lower court order, ser huntington bancshares v. … · honorable jacob e. reger . huntington...
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IN THE CIRCUIT COURT OF UPSHUR COUNTY WEST VIRGINIA
DEANNA D GANDEE JENNlllER M GANDEE and The JAMES D GANDEE REVOCABLE TRUST - 2012 By CITY NATIONAL BANI NA its Trustee
Plaintiffs
v Civil Action No 15-C-98 Honorable Jacob E Reger
HUNTINGTON BANCSHARES INCORPORATED doing business as HUNTINGTON NATIONAL BANK a corporation
Defendant
ORDER REGARDING DISCOVERY
PROCEDURAL HISTORY
Present at hearings before this Court on October 24) 2016 December 222016 and January
4~ 2017 were the following Gordon C Lane St of Lane amp Young representing the James D
Gandee Revocable Tnm ~ 2012 by City National Bank NA Trustee (the Gandee Trusf)
Gerald R Lacy ofLacy Law Offices repres~ting Jennifer Gandee and Deanna Gandee Jared M
Tully and Alan S Brown of Frost Brown amp Todd representing Defendant Huntington National
Bank Steven B Nanners Esq the Special Commissioner appointed by this Court attended the
October 242016 December 222016 and January 42017 hearings
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Following the hearing on October 242016 the Court Ordered that Defendant submit all
documents in its Privilege Log for in-camera review and appointed Steven B Nanners Esq as
Special Commissioner to render a Report to the Court
On NoveDlber 10 2016 the Gandee Trust filed P1ajntiffs Motion to Compel Defendant
to Submit a Supplemental Privilege Log (Exhibit A) Defendant filed a Response to Plaintifrs
Motion to Compel (Exhibit B) and Plaintiff filed a Reply (Exhibit C) At the hearing on December
222016 the Court stated that it agreed with the recommendations and findings in the Special
Commissioner Report (Exhibit D) Alan BroWD Esq representing Defendant argued that the
release of documents recommended by the Special ComrniBsioner Report violated West Virginia
law Further Ivfr Brown indicated to the Court that Defendant planned to file a Writ of Prohibition
to the West Virginia Supreme Court ifa Discovery Order adverse to Defendant was entered
After review ofall pleadings and Special Commissioners Report and arguments presented
by counsel this Court ruled and Ordered that the trial date of January 17 2017 be vacated that a
hearing was set for January 4 2017 to hear legal arguments as to the applicability of attorneyshy
client privilege and work product in the instant matter and granted Plaintiffs Motion to Compel
Defendant to File Supplemental Privilege Log to include all cotomUDications to which attorneyshy
client privilege was asserted and all documents for which work product rule immunity was asserted
in this Civil Action The Court Ordered that such documents would be reviewed by the Court and
Discovery Commissioner in camera to make a detemrination of what was and what was not
protected by attorney-client privilege and work product The Court noted Defendanfs objection to
such Order
On January 3 2017 Defendant filed a Motion for Protective Order (Exhibit E) asserting
that West Virginia had not adopted the fiduciary exception to attorney-client privilege Plaintiff
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the Gandee Trust filed on January 3 2017 a Response to Defendants Motion for Protective Order
(Exhibit F)
At the January 42017 hearing counsel to parties presented arguments to the Court as to
whether West Virginia bad adopted the fiduciary exception to attorney-client privilege and bull
Plaintiff asserted that the case ofState ex reI Allstate Ins Co v Gaughan 508 SB 2d 75 (1998)
was applicable in the instant Civil Action F ollowfug the hearing Plaintiff the Gandee Trust filed
a Supplement to Plaintiffs Response to Defendants Motion for Protective Order (hereinafter
Plaintiffs Supplemental Response) a copy Which is attached as (Exhibit G) In Plaintiffs
Supplemental Response the Gandee Trust stated that after a thorough review it believes the
fiduciary exception would be a question of first impression and Bought the application ofAllstate
v Gaughan and existing law to avoid the delay attendant to a certified question Furtbet the
Plaintiff provided analysis wherein the Plaintiff outlined the reasons why the West Virginia
Supreme Court would adopt the fiduciary exception in this case
Regarding the January 42017 hearing after review of all pleadings and documents and
after hearing all arguments of counsel and reviewing applicable West Virginia law the Court
hereby makes the following findings offact as follows (The follOwing findings offact are based
upon allegations proffer of counsel documents reviewed by the court and the pleadings in the
case file These factual findings are being made solely for the purposes of disposing of the
discovery motions The jury will ultimately detennine the facts of this case however it is
necessary to provide the appellate Court a full picture ofthe allegations in order for it to clearly
ascertain the relevancy of the information sought and the necessity of addressing the discovery
issues in dispute in this litigation)
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FINDINGS OF FACT
1 James D Gandee DS (Dr Gandee) died on February 172014 a resident ofUpshux
County West Virginia and Hmtington National Bank NA (Huntington) was named
and appointed Executor of the Estate of James D Gandee (the Gandee Estate) on May
272014 and continues to serve as Executor The Gandee Estate was estimated to be
worth 25 Million to 3 Million dollars
2 Under the provisions of the Gandee Trust Chase Bank NA was apPOinted Trustee of
the Gandee Trust but declined to serve and City National Bank NA (City
NationallTrustee) was appointed Trustee in early February 2016
3 In Dr Gandees Will he bequeathed to each of his daughters Jennifer Gandee and
Deanna Gandee (collectively Dr Gandees Daughters) one (1) of his guns at their
selection and all other assets or proceeds from the sale of assets were bequeathed and
devised to the James D Gandee Revocable Trust ~ 2012 (the Gandee Trust) Dr
Gandees Daughters are the primary beneficiaries of the aforesaid trust The Court fmds
that one (1) gun each to Dr Gandees Daughters in this large Estate is in the nature of a
specific bequest and for the purpose of this Order~ the Court FINDS that the Gandee
Trust is the only party who can claim breach offiduciary duty and seek discovery relating
to such breach and it is effectively~ the sole beneficiary and is so treated for the
~o~es ofthis Order
4 On November 112015 Plaintiffs Dr Gandees Daughters represented by Gerald R
Lacy filed a complaint against Huntington alleging personal tort actions based upon
negligence and also damage to the Gandee Estate ass~ts but did not olaim or assert breach
offiduciary duty by Huntington (a copy is attached as Exhibit H)
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5 On December 8 2015 Defendant filed a Motion to Dismiss Gandees Daughters
Complaint asserting that the Gandee Trost was effectively the sole beneficiary of the
Gandee Estate and since it was not a party to the action the complaint should be
dismissed
6 On March 9 2016~ the City NationalTrustee represented by Lane amp Young filed a
joinder motion approximately one (1) month after its appointment as Trustee in the
present action against Huntington alleging lIuntington breached their fiduciary duty
City NationallTrustee on behalf of the Gandee Trust thereafter filed an Amended
Complaint alleging negligence breach of its fiduciary duty bad faith and willful
misconduct by Huntington as Executor to the Gandee Trust (Exhibit I)
7 Defendant then dropped its Motion to Disntiss because the Gandee Trust as sole
beneficiary of the Gandee Estate joined the instant Civil Action and the Motion to
Dismiss was moot
8 The Court FINDS that addressing the attorney-client and work product issues in this
case necessarily requires a review of the issues in dispute in this litigation the litigation
conduct ofHuntington including utili2ation of outside counsel and potential conflicts of
interest of its outside counsel
9 In order to adequately address legal issues in this matter relating to attorney-client
privilege and the work product rule Plaintiff asserted and believed that it was necessary
for this Court and the Special Commissioner to have a fuller understanding of the
litigation conduct of Defendant and legal invoices submitted to the James D Gandee
Estate (the Gandee Estate) and alleged the below Facts
A Barry Griffith served as the Trust Officer of Huntington responsible for
administrating the Gandee Estate from May 27 2014 through the date of his
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resignation from Huntington on May 262015 DocUIoentation exists that Mr
Griffith was informed of rainwater coming into the interior ofthe house causing
damage prior to December 31 2014 and ~gainMarch 20 2015 (the roofis falling
in) (Exhibit lA-lB to Plaintiffs Supplemental Response - ExhibitG herein)
As Executor Huntington obviously has the responsibility to make all repahs to
the roof and preserve the v~ue of the 4700 SF residence However there Yi8S
no reparr to the roof of the 4700 SF residence until a tarp was placed on the roof
in December 2015 (Exhibit 2 to Plaintiffs Supplemental Response - Exhibit G
herein)
B On July 15 2015 by Order of the County Commission ofUpshur County West
Virginia Carla Parsons Huntington)s Trust Officer) was designated as
Huntingtons representative With authority to administer the Gandee Estate On
August 92015 less than thirty (30) days after the appointment of Ms Parsons
Huntington retaixled three separate businesses (being a building contractor)
realtor and appraiser) to inspect the 4700 SF residence They informed
Huntington that the 4)700 SF residence no longer had any value IE (not worth
rebuilding) unfortunately it isatear down and no contributory value to the
land respectively) (see Exhibit 3 to Plaintiffs Supplemental Response -
Exhibit G herein) It waited another foUl (4) months to place the tarp on the roof
C There was evidence of a conflict of interest by Huntington as litigant and
Executor as early as August 9 2015 when Huntington was adVised by its
contractor appraiser and realtor that the 4700 SF residence no longer had value
(see Exhibit 3 above) The Gandee Estate asserts that Huntingtons conflict of
interest is evidenced by many facts such as the fact that Huntington never filed
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an insurance claim for total destruction to the 4700 SF lesidence after being
advised of the rainwater damage to the residence Huntington asserts that there
was no conflict ofinterest rather it simply never thought to look into whether an
insurance claim should be submitted Exhibit 4 to Plaintiffs Supplemental
Response - Exhibit G herein
D At mound the time Huntington was advised the 4700 SF residence had no value
Huntington appointed eight (8) employees to a Gandee Estate Team to
collectively administer the Gandee Estate as a team (Exhibit 5 to Plaintiffs
Supplemental Response - Exhibit G herein) Huntington also appointed Jared
Tully ~q a partner at Frost Brown amp Todd as a member of the estate
administration Team for the Gandee Estate to participate in many estate
administration meetings and actions visits to the residence and receive
communications (Exhibit 5 to Plaintiffs Supplemental Response - Exhibit G
herein) The top ranking member of the Team Tristan McCormick is a
member of the Board of Directors of the holding company the top trust office
nationally and responsible for risk management which includes loss from
litigation (see EJilibit 6 to Plaintiffs Supplemental Response ~ Exhibit G
herein)
E Plaintiffs fiduciary expert Mr John Rodgers stated in deposition that the legal
services of Frost Brovm amp Todd was appropriate and necessary for only one
matter (amount to be received from Virginia Young Estate - $7200) and that all
other legal work performed by Frost Brown amp Todd and billed to the Gandee
Estate in the amount of$9690220 was a waste of Estate assets because it is not
proper to involve outside counsel in routine estate administration matters (see
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Exhibit 7 to PHrlntifIs Supplemental Response - Exhibit G herein) This is
particularly true where the Executor is a publicly traded bank withvast experience
and resources such as Huntington Note that Huntingtons own internal
procedures as to an estates use of outside counsel does not provide that outside
counsel should be involved in routine estate admiI)jstration matters (Exhibit8 to
Plaintiffs Supplemental Response - Exhibit Gherein)
F A Motion to Compel Distribution was filed in response to Defendants deCision
that it would distribute only $100000 even though the Gandee Estate had cash
of $2560000 and was ready to sell a farm for another $590000 with outside
counsel at such meeting (Exhibits 9A and 9B to Plaintiffs Supplemental
Response - Exhibit G hetein) Defendant sent a letter to the Gandee Trust that it
would distribute all estate assets only ifa full release from litigation was provided
(Exhibit 10 to Plaintiffs Supplemental Response - Exhibit G herein) During
Ms Parsons deposition when Ms Parsons was ask~d to describe discussions at
the meeting the attorney for Defendant stated two (2) in~house counsel were
present and outside counsel was also present andthis meeting on distribution was
offlimits (Exhibit 11 to Plaintiffs Supplemental Response - Exhibit G herein)
~BROWN Well she needs to - one two three four five - there were six people at that meeting And three of them are lawyers So Im a little reluctant to let her get into it IftheIe are matters that she can testify to that didnt relate to the discussion strategy and giving of advice and requesting of advice she oan But on this Im skeptical thered be anything else in this discussion
And then stated -
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ltBut because this thing is so riddled with lawyers I just dont know that when you get into what was discussed at the meeting that we can ever be able to separate the privileged from the nonpriviliged
G It was the decision of Tristan McCormick the top trust officer of Huntingto~ a
Board Member with primary responsibility for risk management froIlllitigation
who decided to riddle the thing with lawyers and cut off discovery Discovery
of routine estate administration decisions and matters was blocked because an
attorney was placed in a meeting and there was no need for an attorney to be
there particularly giving Executor advice as to how to hurt the beneficiaries in
the litigation
H As such a serious question arises as to whether Huntington is claiming attomeyshy
client privilege and work product protection for routine administtative matters
becanse it placed outside counsel as a member ofthe estate administration Team
to participate in estate administration matters and receive communications
relating thereto
I Huntingtons retention of only one firm to represent Huntington as Executor of
the Gandee Estate with the highest duty under law and also as Defendant
aggressively litigating against the beneficiary created a conflict of interest by
such law finn which coupled with Huntington having outside counsel in
attendance and participation in many routinemiddot estate administration matters has
blurred lines of duty and conduct in this Civil Action by Huntington
Huntingtons counsel has greatly exacerbated the complexity of the legal
analysis ofDefendant s claitns ofattomey-client privilege and work produc~ and
the time required ofthe Court in these matters
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CONCLUSIONS OF LAW
1 A threshold issue regarding all discovery requests is relevancy This is so because [t]he
question of the relevancy of the information sought through discovery essentially
involves a dete1lllination of how substantively the infom1ation requested bears on the
issues to be tried State ex reI Erie Ins Property amp Cas Co v Mazzone 625 SE2d
355358218 WVa 593596 (2005) citing SyI Pt 4 in part State Farm Mut AutoIns
Co v Stephens 188 WVa 622425 SE2d 577 (1992)
2 It is only after information is determined to be relevant that consideration is given to
whether the infonnation is subject to exclusion based upon the absolute or conditional
privilege of attorney-client communications or work-product information respectively
State ex reI Erie Ins Property ~ Cas Co v Mazzone 625 SE2d 355358218 WVa
593 596 (2005)
3 Relevance in the context of discovery means that the information sought is admissible
evidence or is reasonably calculated to lead to the discovery of admissible evidence
WVa RCivP 26(b)(1) see also Syl Pt 4 in part Keplinger v Virginia Elec and
Powet Co 208 WVa II 537 SE2d 632 (2000) SyI Pt 4 in part State Farm Mm
Auto Ins Co v Stephens 188 WVa 622 425 SE2d 577 (1992) State ex rel Erie
Ins Property amp Cas Co v Mazzone 625 SE2d 355 359~ 218 WVa 593597 (2005)
see also Syl Pt 5 State ex reI Montpelier US Ins Co v Bloom 757 SE2d 788 791
(2014)
4 In the present action there are factual allegations that could lead a jury to conclude that
Huntington Bank committed negligence ~reach ofits fiduciary duty bad faith and acted
with willful misconduct toward the Plaintiffs As discussed briefly in the findings offact
above thos~ alleged facts include Huntington failing to repair a hole in the roof which
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allowed rainwater and animals into the home for approximately two years Huntington
failing to contact the home owners insurance regarding the damage to the home
Huntington billing approximately $9690220 for administration ofthe Gandee Estate by
outside counsel which might not be needed in routine estate administration matters
Huntington attempting to deem all information related to the administration of the
Gandee Estate as secret HuntiJigton withholding funds from the Trust in an attempt to
strong arm the beneficiaries and Trust into settlement etc
5 The information sought by the Plaintiffs is directly related to providing evidence to
support the various allegations in the complaint The infonnation from the meetings
emeils and conversations regarding the estate administration substantively beats on
the issues to be tried State ex tel Erie Ins Property amp Cos Co v Mazzone 625 SE2d
355
6 Furthermore the information is relevant in that the discovery requests are reasonably
calculated to lead to the discovery ofadmissible evidence ~ Wva RCivP 26(b )(1)
7 The issue with the discoverable information and the evidences adtnissibility revolves
atound the allegation that the Defendant placed attorneys unnecessarily in routine estate
administration matters The attorneys being present during these meetings triggers an
attorney-client privilege analysis
8 The attorney-olient privilege protects confidential communications between an attorney
and client from disclosure to encourage free and candid discussions between attorney
and client State ex ret USFampG v Canady460 SE 2d 677 (1995)
