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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

DOCKET NO. 19-0222

STATE OF WEST VIRGINIA EX. REL. JAGUAR LAND ROVER LIMITED, PETITIONER,

vs.

THE HONORABLE CHARLES KING, JUDGE OF THE CIRCUIT COURT OF KANAWHA COUNTY, AND PATRICIA A. LYLES, RESPONDENTS,

RESPONSE TO PETITION FOR WRIT OF PROHIBITION

From the Circuit Court of Kanawha County, Case No_ 15-C-I023

COUNSEL FOR RESPONDENT:

Scott S. Segal, Esq. (WV Bar #4717) Jason P. Foster, Esq. (WV Bar #10593) THE SEGAL LAw FIRM A Legal Corporation 810 Kanawha Boulevard, East Charleston, West Virginia 25301 Telephone: (304) 344-9100 Facsimile: (304) 344-9105

APR I 52019

•

I. TABLE OF CONTENTS

I. Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1

II. Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. iv

III. Argument in Response to Questions Presented . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1

IV. Statement of the Case ................................................. 1

A. Relevant Procedural History ...................................... 2

2015 .......................................................... 2

2016 .......................................................... 2

2017 .......................................................... 4

2018 .......................................................... 4

2019 .......................................................... 6

B. Factual Summary ............................................... 6

C. Relevant Deadlines or Upcoming Events ........................... 7

V. Summary of Argument ................................................ 7

VI. Statement Regarding Oral Argument and Decisions ........................ 8

VII. Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

A. A Word on Ethical Obligations .................................... 8

1. "Notably, Plaintiffs counsel's time entries "vere redacted, and JLR "vas not permitted to reviev,T the substance of those entries in order to challenge them." ......................... 10

2. "The relief awarded "vas not the relief sought ... " .............. 10

3. "A revie"v of the letter and the proposed order confirms that JLR had not violated an order of the circuit court and there was no finding that JLR failed to produce any discovery, withheld documents, or othervdse intentionally sought to delay the discovery process or mislead Plaintiff or her counsel." ......... 11

f

4. "Incredibly, many of these time entries preceded Plaintiffs motion for sanctions by more than one year; for instance, Scott Segal's very first time entry was for work he performed on September 20,2016. (Id. at 289). As discussed belm"', this unequivocally cannot be related to the costs of bringing the motion for sanctions since that motion ,,,,as not brought until March 19, 2018 - one and a half years later." .................................... 12

B. JLR's Petition for Writ of Prohibition is procedurally deficient because the questions presented do not meet the appropriate standard . . . . . . .. 15

1. JRL's ''''fit of prohibition should be denied because JLR can directly appeal Judge King's Sanctions Order upon entry of a final judgment ......................................... 16

2. JLR's ''''fit of prohibition should be denied because JLR will not be damaged or prejudiced in any way not correctable on appeal ............................................... 17

3. JLR's writ of prohibition should be denied because Judge King's Sanctions Orders were not clearly erroneous ........... 17

4. JLR's ''''fit of prohibition should be denied because Judge King's Sanctions Orders contained no errors and observed both procedural and substantive law . . . . . . . . . . . . . . . . . . . . . . .. 21

5. JLR's ''''fit of prohibition should be denied because Judge King's Sanctions Orders raise no new important problems or issues oflaw of first impression ................. 22

C. JLR's Petition for Writ of Prohibition is procedurally deficient because the Sanctions and Sanctions Payment Orders contain sufficient findings of fact and conclusions of law . . . . . . . . . . . . . . . . . . . . 22

D. JLR's Petition for Writ of Prohibition is substantively deficient because Judge King did not exceed his legitimate authority in sanctioning JLR for violating the Third Discovery Order ............................ 25

E. JLR's Petition for Writ of Prohibition is substantively deficient because W. Va. R. Civ. Pro. explicitly provides for an award of attorney fees .......................................................... 27

F. JLR's Petition for Writ of Prohibition is substantively deficient because Judge King identified how the sanction was calculated and observed JLR's process rights ................................ 29

11

VIII. Conclusion ......................................................... 31

111

II. TABLE OF AUTHORITIES

Cases Page Bartles v. Hinkle,

196 W.Va. 381,472 S.E.2d 827 (1996) ................................... 20 Carper v. Chad Watson & Burkharts, Inc.,

226 W. Va. 50, 56, 697 S.E.2d 86 (2010) ................................ 28 C & 0 Motors, Inc. v. W. Va. Paving, Inc.,

223 W. Va. 469, 473, 677 S.E.2d 905 (2009) ............................. 16 Credit Acceptance Corp. v. Front,

231 W. Va. 518, 523, 745 S.E.2d 556 (2013) .............................. 16 Crihfield v. Brown,

224 W. Va. 407, 411,686 S.E.2d 58 (2009) .............................. 16 Doulamis v. Alpine Lake Property Owners Ass'n,

184 W. Va. 107,399 S.E.2d 689 (1990) ............................... 19,22 Estate of Bossio v. Bossio,

237 W. Va. 130,785 S.E.2d 836 (2016) .................................. 18 James M.B. v. Carolyn M.,

193 W. Va. 289, 456 S.E.2d 16 (1995) ................................... 16 Johnson v. Ford Motor Co.,

U.S. Dist. Court for the Southern Dist. ofW. Va., Huntington Div., Civil Action No.: 3:13-cv-06529 ........................................ 30

Louden v. W. Va. Div. ofEnvtl. Prot., 209 W. Va. 689, 551 S.E.2d 25 (2001) ................................... 25

McDougal v. McCammon, 193 W. Va. 229,455 S.E.2d 788 (1995) .................................. 18

Nelson v. W. Va. Pub. Employees Ins. Bd., 171 W. Va. 445, 450, 300 S.E.2d 86,91 (1982) ............................ 28

Prager v. Meckling, W. Va., 310 S.E.2d 852 (1983) ................................................ 19

Robinson v. Pack, 223 W. Va. 828, 832, 679 S.E.2d 660 (2009) ............................. 16

Shreve v. Warren Assoc., Inc., W. Va., 355 S.E.2d 389 (1987) ......................................... 19

State ex reI. Allstate Ins. Co. v. Gaughan, 203 W. Va. 358, 508 S.E.2d 75 (1998) ................................ 22,23

State ex reI. C.H. v. Faircloth, 240 W. Va. 729, 815 S.E.2d 540 (2018) .................................. 15

State ex reI. Davis v. Iman Mining Co., 144 W. Va. 46, 106 S.E.2d 97, (1958) ................................. 16, 17

State ex reI. DeCourcy v. Dent, 240 W. Va. 163,807 S.E.2d 834 (2017) .................................. 15

IV

State ex reI. Hoover v. Berger, 199 W. Va. 12,483 S.E.2d 12 (1996) .................................... 15

State ex reI. H.S. v. Beane, 240 W. Va. 643, 814 S.E.2d 660 (2018) ................................. 15

State ex reI. Mass. Mut. Life Ins. Co. v. Sanders, 228 W. Va. 749, 724 S.E.2d 353 (2012) .................................. 22

State ex rei. RichmondAm. Homes ofW. Va. v. Sanders, 226 W. Va. 103, 697 S.E.2d 139 (2010) ............................... 19,22

State ex reI. Ringer v. Morris, 82 W. Va. 492, 494, 96 S.E. 926, 927 (1918) ............................. 28

State ex reI. Southland Props., LLC v. Janes, 240 W. Va. 323, 811 S.E.2d 273 (2018) .................................. 15

State ex reI. State v. Sims, 240 W. Va. 18, 807 S.E.2d 266 (2017) ................................... 15

Taylor v. Elkins Home Show, Inc., 558 S.E.2d 611 (2001) ................................................ 29

Trumka v. Ashworth, 183 W. Va. 319, 321, 395 S.E.2d 563,565 (1990) .......................... 28

Code W. Va. Code, 58-5-1 (1925) .................................................. 16

