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State of WV ex rel. Wright v. Stucky, Judge

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 1999 Term
No. 25839
STATE OF WEST VIRGINIA EX REL.
DAVID V. WRIGHT and CHRISTOPHER DAVID WRIGHT,
Petitioners,

v.
HONORABLE JAMES C. STUCKY, JUDGE OF THE CIRCUIT COURT OF KANAWHA COUNTY, and MARCELLA GHERKE, parent, next friend and legal guardian of George Adam Smoot, a minor, Respondents.
PETITION FOR WRIT OF PROHIBITION
WRIT GRANTED AS MOULDED
Submitted: May 4, 1999
Filed: June 17, 1999  
David W. Greear, Esq.   Debra C. Price, Esq.  
Ellen R. Archibald, Esq.   Charleston, West Virginia  
Kesner, Kesner & Bramble                                               Attorney for Respondent  
Charleston, West Virginia                                                  Marcella Gherke  
Attorney for Petitioners  

CHIEF JUSTICE STARCHER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1.
"In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way 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, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979).

2.
Neither the statutory limitation created by W.Va. Code, 57-2-3 [1965], nor a protective order under Rule 26(c) of the West Virginia Rules of Civil Procedure, provide the "use immunity" protection that permits a court to require a person to answer questions in civil discovery, over a constitutional objection based on the Fifth Amendment


to the United States Constitution and Article III, Section 5 of the West Virginia Constitution, where the answers to the questions may be self -incriminating.
Starcher, Chief Justice:
        In the instant case, we issue a writ of prohibition barring the enforcement of an order by the Circuit Court of Kanawha County. The order prohibited David and Christopher Wright from refusing to answer questions in a civil deposition based on their constitutional right not to give self -incriminating testimony.
I.
Facts and Background

        George Smoot, a minor (by his mother Marcella Gherke), filed a lawsuit against the petitioners David Wright and Christopher Wright, for injuries that George Smoot allegedly sustained in an assault. Criminal charges were also filed against the Wrights in connection with the alleged assault.
        The Wrights agreed to respond to discovery requests in the Smoot/Gherke civil case, on the condition that the Wrights' criminal case was resolved by the time their discovery response in the civil case was due. When the criminal case was not resolved by the due date for the discovery responses, the circuit court (in the civil case) granted the Wrights a protective order, under Rule 26(c) of the West Virginia Rules of Civil Procedure,[1998]See footnote 1 1 excusing the Wrights from answering written discovery requests, based on the Wrights' assertion of their constitutional protection against compelled self - incrimination (we shall refer to this as their "self-incrimination right").
        However, the circuit court denied the Wrights' request for a protective order with respect to their depositions. The circuit court concluded that W.Va. Code, 57-2-3 [1965]See footnote 2 2 would protect the Wrights' self-incrimination right in the depositions -- and that therefore the Wrights could not refuse to answer questions posed to them in their civil depositions based upon their self-incrimination right. The circuit court also sealed and prohibited the distribution of the transcripts of the Wrights' depositions, and prohibited the dissemination of information obtained in those depositions.See footnote 3 3
         The Wrights filed a writ of prohibition with this Court, seeking to prevent the enforcement of that portion of the circuit court's order that bars the Wrights from refusing to answer deposition questions based on their self

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