SER Gabrielle M. v. Hon. David R. Janes, Judge
16-0167
| W. Va. | Oct 6, 2016Background
- Petitioner Gabrielle M. pled guilty to four child-neglect counts in Sept. 2015 and a sentencing psychological evaluation was arranged by defense counsel.
- Defense sought court permission to provide the psychologist with confidential case-specific information, including police report and DHHR (child welfare) reports from a related civil proceeding; the State objected.
- The circuit court allowed defense counsel to disclose the police report and DHHR reports and expressly contemplated the psychologist’s report would be used at sentencing.
- After the evaluation, the Petitioner refused to produce the psychologist’s report to the court and State, claiming attorney-client privilege and work-product protection.
- The trial court ordered disclosure; Petitioner sought a writ of prohibition from the West Virginia Supreme Court to prevent enforcement of that order.
- The Supreme Court denied the writ, holding that judicial estoppel barred the Petitioner from asserting privilege/work-product protection after promising disclosure to obtain the court’s permission to reveal confidential information to the evaluator.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Petitioner must disclose psychologist’s report at sentencing despite privilege/work-product claims | Petitioner: report is protected by attorney-client privilege and work-product doctrine | State/Court: Petitioner waived protections by securing court permission to disclose case materials with an implicit promise to turn over the evaluation for sentencing | Held: Disclosure required; judicial estoppel prevents asserting privilege after obtaining permission to disclose |
| Whether judicial estoppel may be invoked sua sponte to bar privilege | Petitioner: privilege invocation should not be estopped absent bad-faith misrepresentation | Court: may invoke judicial estoppel sua sponte when record shows inconsistent positions and court reliance | Held: Court may apply judicial estoppel sua sponte and did so here |
| Whether judicial estoppel applies in criminal context | Petitioner: estoppel should not apply or requires bad faith; privileges remain at sentencing | State/Court: doctrine applies in criminal cases to protect court integrity and prevent gamesmanship | Held: Judicial estoppel can apply in criminal cases and was appropriate here |
| Whether Petitioner could have preserved privilege when moving for evaluator access | Petitioner: did not intentionally mislead; counsel’s advocacy did not waive protections | Court: petitioner should have expressly reserved privilege; failure to do so constituted waiver/estoppel | Held: Failure to reserve rights barred later claiming privilege |
Key Cases Cited
- State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996) (sets factors for issuing writ of prohibition)
- Pegram v. Herdrich, 530 U.S. 211 (2000) (explains judicial estoppel bars inconsistent positions across litigation phases)
- New Hampshire v. Maine, 532 U.S. 742 (2001) (describes rationale for judicial estoppel preventing inconsistent litigation positions)
- Matter of Cassidy, 892 F.2d 637 (7th Cir. 1989) (recognizes courts may raise judicial estoppel sua sponte)
- Beem v. McKune, 317 F.3d 1175 (10th Cir. 2003) (acknowledges applicability of judicial estoppel in criminal cases)
- Zinkand v. Brown, 478 F.3d 634 (4th Cir. 2007) (discusses bad-faith requirement for applying judicial estoppel; relied on in dissent)