9 The attontey-client privilege is to be strictly construed against the party asserting
privilege because it is in derogation of the search for the truth and the burden of
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establishing the attorney-client privilege always rests upon the party asserting it STate
ex reI USFampG v Canady~ 460 SE 2d 677 (1995)
10 The West Virginia Supreme Court ofAppeals discussed the attorney-client privilege in
State ex reI us Fidelity and Guar Co v Canady 460 SE2d 677687-88 194 WVa
431441-42 (1995) stating
The attorney-client privilege is a broad doctrine however it is not unlimited In Syllabus Point 2 of State 11
Burton 163 WVa 40 254 SE2d 129 (1979) we statedIn order to assert an atto~ey-client privilege three main elements must be present (l) both parties must contemplate that the attorney-client relationship does or will exist (2) the advice must be sought by the client from that attorney in his capacity as a legal adviser (3) the communication between the attorney and client must be identified to be confidential
11 Addressing the attorney-client privilege requires the identification of the parties involved
relevant to this litigation at the time of the communioations to wit HlIDtington was acting
8$ Executor of the Estate of James D Gandee Dr Gandees will named Dr Gandees
- - Daughtersand the Gandee Trust as beneficiaries and the Gandee Trust named Gandees
Daughters as primary beneficiaries
12 Huntington asserts that attorney-client privilege applies and therefore necessarily alleges
all tbtee elements are met
13 The First Element of attomey-client privilege requires that the parties to the
conununication contemplate that the attorney-client relationship does or will exist
Huntington alleges that the attorney-client relationship exists by virtue of the attorneys
being present
14 The Second element of attomey~client privilege requires that the client must seek the
advice ofan attorney and that the attorneys advice must be in the attorneys capacity as
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a legal adViSOt This element is highly questionable as it has been alleged that the
Defendants utilized attorneys in routine estate administration which an expert alleges
was primarily outside of the prevue of a legal advisor However it is difficult for the
Court to determine this without an itl camera review of all of the evidence alleged to be
confidential by attoroey-client privilege from Huntingtons Estate administration
15 The Third element of attorney-client privilege requires that the communication between
the attomey and the client must be identified as confidential Here again without review
of the information alleged to be confidential the Court cannot detennine if the
information was identified as confidential
16 Therefore the Court concludes there is a question of whether attomey client privilege
even applies to the communications at issue in this case It is therefore necessary for the
Court to conduct an in camera review of the materials in order to make further
determinations
17 Further there bas been a question raised Jegarding the applicability of the work product
doctrine regarding materials sought by tb~ Plaintiffs from the Defendant specifically
estate administration meeting notes
18 Rule 26(b)(3) of the West Virginia Rules ofeivil Procedure states
(3) Trial Preparation Materials Subject to the provisiOns of subdivision (b)(4) of this rule a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(l) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other PartYs representative (including the partys attoOley consultant surety indemnitor insurer or agent) only upon a shoWing that the party seeking discovery has substantial need ofthe materials in the preparation of the partys case and that the party is unable without undue hardshlp to obtain the substantial equivalent ofthe materials by other means In ordering discovery of such materials when the required showing has been made the court shall protect against disclosure ofthe mental impressions conclusions opinions or legal
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theories of an attorney or other representative of a party concerning the litigation
19 laquoThe work product doctrine creates a fom of qualified immunity from discovery but it
does not label protected material as privileged and thus outside the scope of discovery
under Rule 26(b)(l) Litigation Handbook sect 26(b)(3) at 721 (2012) State ex reI
Chaparro v Wilkes 438 SE2d 575 577-78 190 WVa 395 397-98 (1993)
20 The Supreme Court of Appeals of West Virginia has long recogoiz~d a distinction
between factual work product and opinion work produ~t holding
Where factual work product is involved the party demancling production must show a substantial need for the material in the sense that he cannot obtain the same or its equivalent through other means ltwithout undue hllldship Where opinion work product is involved the showing reqlrired to obtain discovery is even stronger because the rule states that the court sluill protect against disclosure ofmeota1 impressions conclusion opinions or legal theories
State ex reI Chaparro v Wilkes 438 SE2d575 577-78190 WVa 395 397-98 (1993)
bold added Citing In re Markle 174 WVa at 556-57 328 SE2d at 163 (1984)
21 Factual work product has been defined bythe Supreme Court of Appeals of West
Virginia as
[F]actual work product refers to documents and tangible things that were prepared in anticipation oflitigation or for trial (l) by or for a party or (2) by or fat that partys representative which includes an attomey consultant surety indemnitor insurer or agent When factual work product is involved the party demancling production must show a ltsubstantial need for the material and establish that the same material or its equivalent cannot be obtained through other means without undue hacdship
State ex reI Erie Ins Property amp Cas Co v Ma~one 625 SE2d 355361218 WVa
593 599 (2005) citing Litigation Handbook on West Virginia Rules ofCMl ProcedUre
sect 26(b)(3) at 557 (2000)
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22 ~SubstantiaI need may be independently established where it is ShOVVll that the requested
infonnation relates to essential elements ofthe requesting partys cause ofaction and the
information is not reasonably reproducible by the requesting patty Ot obtainable by other
means See Litigation Handbook sect 26(b)(3) at 721 (2012)
23 In the current case factual infonnation regarding Huntingtons administration of the
estate is contained in the estate meeting notes The administration of the estate directly
relates to the essential elements of the c~uses of action resulting from the alleged
misadministration of the estate and is not reasonably reproducible by the Plaintiffs or
obtainable by other means
24 In the current case the Plaintiffs are unable to obtain the information from those
meetings through any other means other than discovery Any attempt to obtain the
infOllIlation through discovery will result in a question of whether attorney client
privilege applies as occurred in the deposition ofMs Parsons (Exhibit 11 to Plain1iffs
Supplemental Response - ExhibifG herein)
25 As the only factual information available pertaining to the estate administration is from
the various meetings dealing with estate administration and email correspondence
dealing with estate administration a substantial need clelllly exists which would require
the Defendants to provide those documents to the Plaintiffs Provided that any
information requested by the Defendants can be reviewed in camera iffurther objections
arise to infonnation contained in those documents
26 Opinion work product consists of lI1ental impressions) conclusion opinions or legal
theories found in factual work product and requires a much stronger showing in order for
it to be released See Litigation Handbook sect 26(b)(3) at 722 (2012) Opinion work
product is only discoverable in very rare and extraordinary circumstances Id
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27 Documents prepared in anticipation of litigation were addressed State ex reZ Erie Ins
Property amp Cas Co vMazzone 648 SE2d 31 38 220 WVa 525 532 (2007) in
which the Court held in syllabus point seven of State ex reZ United Hospital Center
~nc v Bedell that middotin order bull [t]o determine whether a document was prepared in
anticipation of litigation and~ is therefore protected from disclosure under the work
product doctrine the primary motivating purpose behind the creation of the document t
must have been to assist in pending or probable futuJe litigation 199 WVa at 320 484
SE2d at 203 This means that the documents must not be prepared in the course of
everyday business Because the preparers ofilie reser~es information in the instant case
were non-lawyers we further note that-Rule ~6(b)(3) extends work product protection to
materials prepared by non-lawyers when the paramount purpose for generating the
materials is litigation Id [D]etermination of whether a document was prepared in
anticipation of litigation or in the ordinary course ofbusiness is a factual one which is
examined on a case-by-case basis State ex reI Erie Ins Property ampCas Co v Mazzone
648 SE2d 31 42~ 220 WYa 525 536 (2007) (internal citations omitted)
28 This case--by-case determination necessitates an in camera review of all documents for
which a privilege is claimed
29 The legal duty of a personal representative or e-gecutor ofthe estate of a deceased under
West Virginia law is as follows
The personal representative of the estate of a deceased acts in a fiduciary capacity His duty is to manage the estate under his control to the advantage of those interested in it and to act on their behalf In the discharge of this duty the executor or administratot of a decedents estate is held to thehighest degree of good faith and is required to exercise the ordinary care and reaso~able diligence which prudent persons ordinarily exercise under like circumstances in their own personal affairs j Syl pt 1 Latimer v
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MechlingI71 WVa 729 301 SE2d 819 (1983) SyI Pt2 Pickens v Tribble 236 WVa 670 783 SE2d 310312 (2016)
30 Applied to the case at bar the legal duty of Huntington as Executor ofthe
Estate ofJames D Gandee under West Virginia law is as follows
Its duty is to manage the Gandee Estate under its control to the advantage ofthose interested in it and to act on their pehalf Further in the discharge ofits duty Huntington National Bank is held to the highest degree of good faith and is required to exercise the ordinary care and reasonable diligence which prudent persons ordinarily exercise under like circumstances in theiJ own personal affairs) Syl pt 1 Latimer v Mechling 171 W_Va 729 301 SE2d 819 (1983) Syi Pt 2 Pickens v Trtbble 236 WVa 670) 783 SE2d 310 312 (2016)
31 The Court concludes that the ~fiduciary exception legal principle bas not been directly
addressed by the West Virginia Supreme Court of Appeals and if presented would be a
question of first impression in West ViIginia See Plaintiffs Supplemental Response
(Exhibit G h~rein)
32 ~laintiff the Gandee Trust chose not to request that a certified question be submitted
regarding fiduciary exception because of the attendant delay~ it is ready for trial and
further asserted and requested that Allstate v Gaughan and existing case law be applied
to the Civil Action See Plaintiffs Supplemental Response (Exhibit G)
33 In the case ofState ex rel- Allstate 117SUtattce Company v Gaughan 508 SB 2d 75 CW
Va 1998) the West Virginia Supreme Court addressed the application of the attorneyshy
client prlVilege and work product rule in a third party bad faith insurance action where
the insured had signed a release ofhislher bad faith claim to the plaintiff InAllstate v
Gaughan the Courts conclusion that the attorney retained by the insurance company
really represents the insured was param01mt in rejecting prior rulings in third party bad
faith cases-Page 11 of25
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Mar232017 339PM No 3265 P 1926
34 In Allstate v Gaughan the Court focused on the point in time where the mutual or
conunon interest of the insurance company and insured terminated and broke off which
in that case was the date that plaintiff filed suit against the insurance company
35 Further anticipation of a law suit is insufficient to trigger work product protections as
stated in the Litigation Handbook on the Rules ofCivil Procedure (hereinafter Litigation
Handbook) Cleck1ey~ Davis amp PalmeJ Fourth Edition at page 723
the mere possibility that litigation may occur or even the mere fact that litigation does eventually ensue is insufficient to cloak materials with the mantle ofwork product protection
36 The Court concludes that in the instant Civil Action the mutual Or common interest of
Huntington as Executor and the Gandee Trust as beneficiary terminated and broke off
on March 9 2016 ilie date when the Gandee Trust filed its Joinder Motion
approximately one (1) month after its appointment as Trustee
37 The facts in this Civil Action are Illore compelling than in Allstate v Gaughan as a
fiduciary relationship exists in the instant case as opposed to contractual relationship as
in theAilstate v Gaughan case InAllstate v Gaughan the insured paid for no legal fees
ofthe insurer whereas in the instant matter the beneficiary (the Gandee Trust) paid for
all legal services provided by the attorney retained by Huntington through June 12016
38 Therefore for all the reasons set forth above the Court concludes that application ofthe
holdings inAllstate v Gaughan are proper to apply in the instant case as modified below
a Allstate v Gaughan is precedent for the conclusion that in the instant Civil Action the
time when the mutual interest of Defendant and the Gandee Trust terminated
(plaintiffs filing of complaint in Allstate v Gaughan) is the date ofMarch 92016
Page 18 of25
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Mar 23 2017 340PM No 3265 P 2026
h In line vvith the precedent in Allstate v Gaughan~ communications and documents
generated prior to March 9~ 2016 are presumptively considered not protected by
attorney-client privilege or work product protection
c InAllstate 11 Gaughan the Court crafted a quasi attorney-client privilege in order to
protect Insurers comm1l11ications with their Insured from being discoverable by tbirdshy
parties under very specific circumstances As the elements of proof for breach of
fiduciary duty in the instant Civii Action are so different than elements of a bad faith
claim the Court concludes that Allstate v Gaughan does not provide quasi attomeyshy
client privilege to the Huntingtons communications regarding estate administration
d Allstate v Gaughan provides guidelines to detennine whether a docuruent satisfied the
work product rule and guidelines for determining whether a compelling need exists to
receive a document which otherwise afforded work product protection These
guidelines serve as precedent in this Civil Action The Court notes that existing case
law also set forth the same holdings as in Allstate v Gaughan and also addresses
traditional attorney-client privilege guidelines fox determining whether a document
satisfies the work product rule and whether a compelling need exists to obtain a
document which satisf1es the work product true
ORDER
Based upon all pleadings and documents referenced herein (Exhibits A-I) atguments
presented by counsel at hearirlgs research of legal authorities and its findings of fact and
conclusions oflaw the Court hereby ORDERS that Allstate v Gaughan supra and existing West
Virginia law be applied to this Civil Action pursuant to the Orders set forth below
1 For purposes ofclarity and consistency the follOWing tenns used in this Order shall have
the same meaning as such terms are used in Allstate v Gaughan traditional attorney-
Page 19 of2S
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Mar232017 340PM No 3265 P 21126
client privilege work product rule and work product protection As discussed in
the December 222016 hearing the difference in opinion work product and fact work
product must be evaluated by the Special Commissioner and this Court
2 The Court ORDERS the materials previously reviewed in camera on December 22I1d
2016 by the Court and Discovery Commissioner and detennined to be discoverable to
be disclosed to the Plaintiffs for the reasons set forth above and at the hearing The Court
notes the Defendants objection
3 The Court DENIES the Defendants Motion for Protective Order precluding
consideration of the fiduciary exception for the reasons set forth above and at the
hearing The Court notes the Defendants objection
4 The Court GRANTS the Plaintiffs Mcgttion to Compel Defendant to Submit a
Supplemental Privilege Log as identified below The Supplemental Privilege Log is to
be supplied to the Court and Discovery Commissioner with attached documents and in
the form articulated below foran in camera review The Court notes the Defendants
objection
5 On December 22 2016 this Court ordered that Defendant provide a Supplemental
Privilege Log to this Court on or before January 6 2017 setting forth all communications
and documents for which Defendant claims attomey~client privilege or work product in
this case This Court hereby AMENDS the January 6 2017 deadline to AprilSth 2017
and AMENDS AND REFINES such Order as set forth below where all communications
and documents to be listed in the Supplemental Privilege Log are described
6 Defendant shall submit to this Court on or before April 5th 2017 a Supplemental
Privilege Log which lists all infonnation sought by discovery fOJ which a privilege is
claimed to be separated and identified into four separate groups The first tWo groups
Page 20 of25
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Ma r 23 2017 3 40 PM No 3265 P 2226
Group A and Group B include all communications- this includes letters omails and
other correspondence either written or vetbal The second two groups Group C and
Group D include all Documents Bach piece of evidence will be numbered individually
within the respective Group beginning with 1
a Group A Attorney~Client Privilege Communications Prior to March 9 2016 In
line withAllstate v Gaughan all communications relating to the Gandee Estate which
Defendant claims are protected by traditional attorney-client privilege generated prior
to March 92016 ate Group A Communications
b Group B Communications Genex-ated on or After March 9 2016 Note that
Allstate v Gaughan provides that all communications generated after the plaintiff qIed
suit (March 9 2016 in this Civil Action) must be specifically identified and requested
as opposed to a general request so centat a Circuit Court is notunduly burdenedin review
thereof However Huntington continued to have the highest duty under law to the
Gandee Trust as Executor after March 9 2016 Further Huntington decided to have
one law fum represent it as Executor and as Defendant in this matter and to have that
