of
litigation is not the primary motivating purpose for establishing
insurance reserves, as insurance companies are required by law
to establish reserves. Every claim presumably has some reserve
amount attached to it, regardless of whether the claim ends in
litigation or is resolved through other means. During her
deposition on February 16, 2006, claims supervisor Sandra
Barker testified that a reserve is “an amount of money or a dollar
amount that's set aside for payment of an injury claim or any
type of claim of [sic] any payment upon any claim.” Mrs.
Barker's description of reserves supports the Court's conclusion
that the potential for litigation is not the primary motivating
purpose for setting reserves, as they are set aside for “any type
of claim” and for “any payment upon any claim,” not limited to
those claims for which litigation is likely or anticipated. (See footnote 9) (Citation omitted.)
We find no reason in the limited record before us or the arguments presented to conclude that
Erie set the reserves in this case for reasons other than the ordinary course of business. The
position adopted by this Court in State ex rel. United Hospital v. Bedell, is that “'documents
prepared in the regular course of the compiler's business, rather than specifically for
litigation, even if it is apparent that a party may soon resort to litigation,' are not protected
from discovery as work product.” 199 W.Va. at 328, 484 S.E.2d at 211 (citation omitted).
Erie maintains in its brief that the reserves information in this case was indeed prepared in
anticipation of specific litigation since the reserves are set by the company's claims
representatives and embody the mental impressions of those representatives concerning
issues of coverage, liability and damages with respect to the specific claim. This assertion
hardly addresses the discerning issue of whether the primary or driving motivation behind
setting the reserves in this case was anticipation of litigation rather than for routine business
purposes. Even if, as Erie avers, the claim was referred to its litigation department during
the time the reserves were being set, Erie did not prove that the principal reason for setting
the reserves was anticipation of litigation. It takes much more than some indicia of concern
about possible litigation to establish primary motivation. We simply have no basis to find
either that the lower court erred as a matter of law or abused its discretion by concluding that
the reserve amounts and the dates the amounts were set are subject to discovery in this case.
Erie, as the party seeking protection of the reserves documents, has failed to meet its burden
of proving that the materials qualify as either fact or opinion work product. (See footnote 10) Consequently,
we do not find that the lower court's ultimate disposition of this matter demonstrates an
abuse of discretion and thus this Court's intervention through extraordinary relief is not
warranted.
Footnote: 1 See W.Va. Const. article VIII, § 3; W.Va. Code §§ 51-1-3, 53-1-1 to -11 (Repl. Vol. 2000).
Footnote: 2 The original defendant was subsequently dismissed from the lawsuit.
Footnote: 3 No objection has been raised in this proceeding regarding the relevancy determination.
Footnote: 4 The relevant portion of Rule 26(b)(3) of the Rules of Civil Procedure states:
(3) Trial preparation: materials. _ Subject to the
provisions of subdivision (b)(4) (See footnote 11) of this rule, a party may
obtain discovery of documents and tangible things otherwise
discoverable under subdivision (b)(1) of this rule and
prepared in anticipation of litigation or for trial by or for
another party or by or for that other party's representative
(including the party's attorney, consultant, surety, indemnitor,
insurer, or agent) only upon a showing that the party seeking
discovery has substantial need of the materials in the
preparation of the party's case and that the party is unable
without undue hardship to obtain the substantial equivalent of
the materials by other means. In ordering discovery of such
materials when the required showing has been made, the court
shall protect against disclosure of the mental impressions,
conclusions, opinions, or other legal theories of an attorney or
other representative of a party concerning the litigation.
Footnote: 5 Although this Court has not comprehensively addressed what conditions would overcome the greater protection afforded opinion work product, there are two general exceptions which have developed in other jurisdictions recognizing the heightened justification for disclosure. The first of these has been dubbed the crime-fraud exception which permits discovery of opinion work product created in furtherance of a crime or fraud. The second exception allows discovery of opinion work product when mental impressions are directly at issue as the subject matter of the suit. See Edna Epstein, The Attorney-Client Privilege and the Work-Product Doctrine, 589-93; 8 Wright, Miller & Marcus, Federal Practice and Procedure § 2026 (2d ed., 1994); Jeff A. Anderson, Gena E. Cadieux, George E. Hays, Michael B. Hingerty, Richard J. Kaplan, The Work Product Doctrine, 68 Cornell L. Rev. 760, 831-837 (1983); Andrea L. Borgford, The Protected Status of Opinion Work Product: A Misconduct Exception, 68 Wash. L. Rev. 881 (1993); Kathleen Waits, Opinion Work Product: A Critical Analysis of Current Law and a New Analytical Framework, 73 Or. L. Rev. 385 (1994). This Court has adopted the crime-fraud exception in syllabus point eight of State ex rel. Allstate Insurance Company v. Madden, 215 W.Va. 705, 601 S.E.2d 25 (2004), but has never addressed the applicability of the “directly at issue” exception. Given the conclusion we reach in this opinion, that discussion is left for another day when a more suitable situation allows us to examine the matter fully.
Footnote: 6 To aid in defining the meaning and scope of this state's individual civil rules of procedure, this Court often gives substantial weight to federal cases interpreting virtually identical federal rules. Painter v. Peavy, 192 W.Va. 189, 192 n. 6, 451 S.E.2d 755, 758 n. 6 (1994).
Footnote: 7 These cases were discussed by Chief Justice Davis in her concurring opinion to Erie I.