In Re State & County Mutual Fire Insurance

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-1602

In Re: STATE AND COUNTY MUTUAL FIRE INSURANCE
COMPANY,

Petitioner.

On Petition for Writ of Prohibition. (CA-02-42-WCB-JES)

Submitted: June 2, 2005 Decided: July 8, 2005

Before WILKINS, Chief Judge, and WIDENER and KING, Circuit Judges.

Petition denied by unpublished per curiam opinion.

P. Gregory Haddad, MacCORKLE, LAVENDER, CASEY & SWEENEY, PLLC,
Morgantown, West Virginia, for Petitioner. Michael D. Lorensen,
BOWLES RICE McDAVID GRAFF & LOVE LLP, Martinsburg, West Virginia,
for Respondents Linda Miller and Jennifer Parkinson.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

State and County Mutual Fire Insurance Company (“State and

County”) seeks a writ of prohibition, precluding the district

court’s enforcement of its May 6, 2005 Order directing State and

County to disclose certain documents for which it has claimed

privileges (the “documents”). See Miller v. Pruneda, No. CA-02-42-

WCB-JES (N.D. W. Va. May 6, 2005). As explained below, we deny the

petition.

State and County has been sued for unfair claims settlement

practices in the Miller litigation. During discovery, State and

County refused to produce the documents to the plaintiffs, invoking

the attorney-client privilege, West Virginia’s “quasi attorney-

client privilege,” and the work product doctrine. Following in

camera inspections of the documents, the magistrate judge concluded

they are not privileged and ordered them disclosed. State and

County then filed objections to the judge’s orders. In its May 6,

2005 Order, the district court overruled these objections and,

adopting the magistrate judge’s reasoning, directed State and

County to “produce forthwith the documents.” This directive was

subsequently stayed by the court pending our ruling on State and

County’s Petition for Writ of Prohibition.

State and County filed its petition on June 2, 2005, and the

Respondents (plaintiffs in the Miller litigation) filed their

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answer on June 22, 2005. See Fed. R. App. P. 21(b)(1).1 Our

assessment of the petition must be guided by the long-standing

principle that prohibition, like mandamus, is a “drastic and

extraordinary” remedy. Bankers Life & Cas. Co. v. Holland, 346

U.S. 379, 384 (1953) (internal quotation marks omitted).

Accordingly, “the party seeking issuance of the writ [must] have no

other adequate means to attain the relief” it desires. Kerr v.

United States Dist. Ct., 426 U.S. 394, 403 (1976); see also United

States v. Moussaoui, 333 F.3d 509, 517 (4th Cir. 2003). And, the

petitioner bears “the burden of showing that [its] right to

issuance of the writ is clear and indisputable.” Kerr, 426 U.S. at

403 (internal quotation marks omitted); Moussaoui, 333 F.3d at 517.

State and County contends that it is entitled to a writ of

prohibition, because otherwise it will be compelled to disclose the

documents, effectively nullifying the privileges attached thereto.

However, another avenue of relief appears to be available to State

and County: it could refuse to comply with the May 6, 2005 Order

and appeal from any contempt sanction imposed by the district

court. See Church of Scientology of Cal. v. United States, 506

U.S. 9, 18 n.11 (1992) (“A party that seeks to present an objection

to a discovery order immediately to a court of appeals must refuse

compliance, be held in contempt, and then appeal the contempt

1
The district court did not respond to our invitation to
address the petition. See Fed. R. App. P. 21(b)(4).

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order.”). We therefore deny State and County’s Petition for Writ

of Prohibition, rather than permitting it to be improperly used as

a substitute for appeal.2

PETITION DENIED

2
In denying the petition, we have made no assessment of the
merits of State and County’s privilege claims.

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