Rules W. Va. R. App. Pro. 7 ........................................................ 2 W. Va. R. App. Pro. 7(C)(2) ................................................... 2 W. Va. R. App. Pro. 16 ....................................................... 2 W. Va. R. App. Pro. 16(e) ................................................. 2, 11 W. Va. R. App. Pro. 16(g) .................................................... 2 W. Va. R. App. Pro. 18(2) .................................................... 8 W. Va. R. App. Pro. 18(3) .................................................... 8 W. Va. R. App. Pro. 19 ....................................................... 8 W. Va. R. Civ. Pro. 11 ....................................................... 19 W. Va. R. Civ. Pro. 16 ....................................................... 19 W. Va. R. Civ. Pro. 34 ...................................................... 26 W. Va. R. Civ. Pro. 34(b) .............................................. 12,24,26 W. Va. R. Civ. Pro. 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1, 18, 19, 22, 28, 29 W. Va. R. Civ. Pro. 37(a)(3) ........................................... 12,24,26 W. Va. R. Civ. Pro. 37(b) .................................................... 19 W. Va. R. Civ. Pro. 37(b)(2) ................................................. 27 W. Va. R. Prof. Conduct 3.1 ................................................... 9 W. Va. R. Prof. Conduct 3.3(a) ................................................ 9

v

Secondary Sources John H. Beisner, The Centre Cannot Hold - The Needfor Effective Reform of the u.s. Civil Discovery Process, U.S. Chamber Institute for Legal Reform (May 2010) .. 14

Pacini, Carl & Young, et al., Fighting Discovery Abuse in Litigation. Journal of Forensic Accounting, 6 (2014) ............................................... 14

VI

III. ARGUMENT IN RESPONSE TO QUESTIONS PRESENTED

1. The circuit court's orders contained sufficient findings of fact and conclusions of law.

2. The circuit court found that the sanctioned party violated a discovery order.

3. An award of costs and fees under W. Va. R. Civ. Pro. 37 can include attorney fees.

4. A proper award of a monetary sanction accompanied by an explanation of how the monetary sanction ,.vas calculated satisfies both W. Va. R. Civ. Pro. 37 and a sanctioned party's due process rights.

IV. STATEMENT OF THE CASE

JLR has adopted a campaign of delay in the hopes that Ms. Lyles, at seventy-three

years old, paralyzed from the middle of her chest dmvn, confined to a wheel chair,

suffering from a neurogenic bladder and recurrent bladder infections, v\rill die before her

day in court. This Petition is simply another battle in that campaign. Fortunately, this

issues in this Petition are very simple should not detain the Court for long.

Ms. Lyles first served discovery on JLR in April of 2016 setting off a three-year long

discovery dispute. JLR failed to fully and meaningfully respond. Ms. Lyles filed a motion

to compel responses which Judge King Granted. JLR refused to comply ",rith that Order.

Instead, JLR filed not one but two motions to vacate/amend that Order. Ms. Lyles then

moved for sanctions which Judge King granted. The sanctions which Judge King imposed

both procedurally and substantively complied ",rith West Virginia law. Consequently,

there is no reversible error. Furthermore, there is no basis for the issuance of a writ of

prohibition as the record clearly demonstrates JLR'S efforts to impede this case from

proceeding to trial and deny Ms. Lyles' her day in court.

. . A. RELEVANT PROCEDURAL HISTORY

Pursuant to Rule 16( e) of the West Virginia Rules of Appellate Procedure, JLR had

the option to either confer ,·vith Ms. Lyles' counsel regarding the contents of the Appendix

or provide her counsel with a list of the parts of the record that JLR intended to include

in the Appendix. JLR did neither.! As a result of JLR's utter failure to comply with this

Court's Rule, the procedural history listed below references both the Appendix submitted

by JLR and the "Supplemental Appendix" submitted contemporaneously vvith this

Response pursuant to W. Va. R. App. Pro.16(g). Due to the long and tortured history

related to JLR's continual failure to participate in the discovery process in good faith, as

well as JLR's failure to follow W. Va. R. App. P. 7 and 16, the relevant procedural history

is presented below in summary format:

2015

5/22/2015 Ms. Lyles files case (see Appendix at pp. 5-49).

2016

4/20/2016 Ms. Lyles serves 1st Set of Interrogatories and Request for Production of Documents on JLR (Appendix at pp. 579-597)

5/23/2016 JLR files a Motion to Quash Ms. Lyles' 1st Set of Interrogatories and Requests for Production of Documents arguing noncompliance with Hague Evidence Convention Procedures (see Docket Sheet, Supplemental Appendix at p. 3)

7/15/2016 Ms. Lyles Files Motion to Compel JLR's Responses to Plaintiffs 1st Set of Interrogatories and Requests for Production of Documents arguing that the West Virginia Rules of Civil Procedure govern discovery to JLR LTD (Id.)

7/15/2016 Ms. Lyles files Response in Opposition to JLR's Motion to Quash (Id.)

7/25/2016 JLR files Reply to Ms. Lyles' Response to Motion to Quash (Id. at p. 4)

1 JLR completely ignored W. Va. R. App. Pro. 16(e) as the Appendix is not in the proper order, includes motions and filings that are neither at issue nor material to this Petition and lacks the certification required by W. Va. R. App. Pro. 7(C)(2).

2

. . 7/28/2016 Trial Court holds hearing on Ms. Lyles' Motion to Compel and JLR's Motion

to Quash (Id. at p. 3)

8/10/2016 Ms. Lyles submits Proposed Findings of Fact and Conclusions of Law (Id. at P·4)

8/11/2016 JLR submits Proposed Findings of Fact and Conclusions of Law (Id.)

8/26/2016 The Trial Court enters an Order granting Ms. Lyles' Motion to Compel and Denying JLR's Motion to Quash (the "First Discovery Order") (see Appendix at pp. 1293-1306)

10/12/2016 JLR files its Motion to Reconsider the Discovery Order (Supp. App. at p. 4)

10/14/2016 JLR files its Amended Motion to Reconsider the Discovery Order (Id.)

11/02/2016 Ms. Lyles files Emergency Motion to Compel Response to Second Set of Interrogatories to JLR (Id. at p. 5)

11/7/2016 Hearing is held on Ms. Lyles' Emergency Motion to Compel Response to Second Set of Interrogatories to JLR (Id.)

11/21/2016 Discovery Commissioner files the First Recommendations regarding Ms. Lyles' Emergency Motion to Compel Response to Second Set of Interrogatories to JLR (Id. at pp. 13-20)

11/28/2016 The Trial Court enters an Order Accepting the Discovery Commissioner's 11/21/2016 Recommendations (the "Second Discovery Order") (Id. at p. 21)

12/01/2016 Discovery Commissioner files Amended First Recommendations regarding Plaintiffs Emergency Motion to Compel Response to Second Set of Interrogatories to JLR (Id. at pp. 22-28)

12/06/2016The Trial Court enters an Order Accepting Amended Recommendations of Discovery Commissioner (the "Amended Second Discovery Order") (Id. at p. 29)

12/07/2016 JLR files a Motion to Correct the Second Discovery Order (Id. at p. 5)

12/07/2016 JLR LTD files a Notice of Filing of Supplemental Exhibit in Support of Motion to Reconsider the Second Discovery Order (Id.)

12/20/2016 Ms. Lyles and JLR enter into "Agreement Regarding the Production of Documents" (Appendix at pp. 54-55). Under the terms of this Agreement, JLR was required to produce responsive documents ,,,rithin twenty-one (21) days after the entry of the Consent Order by the High Court of London (id. at p. 55).

3

. . 2017

2/2/2017 The High Court of London enters Consent Order directing production of JLR documents (the "Consent Order") (Supp. App. at pp. 30-33)

07/10/2017 In material violation of both the "Agreement Regarding the Production of Documents" and the Consent Order, JLR misses its production deadline by over four (4) months and produces its first set of documents comprised of roughly 300 documents (id. at p. 7).

10/30/2017 Ms. Lyles' counsel sends counsel for JLR an email attaching a letter requesting supplementation of JLR's discovery responses and requesting notification of any objections ""ithin 10 days. Appendix at pp. 78-81.

10/31/2017 By email dated 10/31/2017, counsel for JLR invokes the West Virginia rules in support of JLR's position that it has 30 days to respond to Ms. Lyles' 10/30/2017 letter. Id.

11/28/2017 JLR's counsel sends a letter to Ms. Lyles' counsel regarding additional document requests and JLR's counsel agrees to review the Core Document production. Id. at pp. 82-85.

12/05/2017 Ms. Lyles files Second Motion to Compel Responses to 1st Set of Interrogatories and Requests for Production of Documents to JLR (Supp. App. at p. 7)

12/21/2017 JLR's counsel sends a letter to Ms. Lyles' counsel regarding the reviev,T of the Core Document production which admits that Ms. Lyles had not been provided everything covered by the Core Document Agreement and that JLR'S counsel was" ... in the process of v,rorking vdth JLR to fix this and expect to have this remedied in January." (Bold added) (Appendix at p.86)

12/29/2017 JLR files Opposition to Plaintiffs Second Motion to Compel Responses to 1st Set of Interrogatories and Requests for Production of Documents to JLR (Supp. App. at p. 7)

2018

1/4/2018 Discovery Commissioner holds hearing on Ms. Lyles' Second Motion to Compel Responses to 1st Set of Interrogatories and Requests for Production of Documents to JLR filed in April of 2016 (Id.)