one law finn partiCipate in most estate adrobJistratio~ matters Although it will requjre
additional time by the Special Commissioner and this Court to review documents in
light of the above facts~ the Court ORDERS that the general request for
communications already made is sufficient without need for specific reference for all
Group B Communications generated from March 9 2016 through June 5 2016 June
5 2016 is the date when Executor _activity and conflict of interest decreased when all
Gandee Estate assets were distributed to the Gandee Trust
c Additionally any communication generated after June 5 2016 which relates solely to
the administration of the Gandee Estate or which in any manner relates to a
PageZ1of25
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Mar 23 2017 341PM No 3265 P 2326
conununication with the Sheriffs Office or the ATF regarding guns owned by the
Gandee Estate shall also be a Group B Communication
d Group C Work Product Rule Documents Generated Prior to March 9 2016 Each
document relating to the Gandee Estate for which Defendant claims work product
protection and which was generated or prepared prior to March 92016 is a Group C
Document
e Group D Work Product Rule Documents Generated on or After March 9 2016
The considerations and analysis set forth in Section (5)(a) above with regatd to
attorney-client privilege also applies to docU1ll8nts for which work product protection
is claimed by Defendant As such all documents generated for the period ofMarch 9
2016 through June 5 2016 ate Group D DOCUIllents and the general request already
made for documents is sufficient Gronp D Documents also mcludes any document
generated after June 5 2016 which relates to estate administration andor any document
relating to the guns owned by the Gandee Estate
7 Additionally~ written analysis shall be provided by Defendant with the Supplemental
Privilege Log on AprilSth 2017 to meet its burden of pro~f that each Group A andor
B Communication satisfies attorney-client privilege (if so claimed by Defendant)
Further Defendant shall provide a written analysis to prove that each Group C andor D
Document qualifies for work product protection Additionally Defendant shall provide
an exp1anation for each CommUnication and Document as to why it was necessary to
retain outside legal counsel for suchmatter and how the advice is legal advice as opposed
to routine estate administration adVice
8 WIthout limiting the foregoing each and every communication or document which has
already been provided by Huntington to the Gandee Trust in redacted form shall be listed
Page22of25
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Mar 23 2017 341PM No 3265 P 2426
in the Supplemental Privilege Log and attached to the Supplemental Privilege Log
without any redactions
9 The Special Conunissioner shall render a Report on which Group A and Group B
Communications satisfy attorney-client privilege whioh do not and why He shall also
include in his Supplemental Report which Group C andor Group D Documents satisfY
all requirements for work product priilege which do not and why
10 Additionally for all Communications and Documents which he finds satisfy attomeyshy
client privilege and work product protection he shallstate whether it was reasonable or
necessary for Defendant to utilize cmIDsel in such matter
11 Additionally for each Group Cor Gronp D Documentwbich qualifies fot work product
protection he shall find whether Plaintiff has a compelling need for such document In
that regard the Gandee Trust may provide an analysis within twenty (20) days after the
entry of this Order providing its analysis of compelling need for types or categories of
documents Ifthe Special Commissioner needs additional information he shall so infom
the Court
12 Undet the Courts guidelines in Allstate v Gaughan and the reasoning set forth above
Communications prior to March 9 2016 would generally not be privileged and
Documents generated prior to March 9 2016 would generally not qualify for work
product protection
13 As per Conclusions of Law 38(c) Huntington is not entitled to quasi attorney-client
privilege regarding Huntingtons communications regarding estate administration
14 As there was conflicting proffer of counsel at the January 42017 hearing Defendant
shall include with the Supplemental Privilege Log all billings by Frost Brown amp Todd
Page 23 of25
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Ma r 23 2017 3 41 PM No 3265 P 2526
through June I 2016 to Huntington to be paid by Huntington for representation of
Huntington for its litigation representation and payments thereon
15 Notwithstanding any other provision in this Order The Special Comnrissioner in bis
review of all conununications and documents shall identify any communication or
document which meets the guideline for the crimefraud exception as such exception
is set forth in Brison v Kaufinan The Special Commissioner shall be provided a copy
of the Amended Complaint to be apprised of factual circumstances which the Gandee
Trust bas alleged constitute bad faith by defendant
16 In the Supplement to Response to Defendants Motion for Protective Order filed by the
Gandee Trust a request was made under WVRCP 37(a)(4) that Huntington be required
to pay for all attorney fees ofthe Gandee Trust by payment ofthe hours spent by outside
counsel to the Gandee TrtlSt multiplied times their standard hourly rate for all work
relating to attorney-client privilege and work product protection for all legal services
rendered above and beyond its Motion to Compel documents and the hearing on October
242016 including appeals
The Court will address such request after it has completed its in-camera review
and entered an 9rder as to the communications and documents which must be provided to Plaintiff
A subsequent hearing shall be held ifneeded
17 The Court further ORDERS that all communications and docmnents to be provided to
the Gandee Trust by the ultimate Order entered by the Court after full in-camera review
shall be provided to the Gandee Trust and not Plamtiffs Dr Gandees Daughters
Plaintiffs Dr Gandees Daughters may make a motion requesting all or a portion of
such material if they so choose and all parties will have a right to subroit motions and
legal memoranda on such matter
Page 24 of2S
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Mar 23 2017 341PM No 3265 P 2626
18 Finally it is ORDERED that the Clerk of this Court mail andor ~therwise provide a
certified copy of this Order to all parties of record
ENTERED tbis ~rtJay ofMarch 2017
c c ~ 1lQ)m -- ct)02 It l Cp b- etJ82 1U
I) -()-fo W middot0cJraquo rqcIe O~f1IO 11 -ujtJ
S--of ltW r-) FiE
~ ~
f om tl1e records ITEST A trueJO~~the Clerk otthe (l~at~tdClnoulirtleo~ ~cpshur County West ClrCUI Virginia
Given under my hancl---l~~Pd~hiCDF
Page2S of25
PAGE 2626 RCVD AT 32312017 341 05 PM ~astem Daylight Time] I SVRPRFAX010 t DNIS1780115 t CSID t DURATION (mmss)D734 APP 000026
IN TIlE c~~tifiC0b1tf6iitiPSHUR COUNTY WEST VIRGINIA ~
DEANNAD GANDEE et aI
PLAINTIFF
vs Crvn ACTION NO lS-C-98
HUNTINGTON BANCSHARES INC et al
DEFENDANT
DISCOVERY COMMISSIONER REPORT
The Discovery Commissioner has reviewed the 1159 pages of e-mails that were provided in
this matter Upon review of the same it appears that there are two different groups of e-mails
1 E-mails relating to the pending litigation that are attorneyclient privilege type e-mails
2 E-mails that are referencing the administration and handling of the Estate
The e-mails which are attributable to the handling of the Estate should be discoverable in this
matter as the issues involved in litigation deal with breach of fiduciary duty I have prepared a
separate sheet setting forth the e-mails that I contend would be discoverable including a copy of the
same for the review of the Court This sheet and list of e-mails will be provided only to the Court for
review and determination of whether they should be disclosed to counsel
rin B NaImers 6358 Discovery Commissioner
APP 000409
CERTIFICATE OF SERVICE
[h I Steven B Nanners do hereby certify that on the it day of December 2016 I served the
following Discovery Commissioner Report by depositing a true copy thereof mthe UmtedStates
Mail in an envelope with sufficient postage attached thereto addressed to the following
Jared M Tully Esq Frost Brown Todd Laidley Tower Suite 401 500 Lee Street Charleston West VIrginia 25301
Alan S Brown Esq Frost Brown Todd 201 North illinois Street - Suite 1900 Indianapolis IN 46204
Gerald R Lacy Esq Lacy Law Offices LC 103 Pennsylvania Avenue PDBox589 Charleston West VIrginia 25322
Gordon C Lane Sr Lane amp Young 1538 Kanawha Blvd East Charleston WesfVIrginia 25311
S~~n B Nanners 6358 Discovery Commissioner Law Offices of Nanners amp Willett LC 45 West Main StreetmiddotU ( Buckhannon West VIrginia 26201 304-472-2048
APP000410
Mar 23 2017 335PM No 3265 P 326
Following the hearing on October 242016 the Court Ordered that Defendant submit all
documents in its Privilege Log for in-camera review and appointed Steven B Nanners Esq as
Special Commissioner to render a Report to the Court
On NoveDlber 10 2016 the Gandee Trust filed P1ajntiffs Motion to Compel Defendant
to Submit a Supplemental Privilege Log (Exhibit A) Defendant filed a Response to Plaintifrs
Motion to Compel (Exhibit B) and Plaintiff filed a Reply (Exhibit C) At the hearing on December
222016 the Court stated that it agreed with the recommendations and findings in the Special
Commissioner Report (Exhibit D) Alan BroWD Esq representing Defendant argued that the
release of documents recommended by the Special ComrniBsioner Report violated West Virginia
law Further Ivfr Brown indicated to the Court that Defendant planned to file a Writ of Prohibition
to the West Virginia Supreme Court ifa Discovery Order adverse to Defendant was entered
After review ofall pleadings and Special Commissioners Report and arguments presented
by counsel this Court ruled and Ordered that the trial date of January 17 2017 be vacated that a
hearing was set for January 4 2017 to hear legal arguments as to the applicability of attorneyshy
client privilege and work product in the instant matter and granted Plaintiffs Motion to Compel
Defendant to File Supplemental Privilege Log to include all cotomUDications to which attorneyshy
client privilege was asserted and all documents for which work product rule immunity was asserted
in this Civil Action The Court Ordered that such documents would be reviewed by the Court and
Discovery Commissioner in camera to make a detemrination of what was and what was not
protected by attorney-client privilege and work product The Court noted Defendanfs objection to
such Order
On January 3 2017 Defendant filed a Motion for Protective Order (Exhibit E) asserting
that West Virginia had not adopted the fiduciary exception to attorney-client privilege Plaintiff
Page 2 of2S
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Mar 23 2017 335PM No 3265 P 426
the Gandee Trust filed on January 3 2017 a Response to Defendants Motion for Protective Order
(Exhibit F)
At the January 42017 hearing counsel to parties presented arguments to the Court as to
whether West Virginia bad adopted the fiduciary exception to attorney-client privilege and bull
Plaintiff asserted that the case ofState ex reI Allstate Ins Co v Gaughan 508 SB 2d 75 (1998)
was applicable in the instant Civil Action F ollowfug the hearing Plaintiff the Gandee Trust filed
a Supplement to Plaintiffs Response to Defendants Motion for Protective Order (hereinafter
Plaintiffs Supplemental Response) a copy Which is attached as (Exhibit G) In Plaintiffs
Supplemental Response the Gandee Trust stated that after a thorough review it believes the
fiduciary exception would be a question of first impression and Bought the application ofAllstate
v Gaughan and existing law to avoid the delay attendant to a certified question Furtbet the
Plaintiff provided analysis wherein the Plaintiff outlined the reasons why the West Virginia
Supreme Court would adopt the fiduciary exception in this case
Regarding the January 42017 hearing after review of all pleadings and documents and
after hearing all arguments of counsel and reviewing applicable West Virginia law the Court
hereby makes the following findings offact as follows (The follOwing findings offact are based
upon allegations proffer of counsel documents reviewed by the court and the pleadings in the
case file These factual findings are being made solely for the purposes of disposing of the
discovery motions The jury will ultimately detennine the facts of this case however it is
necessary to provide the appellate Court a full picture ofthe allegations in order for it to clearly
ascertain the relevancy of the information sought and the necessity of addressing the discovery
issues in dispute in this litigation)
Page 3 of25
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Mar 23 2017 335PM No 3265 P 526
FINDINGS OF FACT
1 James D Gandee DS (Dr Gandee) died on February 172014 a resident ofUpshux
County West Virginia and Hmtington National Bank NA (Huntington) was named
and appointed Executor of the Estate of James D Gandee (the Gandee Estate) on May
272014 and continues to serve as Executor The Gandee Estate was estimated to be
worth 25 Million to 3 Million dollars
2 Under the provisions of the Gandee Trust Chase Bank NA was apPOinted Trustee of
the Gandee Trust but declined to serve and City National Bank NA (City
NationallTrustee) was appointed Trustee in early February 2016
3 In Dr Gandees Will he bequeathed to each of his daughters Jennifer Gandee and
Deanna Gandee (collectively Dr Gandees Daughters) one (1) of his guns at their
selection and all other assets or proceeds from the sale of assets were bequeathed and
devised to the James D Gandee Revocable Trust ~ 2012 (the Gandee Trust) Dr
Gandees Daughters are the primary beneficiaries of the aforesaid trust The Court fmds
that one (1) gun each to Dr Gandees Daughters in this large Estate is in the nature of a
specific bequest and for the purpose of this Order~ the Court FINDS that the Gandee
Trust is the only party who can claim breach offiduciary duty and seek discovery relating
to such breach and it is effectively~ the sole beneficiary and is so treated for the
~o~es ofthis Order
4 On November 112015 Plaintiffs Dr Gandees Daughters represented by Gerald R
Lacy filed a complaint against Huntington alleging personal tort actions based upon
negligence and also damage to the Gandee Estate ass~ts but did not olaim or assert breach
offiduciary duty by Huntington (a copy is attached as Exhibit H)
Page 4 of25
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Mar 23 2017 336PM No 3265 P 626
5 On December 8 2015 Defendant filed a Motion to Dismiss Gandees Daughters
Complaint asserting that the Gandee Trost was effectively the sole beneficiary of the
Gandee Estate and since it was not a party to the action the complaint should be
dismissed
6 On March 9 2016~ the City NationalTrustee represented by Lane amp Young filed a
joinder motion approximately one (1) month after its appointment as Trustee in the
present action against Huntington alleging lIuntington breached their fiduciary duty
City NationallTrustee on behalf of the Gandee Trust thereafter filed an Amended
Complaint alleging negligence breach of its fiduciary duty bad faith and willful
misconduct by Huntington as Executor to the Gandee Trust (Exhibit I)
7 Defendant then dropped its Motion to Disntiss because the Gandee Trust as sole
beneficiary of the Gandee Estate joined the instant Civil Action and the Motion to
Dismiss was moot
8 The Court FINDS that addressing the attorney-client and work product issues in this
case necessarily requires a review of the issues in dispute in this litigation the litigation
conduct ofHuntington including utili2ation of outside counsel and potential conflicts of
interest of its outside counsel
9 In order to adequately address legal issues in this matter relating to attorney-client
privilege and the work product rule Plaintiff asserted and believed that it was necessary
for this Court and the Special Commissioner to have a fuller understanding of the
litigation conduct of Defendant and legal invoices submitted to the James D Gandee
Estate (the Gandee Estate) and alleged the below Facts
A Barry Griffith served as the Trust Officer of Huntington responsible for
administrating the Gandee Estate from May 27 2014 through the date of his
Page 5 oi2S
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Mar 232017 336PM No 3265 P 726
resignation from Huntington on May 262015 DocUIoentation exists that Mr
Griffith was informed of rainwater coming into the interior ofthe house causing
damage prior to December 31 2014 and ~gainMarch 20 2015 (the roofis falling
in) (Exhibit lA-lB to Plaintiffs Supplemental Response - ExhibitG herein)
As Executor Huntington obviously has the responsibility to make all repahs to
the roof and preserve the v~ue of the 4700 SF residence However there Yi8S
no reparr to the roof of the 4700 SF residence until a tarp was placed on the roof
in December 2015 (Exhibit 2 to Plaintiffs Supplemental Response - Exhibit G
herein)
B On July 15 2015 by Order of the County Commission ofUpshur County West
Virginia Carla Parsons Huntington)s Trust Officer) was designated as
Huntingtons representative With authority to administer the Gandee Estate On
August 92015 less than thirty (30) days after the appointment of Ms Parsons
Huntington retaixled three separate businesses (being a building contractor)
realtor and appraiser) to inspect the 4700 SF residence They informed
Huntington that the 4)700 SF residence no longer had any value IE (not worth
rebuilding) unfortunately it isatear down and no contributory value to the
land respectively) (see Exhibit 3 to Plaintiffs Supplemental Response -
Exhibit G herein) It waited another foUl (4) months to place the tarp on the roof
C There was evidence of a conflict of interest by Huntington as litigant and
Executor as early as August 9 2015 when Huntington was adVised by its
contractor appraiser and realtor that the 4700 SF residence no longer had value
(see Exhibit 3 above) The Gandee Estate asserts that Huntingtons conflict of
interest is evidenced by many facts such as the fact that Huntington never filed
Page 6 of2S
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Mar 23 2017 336PM No 3265 P 826
an insurance claim for total destruction to the 4700 SF lesidence after being
advised of the rainwater damage to the residence Huntington asserts that there
was no conflict ofinterest rather it simply never thought to look into whether an
insurance claim should be submitted Exhibit 4 to Plaintiffs Supplemental
Response - Exhibit G herein
D At mound the time Huntington was advised the 4700 SF residence had no value
Huntington appointed eight (8) employees to a Gandee Estate Team to
collectively administer the Gandee Estate as a team (Exhibit 5 to Plaintiffs
Supplemental Response - Exhibit G herein) Huntington also appointed Jared
