1 STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS

State of West Virginia ex rel. City of Weirton,
Petitioner

v.) No. 14-0279 (Brooke County No. 11-C-50)

The Honorable David J. Sims, Judge of the Circuit Court of Brooke County, Respondent

MEMORANDUM DECISION

Petitioner, the City of Weirton ( A Weirton @ ), by counsel Thomas E. Buck,
invokes this Court = s original jurisdiction seeking a writ of prohibiti on to prevent the Circuit Court of Brooke County from allowing respon dent, Terry DiBacco, a former police officer for Weirton, from taking the deposit ion of Dean Makricostas, a lawyer who was not formally retained by Mr. DiBacco, but who n evertheless assisted Mr. DiBacco following his placement on administrative leave by Weirton. Mr. DiBacco seeks to depose Mr. Makricostas for the purpose of establish ing that Weirton, through its lawyer, Mr. Vince Gurrera, had required Mr. DiBacco to pres ent only a general medical release, as opposed to a mental health release, in order to be reinstated to his employment as a police officer.

This Court has considered the parties = briefs and the documents attached thereto, the pertinent authorities, and oral argume nt. We find no new or significant questions of law, and, upon application of the stan dards for issuing a writ of prohibition, we find no grounds upon which to grant the requeste d writ. For these reasons, a memorandum decision denying the writ of prohibition is appropriate under Rule 21 of the Rules of Appellate Procedure.

Mr. DiBacco had served as a Weirton police officer for more than fifteen years when, in April 2009, Weirton placed him on ad ministrative leave based upon his
mental heath status. 1 It appears that, following his placement on admin istrative leave, 2

1 Weirton submits to this Court that the administrati ve leave was based upon the
recommendations of Mr. DiBacco = s mental health physicians. 

### FILED

September 23, 2014

RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2

Mr. DiBacco enlisted the aid of his friend, Mr. Mak ricostas, to assist him in obtaining reinstatement to his former position. Although Mr. Makricostas is a lawyer, documents submitted to this Court by the parties indicate tha t Mr. Makricostas was never retained as
Mr. DiBacco = s lawyer. 3 In fact, Mr. Makricostas later withdrew all assis tance and informed Mr. DiBacco that he would not be able to p rovide legal representation in this

matter. 4 The nature of Mr. Makricostas = participation in Mr. DiBacco = s efforts to return to work also was mentioned in an email authored by Mr. Gurrera, which stated, in part,

I understand that Dean [Makricostas] is not technic ally representing Terry [DiBacco] but is trying to facil itate the meeting in order to establish and maintain a peacef ul relationship between the parties and to give Terry [DiBacco] some guidance in how he is to proceed. I really ap preciate

Dean = s efforts. . . .

While Mr. Makricostas was still attempting to assis t in this matter, he was apparently involved in at least one communication w herein Mr. Gurrera set out the requirement for Mr. DiBacco = s reinstatement. Mr. DiBacco asserts that Mr. Gurr era advised that only a medical release, as opposed to a mental health release, would be required for his reinstatement.

2 Weirton states that Mr. DiBacco received full pay w hile he was on
administrative leave.

3 Mr. DiBacco did, however, refer to Mr. Makricostas as his lawyer when giving deposition testimony.

4 Weirton had objected to Mr. Makricostas representi ng Mr. DiBacco because Mr. Makricostas had represented other Weirton polic e officers and, according to Weirton, had access to confidential privileged information. Mr. Makricostas therefore declined to provide representation to Mr. DiBacco based upon the appear ance of a conflict.3 Sometime later, after the communication, Mr. DiBacc o submitted to Weirton a release from his family physician statin g that he was under no physical
restrictions. His submission of this release did n ot result in his reinstatement to his position as a Weirton police officer. Mr. DiBacco states that he was advised by Weirton that he either had to apply for a disability pensio n or be terminated. 5

Mr. DiBacco filed suit against Weirton and the Boar d of Trustees of the
Policeman = s Pension or Relief Fund of the City of Weirton cla iming disability discrimination under the West Virginia Human Rights Act. 6 A primary issue in the case is the type of medical release, physical or mental, that was required by Weirton for Mr.
DiBacco = s reinstatement. Mr. DiBacco asserts that he was n ever required by Weirton to provide a mental health release. To support this a ssertion, Mr. DiBacco sought to take the deposition of Mr. Makricostas.

After Mr. DiBacco filed a subpoena to take the depo sition of Mr. Makricostas, Weirton filed a motion for a protectiv e order and a motion to quash the subpoena. By order dated March 6, 2014, the Circui t Court of Brooke County denied the same. The circuit court expressly stated that it made A no findings or conclusions as to whether the alleged statements made by Mr. Gurre ra are admissible under the Rule [sic] of Evidence. @ The circuit court explained that, while compromis e and offers of compromise are generally not admissible under Rule 408 of the West Virginia Rules of Evidence, Rule 408 does not address their discovera bility or define them as privileged communications. Thus, the circuit court reasoned, A without some context in which the statements regarding a release were made, the Court is unable to rule on the admissibility
of the statements. @ Moreover, because of the A factual dispute as to what type of release [Weirton] was requiring the Plaintiff to produce, @ the circuit court found that A there exists the likelihood that admissible evidence will be gen erated by the deposition. @ Accordingly, the circuit court concluded that,

. . . Mr. Makricostas = deposition may to [sic] be taken as part of discovery to determine the ultimate issue of whe ther any of
the evidence is admissible under the Rules of Evide nce. 10) The Court concludes that the Rules of Evidence do

5 Weirton asserts that Mr. DiBacco applied for disabi lity, and his claim was granted by the Policeman = s Pension or Relief Fund of the City of Weirton on February 27,
2011.