1/19/2018 Discovery Commissioner files Recommendation regarding Ms. Lyles' Second Motion to Compel Responses to 1st Set of Interrogatories and Requests for Production of Documents to JLR (Id. at pp. 34-40)

4

1/24/2018 The Trial Court enters an ORDER adopting Discovery Commissioner's Recommendation dated 1/19/2018 (the "Third Discovery Order") (Appendix at pp. 61-65)

2/01/2018 JLR files Objection to the 1/19/2018 Recommendation of the Discovery Commissioner (Supp. App. at p. 7)

2/01/2018 JLR files Motion to Vacate the Third Discovery Order (Id.)

2/7/2018 The Trial Court enters an ORDER Denying JLR's Motion to Vacate the Third Discovery Order (the "Fourth Discovery Order") (Id. at pp. 41-42)

2/20/2018 JLR files 2nd Objection to the Third Discovery Order and submits a Proposed Amended Order (id. at p. 8).

2/26/2018 JLR's deadline to comply with the Third Discovery Order passes without a single document being produced. (Id.)

3/6/2018 JLR files Notice of Hearing for its Motion to Amend the Third Discovery Order (Id.)

3/9/2018 Ms. Lyles files Motion for Sanctions against JLR (Appendix at pp. 66-92)

5/21/2018 JLR files its Response in Opposition to Ms. Lyles' Motion for Sanctions (Supp. App. at p. 8)

9/13/2018 Discovery Commissioner holds hearing on Ms. Lyles' Motion for Sanctions (Id. at p. 9)

10/1/2018 Discovery Commissioner files Recommendation regarding Ms. Lyles' Motion for Sanctions (see Appendix at pp. 93-96)

10/5/2018 JLR files Objections to Discovery Commissioner's Report and Recommendation (Id. at pp. 568-578)

10/15/2018 Trial Court enters ORDER Granting Ms. Lyles' Motion for Sanctions (the "Fifth Discovery Order Awarding Sanctions") (see Appendix at pp. 99-100)

10/19/2018 Ms. Lyles' legal team submits its fees and costs associated ,vith the Motion for Sanctions (Id. at pp. 788-921)

10/30/2018 JLRsubmits its objections to the fees and costs submitted by Ms. Lyles'legal team regarding the Motion for Sanctions (Id. at pp. 922-936)

5

. . 11/16/2018 Ms. Lyles files her Second Motion for Sanctions against JLR due to

continuing and repeated violations of Judge King's Orders, two years and seven moths after Ms. Lyles' served her discovery requests on JLR (Supp. App. at p. 10).

2019

1/11/2019 Discovery Commissioner files Recommendation regarding sanctions to be imposed against JLR (Id. at pp. 420-530). Intentionally omitted from the Appendix is Exhibit C which details the Discovery Commissioner's attorney fee calculation and Exhibit D \,vhich details the Discovery Commissioner's claim for fees. Both of these Exhibits are attached to the Supplemental Appendix at pp. 43-58.

1/14/2019 JLR files its Objections to the Discovery Commissioner's Recommendation regarding sanctions imposed against JLR (Id. at 531-938)

2/11/2019 Trial Court enters ORDER imposing sanctions against JLR (the "Sixth Discovery Order for Payment of Costs and Fees as Sanctions") (Appendix at pp. 979-980)

B. FACTUAL SUMMARY

The underlying action is a products liability case involving a Land Rover vehicle.

Ms. Lyles, a 73-year-old African-American, lifelong West Virginia resident, purchased her

2013 Land Rover LR2 HSE, (the "Subject Land Rover") from Smith Motor Company,

located in Charleston, West Virginia. See Appendix at pp 5 - 49. On November 19,2014,

Patricia was driving the Subject Land Rover. Id. While stopped at a red light at the

intersection of Route 119 and Trace Fork, in Chapmanville,2 West Virginia, she was rear-

ended by a commercial truck driven by Defendant Neil Hasen. Id. During the collision,

the driver's seat and the safety restraint system in the Subject Land Rover failed. Those

failures resulted in catastrophic injuries to Ms. Lyles, including, but not limited to,

permanent paraplegia. Id. JLR Limited designed, engineered, developed, tested,

2 The collision at issue in the underlying action occurred in Charleston, West Virginia. The reference to Chapmanville, West Virginia was an error.

6

approved, manufactured, fabricated, assembled, equipped, inspected, labeled, advertised,

promoted, marketed, and distributed the Subject Land Rover and its components to Ms.

Lyles. Id.

C. RELEVANT DEADLINES OR UPCOMING EVENTS

There are no relevant deadlines or upcoming events that are relevant to either the

questions presented or the relief requested.

V. SUMMARY OF ARGUMENT

The Court should deny JLR's Petition for numerous reasons. A full view of the

record demonstrates that JLR cannot meet a single factor required for the issuance of a

wTit of prohibition. First, upon entry of a final order, ""hether on summary judgment or

by jury verdict, all interlocutory orders become appealable. Thus, JLR can seek a direct

appeal of the Sanctions Orders upon entry of such an order. Second, JLR v,rill not be

damaged or prejudiced in a ,vay that is not correctable on appeal because, if successful on

appeal, Ms. Lyles ,,,rill simply be required to return JLR's money. Third, as demonstrated

above, the Sanctions Orders were not clearly erroneous as a matter of law. Forth, Judge

King committed no error and scrupulously observed both procedural and substantive law.

Fifth, the Sanctions Orders raise no new or important problems or issues of law of first

. . ImpressIOn.

Additionally, JLR fails to present any valid questions for this Court's consideration.

With respect to JLR's first question presented, Judge King's Sanction Orders, when

considered in their entirety, contained sufficient findings of fact and conclusions of law.

Under JLR's second question presented, Judge King clearly found that JLR violated the

Third Discovery Order. Regarding JLR's third question presented, Judge King clearly and

unambiguously awarded Ms. Lyles her costs and attorney fees as part of the sanctions

7

against JLR. Finally, ,vith respect to JLR's fourth question presented, the Sanctions

Payment Order did identify how the amount of fees specified in the award was calculated;

therefore, there was no violation of JRL's due process rights.

VI. STATEMENT REGARDING ORAL ARGUMENT AND DECISIONS

While JLR's Petition could well be considered frivolous and the dispositive issues

have been authoritatively decided thereby foreclosing oral argument under W. Va. R. App.

Pro. 18(2) and (3), Ms. Lyles believes that oral argument under W. Va. R. App. Pro. 19 is

appropriate in this case. This Petition is suitable for Rule 19 oral argument because the

Petition involves questions related to the application of settled lmv, JLR contends that

Judge King exceed his jurisdiction in awarding sanctions and the Petition raises only

narrmv issues of lmv. Given the gravity of the conduct at issue in this case, Ms. Lyles does

not believe that a memorandum decision is appropriate.

VII. ARGUMENT

The Court should deny JLR's Petition for myriad reasons. First, JLR cannot meet

a single factor required for the issuance of a "vrit of prohibition. Second, the Orders at

issue in this Petition contain sufficient findings of fact and conclusions of law. Third,

Judge King acted "veIl ,\rithin his legitimate authority by sanctioning JLR for its ongoing

,riolation of his discovery orders. Fourth, the West Virginia Rules of Chril Procedure

clearly provides for the award of attorney fees as a sanction for violating discovery orders.

Finally, Judge King fully explained how the attorney fee award was calculated and the fee

award directly addressed the harm caused by JLR's discovery misconduct.

A. A WORD ON ETHICAL OBLIGATIONS

For most attorneys, there is nothing more important than adhering to the highest

standards of professional conduct. These attorneys realize that in some cases, the facts

8

simply do not support their arguments and they have the moral and professional courage

to accept the rightful outcome of a disputed issue. While this philosophy is codified by the

West Virginia Rules of Professional Conduct, there are some attorneys who eschew their

ethical obligations to gain an unfair advantage and avoid the consequences of their

actions. JLR's counsel falls into this second category of advocates.

Rule 3.1. of the West Virginia Rules of Professional Conduct states, in pertinent

part, that "[a] lawyer shall not bring or defend a proceeding, or assert or controvert an

issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which

includes a good faith argument for an extension, modification or reversal of existing Imv."

Additionally, lm<\yers have a duty of candor toward the tribunal. According to W. Va. R.

Prof. Conduct 3.3(a), "[a] lawyer shall not knowingly: (1) make a false statement of fact or

law to a tribunal or fail to correct a false statement of material fact or law previously made

to the tribunal by the la,<\yer; ... (3) offer evidence that the la\<\yer knows to be false."