Tully ~q a partner at Frost Brown amp Todd as a member of the estate
administration Team for the Gandee Estate to participate in many estate
administration meetings and actions visits to the residence and receive
communications (Exhibit 5 to Plaintiffs Supplemental Response - Exhibit G
herein) The top ranking member of the Team Tristan McCormick is a
member of the Board of Directors of the holding company the top trust office
nationally and responsible for risk management which includes loss from
litigation (see EJilibit 6 to Plaintiffs Supplemental Response ~ Exhibit G
herein)
E Plaintiffs fiduciary expert Mr John Rodgers stated in deposition that the legal
services of Frost Brovm amp Todd was appropriate and necessary for only one
matter (amount to be received from Virginia Young Estate - $7200) and that all
other legal work performed by Frost Brown amp Todd and billed to the Gandee
Estate in the amount of$9690220 was a waste of Estate assets because it is not
proper to involve outside counsel in routine estate administration matters (see
Page 7 of2S
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Mar 23 2017 336PM No 3265 P 926
Exhibit 7 to PHrlntifIs Supplemental Response - Exhibit G herein) This is
particularly true where the Executor is a publicly traded bank withvast experience
and resources such as Huntington Note that Huntingtons own internal
procedures as to an estates use of outside counsel does not provide that outside
counsel should be involved in routine estate admiI)jstration matters (Exhibit8 to
Plaintiffs Supplemental Response - Exhibit Gherein)
F A Motion to Compel Distribution was filed in response to Defendants deCision
that it would distribute only $100000 even though the Gandee Estate had cash
of $2560000 and was ready to sell a farm for another $590000 with outside
counsel at such meeting (Exhibits 9A and 9B to Plaintiffs Supplemental
Response - Exhibit G hetein) Defendant sent a letter to the Gandee Trust that it
would distribute all estate assets only ifa full release from litigation was provided
(Exhibit 10 to Plaintiffs Supplemental Response - Exhibit G herein) During
Ms Parsons deposition when Ms Parsons was ask~d to describe discussions at
the meeting the attorney for Defendant stated two (2) in~house counsel were
present and outside counsel was also present andthis meeting on distribution was
offlimits (Exhibit 11 to Plaintiffs Supplemental Response - Exhibit G herein)
~BROWN Well she needs to - one two three four five - there were six people at that meeting And three of them are lawyers So Im a little reluctant to let her get into it IftheIe are matters that she can testify to that didnt relate to the discussion strategy and giving of advice and requesting of advice she oan But on this Im skeptical thered be anything else in this discussion
And then stated -
Page 8 of 25
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Mar 23 2017 337PM No 3265 P 1026
ltBut because this thing is so riddled with lawyers I just dont know that when you get into what was discussed at the meeting that we can ever be able to separate the privileged from the nonpriviliged
G It was the decision of Tristan McCormick the top trust officer of Huntingto~ a
Board Member with primary responsibility for risk management froIlllitigation
who decided to riddle the thing with lawyers and cut off discovery Discovery
of routine estate administration decisions and matters was blocked because an
attorney was placed in a meeting and there was no need for an attorney to be
there particularly giving Executor advice as to how to hurt the beneficiaries in
the litigation
H As such a serious question arises as to whether Huntington is claiming attomeyshy
client privilege and work product protection for routine administtative matters
becanse it placed outside counsel as a member ofthe estate administration Team
to participate in estate administration matters and receive communications
relating thereto
I Huntingtons retention of only one firm to represent Huntington as Executor of
the Gandee Estate with the highest duty under law and also as Defendant
aggressively litigating against the beneficiary created a conflict of interest by
such law finn which coupled with Huntington having outside counsel in
attendance and participation in many routinemiddot estate administration matters has
blurred lines of duty and conduct in this Civil Action by Huntington
Huntingtons counsel has greatly exacerbated the complexity of the legal
analysis ofDefendant s claitns ofattomey-client privilege and work produc~ and
the time required ofthe Court in these matters
Page 9 of25
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Mar 23 2017 337PM No 3265 P 1126
CONCLUSIONS OF LAW
1 A threshold issue regarding all discovery requests is relevancy This is so because [t]he
question of the relevancy of the information sought through discovery essentially
involves a dete1lllination of how substantively the infom1ation requested bears on the
issues to be tried State ex reI Erie Ins Property amp Cas Co v Mazzone 625 SE2d
355358218 WVa 593596 (2005) citing SyI Pt 4 in part State Farm Mut AutoIns
Co v Stephens 188 WVa 622425 SE2d 577 (1992)
2 It is only after information is determined to be relevant that consideration is given to
whether the infonnation is subject to exclusion based upon the absolute or conditional
privilege of attorney-client communications or work-product information respectively
State ex reI Erie Ins Property ~ Cas Co v Mazzone 625 SE2d 355358218 WVa
593 596 (2005)
3 Relevance in the context of discovery means that the information sought is admissible
evidence or is reasonably calculated to lead to the discovery of admissible evidence
WVa RCivP 26(b)(1) see also Syl Pt 4 in part Keplinger v Virginia Elec and
Powet Co 208 WVa II 537 SE2d 632 (2000) SyI Pt 4 in part State Farm Mm
Auto Ins Co v Stephens 188 WVa 622 425 SE2d 577 (1992) State ex rel Erie
Ins Property amp Cas Co v Mazzone 625 SE2d 355 359~ 218 WVa 593597 (2005)
see also Syl Pt 5 State ex reI Montpelier US Ins Co v Bloom 757 SE2d 788 791
(2014)
4 In the present action there are factual allegations that could lead a jury to conclude that
Huntington Bank committed negligence ~reach ofits fiduciary duty bad faith and acted
with willful misconduct toward the Plaintiffs As discussed briefly in the findings offact
above thos~ alleged facts include Huntington failing to repair a hole in the roof which
Page 10 of2S
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Mar 23 2017 337PM No 3265 P 1226
allowed rainwater and animals into the home for approximately two years Huntington
failing to contact the home owners insurance regarding the damage to the home
Huntington billing approximately $9690220 for administration ofthe Gandee Estate by
outside counsel which might not be needed in routine estate administration matters
Huntington attempting to deem all information related to the administration of the
Gandee Estate as secret HuntiJigton withholding funds from the Trust in an attempt to
strong arm the beneficiaries and Trust into settlement etc
5 The information sought by the Plaintiffs is directly related to providing evidence to
support the various allegations in the complaint The infonnation from the meetings
emeils and conversations regarding the estate administration substantively beats on
the issues to be tried State ex tel Erie Ins Property amp Cos Co v Mazzone 625 SE2d
355
6 Furthermore the information is relevant in that the discovery requests are reasonably
calculated to lead to the discovery ofadmissible evidence ~ Wva RCivP 26(b )(1)
7 The issue with the discoverable information and the evidences adtnissibility revolves
atound the allegation that the Defendant placed attorneys unnecessarily in routine estate
administration matters The attorneys being present during these meetings triggers an
attorney-client privilege analysis
8 The attorney-olient privilege protects confidential communications between an attorney
and client from disclosure to encourage free and candid discussions between attorney
and client State ex ret USFampG v Canady460 SE 2d 677 (1995)
9 The attontey-client privilege is to be strictly construed against the party asserting
privilege because it is in derogation of the search for the truth and the burden of
Page 11 of25
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Mar232017 338PM No 3265 P 1326
establishing the attorney-client privilege always rests upon the party asserting it STate
ex reI USFampG v Canady~ 460 SE 2d 677 (1995)
10 The West Virginia Supreme Court ofAppeals discussed the attorney-client privilege in
State ex reI us Fidelity and Guar Co v Canady 460 SE2d 677687-88 194 WVa
431441-42 (1995) stating
The attorney-client privilege is a broad doctrine however it is not unlimited In Syllabus Point 2 of State 11
Burton 163 WVa 40 254 SE2d 129 (1979) we statedIn order to assert an atto~ey-client privilege three main elements must be present (l) both parties must contemplate that the attorney-client relationship does or will exist (2) the advice must be sought by the client from that attorney in his capacity as a legal adviser (3) the communication between the attorney and client must be identified to be confidential
11 Addressing the attorney-client privilege requires the identification of the parties involved
relevant to this litigation at the time of the communioations to wit HlIDtington was acting
8$ Executor of the Estate of James D Gandee Dr Gandees will named Dr Gandees
- - Daughtersand the Gandee Trust as beneficiaries and the Gandee Trust named Gandees
Daughters as primary beneficiaries
12 Huntington asserts that attorney-client privilege applies and therefore necessarily alleges
all tbtee elements are met
13 The First Element of attomey-client privilege requires that the parties to the
conununication contemplate that the attorney-client relationship does or will exist
Huntington alleges that the attorney-client relationship exists by virtue of the attorneys
being present
14 The Second element of attomey~client privilege requires that the client must seek the
advice ofan attorney and that the attorneys advice must be in the attorneys capacity as
Page 12 of25
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Ma r 23 2017 3 38PM No 3265 P 1426
a legal adViSOt This element is highly questionable as it has been alleged that the
Defendants utilized attorneys in routine estate administration which an expert alleges
was primarily outside of the prevue of a legal advisor However it is difficult for the
Court to determine this without an itl camera review of all of the evidence alleged to be
confidential by attoroey-client privilege from Huntingtons Estate administration
15 The Third element of attorney-client privilege requires that the communication between
the attomey and the client must be identified as confidential Here again without review
of the information alleged to be confidential the Court cannot detennine if the
information was identified as confidential
16 Therefore the Court concludes there is a question of whether attomey client privilege
even applies to the communications at issue in this case It is therefore necessary for the
Court to conduct an in camera review of the materials in order to make further
determinations
17 Further there bas been a question raised Jegarding the applicability of the work product
doctrine regarding materials sought by tb~ Plaintiffs from the Defendant specifically
estate administration meeting notes
18 Rule 26(b)(3) of the West Virginia Rules ofeivil Procedure states
(3) Trial Preparation Materials Subject to the provisiOns of subdivision (b)(4) of this rule a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(l) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other PartYs representative (including the partys attoOley consultant surety indemnitor insurer or agent) only upon a shoWing that the party seeking discovery has substantial need ofthe materials in the preparation of the partys case and that the party is unable without undue hardshlp to obtain the substantial equivalent ofthe materials by other means In ordering discovery of such materials when the required showing has been made the court shall protect against disclosure ofthe mental impressions conclusions opinions or legal
Page 13 of25
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Mar 23 2017 338PM No 3265 P 1526
theories of an attorney or other representative of a party concerning the litigation
19 laquoThe work product doctrine creates a fom of qualified immunity from discovery but it
does not label protected material as privileged and thus outside the scope of discovery
under Rule 26(b)(l) Litigation Handbook sect 26(b)(3) at 721 (2012) State ex reI
Chaparro v Wilkes 438 SE2d 575 577-78 190 WVa 395 397-98 (1993)
20 The Supreme Court of Appeals of West Virginia has long recogoiz~d a distinction
between factual work product and opinion work produ~t holding
Where factual work product is involved the party demancling production must show a substantial need for the material in the sense that he cannot obtain the same or its equivalent through other means ltwithout undue hllldship Where opinion work product is involved the showing reqlrired to obtain discovery is even stronger because the rule states that the court sluill protect against disclosure ofmeota1 impressions conclusion opinions or legal theories
State ex reI Chaparro v Wilkes 438 SE2d575 577-78190 WVa 395 397-98 (1993)
bold added Citing In re Markle 174 WVa at 556-57 328 SE2d at 163 (1984)
21 Factual work product has been defined bythe Supreme Court of Appeals of West
Virginia as
[F]actual work product refers to documents and tangible things that were prepared in anticipation oflitigation or for trial (l) by or for a party or (2) by or fat that partys representative which includes an attomey consultant surety indemnitor insurer or agent When factual work product is involved the party demancling production must show a ltsubstantial need for the material and establish that the same material or its equivalent cannot be obtained through other means without undue hacdship
State ex reI Erie Ins Property amp Cas Co v Ma~one 625 SE2d 355361218 WVa
593 599 (2005) citing Litigation Handbook on West Virginia Rules ofCMl ProcedUre
sect 26(b)(3) at 557 (2000)
Page 14 of2S
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Mar 23 2017 338PM No 3265 P 1626
22 ~SubstantiaI need may be independently established where it is ShOVVll that the requested
infonnation relates to essential elements ofthe requesting partys cause ofaction and the
information is not reasonably reproducible by the requesting patty Ot obtainable by other
means See Litigation Handbook sect 26(b)(3) at 721 (2012)
23 In the current case factual infonnation regarding Huntingtons administration of the
estate is contained in the estate meeting notes The administration of the estate directly
relates to the essential elements of the c~uses of action resulting from the alleged
misadministration of the estate and is not reasonably reproducible by the Plaintiffs or
obtainable by other means
24 In the current case the Plaintiffs are unable to obtain the information from those
meetings through any other means other than discovery Any attempt to obtain the
infOllIlation through discovery will result in a question of whether attorney client
privilege applies as occurred in the deposition ofMs Parsons (Exhibit 11 to Plain1iffs
Supplemental Response - ExhibifG herein)
25 As the only factual information available pertaining to the estate administration is from
the various meetings dealing with estate administration and email correspondence
dealing with estate administration a substantial need clelllly exists which would require
the Defendants to provide those documents to the Plaintiffs Provided that any
information requested by the Defendants can be reviewed in camera iffurther objections
arise to infonnation contained in those documents
26 Opinion work product consists of lI1ental impressions) conclusion opinions or legal
theories found in factual work product and requires a much stronger showing in order for
it to be released See Litigation Handbook sect 26(b)(3) at 722 (2012) Opinion work
product is only discoverable in very rare and extraordinary circumstances Id
Page 15 of25
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Mar232017 339PM No 3265 P 1726
27 Documents prepared in anticipation of litigation were addressed State ex reZ Erie Ins
Property amp Cas Co vMazzone 648 SE2d 31 38 220 WVa 525 532 (2007) in
which the Court held in syllabus point seven of State ex reZ United Hospital Center
~nc v Bedell that middotin order bull [t]o determine whether a document was prepared in
anticipation of litigation and~ is therefore protected from disclosure under the work
product doctrine the primary motivating purpose behind the creation of the document t
must have been to assist in pending or probable futuJe litigation 199 WVa at 320 484
SE2d at 203 This means that the documents must not be prepared in the course of
everyday business Because the preparers ofilie reser~es information in the instant case
were non-lawyers we further note that-Rule ~6(b)(3) extends work product protection to
materials prepared by non-lawyers when the paramount purpose for generating the
materials is litigation Id [D]etermination of whether a document was prepared in
anticipation of litigation or in the ordinary course ofbusiness is a factual one which is
examined on a case-by-case basis State ex reI Erie Ins Property ampCas Co v Mazzone
648 SE2d 31 42~ 220 WYa 525 536 (2007) (internal citations omitted)
28 This case--by-case determination necessitates an in camera review of all documents for
which a privilege is claimed
29 The legal duty of a personal representative or e-gecutor ofthe estate of a deceased under
West Virginia law is as follows
The personal representative of the estate of a deceased acts in a fiduciary capacity His duty is to manage the estate under his control to the advantage of those interested in it and to act on their behalf In the discharge of this duty the executor or administratot of a decedents estate is held to thehighest degree of good faith and is required to exercise the ordinary care and reaso~able diligence which prudent persons ordinarily exercise under like circumstances in their own personal affairs j Syl pt 1 Latimer v
Page 16 of2S
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Mar 23 2017 339PM No 3265 P 1826
MechlingI71 WVa 729 301 SE2d 819 (1983) SyI Pt2 Pickens v Tribble 236 WVa 670 783 SE2d 310312 (2016)
30 Applied to the case at bar the legal duty of Huntington as Executor ofthe
Estate ofJames D Gandee under West Virginia law is as follows