6 While the Board of Trustees of the Policeman = s Pension or Relief Fund of the City of Weirton is a co-defendant in the proceeding s below, that entity was not named in the instant petition for writ of prohibition and has no t taken a position on the issue herein raised.4 not preclude the taking of the deposition of Mr. Ma kricostas. 11) However, the Court may, upon completion of discovery, preclude the admission of the evidence s hould this matter proceed to trial. Weirton then filed the instant petition seeking a w rit of prohibition to prevent Mr. DiBacco from deposing Mr. Makricostas.

A Prohibition lies only to restrain inferior courts f rom proceeding in causes over which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding their legitimate powers and may not be used as a su bstitute for writ of error, appeal or
certiorari. @ Syl. pt. 1, Crawford v. Taylor , 138 W. Va. 207, 75 S.E.2d 370 (1953).
Weirton claims that the lower tribunal has exceeded its legitimate powers. Therefore,

this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether t he 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 of law; (4) whether the lower tribunal = s order is an oft repeated error or manifests persist ent disregard for either procedural or substantive law; and (5) w hether the
lower tribunal = s order raises new and important problems or issues of law of first impression. These factors a re general guidelines that serve as a useful starting point fo r determining whether a discretionary writ 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. Syl. pt. 4, in part, State ex rel. Hoover v. Berger , 199 W. Va. 12, 483 S.E.2d 12 (1996).

Weirton characterizes this case as one in which a p laintiff seeks to take the discovery deposition of his own former lawyer regar ding the substance of unsuccessful pre-suit settlement negotiations between the partie s. Based upon this characterization, Weirton argues that the deposition would violate We st Virginia Rule of Evidence 408 and West Virginia Rule of Civil Procedure 26(b)(1); would have a chilling effect on future settlement negotiations throughout the State of West Virginia; and would undermine the public policy of West Virginia favori ng settlement negotiations. Weirton reasons that Rule 408 precludes the admission of A [e]vidence of conduct or statements made in compromised negotiations. @ Thus, Weirton argues, because discovery must be reasonably calculated to lead to the discovery of admissible evidence pursuant to Rule 26(b)(1), and because, under Weirton = s theory, the deposition of Mr. Makricostas would be inadmissible as settlement negotiations pursuant to Rule 408, the deposition should be5

prohibited.

Respondent, Mr. DiBacco, presents a different chara cterization of the underlying facts. He states that he sought the hel p of his friend, Mr. Makricostas, to learn what would be required by Weirton for him to return to his employment. Mr. Makricostas never officially represented Mr. DiBacc o and ultimately advised Mr. DiBacco that he would be unable to provide represen tation due to Weirton = s objection based upon a conflict of interest. Mr. DiBacco arg ues that Weirton failed to present
evidence that the statements about which he seeks t o depose Mr. Makricostas were part of any compromise, and there is no such evidence. Mr. DiBacco asserts that pre-claim communications between employers and employees are routinely allowed into evidence in employment cases.

The circuit court resolved the issue herein raised, in part, by pointing out
that Rule 408 addresses the admissibility of compromise offers, not whether such offers

are discoverable . We find this conclusion was unnecessary insofar as Weirton has merely asserted, without supporting evidence, that Mr. Makricostas engaged in settlement negotiations on behalf of Mr. DiBacco. In this cas e, there simply was no evidence in
the record to indicate that Mr. Gurrera and Mr. Mak ricostas engaged in settlement negotiations. 7 Nevertheless, as the circuit court correctly concl uded, the fact that
evidence obtained from Mr. Makricostas = deposition may ultimately be inadmissible does not prohibit its discovery. A [U]nder Rule 26(b)(1) of the West Virginia Rules of Civil Procedure, discovery is not limited only to admissi ble evidence, but applies to information reasonably calculated to lead to the di scovery of admissible evidence. @ Syl. pt. 4, in part, State Farm Mut. Auto. Ins. Co. v. Stephens , 188 W. Va. 622, 425 S.E.2d 577 (1992). The circuit court expressly found that the deposition of Mr. Makricostas was likely to lead to admissible evidence given the factual d ispute regarding the type of release requested by Weirton; however, the circuit court deferred any decision regarding admissibility until such time as additional evidenc e obtained during discovery revealed
the nature of the communications at issue. We find no error in the circuit court = s reasoning.

A A writ of prohibition is available to correct a cle ar legal error resulting
from a trial court = s substantial abuse of its discretion in regard to discovery orders. @ Syl. pt. 1, State Farm , 188 W. Va. 622, 425 S.E.2d 577. Because we find no clear legal error

7 While Weirton has set out persuasive arguments for prohibiting the taking of depositions of lawyers regarding their participatio n in settlement negotiations, we need not address those arguments in this case insofar as we find no evidence that the communications at issue were settlement negotiations.6

resulting from a substantial abuse of discretion on the part of the circuit court, we deny the requested writ of prohibition.

Writ Denied.

ISSUED: September 24, 2014
CONCURRED IN BY:

Chief Justice Robin Jean Davis Justice Brent D. Benjamin Justice Margaret L. Workman
Justice Menis E. Ketchum Justice Allen H. Loughry II