Furthermore, Im<\yers have a duty of fairness to opposing parties and counsel: "[a] Im<\yer

shall not: (a) unlawfully obstruct another party's access to evidence ... ; (c) knowingly

disobey an obligation under the rules of a tribunal except for an open refusal based on an

assertion that no valid obligation exists; (d) in pretrial procedure, ... fail to make

reasonable diligent effort to comply with a legally proper discovery request by an

opposing party ... "

As officers of the Court, all attorneys haye an obligation to ensure compliance with

these rules. And while there can be some honest disagreement in grey areas, intentional,

9

blatant and repeated violations of the rules must be addressed. The follmving is a list of

four arguments asserted in JLR's Petition that are simply not true:3

(1) "Notably, Plaintiffs counsel's time entries were redacted, and JLR was not permitted to review the substance of those entries in order to challenge them."4

This statement is demonstrably false. JLR intentionally covered up this falsehood

by failing to give this Court a complete record for review. Specifically, Discovery

Commissioner Hendrickson provided Judge King and all of the parties a detailed analysis

of the time, including un redacted descriptions of the ,,,,ork, spent by Ms. Lyles' legal team

in bringing the motion for sanctions. This analysis was attached as Exhibit C to his

January 11, 2019 letter to Judge King and "vas copied to counsel for all parties, including

JLR. Hm,vever, JLR omitted Exhibit C from the Appendix vdth full knmvledge that said

exhibit is fatal to the arguments it is making before this Court.

(2) "The relief awarded was not the relief sought .. . "5

Once again, this statement is misleading at best and untrue at "vorst. In her Motion

for Sanctions, Ms. Lyles requested various sanctions, including but not limited to, " ... (1)

requiring JLR LTD to pay Plaintiffs costs and attorney fees associated ,<\rith all discovery

disputes Plaintiff has had '<\rith JLR LTD ... " Once again, JLR's intentional manipulation

of the Appendix made this untrue assertion possible. JLR would lead this Court to believe

that Judge King entered only one Order on Ms. Lyles' Motion for Sanctions. In fact, there

were two.

3 Each of these sections will· be discussed at length below and include all necessary references to the Appendix and Supplemental Appendix record. 4 Petition at p. 5 (emphasis added). 5 Petition at p. 6 (emphasis added).

10

Despite being required by W. Va. R. App. Pro. 16( e) to begin the Appendix with "[a]

copy of the decision sought to be reviewed, and all other orders that are necessary

for a fair review of the questions presented ... " (emphasis added), Judge King's

first Sanctions Order does not appear in the Appendix until page 99. Judge King's second

Sanctions Order is buried at page 979! These tV.10 Orders, along vvith the documents they

incorporate, are necessary for a fair revie"v of the questions presented because, together,

the 1\"'0 Sanctions Orders satisfy all requirements of West Virginia Im,v. In the Second

Sanctions Order, Judge King explicitly stated that" ... Discovery Commissioner David K.

Hendrickson, sent to the court his evaluation of the Plaintiffs request for fees and costs

as part of the sanctions ordered by the Court on October 15, 2018." Appendix

at p. 979 (emphasis added). Thus, the monetary relief awarded was part of the relief

sought.

(3) "A review of the letter and the proposed order confirms that JLR had not violated an order of the circuit court and there was no finding that JLR failed to produce any discovery, withheld documents, or otherwise intentionally sought to delay the discovery process or mislead Plaintiff or her counsel."6

This statement constitutes another falsehood. In reality, the Discovery

Commissioner stated in his October 1, 2018 letter, and Judge King agreed:

... that ,,,,hile the Defendant Jaguar has provided a substantial amount of material to the Plaintiff, it has been produced in a way that falls short of fully answering the discovery in a meaningful way to allow the Plaintiff to evaluate her case. Therefore, my recommendation is that the Court should enter an Order sanctioning Jaguar by requiring them to fully answer the Interrogatories and Requests for Production informing the Plaintiff which documents by Bates Number or other identification is responsive to which Interrogatory or Request for Production served on them by Plaintiff.

6 Petition at p. 4 (emphasis added).

11

Appendix at p. 94 (bold added). JLR's significant editing of this crucial paragraph is

nothing short of fraudulent. JLR completely omits the Court's finding that the material

provided by JLR " ... has been produced in a way that falls short of fully answering the

discovery in a meaningful \,vay to allow the Plaintiff to evaluate her case." Id. JLR

completely eliminates that portion of Discovery Commissioner Hendrickson's

recommendation that " ... the Court should enter an Order sanctioning Jaguar by

requiring them to fully ans\'ver the Interrogatories and Requests for Production ... " Id.

(emphasis added).

Contrary to JLR's assertions, the Discovery Commissioner found, and Judge King

agreed, that JLR had failed to fully ans\,ver Ms. Lyles' discovery requests, as Judge King

ordered them to do in January 24, 2018 (Appendix at pp. 61-65.) In other words, JLR's

discovery responses \,,'ere incomplete. Pursuant W. Va. R. Civ. Pro. 37(a)(3), " ... an

evasive or incomplete answer or response is to be treated as a failure to

respond." Emphasis added. Additionally, under W. Va. R. Civ. Pro. 34(b), JLR was

required to produce documents " ... as they are kept in the usual course of business or

shall organize and label them to correspond with the categories in the

request." Commissioner Hendrickson found, and Judge King agreed, that JLR also

failed to comply with this rule. As such, it is clear JLR violated the Court's January 24,

2018 Order to produce discovery by providing responses in a way that they were treated

under the Rules as a failure to respond at all. The Court concluded JLR should be

sanctioned for this violation.

(4) "Incredibly, many of these time entries preceded Plaintiffs motion for sanctions by more than one year; for instance, Scott Segal's very first time entry was for work he performed on September 20, 2016. (Id. at 289). As discussed below, this unequivocally cannot be related to

12

the costs of bringing the motion for sanctions since that motion was not brought until March 19, 2018 - one and a half years later."7

Emphasis added. This argument is doubly misleading.

First, as one sanction, Ms. Lyles sought" ... costs and attorney fees associated

with all discovery disputes Plaintiff has had ,,,rith JLR LTD ... " Appendix at p. 76

(emphasis added). By September 2016, Ms. Lyles had filed her first set of discovery

requests on JLR prompting the follo",ring filings:

5/23/2016 - JLR files a Motion to Quash Ms. Lyles' 1st Set of Interrogatories and Requests for Production of Documents arguing noncompliance ,,,rith Hague Evidence Convention Procedures

7/15/2016 - Ms. Lyles Files Motion to Compel JLR's Responses to Plaintiffs 1st Set of Interrogatories and Requests for Production of Documents arguing that the West Virginia Rules of Civil Procedure govern discovery to JLR LTD

7/15/2016 -Ms. Lyles files Response in Opposition to JLR's Motion to Quash

7/25/2016 - JLR files Reply to Ms. Lyles' Response to Motion to Quash

7/28/2016 -Trial Court holds hearing on Ms. Lyles' Motion to Compel and JLR's Motion to Quash

8/10/2016 - Ms. Lyles submits Proposed Findings of Fact and Conclusions of Law

8/11/2016 - JLR submits Proposed Findings of Fact and Conclusions of Law

8/26/2016 - The Trial Court enters an Order granting Ms. Lyles' Motion to Compel and Denying JLR's Motion to Quash.

Supp. App. at pp. 3-4.

This timeline demonstrates that Ms. Lyles' discovery dispute related her first set of

requests for production goes all the way back to May of 2016. As Ms. Lyles' legal team

7 Petition at p. 5 (emphasis added).

13

sought costs and fees as a sanction for all discovery disputes v\rith JLR, it is perfectly

logical that Attorney Segal "vould include time from September 2016.

Second, what is not logical is ,,"hy JLR would fail to inform this Court that

Discovery Commissioner Hendrickson recommended, and Judge King agreed, that

Attorney Segal's time should be cut to exclude vl'Ork done tVI'O years prior to the filing of

the Motion for Sanctions: "[a]dditionally, Mr. Segal's time entries appeared to predate the

entries submitted by others by roughly 2 years. To bring his entries in line "vith the others,

that time was cut." Supplemental Appendix at M (bold added). Once again, JLR's

failure to prmride a complete copy of the underlying record deprived the Court of the

opportunity to re,riew the entirety of Discovery Commissioner Hendrickson's

recommendations.