Its duty is to manage the Gandee Estate under its control to the advantage ofthose interested in it and to act on their pehalf Further in the discharge ofits duty Huntington National Bank is held to the highest degree of good faith and is required to exercise the ordinary care and reasonable diligence which prudent persons ordinarily exercise under like circumstances in theiJ own personal affairs) Syl pt 1 Latimer v Mechling 171 W_Va 729 301 SE2d 819 (1983) Syi Pt 2 Pickens v Trtbble 236 WVa 670) 783 SE2d 310 312 (2016)
31 The Court concludes that the ~fiduciary exception legal principle bas not been directly
addressed by the West Virginia Supreme Court of Appeals and if presented would be a
question of first impression in West ViIginia See Plaintiffs Supplemental Response
(Exhibit G h~rein)
32 ~laintiff the Gandee Trust chose not to request that a certified question be submitted
regarding fiduciary exception because of the attendant delay~ it is ready for trial and
further asserted and requested that Allstate v Gaughan and existing case law be applied
to the Civil Action See Plaintiffs Supplemental Response (Exhibit G)
33 In the case ofState ex rel- Allstate 117SUtattce Company v Gaughan 508 SB 2d 75 CW
Va 1998) the West Virginia Supreme Court addressed the application of the attorneyshy
client prlVilege and work product rule in a third party bad faith insurance action where
the insured had signed a release ofhislher bad faith claim to the plaintiff InAllstate v
Gaughan the Courts conclusion that the attorney retained by the insurance company
really represents the insured was param01mt in rejecting prior rulings in third party bad
faith cases-Page 11 of25
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Mar232017 339PM No 3265 P 1926
34 In Allstate v Gaughan the Court focused on the point in time where the mutual or
conunon interest of the insurance company and insured terminated and broke off which
in that case was the date that plaintiff filed suit against the insurance company
35 Further anticipation of a law suit is insufficient to trigger work product protections as
stated in the Litigation Handbook on the Rules ofCivil Procedure (hereinafter Litigation
Handbook) Cleck1ey~ Davis amp PalmeJ Fourth Edition at page 723
the mere possibility that litigation may occur or even the mere fact that litigation does eventually ensue is insufficient to cloak materials with the mantle ofwork product protection
36 The Court concludes that in the instant Civil Action the mutual Or common interest of
Huntington as Executor and the Gandee Trust as beneficiary terminated and broke off
on March 9 2016 ilie date when the Gandee Trust filed its Joinder Motion
approximately one (1) month after its appointment as Trustee
37 The facts in this Civil Action are Illore compelling than in Allstate v Gaughan as a
fiduciary relationship exists in the instant case as opposed to contractual relationship as
in theAilstate v Gaughan case InAllstate v Gaughan the insured paid for no legal fees
ofthe insurer whereas in the instant matter the beneficiary (the Gandee Trust) paid for
all legal services provided by the attorney retained by Huntington through June 12016
38 Therefore for all the reasons set forth above the Court concludes that application ofthe
holdings inAllstate v Gaughan are proper to apply in the instant case as modified below
a Allstate v Gaughan is precedent for the conclusion that in the instant Civil Action the
time when the mutual interest of Defendant and the Gandee Trust terminated
(plaintiffs filing of complaint in Allstate v Gaughan) is the date ofMarch 92016
Page 18 of25
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Mar 23 2017 340PM No 3265 P 2026
h In line vvith the precedent in Allstate v Gaughan~ communications and documents
generated prior to March 9~ 2016 are presumptively considered not protected by
attorney-client privilege or work product protection
c InAllstate 11 Gaughan the Court crafted a quasi attorney-client privilege in order to
protect Insurers comm1l11ications with their Insured from being discoverable by tbirdshy
parties under very specific circumstances As the elements of proof for breach of
fiduciary duty in the instant Civii Action are so different than elements of a bad faith
claim the Court concludes that Allstate v Gaughan does not provide quasi attomeyshy
client privilege to the Huntingtons communications regarding estate administration
d Allstate v Gaughan provides guidelines to detennine whether a docuruent satisfied the
work product rule and guidelines for determining whether a compelling need exists to
receive a document which otherwise afforded work product protection These
guidelines serve as precedent in this Civil Action The Court notes that existing case
law also set forth the same holdings as in Allstate v Gaughan and also addresses
traditional attorney-client privilege guidelines fox determining whether a document
satisfies the work product rule and whether a compelling need exists to obtain a
document which satisf1es the work product true
ORDER
Based upon all pleadings and documents referenced herein (Exhibits A-I) atguments
presented by counsel at hearirlgs research of legal authorities and its findings of fact and
conclusions oflaw the Court hereby ORDERS that Allstate v Gaughan supra and existing West
Virginia law be applied to this Civil Action pursuant to the Orders set forth below
1 For purposes ofclarity and consistency the follOWing tenns used in this Order shall have
the same meaning as such terms are used in Allstate v Gaughan traditional attorney-
Page 19 of2S
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Mar232017 340PM No 3265 P 21126
client privilege work product rule and work product protection As discussed in
the December 222016 hearing the difference in opinion work product and fact work
product must be evaluated by the Special Commissioner and this Court
2 The Court ORDERS the materials previously reviewed in camera on December 22I1d
2016 by the Court and Discovery Commissioner and detennined to be discoverable to
be disclosed to the Plaintiffs for the reasons set forth above and at the hearing The Court
notes the Defendants objection
3 The Court DENIES the Defendants Motion for Protective Order precluding
consideration of the fiduciary exception for the reasons set forth above and at the
hearing The Court notes the Defendants objection
4 The Court GRANTS the Plaintiffs Mcgttion to Compel Defendant to Submit a
Supplemental Privilege Log as identified below The Supplemental Privilege Log is to
be supplied to the Court and Discovery Commissioner with attached documents and in
the form articulated below foran in camera review The Court notes the Defendants
objection
5 On December 22 2016 this Court ordered that Defendant provide a Supplemental
Privilege Log to this Court on or before January 6 2017 setting forth all communications
and documents for which Defendant claims attomey~client privilege or work product in
this case This Court hereby AMENDS the January 6 2017 deadline to AprilSth 2017
and AMENDS AND REFINES such Order as set forth below where all communications
and documents to be listed in the Supplemental Privilege Log are described
6 Defendant shall submit to this Court on or before April 5th 2017 a Supplemental
Privilege Log which lists all infonnation sought by discovery fOJ which a privilege is
claimed to be separated and identified into four separate groups The first tWo groups
Page 20 of25
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Ma r 23 2017 3 40 PM No 3265 P 2226
Group A and Group B include all communications- this includes letters omails and
other correspondence either written or vetbal The second two groups Group C and
Group D include all Documents Bach piece of evidence will be numbered individually
within the respective Group beginning with 1
a Group A Attorney~Client Privilege Communications Prior to March 9 2016 In
line withAllstate v Gaughan all communications relating to the Gandee Estate which
Defendant claims are protected by traditional attorney-client privilege generated prior
to March 92016 ate Group A Communications
b Group B Communications Genex-ated on or After March 9 2016 Note that
Allstate v Gaughan provides that all communications generated after the plaintiff qIed
suit (March 9 2016 in this Civil Action) must be specifically identified and requested
as opposed to a general request so centat a Circuit Court is notunduly burdenedin review
thereof However Huntington continued to have the highest duty under law to the
Gandee Trust as Executor after March 9 2016 Further Huntington decided to have
one law fum represent it as Executor and as Defendant in this matter and to have that
one law finn partiCipate in most estate adrobJistratio~ matters Although it will requjre
additional time by the Special Commissioner and this Court to review documents in
light of the above facts~ the Court ORDERS that the general request for
communications already made is sufficient without need for specific reference for all
Group B Communications generated from March 9 2016 through June 5 2016 June
5 2016 is the date when Executor _activity and conflict of interest decreased when all
Gandee Estate assets were distributed to the Gandee Trust
c Additionally any communication generated after June 5 2016 which relates solely to
the administration of the Gandee Estate or which in any manner relates to a
PageZ1of25
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Mar 23 2017 341PM No 3265 P 2326
conununication with the Sheriffs Office or the ATF regarding guns owned by the
Gandee Estate shall also be a Group B Communication
d Group C Work Product Rule Documents Generated Prior to March 9 2016 Each
document relating to the Gandee Estate for which Defendant claims work product
protection and which was generated or prepared prior to March 92016 is a Group C
Document
e Group D Work Product Rule Documents Generated on or After March 9 2016
The considerations and analysis set forth in Section (5)(a) above with regatd to
attorney-client privilege also applies to docU1ll8nts for which work product protection
is claimed by Defendant As such all documents generated for the period ofMarch 9
2016 through June 5 2016 ate Group D DOCUIllents and the general request already
made for documents is sufficient Gronp D Documents also mcludes any document
generated after June 5 2016 which relates to estate administration andor any document
relating to the guns owned by the Gandee Estate
7 Additionally~ written analysis shall be provided by Defendant with the Supplemental
Privilege Log on AprilSth 2017 to meet its burden of pro~f that each Group A andor
B Communication satisfies attorney-client privilege (if so claimed by Defendant)
Further Defendant shall provide a written analysis to prove that each Group C andor D
Document qualifies for work product protection Additionally Defendant shall provide
an exp1anation for each CommUnication and Document as to why it was necessary to
retain outside legal counsel for suchmatter and how the advice is legal advice as opposed
to routine estate administration adVice
8 WIthout limiting the foregoing each and every communication or document which has
already been provided by Huntington to the Gandee Trust in redacted form shall be listed
Page22of25
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Mar 23 2017 341PM No 3265 P 2426
in the Supplemental Privilege Log and attached to the Supplemental Privilege Log
without any redactions
9 The Special Conunissioner shall render a Report on which Group A and Group B
Communications satisfy attorney-client privilege whioh do not and why He shall also
include in his Supplemental Report which Group C andor Group D Documents satisfY
all requirements for work product priilege which do not and why
10 Additionally for all Communications and Documents which he finds satisfy attomeyshy
client privilege and work product protection he shallstate whether it was reasonable or
necessary for Defendant to utilize cmIDsel in such matter
11 Additionally for each Group Cor Gronp D Documentwbich qualifies fot work product
protection he shall find whether Plaintiff has a compelling need for such document In
that regard the Gandee Trust may provide an analysis within twenty (20) days after the
entry of this Order providing its analysis of compelling need for types or categories of
documents Ifthe Special Commissioner needs additional information he shall so infom
the Court
12 Undet the Courts guidelines in Allstate v Gaughan and the reasoning set forth above
Communications prior to March 9 2016 would generally not be privileged and
Documents generated prior to March 9 2016 would generally not qualify for work
product protection
13 As per Conclusions of Law 38(c) Huntington is not entitled to quasi attorney-client
privilege regarding Huntingtons communications regarding estate administration
14 As there was conflicting proffer of counsel at the January 42017 hearing Defendant
shall include with the Supplemental Privilege Log all billings by Frost Brown amp Todd
Page 23 of25
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Ma r 23 2017 3 41 PM No 3265 P 2526
through June I 2016 to Huntington to be paid by Huntington for representation of
Huntington for its litigation representation and payments thereon
15 Notwithstanding any other provision in this Order The Special Comnrissioner in bis
review of all conununications and documents shall identify any communication or
document which meets the guideline for the crimefraud exception as such exception
is set forth in Brison v Kaufinan The Special Commissioner shall be provided a copy
of the Amended Complaint to be apprised of factual circumstances which the Gandee
Trust bas alleged constitute bad faith by defendant
16 In the Supplement to Response to Defendants Motion for Protective Order filed by the
Gandee Trust a request was made under WVRCP 37(a)(4) that Huntington be required
to pay for all attorney fees ofthe Gandee Trust by payment ofthe hours spent by outside
counsel to the Gandee TrtlSt multiplied times their standard hourly rate for all work
relating to attorney-client privilege and work product protection for all legal services
rendered above and beyond its Motion to Compel documents and the hearing on October
242016 including appeals
The Court will address such request after it has completed its in-camera review
and entered an 9rder as to the communications and documents which must be provided to Plaintiff
A subsequent hearing shall be held ifneeded
17 The Court further ORDERS that all communications and docmnents to be provided to
the Gandee Trust by the ultimate Order entered by the Court after full in-camera review
shall be provided to the Gandee Trust and not Plamtiffs Dr Gandees Daughters
Plaintiffs Dr Gandees Daughters may make a motion requesting all or a portion of
such material if they so choose and all parties will have a right to subroit motions and
legal memoranda on such matter
Page 24 of2S
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Mar 23 2017 341PM No 3265 P 2626
18 Finally it is ORDERED that the Clerk of this Court mail andor ~therwise provide a
certified copy of this Order to all parties of record
ENTERED tbis ~rtJay ofMarch 2017
c c ~ 1lQ)m -- ct)02 It l Cp b- etJ82 1U
I) -()-fo W middot0cJraquo rqcIe O~f1IO 11 -ujtJ
S--of ltW r-) FiE
~ ~
f om tl1e records ITEST A trueJO~~the Clerk otthe (l~at~tdClnoulirtleo~ ~cpshur County West ClrCUI Virginia
Given under my hancl---l~~Pd~hiCDF
Page2S of25
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IN TIlE c~~tifiC0b1tf6iitiPSHUR COUNTY WEST VIRGINIA ~
DEANNAD GANDEE et aI
PLAINTIFF
vs Crvn ACTION NO lS-C-98
HUNTINGTON BANCSHARES INC et al
DEFENDANT
DISCOVERY COMMISSIONER REPORT
The Discovery Commissioner has reviewed the 1159 pages of e-mails that were provided in
this matter Upon review of the same it appears that there are two different groups of e-mails
1 E-mails relating to the pending litigation that are attorneyclient privilege type e-mails
2 E-mails that are referencing the administration and handling of the Estate
The e-mails which are attributable to the handling of the Estate should be discoverable in this
matter as the issues involved in litigation deal with breach of fiduciary duty I have prepared a
separate sheet setting forth the e-mails that I contend would be discoverable including a copy of the
same for the review of the Court This sheet and list of e-mails will be provided only to the Court for
review and determination of whether they should be disclosed to counsel
rin B NaImers 6358 Discovery Commissioner
APP 000409
CERTIFICATE OF SERVICE
[h I Steven B Nanners do hereby certify that on the it day of December 2016 I served the
following Discovery Commissioner Report by depositing a true copy thereof mthe UmtedStates
Mail in an envelope with sufficient postage attached thereto addressed to the following
Jared M Tully Esq Frost Brown Todd Laidley Tower Suite 401 500 Lee Street Charleston West VIrginia 25301
Alan S Brown Esq Frost Brown Todd 201 North illinois Street - Suite 1900 Indianapolis IN 46204
Gerald R Lacy Esq Lacy Law Offices LC 103 Pennsylvania Avenue PDBox589 Charleston West VIrginia 25322
Gordon C Lane Sr Lane amp Young 1538 Kanawha Blvd East Charleston WesfVIrginia 25311
S~~n B Nanners 6358 Discovery Commissioner Law Offices of Nanners amp Willett LC 45 West Main StreetmiddotU ( Buckhannon West VIrginia 26201 304-472-2048
APP000410
Mar 23 2017 335PM No 3265 P 426
the Gandee Trust filed on January 3 2017 a Response to Defendants Motion for Protective Order
(Exhibit F)
At the January 42017 hearing counsel to parties presented arguments to the Court as to
whether West Virginia bad adopted the fiduciary exception to attorney-client privilege and bull
Plaintiff asserted that the case ofState ex reI Allstate Ins Co v Gaughan 508 SB 2d 75 (1998)
was applicable in the instant Civil Action F ollowfug the hearing Plaintiff the Gandee Trust filed
a Supplement to Plaintiffs Response to Defendants Motion for Protective Order (hereinafter
Plaintiffs Supplemental Response) a copy Which is attached as (Exhibit G) In Plaintiffs
Supplemental Response the Gandee Trust stated that after a thorough review it believes the
fiduciary exception would be a question of first impression and Bought the application ofAllstate
v Gaughan and existing law to avoid the delay attendant to a certified question Furtbet the
Plaintiff provided analysis wherein the Plaintiff outlined the reasons why the West Virginia
Supreme Court would adopt the fiduciary exception in this case
Regarding the January 42017 hearing after review of all pleadings and documents and
after hearing all arguments of counsel and reviewing applicable West Virginia law the Court
hereby makes the following findings offact as follows (The follOwing findings offact are based
upon allegations proffer of counsel documents reviewed by the court and the pleadings in the
case file These factual findings are being made solely for the purposes of disposing of the
discovery motions The jury will ultimately detennine the facts of this case however it is
necessary to provide the appellate Court a full picture ofthe allegations in order for it to clearly
