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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

FILED
July 2, 2001
RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2001 Term __________ No. 28591 __________

RELEASED
July 2, 2001
RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

STATE OF WEST VIRGINIA EX REL. WESTBROOK HEALTH SERVICES, INC., Petitioner v. HONORABLE GEORGE W. HILL, JR., JUDGE OF THE CIRCUIT COURT OF WOOD COUNTY, AND HELEN J. WILSON, Respondents __________________________________________________________________ Appeal from the Circuit Court of Wood County Honorable George W. Hill, Judge Civil Action No. 00-C-261 WRIT DENIED __________________________________________________________________ Submitted: January 9, 2001 Filed: July 2, 2001 Robert J. Kent, Esq. C. Edward McDonough, Esq. Bowles Rice McDavid Graff & Love, PLLC Parkersburg, West Virginia Attorneys for Westbrook Barbara G. Arnold, Esq. Parkersburg, West Virginia Attorney for Wilson

The Opinion of the Court was delivered PER CURIAM. JUSTICE ALBRIGHT, deeming himself disqualified, did not participate in the decision of this case. JUDGE JOHN S. HRKO, sitting by temporary assignment. SYLLABUS BY THE COURT

1.

"`"A writ of prohibition will not issue to prevent a simple abuse of discretion by a

trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W.Va. Code, 53-1-1." Syl. pt. 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977).' Syl. pt. 2, State ex rel. Kees v. Sanders, 192 W.Va. 602, 453 S.E.2d 436 (1977)." Syllabus Point 1, State ex rel. United Hosp. v. Bedell, 199 W.Va. 316, 484 S.E.2d 199 (1997). 2. "`"A writ of prohibition is available to correct a clear legal error resulting from a

trial court's substantial abuse of its discretion in regard to discovery orders." Syllabus Point 1, State Farm Mutual Automobile Insurance Co. v. Stephens, 188 W.Va. 622, 425 S.E.2d 577 (1992).' Syllabus Point 3, State ex rel. McCormick v. Zakaib, 189 W.Va. 258, 430 S.E.2d 316 (1993)." Syllabus Point 2, State ex rel. USG & G v. Canady, 194 W.Va. 431, 460 S.E.2d 677 (1995). 3. "`"In order to assert an attorney-client privilege, three main elements must be

present: (1) both parties must contemplate that the attorney-client relationship does or will exist; (2) the advice must be sought by the client from that attorney in his capacity as a legal advisor; (3) the communication between the attorney and client must be [intended] to be confidential." Syllabus Point 2, State v. Burton, 163 W.Va. 40, 254 S.E.2d 129 (1979).' Syl. pt. 7, State ex rel. USF & G v. Canady, 194 W.Va. 431, 460 S.E.2d 677 (1995)." Syllabus Point 6, State ex rel. United Hosp. v. Bedell, 199 W.Va. 316, 484 S.E.2d 199 (1997). 4. "`The burden of establishing the attorney-client privilege or the work product

exception, in all their elements, always rests upon the person asserting it.' Syl. pt. 4, State ex rel. USF
i

& G v. Canady, 194 W.Va. 431, 460 S.E.2d 677 (1995)." Syllabus Point 3, State ex rel. United Hosp. v. Bedell, 199 W.Va. 316, 484 S.E.2d 199 (1997).

ii

Per Curiam:

Petitioner, Westbrook Health Services, Inc. (Westbrook), invokes this Court's original jurisdiction and seeks a writ of prohibition against the Honorable George W. Hill, Jr., Judge of the Circuit Court of Wood County, West Virginia, to prevent the enforcement of an order entered on November 14, 2000. The order granted Helen J. Wilson's motion to compel more complete discovery, motion to compel testimony, motion to compel production of documents, and motion for sanctions. We issued a rule to show cause and now deny the writ.

I. FACTS

Westbrook is a non-profit corporation that provides health care services by doing business in Wood County. The underlying claim arose when Ms. Wilson was laid off from employment with Westbrook on April 6, 2000 after working for the company for eighteen years. Wilson filed an action against the company on June 7, 2000, alleging a violation of the West Virginia Wage Payment and Collection Act1 and employment discrimination based on age and/or sex.2 The circuit court granted Wilson

1

The West Virginia Wage Payment and Collection Act is located at W.Va. Code

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