In summary, the West Virginia Rules of Professional Conduct must be honored,

observed, and enforced. JLR's patent ,riolation of these Rules reverberates ,,,,ell beyond

the bounds of this Petition. If litigants are free to disregard these Rules as they please in

advocating for their clients, these Rules v,rill cease to have meaning and the entire legal

system ,,,,ill devolve into chaos. This Court should neither countenance nor tolerate such

behmrior.

JLR has made the discovery process the focus of this litigation for almost three

years! Not only have its discovery abuses and its use of the discovery process as a tactical

weapon8 led to the proper imposition of sanctions; but, now its failure to follmv appellate

8 Ironically, JLR makes Ms. Lyles' point on this issue in Footnote 3 of JLR's petition: "See John H. Beisner, The Centre Cannot Hold - The Needfor Effective Reform of the u.S. Civil Discovery Process, U.S. Chamber Institute for Legal Reform (May 2010) Oamenting that "discovery has become the focus oflitigation, rather than a mere step in the adjudication process."); Pacini, Carl & Young, et al., Fighting Discovery Abuse in Litigation. Journal of Forensic Accounting, 6 (2014) (observing that "discovery has been transformed from a tool to gather facts during litigation to a tactical weapon")."

14

rules must prohibit the granting of a '''Tit. The following sections will demonstrate that

JLR's Petition is both procedurally defective and substantively without merit. For these

reasons, the Court should deny JLR's Petition for Writ of Prohibition.

B. JLR's Petition for Writ of Prohibition is procedurally deficient because the questions presented do not meet the appropriate standard.

Before addressing the questions presented by JLR, the Court is required to first

assess whether or not a ,,,Tit should issue under this Court's case law. As Justice Cleckley

held in the seminal case of State ex reI. Hoover v. Berger, 199 W. Va. 12,483 S.E.2d 12

(1996):

In determining whether to entertain and issue the ,,,Tit of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the "'Tit has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter oflaw; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary ,,,Tit of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.

Id. at Syl. Pt. 4. This Court consistently reaffirmed the five-part Hoover v. Berger test

throughout the years.9 In the present case, JLR cannot meet a single one ofthese factors

required for the issuance of a ,,,Tit of prohibition.

9 See SyI. Pt. 1, State ex reI. C.H. v. Faircloth, 240 W. Va. 729, 815 S.E.2d 540 (2018); SyI. Pt. 1, State ex rei. H.S. v. Beane, 240 W. Va. 643, 814 S.E.2d 660 (2018) ; SyI. Pt. 2, State ex reI. Southland Props., LLC v. Janes, 240 W. Va. 323, 811 S.E.2d 273 (2018); SyI. Pt. 1, State ex reI. DeCourcy v. Dent, 240 W. Va. 163, 807 S.E.2d 834 (2017) ; and SyI. Pt. 2, State ex reI. State v. Sims, 240 W. Va. 18, 807 S.E.2d 266 (2017).

15

1. JRL's writ of prohibition should be denied because JLR can directly appeal Judge King's Sanctions Order upon entry of a final judgment.

JLR can seek a direct appeal of the award of sanctions at the conclusion of this

action. Therefore, a writ should not issue. JLR's arguments to the contrary reflect a

fundamental misunderstanding of both the mediation and appellate procedure.

Specifically, JLR argues that it cannot appeal Judge King's Sanctions Orders in the event

of a resolution before, during or after trial or a jury verdict in JRL's favor. This argument

is fatally fla,,,,ed. It completely ignores the purpose of mediation and, most importantly,

the rule of finality. In the event that the case is resolved by mediation, the parties ,,,,m resolve all claims, including any payment of sanctions and end this litigation. JLR is free

to and ""m very likely take this sanction award into consideration in any settlement.

Furthermore, any final order in JLR's favor, ,,,,hether it be on summary judgment

or jury verdict, vl'Ould trigger the rule of finality. The rule of finality provides the ability to

appeal all interlocutory orders, including Judge King's sanctions orders. As explained by

Justice Cleckley in James M.B. v. Carolyn M., 193 W. Va. 289,456 S.E.2d 16 (1995):

Under W. Va. Code, 58-5-1 (1925), appeals only may be taken from final decisions of a circuit court .... This rule, commonly referred to as the "rule of finality," is designed to prohibit "piecemeal appellate revie"" of trial court decisions which do not terminate the litigation[.]" The requirement of finality has been called "'an historic characteristic of . . . appellate procedure.'"

James M.B. at. 292 (some internal citations omitted).l0 Once the final order is entered,

all non-appealable interlocutory orders become appealable. This would include Judge

King's six discovery orders. See Syllabus Point 5 of State ex rel. Davis v. Iman Mining Co.,

10 This Court has consistently followed the rationale behind the rule of finality. See Credit Acceptance Corp. v. Front, 231 W. Va. 518, 523, 745 S.E.2d 556 (2013); Crihfield v. Brown, 224 W. Va. 407, 411, 686 S.E.2d 58 (2009); Robinson v. Pack, 223 W. Va. 828, 832, 679 S.E.2d 660 (2009); and C & 0 Motors, Inc. v. W. Va. Paving, Inc., 223 W. Va. 469, 473, 677 S.E.2d 905 (2009).

16

144 W. Va. 46, 106 S.E.2d 97, (1958) ("[a]n appeal from any final decree by a party entitled

to appeal therefrom brings ,vith it for review all the preceding interlocutory decrees, out

of which any of the errors complained of in such final decree arose.") Thus, contrary to

JLR's arguments, JLR is able to appeal Judge King's sanctions upon the entry of any final

order.

2. JRL's writ of prohibition should be denied because JLR will not be damaged or prejudiced in any way not correctable on appeal.

Under the second factor, JLR ,,,rill not be damaged or prejudiced in a way that is

not correctable on appeal. If JLR is successful on appeal, Ms. Lyles ,,,rill be required to

return the monetary sanction imposed by Judge King. JLR argues that it is harmed now

because the sanction ordered by Judge King diverts funds away from litigation resources.

This argument rings hollow based on the fact that JLR is a high-end multi-national

automobile manufacturer. Additionally, JLR has spent the last three years running up its

attorney fees by filing a never-ending stream of motions in an effort to frustrate the

discovery process and delay trial: all in the hopes that a 73-year-old African-American

paraplegic ,,,rill die before she gets to the courthouse.

3. JRL's writ of prohibition should be denied because Judge King's Sanctions Orders were not clearly erroneous.

Most importantly, under the third factor, Judge King's Sanctions Orders were not

clearly erroneous. This Court has held that:

A finding is clearly erroneous when, although there is evidence to support the finding, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. However, a revie,,,ring court may not overturn a finding simply because it would have decided the case differently, and it must affirm a finding if the circuit court's account of the evidence is plausible in light of the record viewed in its entirety.

17

Syl. Pt. 3, Estate ofBossio v. Bossio, 237 W. Va. 130,785 S.E.2d 836 (2016) (bold added).

In the present case, the entire evidence on the issue of sanctions clearly shmvs that Judge

King made no mistake ,,,,hen he sanctioned JRL.

Trial courts are expressly permitted by Rule 37 of the West Virginia Rules of Civil

Procedure to sanction parties for violating discovery orders:

Sanctions by court in which action is pending. If a party ... fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule [governing motions to compel discovery] ... the court in which the action is pending may make such orders in regard to the failure as are just, and among others are the following:

(A) An order that the matters regarding "vhich the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance ,,,,ith the claim of the party obtaining the order; (B) An order refusing to allm'" the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence; (C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; ...

In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure "vas substantially justified or that other circumstances make an m,vard of expenses unjust.

(Bold in original)(italics added). Furthermore:

The West Virginia Rules of Evidence and the West Virginia Rules of Civil Procedure allocate significant discretion to the trial court in making evidentiary and procedural rulings. Thus, rulings on the admissibility of evidence and the appropriateness of a particular sanction for discovery violations are committed to the discretion of the trial court. Absent a fe,,,, exceptions, this Court "vill revie,-\' evidentiary and procedural rulings of the circuit court under an abuse of discretion standard.

Syl. Pt. 1, McDougal v. McCammon, 193 W. Va. 229,455 S.E.2d 788 (1995). Thus, under

W. Va. R. Civ. Pro. 37, Judge King had broad authority to impose any just sanction against

18

JLR, including once again ordering JLR to fully respond to Ms. Lyles' discovery requests

and a\,varding Ms. Lyles her costs and fees in bringing her Motion for Sanctions.

Additionally, West Virginia law grants Judge King significant discretion in awarding

sanctions for the violation of discovery orders.

This Court extensively examined the basis for the trial court's power to impose

sanctions under Rule 37 in Doulamis v. Alpine Lake Property Owners Ass'n, 184 W. Va.