ascertain the relevancy of the information sought and the necessity of addressing the discovery
issues in dispute in this litigation)
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FINDINGS OF FACT
1 James D Gandee DS (Dr Gandee) died on February 172014 a resident ofUpshux
County West Virginia and Hmtington National Bank NA (Huntington) was named
and appointed Executor of the Estate of James D Gandee (the Gandee Estate) on May
272014 and continues to serve as Executor The Gandee Estate was estimated to be
worth 25 Million to 3 Million dollars
2 Under the provisions of the Gandee Trust Chase Bank NA was apPOinted Trustee of
the Gandee Trust but declined to serve and City National Bank NA (City
NationallTrustee) was appointed Trustee in early February 2016
3 In Dr Gandees Will he bequeathed to each of his daughters Jennifer Gandee and
Deanna Gandee (collectively Dr Gandees Daughters) one (1) of his guns at their
selection and all other assets or proceeds from the sale of assets were bequeathed and
devised to the James D Gandee Revocable Trust ~ 2012 (the Gandee Trust) Dr
Gandees Daughters are the primary beneficiaries of the aforesaid trust The Court fmds
that one (1) gun each to Dr Gandees Daughters in this large Estate is in the nature of a
specific bequest and for the purpose of this Order~ the Court FINDS that the Gandee
Trust is the only party who can claim breach offiduciary duty and seek discovery relating
to such breach and it is effectively~ the sole beneficiary and is so treated for the
~o~es ofthis Order
4 On November 112015 Plaintiffs Dr Gandees Daughters represented by Gerald R
Lacy filed a complaint against Huntington alleging personal tort actions based upon
negligence and also damage to the Gandee Estate ass~ts but did not olaim or assert breach
offiduciary duty by Huntington (a copy is attached as Exhibit H)
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5 On December 8 2015 Defendant filed a Motion to Dismiss Gandees Daughters
Complaint asserting that the Gandee Trost was effectively the sole beneficiary of the
Gandee Estate and since it was not a party to the action the complaint should be
dismissed
6 On March 9 2016~ the City NationalTrustee represented by Lane amp Young filed a
joinder motion approximately one (1) month after its appointment as Trustee in the
present action against Huntington alleging lIuntington breached their fiduciary duty
City NationallTrustee on behalf of the Gandee Trust thereafter filed an Amended
Complaint alleging negligence breach of its fiduciary duty bad faith and willful
misconduct by Huntington as Executor to the Gandee Trust (Exhibit I)
7 Defendant then dropped its Motion to Disntiss because the Gandee Trust as sole
beneficiary of the Gandee Estate joined the instant Civil Action and the Motion to
Dismiss was moot
8 The Court FINDS that addressing the attorney-client and work product issues in this
case necessarily requires a review of the issues in dispute in this litigation the litigation
conduct ofHuntington including utili2ation of outside counsel and potential conflicts of
interest of its outside counsel
9 In order to adequately address legal issues in this matter relating to attorney-client
privilege and the work product rule Plaintiff asserted and believed that it was necessary
for this Court and the Special Commissioner to have a fuller understanding of the
litigation conduct of Defendant and legal invoices submitted to the James D Gandee
Estate (the Gandee Estate) and alleged the below Facts
A Barry Griffith served as the Trust Officer of Huntington responsible for
administrating the Gandee Estate from May 27 2014 through the date of his
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resignation from Huntington on May 262015 DocUIoentation exists that Mr
Griffith was informed of rainwater coming into the interior ofthe house causing
damage prior to December 31 2014 and ~gainMarch 20 2015 (the roofis falling
in) (Exhibit lA-lB to Plaintiffs Supplemental Response - ExhibitG herein)
As Executor Huntington obviously has the responsibility to make all repahs to
the roof and preserve the v~ue of the 4700 SF residence However there Yi8S
no reparr to the roof of the 4700 SF residence until a tarp was placed on the roof
in December 2015 (Exhibit 2 to Plaintiffs Supplemental Response - Exhibit G
herein)
B On July 15 2015 by Order of the County Commission ofUpshur County West
Virginia Carla Parsons Huntington)s Trust Officer) was designated as
Huntingtons representative With authority to administer the Gandee Estate On
August 92015 less than thirty (30) days after the appointment of Ms Parsons
Huntington retaixled three separate businesses (being a building contractor)
realtor and appraiser) to inspect the 4700 SF residence They informed
Huntington that the 4)700 SF residence no longer had any value IE (not worth
rebuilding) unfortunately it isatear down and no contributory value to the
land respectively) (see Exhibit 3 to Plaintiffs Supplemental Response -
Exhibit G herein) It waited another foUl (4) months to place the tarp on the roof
C There was evidence of a conflict of interest by Huntington as litigant and
Executor as early as August 9 2015 when Huntington was adVised by its
contractor appraiser and realtor that the 4700 SF residence no longer had value
(see Exhibit 3 above) The Gandee Estate asserts that Huntingtons conflict of
interest is evidenced by many facts such as the fact that Huntington never filed
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Mar 23 2017 336PM No 3265 P 826
an insurance claim for total destruction to the 4700 SF lesidence after being
advised of the rainwater damage to the residence Huntington asserts that there
was no conflict ofinterest rather it simply never thought to look into whether an
insurance claim should be submitted Exhibit 4 to Plaintiffs Supplemental
Response - Exhibit G herein
D At mound the time Huntington was advised the 4700 SF residence had no value
Huntington appointed eight (8) employees to a Gandee Estate Team to
collectively administer the Gandee Estate as a team (Exhibit 5 to Plaintiffs
Supplemental Response - Exhibit G herein) Huntington also appointed Jared
Tully ~q a partner at Frost Brown amp Todd as a member of the estate
administration Team for the Gandee Estate to participate in many estate
administration meetings and actions visits to the residence and receive
communications (Exhibit 5 to Plaintiffs Supplemental Response - Exhibit G
herein) The top ranking member of the Team Tristan McCormick is a
member of the Board of Directors of the holding company the top trust office
nationally and responsible for risk management which includes loss from
litigation (see EJilibit 6 to Plaintiffs Supplemental Response ~ Exhibit G
herein)
E Plaintiffs fiduciary expert Mr John Rodgers stated in deposition that the legal
services of Frost Brovm amp Todd was appropriate and necessary for only one
matter (amount to be received from Virginia Young Estate - $7200) and that all
other legal work performed by Frost Brown amp Todd and billed to the Gandee
Estate in the amount of$9690220 was a waste of Estate assets because it is not
proper to involve outside counsel in routine estate administration matters (see
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Mar 23 2017 336PM No 3265 P 926
Exhibit 7 to PHrlntifIs Supplemental Response - Exhibit G herein) This is
particularly true where the Executor is a publicly traded bank withvast experience
and resources such as Huntington Note that Huntingtons own internal
procedures as to an estates use of outside counsel does not provide that outside
counsel should be involved in routine estate admiI)jstration matters (Exhibit8 to
Plaintiffs Supplemental Response - Exhibit Gherein)
F A Motion to Compel Distribution was filed in response to Defendants deCision
that it would distribute only $100000 even though the Gandee Estate had cash
of $2560000 and was ready to sell a farm for another $590000 with outside
counsel at such meeting (Exhibits 9A and 9B to Plaintiffs Supplemental
Response - Exhibit G hetein) Defendant sent a letter to the Gandee Trust that it
would distribute all estate assets only ifa full release from litigation was provided
(Exhibit 10 to Plaintiffs Supplemental Response - Exhibit G herein) During
Ms Parsons deposition when Ms Parsons was ask~d to describe discussions at
the meeting the attorney for Defendant stated two (2) in~house counsel were
present and outside counsel was also present andthis meeting on distribution was
offlimits (Exhibit 11 to Plaintiffs Supplemental Response - Exhibit G herein)
~BROWN Well she needs to - one two three four five - there were six people at that meeting And three of them are lawyers So Im a little reluctant to let her get into it IftheIe are matters that she can testify to that didnt relate to the discussion strategy and giving of advice and requesting of advice she oan But on this Im skeptical thered be anything else in this discussion
And then stated -
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ltBut because this thing is so riddled with lawyers I just dont know that when you get into what was discussed at the meeting that we can ever be able to separate the privileged from the nonpriviliged
G It was the decision of Tristan McCormick the top trust officer of Huntingto~ a
Board Member with primary responsibility for risk management froIlllitigation
who decided to riddle the thing with lawyers and cut off discovery Discovery
of routine estate administration decisions and matters was blocked because an
attorney was placed in a meeting and there was no need for an attorney to be
there particularly giving Executor advice as to how to hurt the beneficiaries in
the litigation
H As such a serious question arises as to whether Huntington is claiming attomeyshy
client privilege and work product protection for routine administtative matters
becanse it placed outside counsel as a member ofthe estate administration Team
to participate in estate administration matters and receive communications
relating thereto
I Huntingtons retention of only one firm to represent Huntington as Executor of
the Gandee Estate with the highest duty under law and also as Defendant
aggressively litigating against the beneficiary created a conflict of interest by
such law finn which coupled with Huntington having outside counsel in
attendance and participation in many routinemiddot estate administration matters has
blurred lines of duty and conduct in this Civil Action by Huntington
Huntingtons counsel has greatly exacerbated the complexity of the legal
analysis ofDefendant s claitns ofattomey-client privilege and work produc~ and
the time required ofthe Court in these matters
Page 9 of25
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Mar 23 2017 337PM No 3265 P 1126
CONCLUSIONS OF LAW
1 A threshold issue regarding all discovery requests is relevancy This is so because [t]he
question of the relevancy of the information sought through discovery essentially
involves a dete1lllination of how substantively the infom1ation requested bears on the
issues to be tried State ex reI Erie Ins Property amp Cas Co v Mazzone 625 SE2d
355358218 WVa 593596 (2005) citing SyI Pt 4 in part State Farm Mut AutoIns
Co v Stephens 188 WVa 622425 SE2d 577 (1992)
2 It is only after information is determined to be relevant that consideration is given to
whether the infonnation is subject to exclusion based upon the absolute or conditional
privilege of attorney-client communications or work-product information respectively
State ex reI Erie Ins Property ~ Cas Co v Mazzone 625 SE2d 355358218 WVa
593 596 (2005)
3 Relevance in the context of discovery means that the information sought is admissible
evidence or is reasonably calculated to lead to the discovery of admissible evidence
WVa RCivP 26(b)(1) see also Syl Pt 4 in part Keplinger v Virginia Elec and
Powet Co 208 WVa II 537 SE2d 632 (2000) SyI Pt 4 in part State Farm Mm
Auto Ins Co v Stephens 188 WVa 622 425 SE2d 577 (1992) State ex rel Erie
Ins Property amp Cas Co v Mazzone 625 SE2d 355 359~ 218 WVa 593597 (2005)
see also Syl Pt 5 State ex reI Montpelier US Ins Co v Bloom 757 SE2d 788 791
(2014)
4 In the present action there are factual allegations that could lead a jury to conclude that
Huntington Bank committed negligence ~reach ofits fiduciary duty bad faith and acted
with willful misconduct toward the Plaintiffs As discussed briefly in the findings offact
above thos~ alleged facts include Huntington failing to repair a hole in the roof which
Page 10 of2S
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Mar 23 2017 337PM No 3265 P 1226
allowed rainwater and animals into the home for approximately two years Huntington
failing to contact the home owners insurance regarding the damage to the home
Huntington billing approximately $9690220 for administration ofthe Gandee Estate by
outside counsel which might not be needed in routine estate administration matters
Huntington attempting to deem all information related to the administration of the
Gandee Estate as secret HuntiJigton withholding funds from the Trust in an attempt to
strong arm the beneficiaries and Trust into settlement etc
5 The information sought by the Plaintiffs is directly related to providing evidence to
support the various allegations in the complaint The infonnation from the meetings
emeils and conversations regarding the estate administration substantively beats on
the issues to be tried State ex tel Erie Ins Property amp Cos Co v Mazzone 625 SE2d
355
6 Furthermore the information is relevant in that the discovery requests are reasonably
calculated to lead to the discovery ofadmissible evidence ~ Wva RCivP 26(b )(1)
7 The issue with the discoverable information and the evidences adtnissibility revolves
atound the allegation that the Defendant placed attorneys unnecessarily in routine estate
administration matters The attorneys being present during these meetings triggers an
attorney-client privilege analysis
8 The attorney-olient privilege protects confidential communications between an attorney
and client from disclosure to encourage free and candid discussions between attorney
and client State ex ret USFampG v Canady460 SE 2d 677 (1995)
9 The attontey-client privilege is to be strictly construed against the party asserting
privilege because it is in derogation of the search for the truth and the burden of
Page 11 of25
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Mar232017 338PM No 3265 P 1326
establishing the attorney-client privilege always rests upon the party asserting it STate
ex reI USFampG v Canady~ 460 SE 2d 677 (1995)
10 The West Virginia Supreme Court ofAppeals discussed the attorney-client privilege in
State ex reI us Fidelity and Guar Co v Canady 460 SE2d 677687-88 194 WVa
431441-42 (1995) stating
The attorney-client privilege is a broad doctrine however it is not unlimited In Syllabus Point 2 of State 11
Burton 163 WVa 40 254 SE2d 129 (1979) we statedIn order to assert an atto~ey-client privilege three main elements must be present (l) both parties must contemplate that the attorney-client relationship does or will exist (2) the advice must be sought by the client from that attorney in his capacity as a legal adviser (3) the communication between the attorney and client must be identified to be confidential
11 Addressing the attorney-client privilege requires the identification of the parties involved
relevant to this litigation at the time of the communioations to wit HlIDtington was acting
8$ Executor of the Estate of James D Gandee Dr Gandees will named Dr Gandees
- - Daughtersand the Gandee Trust as beneficiaries and the Gandee Trust named Gandees
Daughters as primary beneficiaries
12 Huntington asserts that attorney-client privilege applies and therefore necessarily alleges
all tbtee elements are met
13 The First Element of attomey-client privilege requires that the parties to the
conununication contemplate that the attorney-client relationship does or will exist
Huntington alleges that the attorney-client relationship exists by virtue of the attorneys
being present
14 The Second element of attomey~client privilege requires that the client must seek the
advice ofan attorney and that the attorneys advice must be in the attorneys capacity as
Page 12 of25
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Ma r 23 2017 3 38PM No 3265 P 1426
a legal adViSOt This element is highly questionable as it has been alleged that the
Defendants utilized attorneys in routine estate administration which an expert alleges
was primarily outside of the prevue of a legal advisor However it is difficult for the
Court to determine this without an itl camera review of all of the evidence alleged to be
confidential by attoroey-client privilege from Huntingtons Estate administration
15 The Third element of attorney-client privilege requires that the communication between
the attomey and the client must be identified as confidential Here again without review
of the information alleged to be confidential the Court cannot detennine if the
information was identified as confidential
16 Therefore the Court concludes there is a question of whether attomey client privilege
even applies to the communications at issue in this case It is therefore necessary for the
Court to conduct an in camera review of the materials in order to make further
determinations
17 Further there bas been a question raised Jegarding the applicability of the work product
doctrine regarding materials sought by tb~ Plaintiffs from the Defendant specifically
estate administration meeting notes
18 Rule 26(b)(3) of the West Virginia Rules ofeivil Procedure states
(3) Trial Preparation Materials Subject to the provisiOns of subdivision (b)(4) of this rule a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(l) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other PartYs representative (including the partys attoOley consultant surety indemnitor insurer or agent) only upon a shoWing that the party seeking discovery has substantial need ofthe materials in the preparation of the partys case and that the party is unable without undue hardshlp to obtain the substantial equivalent ofthe materials by other means In ordering discovery of such materials when the required showing has been made the court shall protect against disclosure ofthe mental impressions conclusions opinions or legal
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Mar 23 2017 338PM No 3265 P 1526
theories of an attorney or other representative of a party concerning the litigation
19 laquoThe work product doctrine creates a fom of qualified immunity from discovery but it
does not label protected material as privileged and thus outside the scope of discovery
under Rule 26(b)(l) Litigation Handbook sect 26(b)(3) at 721 (2012) State ex reI
Chaparro v Wilkes 438 SE2d 575 577-78 190 WVa 395 397-98 (1993)
20 The Supreme Court of Appeals of West Virginia has long recogoiz~d a distinction
between factual work product and opinion work produ~t holding