107,399 S.E.2d 689 (1990), holding as follows:

1. "Rule 37 of the West Virginia Rules of Civil Procedure is designed to permit the use of sanctions against a party who refuses to comply \vith the discovery rules, i.e., Rules 26 through 36." Syllabus Point 1, Shreve v. Warren Assoc., Inc., W. Va., 355 S.E.2d 389 (1987).

2. "Generally, under Rule 37 of the Rules of Civil Procedure to trigger the imposition of sanctions where a party refuses to comply \vith a discovery request, the other party must file a motion to have the court order discovery. If the discovery order is issued and not obeyed, then the party may seek sanctions under Rule 3 7(b) of the Rules of Civil Procedure." Syllabus Point 1, Prager v. Meckling, W. Va., 310 S.E.2d 852 (1983)·

Emphasis added. For approximately three years, JLR failed to comply \,vith Judge King's

discovery orders. Ms. Lyles filed a Motion to Compel and Judge King ordered JLR to fully

respond to Ms. Lyles' discovery requests. See Third Discovery Order, Appendix at

pp. 61-65. JLR disobeyed the Third Discovery Order and Ms. Lyles sought sanctions. Id.

at pp. 66-92.

In State ex rel. Richmond Am. Homes ofW. Va. v. Sanders, 226 W. Va. 103,697

S.E.2d 139 (2010), this Court discussed the procedural safeguards that apply to the

imposition of sanctions, holding as follows:

5. "Although Rules 11, 16, and 37 of the West Virginia Rules of Civil Procedure do not formally require any particular procedure, before issuing a sanction, a court must ensure it has an adequate foundation either pursuant to the rules or by virtue of its inherent powers to exercise its

19

authority. The Due Process Clause of Section 10 of Article III of the West Virginia Constitution requires that there exist a relationship between the sanctioned party's misconduct and the matters in controversy such that the transgression threatens to interfere with the rightful decision of the case. Thus, a court must ensure any sanction imposed is fashioned to address the identified harm caused by the party's misconduct." Sy1. Pt. 1, Bartles v. Hinkle, 196 W.Va. 381, 472 S.E.2d 827 (1996).

6. "In formulating the appropriate sanction, a court shall be guided by equitable principles. Initially, the court must identify the alleged wrongful conduct and determine if it warrants a sanction. The court must explain its reasons clearly on the record if it decides a sanction is appropriate. To determine ,,,,hat will constitute an appropriate sanction, the court may consider the seriousness of the conduct, the impact the conduct had in the case and in the administration of justice, any mitigating circumstances, and whether the conduct was an isolated occurrence or was a pattern of wrongdoing throughout the case." Sy1. Pt. 2, Bartles v. Hinkle, 196 W.Va. 381, 472 S.E.2d 827 (1996).

Emphasis added. Judge King's Sanctions Orders pass constitutional muster because there

is a direct relationship between JLR's discovery misconduct and the matters in

controversy.

In his October 1, 2018 report and recommendation to Judge King, Discovery

Commissioner Hendrickson found that JLR had failed to fully respond to Ms. Lyles'

discovery requests and produced materials in a way that prevented her from evaluating

her case. Appendix at p. 93-94 (bold added). Discovery Commissioner Hendrickson also

stated:

I have been practicing law for over 36 years. I have appeared in several tribunals both in and out of Wes Virginia and am of the opinion that when discovery bogs down, the entire case does as well. Noone gets justice and the expense of prosecuting the action continues to mount.

Id. at p. 93 (bold added). Judge King incorporated this recommendation into his

Sanctions Order. Id. at pp. 99-100. Thus, it is clear that JLR was sanctioned for its failure

to fully and meaningfully respond to Ms. Lyles' discovery requests (to which it was

20

. . previously ordered to respond) directly impacting both the progress and cost of the

prosecution of her case.

The sanctions imposed by Judge King directly address JLR's discovery abuses.

First, having determined that JLR had not complied ,,,rith the Third Discovery Order,

Judge King sanctioned JLR by once again requiring JLR to fully respond to Ms. Lyles'

discovery requests. Second, because JLR's discovery misconduct drove up Ms. Lyles'

litigation costs, Judge King awarded monetary sanctions directly related to fees and costs

incurred by Ms. Lyles' legal team in bringing the Motion for Sanctions. Consequently,

Judge King's Sanctions Orders were entirely appropriate and certainly not clearly

erroneous.

4. JRL's writ of prohibition should be denied because Judge King's Sanctions Orders contained no errors and observed both procedural and substantive law.

Regarding the fourth factor, Judge King committed no error and scrupulously

complied ,,,rith both the procedural and substantive law associated ,,,rith the imposition of

sanctions. See Section V(A)(3) above. Ms. Lyles filed motions to compel responses to her

discovery requests, Judge King granted those motions and JLR failed to comply ,,,rith

Judge King's Orders. Judge King afforded JLR an opportunity to be heard in front of

Discovery Commissioner Hendrickson, who convened a nearly three-hour hearing.

Discovery Commissioner Hendrickson closely analyzed the parties' filings and

arguments and found that JLR should be sanctioned for its misconduct. Judge King

agreed ,,,rith Discovery Commissioner Hendrickson's recommendation and awarded

Ms. Lyles sanctions for JLR's discovery misconduct. Judge King ordered Ms. Lyles' legal

team to submit its fees and costs to the Discovery Commissioner who, in turn,

recommended an appropriate monetary sanction. Once again, Judge King agreed. Based

21

11

• •

on this procedural history, there simply ,,\,as no error in either one of Judge King's

Sanctions Orders.

5. JRL's writ of prohibition should be denied because Judge King's Sanctions Orders raise no new important problems or issues of law of first . . ImpreSSIon.

Finally, the Orders related to Ms. Lyles' Motion for Sanctions faISe no ne",,r

important problems or issues of 1m,\, of first impression. In fact, the trial court's pm",er to

impose sanctions and the procedural safeguards associated with that power are ,,,,ell-

settled under West Virginia 1m\,. See, e.g., W. Va. R. Civ. Pro. 37, DouImais, supra, and

Richmond Am. Homes, supra.

Examination of the five factors reveals that JLR is merely trying to use this Petition

to seek an appeal of non-appealable interlocutory orders. This tactic is clearly prohibited

by West Virginia 1m,\,: "[p]rohibition lies only to restrain inferior courts from proceeding

[ ] in causes over ,,\'hich they have no jurisdiction, or, in ,,,,hich, having jurisdiction, they

are exceeding their legitimate pm,\'ers, and may not be used as a substitute for [a petition

for appeal] or certiorari." Syl. Pt. 4, State ex reI. Mass. Mut. Life Ins. Co. v. Sanders,

228 W. Va. 749,724 S.E.2d 353 (2012). Based on the foregoing case 1m,\, and argument,

this Court should deny JLR's Petition for Writ of Prohibition.

c. JLR's Petition for Writ of Prohibition is procedurally deficient because the Sanctions and Sanctions Payment Orders contain sufficient findings of fact and conclusions of law.

All of Judge King's Orders meet the requirements under controlling West Virginia

case 1m\,. The Sanctions and Sanctions Payment Orders at issue in this case include the

findings of fact and conclusions of 1m,\, that support Judge King's decision. Syllabus Point

6 of State ex reI. Allstate Ins. Co. v. Gaughan, 203 W. Va. 358, 508 S.E.2d 75 (1998),

22

. ,

states, in pertinent part, that "[a] party seeking to petition this Court for an extraordinary

''''fit based upon a non-appealable interlocutory decision of a trial court, must request the

trial court set out in an order findings of fact and conclusions oflaw that support and form

the basis of its decision." Judge King's Sanctions Orders meet the requirements set by

Allstate Ins. Co. v. Gaughan.

The factual and legal issues in this case are simple. JLR was required to comply

with the Judge King's Third Discovery Order. JLR refused to comply with that Order. On

September 13, 2018, the Discovery Commissioner held a three-hour long hearing on

Ms. Lyles' Motion for Sanctions, where JLR had full right to be heard (see Appendix at

p. 93 and Supp. App. at p. 9). After the hearing, Discovery Commissioner Hendrickson

sent his recommendations to Judge King in a letter dated October 1,2018 (Appendix at

pp. 93-96). Discovery Commissioner Hendrickson stated the following:

I do believe, however, that while the Defendant Jaguar has provided a substantial amount of material to the Plaintiff, it has been produced in a way that falls short of fully answering the discovery in a meaningful way to allow the Plaintiff to evaluate her case. Therefore, my recommendation is that the Court should enter an Order sanctioning Jaguar by requiring them to fully answer the Interrogatories and Requests for Production informing the Plaintiff which documents by Bates Number or other identification is responsive to which Interrogatory or Request for Production served on them by Plaintiff.