Where factual work product is involved the party demancling production must show a substantial need for the material in the sense that he cannot obtain the same or its equivalent through other means ltwithout undue hllldship Where opinion work product is involved the showing reqlrired to obtain discovery is even stronger because the rule states that the court sluill protect against disclosure ofmeota1 impressions conclusion opinions or legal theories
State ex reI Chaparro v Wilkes 438 SE2d575 577-78190 WVa 395 397-98 (1993)
bold added Citing In re Markle 174 WVa at 556-57 328 SE2d at 163 (1984)
21 Factual work product has been defined bythe Supreme Court of Appeals of West
Virginia as
[F]actual work product refers to documents and tangible things that were prepared in anticipation oflitigation or for trial (l) by or for a party or (2) by or fat that partys representative which includes an attomey consultant surety indemnitor insurer or agent When factual work product is involved the party demancling production must show a ltsubstantial need for the material and establish that the same material or its equivalent cannot be obtained through other means without undue hacdship
State ex reI Erie Ins Property amp Cas Co v Ma~one 625 SE2d 355361218 WVa
593 599 (2005) citing Litigation Handbook on West Virginia Rules ofCMl ProcedUre
sect 26(b)(3) at 557 (2000)
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Mar 23 2017 338PM No 3265 P 1626
22 ~SubstantiaI need may be independently established where it is ShOVVll that the requested
infonnation relates to essential elements ofthe requesting partys cause ofaction and the
information is not reasonably reproducible by the requesting patty Ot obtainable by other
means See Litigation Handbook sect 26(b)(3) at 721 (2012)
23 In the current case factual infonnation regarding Huntingtons administration of the
estate is contained in the estate meeting notes The administration of the estate directly
relates to the essential elements of the c~uses of action resulting from the alleged
misadministration of the estate and is not reasonably reproducible by the Plaintiffs or
obtainable by other means
24 In the current case the Plaintiffs are unable to obtain the information from those
meetings through any other means other than discovery Any attempt to obtain the
infOllIlation through discovery will result in a question of whether attorney client
privilege applies as occurred in the deposition ofMs Parsons (Exhibit 11 to Plain1iffs
Supplemental Response - ExhibifG herein)
25 As the only factual information available pertaining to the estate administration is from
the various meetings dealing with estate administration and email correspondence
dealing with estate administration a substantial need clelllly exists which would require
the Defendants to provide those documents to the Plaintiffs Provided that any
information requested by the Defendants can be reviewed in camera iffurther objections
arise to infonnation contained in those documents
26 Opinion work product consists of lI1ental impressions) conclusion opinions or legal
theories found in factual work product and requires a much stronger showing in order for
it to be released See Litigation Handbook sect 26(b)(3) at 722 (2012) Opinion work
product is only discoverable in very rare and extraordinary circumstances Id
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Mar232017 339PM No 3265 P 1726
27 Documents prepared in anticipation of litigation were addressed State ex reZ Erie Ins
Property amp Cas Co vMazzone 648 SE2d 31 38 220 WVa 525 532 (2007) in
which the Court held in syllabus point seven of State ex reZ United Hospital Center
~nc v Bedell that middotin order bull [t]o determine whether a document was prepared in
anticipation of litigation and~ is therefore protected from disclosure under the work
product doctrine the primary motivating purpose behind the creation of the document t
must have been to assist in pending or probable futuJe litigation 199 WVa at 320 484
SE2d at 203 This means that the documents must not be prepared in the course of
everyday business Because the preparers ofilie reser~es information in the instant case
were non-lawyers we further note that-Rule ~6(b)(3) extends work product protection to
materials prepared by non-lawyers when the paramount purpose for generating the
materials is litigation Id [D]etermination of whether a document was prepared in
anticipation of litigation or in the ordinary course ofbusiness is a factual one which is
examined on a case-by-case basis State ex reI Erie Ins Property ampCas Co v Mazzone
648 SE2d 31 42~ 220 WYa 525 536 (2007) (internal citations omitted)
28 This case--by-case determination necessitates an in camera review of all documents for
which a privilege is claimed
29 The legal duty of a personal representative or e-gecutor ofthe estate of a deceased under
West Virginia law is as follows
The personal representative of the estate of a deceased acts in a fiduciary capacity His duty is to manage the estate under his control to the advantage of those interested in it and to act on their behalf In the discharge of this duty the executor or administratot of a decedents estate is held to thehighest degree of good faith and is required to exercise the ordinary care and reaso~able diligence which prudent persons ordinarily exercise under like circumstances in their own personal affairs j Syl pt 1 Latimer v
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Mar 23 2017 339PM No 3265 P 1826
MechlingI71 WVa 729 301 SE2d 819 (1983) SyI Pt2 Pickens v Tribble 236 WVa 670 783 SE2d 310312 (2016)
30 Applied to the case at bar the legal duty of Huntington as Executor ofthe
Estate ofJames D Gandee under West Virginia law is as follows
Its duty is to manage the Gandee Estate under its control to the advantage ofthose interested in it and to act on their pehalf Further in the discharge ofits duty Huntington National Bank is held to the highest degree of good faith and is required to exercise the ordinary care and reasonable diligence which prudent persons ordinarily exercise under like circumstances in theiJ own personal affairs) Syl pt 1 Latimer v Mechling 171 W_Va 729 301 SE2d 819 (1983) Syi Pt 2 Pickens v Trtbble 236 WVa 670) 783 SE2d 310 312 (2016)
31 The Court concludes that the ~fiduciary exception legal principle bas not been directly
addressed by the West Virginia Supreme Court of Appeals and if presented would be a
question of first impression in West ViIginia See Plaintiffs Supplemental Response
(Exhibit G h~rein)
32 ~laintiff the Gandee Trust chose not to request that a certified question be submitted
regarding fiduciary exception because of the attendant delay~ it is ready for trial and
further asserted and requested that Allstate v Gaughan and existing case law be applied
to the Civil Action See Plaintiffs Supplemental Response (Exhibit G)
33 In the case ofState ex rel- Allstate 117SUtattce Company v Gaughan 508 SB 2d 75 CW
Va 1998) the West Virginia Supreme Court addressed the application of the attorneyshy
client prlVilege and work product rule in a third party bad faith insurance action where
the insured had signed a release ofhislher bad faith claim to the plaintiff InAllstate v
Gaughan the Courts conclusion that the attorney retained by the insurance company
really represents the insured was param01mt in rejecting prior rulings in third party bad
faith cases-Page 11 of25
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Mar232017 339PM No 3265 P 1926
34 In Allstate v Gaughan the Court focused on the point in time where the mutual or
conunon interest of the insurance company and insured terminated and broke off which
in that case was the date that plaintiff filed suit against the insurance company
35 Further anticipation of a law suit is insufficient to trigger work product protections as
stated in the Litigation Handbook on the Rules ofCivil Procedure (hereinafter Litigation
Handbook) Cleck1ey~ Davis amp PalmeJ Fourth Edition at page 723
the mere possibility that litigation may occur or even the mere fact that litigation does eventually ensue is insufficient to cloak materials with the mantle ofwork product protection
36 The Court concludes that in the instant Civil Action the mutual Or common interest of
Huntington as Executor and the Gandee Trust as beneficiary terminated and broke off
on March 9 2016 ilie date when the Gandee Trust filed its Joinder Motion
approximately one (1) month after its appointment as Trustee
37 The facts in this Civil Action are Illore compelling than in Allstate v Gaughan as a
fiduciary relationship exists in the instant case as opposed to contractual relationship as
in theAilstate v Gaughan case InAllstate v Gaughan the insured paid for no legal fees
ofthe insurer whereas in the instant matter the beneficiary (the Gandee Trust) paid for
all legal services provided by the attorney retained by Huntington through June 12016
38 Therefore for all the reasons set forth above the Court concludes that application ofthe
holdings inAllstate v Gaughan are proper to apply in the instant case as modified below
a Allstate v Gaughan is precedent for the conclusion that in the instant Civil Action the
time when the mutual interest of Defendant and the Gandee Trust terminated
(plaintiffs filing of complaint in Allstate v Gaughan) is the date ofMarch 92016
Page 18 of25
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Mar 23 2017 340PM No 3265 P 2026
h In line vvith the precedent in Allstate v Gaughan~ communications and documents
generated prior to March 9~ 2016 are presumptively considered not protected by
attorney-client privilege or work product protection
c InAllstate 11 Gaughan the Court crafted a quasi attorney-client privilege in order to
protect Insurers comm1l11ications with their Insured from being discoverable by tbirdshy
parties under very specific circumstances As the elements of proof for breach of
fiduciary duty in the instant Civii Action are so different than elements of a bad faith
claim the Court concludes that Allstate v Gaughan does not provide quasi attomeyshy
client privilege to the Huntingtons communications regarding estate administration
d Allstate v Gaughan provides guidelines to detennine whether a docuruent satisfied the
work product rule and guidelines for determining whether a compelling need exists to
receive a document which otherwise afforded work product protection These
guidelines serve as precedent in this Civil Action The Court notes that existing case
law also set forth the same holdings as in Allstate v Gaughan and also addresses
traditional attorney-client privilege guidelines fox determining whether a document
satisfies the work product rule and whether a compelling need exists to obtain a
document which satisf1es the work product true
ORDER
Based upon all pleadings and documents referenced herein (Exhibits A-I) atguments
presented by counsel at hearirlgs research of legal authorities and its findings of fact and
conclusions oflaw the Court hereby ORDERS that Allstate v Gaughan supra and existing West
Virginia law be applied to this Civil Action pursuant to the Orders set forth below
1 For purposes ofclarity and consistency the follOWing tenns used in this Order shall have
the same meaning as such terms are used in Allstate v Gaughan traditional attorney-
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Mar232017 340PM No 3265 P 21126
client privilege work product rule and work product protection As discussed in
the December 222016 hearing the difference in opinion work product and fact work
product must be evaluated by the Special Commissioner and this Court
2 The Court ORDERS the materials previously reviewed in camera on December 22I1d
2016 by the Court and Discovery Commissioner and detennined to be discoverable to
be disclosed to the Plaintiffs for the reasons set forth above and at the hearing The Court
notes the Defendants objection
3 The Court DENIES the Defendants Motion for Protective Order precluding
consideration of the fiduciary exception for the reasons set forth above and at the
hearing The Court notes the Defendants objection
4 The Court GRANTS the Plaintiffs Mcgttion to Compel Defendant to Submit a
Supplemental Privilege Log as identified below The Supplemental Privilege Log is to
be supplied to the Court and Discovery Commissioner with attached documents and in
the form articulated below foran in camera review The Court notes the Defendants
objection
5 On December 22 2016 this Court ordered that Defendant provide a Supplemental
Privilege Log to this Court on or before January 6 2017 setting forth all communications
and documents for which Defendant claims attomey~client privilege or work product in
this case This Court hereby AMENDS the January 6 2017 deadline to AprilSth 2017
and AMENDS AND REFINES such Order as set forth below where all communications
and documents to be listed in the Supplemental Privilege Log are described
6 Defendant shall submit to this Court on or before April 5th 2017 a Supplemental
Privilege Log which lists all infonnation sought by discovery fOJ which a privilege is
claimed to be separated and identified into four separate groups The first tWo groups
Page 20 of25
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Ma r 23 2017 3 40 PM No 3265 P 2226
Group A and Group B include all communications- this includes letters omails and
other correspondence either written or vetbal The second two groups Group C and
Group D include all Documents Bach piece of evidence will be numbered individually
within the respective Group beginning with 1
a Group A Attorney~Client Privilege Communications Prior to March 9 2016 In
line withAllstate v Gaughan all communications relating to the Gandee Estate which
Defendant claims are protected by traditional attorney-client privilege generated prior
to March 92016 ate Group A Communications
b Group B Communications Genex-ated on or After March 9 2016 Note that
Allstate v Gaughan provides that all communications generated after the plaintiff qIed
suit (March 9 2016 in this Civil Action) must be specifically identified and requested
as opposed to a general request so centat a Circuit Court is notunduly burdenedin review
thereof However Huntington continued to have the highest duty under law to the
Gandee Trust as Executor after March 9 2016 Further Huntington decided to have
one law fum represent it as Executor and as Defendant in this matter and to have that
one law finn partiCipate in most estate adrobJistratio~ matters Although it will requjre
additional time by the Special Commissioner and this Court to review documents in
light of the above facts~ the Court ORDERS that the general request for
communications already made is sufficient without need for specific reference for all
Group B Communications generated from March 9 2016 through June 5 2016 June
5 2016 is the date when Executor _activity and conflict of interest decreased when all
Gandee Estate assets were distributed to the Gandee Trust
c Additionally any communication generated after June 5 2016 which relates solely to
the administration of the Gandee Estate or which in any manner relates to a
PageZ1of25
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Mar 23 2017 341PM No 3265 P 2326
conununication with the Sheriffs Office or the ATF regarding guns owned by the
Gandee Estate shall also be a Group B Communication
d Group C Work Product Rule Documents Generated Prior to March 9 2016 Each
document relating to the Gandee Estate for which Defendant claims work product
protection and which was generated or prepared prior to March 92016 is a Group C
Document
e Group D Work Product Rule Documents Generated on or After March 9 2016
The considerations and analysis set forth in Section (5)(a) above with regatd to
attorney-client privilege also applies to docU1ll8nts for which work product protection
is claimed by Defendant As such all documents generated for the period ofMarch 9
2016 through June 5 2016 ate Group D DOCUIllents and the general request already
made for documents is sufficient Gronp D Documents also mcludes any document
generated after June 5 2016 which relates to estate administration andor any document
relating to the guns owned by the Gandee Estate
7 Additionally~ written analysis shall be provided by Defendant with the Supplemental
Privilege Log on AprilSth 2017 to meet its burden of pro~f that each Group A andor
B Communication satisfies attorney-client privilege (if so claimed by Defendant)
Further Defendant shall provide a written analysis to prove that each Group C andor D
Document qualifies for work product protection Additionally Defendant shall provide
an exp1anation for each CommUnication and Document as to why it was necessary to
retain outside legal counsel for suchmatter and how the advice is legal advice as opposed
to routine estate administration adVice
8 WIthout limiting the foregoing each and every communication or document which has
already been provided by Huntington to the Gandee Trust in redacted form shall be listed
Page22of25
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Mar 23 2017 341PM No 3265 P 2426
in the Supplemental Privilege Log and attached to the Supplemental Privilege Log
without any redactions
9 The Special Conunissioner shall render a Report on which Group A and Group B
Communications satisfy attorney-client privilege whioh do not and why He shall also
include in his Supplemental Report which Group C andor Group D Documents satisfY
all requirements for work product priilege which do not and why
10 Additionally for all Communications and Documents which he finds satisfy attomeyshy
client privilege and work product protection he shallstate whether it was reasonable or
necessary for Defendant to utilize cmIDsel in such matter
11 Additionally for each Group Cor Gronp D Documentwbich qualifies fot work product
protection he shall find whether Plaintiff has a compelling need for such document In
that regard the Gandee Trust may provide an analysis within twenty (20) days after the
entry of this Order providing its analysis of compelling need for types or categories of
documents Ifthe Special Commissioner needs additional information he shall so infom
the Court
12 Undet the Courts guidelines in Allstate v Gaughan and the reasoning set forth above
Communications prior to March 9 2016 would generally not be privileged and
Documents generated prior to March 9 2016 would generally not qualify for work
product protection
13 As per Conclusions of Law 38(c) Huntington is not entitled to quasi attorney-client
privilege regarding Huntingtons communications regarding estate administration
14 As there was conflicting proffer of counsel at the January 42017 hearing Defendant
shall include with the Supplemental Privilege Log all billings by Frost Brown amp Todd
Page 23 of25
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Ma r 23 2017 3 41 PM No 3265 P 2526
through June I 2016 to Huntington to be paid by Huntington for representation of