Appendix at p. 94 (bold added). Thus, Discovery Commissioner Hendrickson found that

JLR's produced voluminous documents " ... in a way that falls short of fully answering

the discovery in a meaningful way to allow the Plaintiff to evaluate her case." Id. To rectify

the problem, the Discovery Commissioner recommended that JLR be sanctioned by

requiring it to fully respond to Ms. Lyles' discovery requests and correlate the documents

produced to the categories identified in the discovery requests. JLR's failure to bring these

23

• • findings to the Court's attention is both telling and fatal to its argument that Judge King's

Sanctions Order failed to contain sufficient findings of fact and conclusions oflm,v. In fact,

JLR's failure to fully and fairly state Commissioner Hendrickson's findings of fact,

conclusions and recommendations is, at best, disingenuous and misleading to this Court.

Under W. Va. R. Civ. Pro. 37(a)(3), "[f]or purposes of this subdivision, an evasive

or incomplete answer or response is to be treated as a failure to answer or

respond." (Bold added.) Additionally, according to Rule 34(b) of the W. Va. R. Civ. Pro.,

"[a] party "vho produces documents for inspections shall produce them as they are kept

in the usual course of business or shall organize and label them to correspond

with the categories in the request." (Bold added.) It is clear from Discovery

Commissioner Hendrickson's letter that JLR's production in response to the Third

Discovery Order failed to respond to Ms. Lyles' discovery requests and failed to meet the

requirements ofW. Va. R. Civ. Pro. 34(b).

Judge King explicitly incorporated Discovery Commissioner Hendrickson's

October 1, 2018 letter by reference into the Sanctions Order: "The commissioner filed a

report and recommendation ,>\'ith the Court on October, 1, 2018, a copy of which is

incorporated by reference, outlining his vie,>\' of materials used in preparing his

Recommendation in this matter." Appendix at pp. 99-100 (emphasis added). Thus, the

Sanctions Order, when read in conjunction with the Discovery Commissioner's October 1,

2018 letter, contains sufficient findings of fact and conclusions of Im"T and meets the

elements required for appellate review. Simply put, JLR was ordered by Judge King to

fully respond to Ms. Lyles' discovery requests. Simply put, JLR failed to comply with the

circuit court's order, and Judge King issued appropriate sanctions for that failure.

24

• •

.. . The issuance of a ,·vrit of prohibition is also inappropriate in this case because any

perceived deficiency in the Sanctions and Sanctions Payment Orders are cured by the

detail of the underlying record. In Louden v. W. Va. Div. of Envtl. Prot., 209 W. Va. 689,

551 S.E.2d 25 (2001), this Court stated that:

When the findings of fact and conclusions of 1m·v made by a lower court on an issue tried by the Court without a jury are insufficient for appellate review and the record is inadequate to support the circuit court's determinations, this Court may remand the matter to the 1m-ver court for that court to state or amplify its findings, in recognition of the deference this Court customarily gives to decisions of the circuit courts which are committed by our law to their discretion.

Id. at 694 (bold added). Here, the underlying record is not inadequate. Rather, it provides

ample support for Judge King's Sanctions and Sanctions Payment Orders. See Ms. Lyles'

Motion for Sanctions (Appendix at pp. 66-92), Discovery Commissioner Letter of October

1, 2018 (id. at pp. 93-96), Sanctions Order (id. at pp. 99-100), Ms. Lyles' legal team's

petition for fees and costs (id. at pp. 788-921), Discovery Commissioner Letter of January

11,2019 (id. at pp. 420-530) and Sanctions Payment Order (id. at pp. 979-980).

D. JLR's Petition for Writ of Prohibition is substantively deficient because Judge King did not exceed his legitimate authority in sanctioning JLR for violating the Third Discovery Order.

Despite JLR's claim that no Order ,,,'as violated, the record makes clear that JLR

violated the Third Discovery Order, dated January 24,2018 (Appendix at pp. 61-65). In

the Third Discovery Order, Judge King identified numerous deficiencies in JLR's

discovery responses and ordered JLR to correct the deficiencies "no later than 30 days

from the date of entry of this order." (Id.) Instead of complying with the Third Discovery

Order, JLR filed three motions consisting of objections to the Discovery Commissioner's

25

• •

- . findings, a motion to vacate the Order and a motion to modify the Order. See Supp. App.

at pp. 7-8.

Over the course of the follovdng months, after its spurious motions ,,,,ere denied,

JLR finally began its ,,\'oefully inadequate effort to com ply vvith the Third Discovery Order.

For example, JLR began producing large volumes of information that were virtually

useless based on the format in which they were produced. This formatting deficiency,

among others, precipitated the filing of Ms. Lyles' Motion for Sanctions (Appendix at pp.

66-92).

As noted above in Section VII(B), after revie,\ring both parties' written submission

and conducting a nearly three-hour hearing, the Discovery Commissioner found that

JLR's production was" ... produced in a way that falls short of fully answering

the discovery in a meaningful way to allow the Plaintiff to evaluate her case."

Appendix at p. 94 (bold added). Discovery Commissioner Hendrickson recommended

that JLR correlate its production to the categories identified in Ms. Lyles' discovery

requests. Thus, Discovery Commissioner Hendrickson concluded that JLR \riolated the

Third Discovery Order by failing to comply ,\rith W. Va. R. Civ. Pro. 34,11

After recehring and re\rie,\ring the Discovery Commissioner's recommendation,

Judge King entered the Sanctions Order (Appendix at 99-100). The Sanctions Order

expressly incorporated the Discovery Commissioner's report and recommendation. Id.

Thus, a simple re\riew of the Discovery Commissioner's Report and the Sanctions Order

11 See W. Va. R. Civ. Pro. 37(a)(3) ("Evasive or incomplete answer or response. For purposes of this subdivision, an evasive or incomplete answer or response is to be treated as a failure to answer or respond."; and W. Va. R. Civ. Pro. 34(b) ("A party who produces documents for inspections shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request."

26

• •

- . reveals that JLR "vas sanctioned for failing to obey the Third Discovery Order.

Accordingly, the Court should conclude that JLR violated the Third Discovery Order.

E. JLR's Petition for Writ of Prohibition is substantively deficient because W. Va. R. Civ. Pro. explicitly provides for an award of attorney fees.

The record clearly shows that, pursuant to W. Va. R. Civ. Pro. 37(b)(2), Judge

King's Sanctions Payment Order m,varded Ms. Lyles her reasonable expenses, including

attorney fees, incurred in obtaining the Sanctions Order.

In his January 11, 20191etter to Judge King, Discovery Commissioner Hendrickson

stated that "Plaintiffs request for expenses and fees total $332,472.26. I recommend

approving $67,295.00 of that total." Appendix at p. 422 (bold added).

On February 11, 2019, Judge King entered the Sanctions Payment Order which

states, in pertinent part that:

On the 11th day of January 2019, the Discovery Commissioner appointed by this Court, David K. Hendrickson, sent to the court his evaluation of the Plaintiffs request for fees and costs as part of the sanctions ordered by the Court on October 15, 2018. After careful review and consideration of the Commissioner's Report and the numerous exhibits and case 1m,,' set out and supplied with the same, all of which are incorporated by reference in this document, it is hereby ORDERED that the Defendant, Jaguar Land Rover, pay to the Plaintiffs within 30 days of this Order $67,295.00 and to the Discovery Commissioner $8,312.25.

Id. at 979 (italics added) (underline added) (bold in original).

According to W. Va. R. Civ. Pro. 37(b)(2), when a motion for sanctions is granted,

trial courts" ... shall require the party failing to obey the order or the attorney advising

that party or both to pay the reasonable expenses, including attorney's fees,

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. ..

... .. caused by the failure, unless the court finds that the failure ,vas substantially justified or

that other circumstances make an m"rard of expenses unjust." (Bold added.)12

In summary, the Sanctions Payment Order clearly and unambiguously awarded

Ms. Lyles her costs and fees as part of the Sanctions Order. Such an award was expressly

mandated by W. Va. R. Civ. Pro. 37. That rule required Judge King to award Ms. Lyles her

"reasonable expenses, including attorney's fees." Consequently, this Court need not

address JLR's third question presented because Judge King clearly and unambiguously

awarded Ms. Lyles her costs and fees.

JLR's blatant misrepresentation of the reference to an award of only "costs" in the

Sanctions Order fails to present a valid basis for the issuance of a writ for two reasons.

First, even if the Sanctions Payment Order had not expressly referenced costs and fees,

West Virginia case law makes clear that the term "costs" would include attorney fees

under the facts of this case. Specifically:

While the law on costs has evolved with specific statutes and court rules that now permit the recovery of costs in certain instances, the general rule remains that "awards of costs and attorney fees are not recoverable in the absence of a provision for their allowance in a statute or court rule." Nelson v. W. Va. Pub. Employees Ins. Bd., 171 W. Va. 445, 450, 300 S.E.2d 86, 91 (1982). Indeed, '''[w]here costs not allowed by statute are awarded, prohibition will lie to prevent the execution of the judgment therefor.'" Trumka v. Ashworth,183 W. Va. 319, 321, 395 S.E.2d 563,565 (1990) (quoting State ex reI. Ringer v. Morris, 82 W. Va. 492, 494, 96 S.E. 926, 927 (1918)).

Carper v. Chad Watson & Burkharts, Inc., 226 W. Va. 50, 56, 697 S.E.2d 86 (2010) (bold

added). In the present case, Judge King's award of attorney fees was valid because W. Va.

12 JLR has never argued, nor could it, that its violation of the Third Discovery Order was either substantially justified or that other circumstances made the award of Ms. Lyles' expenses unjust.

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.. . R. Civ. Pro. 37 expressly mandates an award of expenses, including attorney fees, ,vhere

motions for sanctions are granted.

Second, according to Syllabus Point 2 of Taylor v. Elkins Home Show, Inc.,

558 S.E.2d 611 (2001):

In an ongoing action, in which no final order has been entered, a trial judge has the authority to reconsider his or her previous rulings, including an order granting a new trial. Since a trial court has plenary power to reconsider, revise, alter, or amend an interlocutory order, the court has the power to take any action with respect to an order granting a new trial.

Bold added. Thus, even if Judge King's reference to "costs" in the Sanctions Order "vas

ambiguous with regard to the issue of attorney fees, the subsequent Sanctions Payment

Order altered the prior Sanctions Order and expressly provided for the payment of fees in

addition to costs. Not only did JLR fail to bring this to the Court's attention, JLR totally

misrepresented to this Court the full and complete content of Judge King's Sanctions

Order. Such altering, gutting and piecemealing of a circuit court order to get a desired

result should not be tolerated by this Court.

F. JLR's Petition for Writ of Prohibition is substantively deficient because Judge King identified how the sanction was calculated and observed JLR's due process rights.

In its final attempt to fabricate an appealable issue, JLR argues that Judge King

failed to identify hO\v he calculated the amount of monetary sanctions he awarded to

Ms. Lyles. Once again, JLR's argument is demonstrably false. Like the Sanctions Order,

Judge King's Sanctions Payment Order incorporated by reference Discovery

Commissioner Hendrickson's corresponding report and recommendation:

After careful revie"v and consideration of the Commissioner's Report and the numerous exhibits and case lmv set out and supplied "vith the same, all of which are incorporated by reference in this document, it is hereby ORDERED that Defendant, Jaguar Land Rover, pay to the Plaintiffs ,,,rithin

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- . - ~

30 days of this Order $67,295.00 and to the Discovery Commissioner $8,312.25.

Appendix at p. 979 (bold in original) (italics added).

In the Sanctions Order, Judge King directed Ms. Lyles to provide the Discovery

Commissioner and JLR '"rith an affidavit detailing her costs in bringing the Motion for

Sanctions. On October 19, 2018, Ms. Lyles' counsel supplied the requested information to

the Discovery Commissioner. See Appendix at pp. 788-921. The information included the

hourly rate claimed for each member of the team, along ,,,rith supporting documentation,

and the time expended in bringing the Motion for Sanctions. Id. Discovery Commissioner

Hendrickson then conducted an exhaustive analysis of both reasonable hourly rates for

Ms. Lyles' legal team and the time entries that were reasonably related to the Motion for

Sanctions.

Discovery Commissioner Hendrickson's recorded the results of his evaluation in

Exhibit C to his October 19, 2018 letter to Judge King. See Supp. App. at pp. 43-58. For

each member of Ms. Lyles' legal team, the Discovery Commissioner identified the hourly

rate, prO\rided a chart detailing the work he determined to be a relevant fee award, the

reasonable amount of time expended on that work, and the rationale for his calculations.

Id. In further support of his rationale, Discovery Commissioner Hendrickson reviewed

and attached as Exhibit E to his recommendation, a recent sanctions award by Federal

Magistrate Judge Cheryl Eifert in Johnson v. Ford Motor Co., U.S. Dist. Court for the

Southern Dist. of W. Va., Huntington Div., Civil Action No.: 3:13-cv-06529. Appendix at

pp. 434-448. The hourly rates recommended by Discovery Commissioner Hendrickson in

the present case are completely consistent ,,,rith the hourly rates determined by Magistrate

Judge Eifert in Johnson, supra. Id. at pp. 441-442.

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• •

'It •

Tellingly, JLR intentionally removed Exhibit C from the Discovery Commissioner's

October 19, 2018 letter before providing that letter to this Court because it is fatal to JLR's

false claims that time entries from Ms. Lyles' legal team \-vere redacted and that there \-vas

no explanation as to how the fee award \vas calculated. JLR's failure to include Exhibit C

to Commissioner Hendrickson's recommendation crosses \vell beyond the line ben-veen

passive incompetence and deliberate deception. This type of conduct has been the

hallmark of JLR's advocacy throughout this litigation. Even the most cursory revie\v of

Exhibit C reveals the hourly rate Commissioner Hendrickson recommended for each

member of Ms. Lyles' legal team and his recommendation on the appropriate amount of

time that each member spent on bringing the Motion for Sanctions. See Supp. App. at.

Accordingly, there is simply no legal basis for the issuance of a \-vrit of prohibition under

the facts and circumstances of this case.

VIII. CONCLUSION

Ms. Lyles served her first set of discovery requests on JLR in April 2016. By March

2018, JLR had still not fully responded to those discovery requests despite having been

specifically ordered to do so by Judge King. Consequently, Ms. Lyles moved for sanctions.

After complying \-vith all substantive and procedural aspects of controlling West Virginia

law, Judge King rightfully found that JLR failed to respond to Ms. Lyles' discovery

requests in violation of his Order and imposed sanctions against JLR. Judge King then

fashioned sanctions appropriate to the discovery abuses: (1) once again ordering JLR to

provide complete responses to Ms. Lyles' discovery requests; and (2) monetary sanctions

in an amount equal to the reasonable costs and legal fees Ms. Lyles' legal team incurred

in bringing the Motion for Sanctions. In sum, Judge King imposed sanctions against JLR

entirely book and there is simply no basis to grant JLR the relief it seeks.

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• Ii

,. . For these reasons, Ms. Lyles respectfully requests that this Court deny JLR's

Petition for Writ of Prohibition and mvard her all other relief the Court deems just and

appropriate.

Dated this 15th day of April, 2019.

PATRICIAA. LYLES

By Counsel:

ott gal, Esq. (WV Bar #4717) n P. Foster, Esq. (WV Bar #10593)

THE SEGAL LAw FIRM A Legal Corporation 810 Kanawha Boulevard, East Charleston, West Virginia 25301 Telephone: (304) 344-9100 Facsimile: (304) 344-9105

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· . .. . IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

State of West Virginia Ex. ReI. Jaguar Land Rover Limited,

Petitioner,

vs. Supreme Court Docket No. 19-0222

The Honorable Charles King, Judge of the Circuit Court of Kanawha County, and Patricia A. Lyles,

Respondents.

CERTIFICATE OF SERVICE

I hereby certify that on this 15th day of April, 2019, true and accurate copies of the

foregoing "Response to Petition for Writ of Prohibition" and "Supplemental

Appendix" were served via United States Mail contained in a postage-paid envelope

addressed to counsel for all other parties to this appeal as follows:

Philip J. Combs, Esq. Gordon 1. MO\"ren, II, Esq. Thomas Combs and Spann, PPLC 300 Summers Street, Suite 1380 P.O. Box 3824 Charleston, WV 25338-3824 Attorney for Jaguar Land Rover North America, LLC and Jaguar Land Rover Limited

The Honorable Charles E. King Judge, 13th Judicial Circuit Kanawha County Judicial Annex 111 Court Street, 4th Floor Charleston, WV 25301

Chris Spencer, Esq. Spencer Shuford LLP 6806 Paragon Place, Suite 200 Richmond, VA 23230 Attorney for Jaguar Land Rover North America, LLC and Jaguar Land Rover Limited

ott . egal, Esq. (WV Bar #4717) n P. Foster, Esq. (WV Bar #10593)

THE SEGAL LAw FIRM A Legal Corporation

33