Huntington for its litigation representation and payments thereon
15 Notwithstanding any other provision in this Order The Special Comnrissioner in bis
review of all conununications and documents shall identify any communication or
document which meets the guideline for the crimefraud exception as such exception
is set forth in Brison v Kaufinan The Special Commissioner shall be provided a copy
of the Amended Complaint to be apprised of factual circumstances which the Gandee
Trust bas alleged constitute bad faith by defendant
16 In the Supplement to Response to Defendants Motion for Protective Order filed by the
Gandee Trust a request was made under WVRCP 37(a)(4) that Huntington be required
to pay for all attorney fees ofthe Gandee Trust by payment ofthe hours spent by outside
counsel to the Gandee TrtlSt multiplied times their standard hourly rate for all work
relating to attorney-client privilege and work product protection for all legal services
rendered above and beyond its Motion to Compel documents and the hearing on October
242016 including appeals
The Court will address such request after it has completed its in-camera review
and entered an 9rder as to the communications and documents which must be provided to Plaintiff
A subsequent hearing shall be held ifneeded
17 The Court further ORDERS that all communications and docmnents to be provided to
the Gandee Trust by the ultimate Order entered by the Court after full in-camera review
shall be provided to the Gandee Trust and not Plamtiffs Dr Gandees Daughters
Plaintiffs Dr Gandees Daughters may make a motion requesting all or a portion of
such material if they so choose and all parties will have a right to subroit motions and
legal memoranda on such matter
Page 24 of2S
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Mar 23 2017 341PM No 3265 P 2626
18 Finally it is ORDERED that the Clerk of this Court mail andor ~therwise provide a
certified copy of this Order to all parties of record
ENTERED tbis ~rtJay ofMarch 2017
c c ~ 1lQ)m -- ct)02 It l Cp b- etJ82 1U
I) -()-fo W middot0cJraquo rqcIe O~f1IO 11 -ujtJ
S--of ltW r-) FiE
~ ~
f om tl1e records ITEST A trueJO~~the Clerk otthe (l~at~tdClnoulirtleo~ ~cpshur County West ClrCUI Virginia
Given under my hancl---l~~Pd~hiCDF
Page2S of25
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IN TIlE c~~tifiC0b1tf6iitiPSHUR COUNTY WEST VIRGINIA ~
DEANNAD GANDEE et aI
PLAINTIFF
vs Crvn ACTION NO lS-C-98
HUNTINGTON BANCSHARES INC et al
DEFENDANT
DISCOVERY COMMISSIONER REPORT
The Discovery Commissioner has reviewed the 1159 pages of e-mails that were provided in
this matter Upon review of the same it appears that there are two different groups of e-mails
1 E-mails relating to the pending litigation that are attorneyclient privilege type e-mails
2 E-mails that are referencing the administration and handling of the Estate
The e-mails which are attributable to the handling of the Estate should be discoverable in this
matter as the issues involved in litigation deal with breach of fiduciary duty I have prepared a
separate sheet setting forth the e-mails that I contend would be discoverable including a copy of the
same for the review of the Court This sheet and list of e-mails will be provided only to the Court for
review and determination of whether they should be disclosed to counsel
rin B NaImers 6358 Discovery Commissioner
APP 000409
CERTIFICATE OF SERVICE
[h I Steven B Nanners do hereby certify that on the it day of December 2016 I served the
following Discovery Commissioner Report by depositing a true copy thereof mthe UmtedStates
Mail in an envelope with sufficient postage attached thereto addressed to the following
Jared M Tully Esq Frost Brown Todd Laidley Tower Suite 401 500 Lee Street Charleston West VIrginia 25301
Alan S Brown Esq Frost Brown Todd 201 North illinois Street - Suite 1900 Indianapolis IN 46204
Gerald R Lacy Esq Lacy Law Offices LC 103 Pennsylvania Avenue PDBox589 Charleston West VIrginia 25322
Gordon C Lane Sr Lane amp Young 1538 Kanawha Blvd East Charleston WesfVIrginia 25311
S~~n B Nanners 6358 Discovery Commissioner Law Offices of Nanners amp Willett LC 45 West Main StreetmiddotU ( Buckhannon West VIrginia 26201 304-472-2048
APP000410
Mar 23 2017 335PM No 3265 P 526
FINDINGS OF FACT
1 James D Gandee DS (Dr Gandee) died on February 172014 a resident ofUpshux
County West Virginia and Hmtington National Bank NA (Huntington) was named
and appointed Executor of the Estate of James D Gandee (the Gandee Estate) on May
272014 and continues to serve as Executor The Gandee Estate was estimated to be
worth 25 Million to 3 Million dollars
2 Under the provisions of the Gandee Trust Chase Bank NA was apPOinted Trustee of
the Gandee Trust but declined to serve and City National Bank NA (City
NationallTrustee) was appointed Trustee in early February 2016
3 In Dr Gandees Will he bequeathed to each of his daughters Jennifer Gandee and
Deanna Gandee (collectively Dr Gandees Daughters) one (1) of his guns at their
selection and all other assets or proceeds from the sale of assets were bequeathed and
devised to the James D Gandee Revocable Trust ~ 2012 (the Gandee Trust) Dr
Gandees Daughters are the primary beneficiaries of the aforesaid trust The Court fmds
that one (1) gun each to Dr Gandees Daughters in this large Estate is in the nature of a
specific bequest and for the purpose of this Order~ the Court FINDS that the Gandee
Trust is the only party who can claim breach offiduciary duty and seek discovery relating
to such breach and it is effectively~ the sole beneficiary and is so treated for the
~o~es ofthis Order
4 On November 112015 Plaintiffs Dr Gandees Daughters represented by Gerald R
Lacy filed a complaint against Huntington alleging personal tort actions based upon
negligence and also damage to the Gandee Estate ass~ts but did not olaim or assert breach
offiduciary duty by Huntington (a copy is attached as Exhibit H)
Page 4 of25
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Mar 23 2017 336PM No 3265 P 626
5 On December 8 2015 Defendant filed a Motion to Dismiss Gandees Daughters
Complaint asserting that the Gandee Trost was effectively the sole beneficiary of the
Gandee Estate and since it was not a party to the action the complaint should be
dismissed
6 On March 9 2016~ the City NationalTrustee represented by Lane amp Young filed a
joinder motion approximately one (1) month after its appointment as Trustee in the
present action against Huntington alleging lIuntington breached their fiduciary duty
City NationallTrustee on behalf of the Gandee Trust thereafter filed an Amended
Complaint alleging negligence breach of its fiduciary duty bad faith and willful
misconduct by Huntington as Executor to the Gandee Trust (Exhibit I)
7 Defendant then dropped its Motion to Disntiss because the Gandee Trust as sole
beneficiary of the Gandee Estate joined the instant Civil Action and the Motion to
Dismiss was moot
8 The Court FINDS that addressing the attorney-client and work product issues in this
case necessarily requires a review of the issues in dispute in this litigation the litigation
conduct ofHuntington including utili2ation of outside counsel and potential conflicts of
interest of its outside counsel
9 In order to adequately address legal issues in this matter relating to attorney-client
privilege and the work product rule Plaintiff asserted and believed that it was necessary
for this Court and the Special Commissioner to have a fuller understanding of the
litigation conduct of Defendant and legal invoices submitted to the James D Gandee
Estate (the Gandee Estate) and alleged the below Facts
A Barry Griffith served as the Trust Officer of Huntington responsible for
administrating the Gandee Estate from May 27 2014 through the date of his
Page 5 oi2S
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Mar 232017 336PM No 3265 P 726
resignation from Huntington on May 262015 DocUIoentation exists that Mr
Griffith was informed of rainwater coming into the interior ofthe house causing
damage prior to December 31 2014 and ~gainMarch 20 2015 (the roofis falling
in) (Exhibit lA-lB to Plaintiffs Supplemental Response - ExhibitG herein)
As Executor Huntington obviously has the responsibility to make all repahs to
the roof and preserve the v~ue of the 4700 SF residence However there Yi8S
no reparr to the roof of the 4700 SF residence until a tarp was placed on the roof
in December 2015 (Exhibit 2 to Plaintiffs Supplemental Response - Exhibit G
herein)
B On July 15 2015 by Order of the County Commission ofUpshur County West
Virginia Carla Parsons Huntington)s Trust Officer) was designated as
Huntingtons representative With authority to administer the Gandee Estate On
August 92015 less than thirty (30) days after the appointment of Ms Parsons
Huntington retaixled three separate businesses (being a building contractor)
realtor and appraiser) to inspect the 4700 SF residence They informed
Huntington that the 4)700 SF residence no longer had any value IE (not worth
rebuilding) unfortunately it isatear down and no contributory value to the
land respectively) (see Exhibit 3 to Plaintiffs Supplemental Response -
Exhibit G herein) It waited another foUl (4) months to place the tarp on the roof
C There was evidence of a conflict of interest by Huntington as litigant and
Executor as early as August 9 2015 when Huntington was adVised by its
contractor appraiser and realtor that the 4700 SF residence no longer had value
(see Exhibit 3 above) The Gandee Estate asserts that Huntingtons conflict of
interest is evidenced by many facts such as the fact that Huntington never filed
Page 6 of2S
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Mar 23 2017 336PM No 3265 P 826
an insurance claim for total destruction to the 4700 SF lesidence after being
advised of the rainwater damage to the residence Huntington asserts that there
was no conflict ofinterest rather it simply never thought to look into whether an
insurance claim should be submitted Exhibit 4 to Plaintiffs Supplemental
Response - Exhibit G herein
D At mound the time Huntington was advised the 4700 SF residence had no value
Huntington appointed eight (8) employees to a Gandee Estate Team to
collectively administer the Gandee Estate as a team (Exhibit 5 to Plaintiffs
Supplemental Response - Exhibit G herein) Huntington also appointed Jared
Tully ~q a partner at Frost Brown amp Todd as a member of the estate
administration Team for the Gandee Estate to participate in many estate
administration meetings and actions visits to the residence and receive
communications (Exhibit 5 to Plaintiffs Supplemental Response - Exhibit G
herein) The top ranking member of the Team Tristan McCormick is a
member of the Board of Directors of the holding company the top trust office
nationally and responsible for risk management which includes loss from
litigation (see EJilibit 6 to Plaintiffs Supplemental Response ~ Exhibit G
herein)
E Plaintiffs fiduciary expert Mr John Rodgers stated in deposition that the legal
services of Frost Brovm amp Todd was appropriate and necessary for only one
matter (amount to be received from Virginia Young Estate - $7200) and that all
other legal work performed by Frost Brown amp Todd and billed to the Gandee
Estate in the amount of$9690220 was a waste of Estate assets because it is not
proper to involve outside counsel in routine estate administration matters (see
Page 7 of2S
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Mar 23 2017 336PM No 3265 P 926
Exhibit 7 to PHrlntifIs Supplemental Response - Exhibit G herein) This is
particularly true where the Executor is a publicly traded bank withvast experience
and resources such as Huntington Note that Huntingtons own internal
procedures as to an estates use of outside counsel does not provide that outside
counsel should be involved in routine estate admiI)jstration matters (Exhibit8 to
Plaintiffs Supplemental Response - Exhibit Gherein)
F A Motion to Compel Distribution was filed in response to Defendants deCision
that it would distribute only $100000 even though the Gandee Estate had cash
of $2560000 and was ready to sell a farm for another $590000 with outside
counsel at such meeting (Exhibits 9A and 9B to Plaintiffs Supplemental
Response - Exhibit G hetein) Defendant sent a letter to the Gandee Trust that it
would distribute all estate assets only ifa full release from litigation was provided
(Exhibit 10 to Plaintiffs Supplemental Response - Exhibit G herein) During
Ms Parsons deposition when Ms Parsons was ask~d to describe discussions at
the meeting the attorney for Defendant stated two (2) in~house counsel were
present and outside counsel was also present andthis meeting on distribution was
offlimits (Exhibit 11 to Plaintiffs Supplemental Response - Exhibit G herein)
~BROWN Well she needs to - one two three four five - there were six people at that meeting And three of them are lawyers So Im a little reluctant to let her get into it IftheIe are matters that she can testify to that didnt relate to the discussion strategy and giving of advice and requesting of advice she oan But on this Im skeptical thered be anything else in this discussion
And then stated -
Page 8 of 25
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Mar 23 2017 337PM No 3265 P 1026
ltBut because this thing is so riddled with lawyers I just dont know that when you get into what was discussed at the meeting that we can ever be able to separate the privileged from the nonpriviliged
G It was the decision of Tristan McCormick the top trust officer of Huntingto~ a
Board Member with primary responsibility for risk management froIlllitigation
who decided to riddle the thing with lawyers and cut off discovery Discovery
of routine estate administration decisions and matters was blocked because an
attorney was placed in a meeting and there was no need for an attorney to be
there particularly giving Executor advice as to how to hurt the beneficiaries in
the litigation
H As such a serious question arises as to whether Huntington is claiming attomeyshy
client privilege and work product protection for routine administtative matters
becanse it placed outside counsel as a member ofthe estate administration Team
to participate in estate administration matters and receive communications
relating thereto
I Huntingtons retention of only one firm to represent Huntington as Executor of
the Gandee Estate with the highest duty under law and also as Defendant
aggressively litigating against the beneficiary created a conflict of interest by
such law finn which coupled with Huntington having outside counsel in
attendance and participation in many routinemiddot estate administration matters has
blurred lines of duty and conduct in this Civil Action by Huntington
Huntingtons counsel has greatly exacerbated the complexity of the legal
analysis ofDefendant s claitns ofattomey-client privilege and work produc~ and
the time required ofthe Court in these matters
Page 9 of25
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Mar 23 2017 337PM No 3265 P 1126
CONCLUSIONS OF LAW
1 A threshold issue regarding all discovery requests is relevancy This is so because [t]he
question of the relevancy of the information sought through discovery essentially
involves a dete1lllination of how substantively the infom1ation requested bears on the
issues to be tried State ex reI Erie Ins Property amp Cas Co v Mazzone 625 SE2d
355358218 WVa 593596 (2005) citing SyI Pt 4 in part State Farm Mut AutoIns
Co v Stephens 188 WVa 622425 SE2d 577 (1992)
2 It is only after information is determined to be relevant that consideration is given to
whether the infonnation is subject to exclusion based upon the absolute or conditional
privilege of attorney-client communications or work-product information respectively
State ex reI Erie Ins Property ~ Cas Co v Mazzone 625 SE2d 355358218 WVa
593 596 (2005)
3 Relevance in the context of discovery means that the information sought is admissible
evidence or is reasonably calculated to lead to the discovery of admissible evidence
WVa RCivP 26(b)(1) see also Syl Pt 4 in part Keplinger v Virginia Elec and
Powet Co 208 WVa II 537 SE2d 632 (2000) SyI Pt 4 in part State Farm Mm
Auto Ins Co v Stephens 188 WVa 622 425 SE2d 577 (1992) State ex rel Erie
Ins Property amp Cas Co v Mazzone 625 SE2d 355 359~ 218 WVa 593597 (2005)
see also Syl Pt 5 State ex reI Montpelier US Ins Co v Bloom 757 SE2d 788 791
(2014)
4 In the present action there are factual allegations that could lead a jury to conclude that
Huntington Bank committed negligence ~reach ofits fiduciary duty bad faith and acted
with willful misconduct toward the Plaintiffs As discussed briefly in the findings offact
above thos~ alleged facts include Huntington failing to repair a hole in the roof which
Page 10 of2S
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Mar 23 2017 337PM No 3265 P 1226
allowed rainwater and animals into the home for approximately two years Huntington
failing to contact the home owners insurance regarding the damage to the home
Huntington billing approximately $9690220 for administration ofthe Gandee Estate by
outside counsel which might not be needed in routine estate administration matters
Huntington attempting to deem all information related to the administration of the
Gandee Estate as secret HuntiJigton withholding funds from the Trust in an attempt to
strong arm the beneficiaries and Trust into settlement etc
5 The information sought by the Plaintiffs is directly related to providing evidence to
support the various allegations in the complaint The infonnation from the meetings
emeils and conversations regarding the estate administration substantively beats on
the issues to be tried State ex tel Erie Ins Property amp Cos Co v Mazzone 625 SE2d
355
6 Furthermore the information is relevant in that the discovery requests are reasonably
calculated to lead to the discovery ofadmissible evidence ~ Wva RCivP 26(b )(1)
7 The issue with the discoverable information and the evidences adtnissibility revolves
atound the allegation that the Defendant placed attorneys unnecessarily in routine estate
administration matters The attorneys being present during these meetings triggers an
attorney-client privilege analysis
8 The attorney-olient privilege protects confidential communications between an attorney
and client from disclosure to encourage free and candid discussions between attorney
and client State ex ret USFampG v Canady460 SE 2d 677 (1995)
9 The attontey-client privilege is to be strictly construed against the party asserting
privilege because it is in derogation of the search for the truth and the burden of
Page 11 of25
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Mar232017 338PM No 3265 P 1326
establishing the attorney-client privilege always rests upon the party asserting it STate
ex reI USFampG v Canady~ 460 SE 2d 677 (1995)
10 The West Virginia Supreme Court ofAppeals discussed the attorney-client privilege in
State ex reI us Fidelity and Guar Co v Canady 460 SE2d 677687-88 194 WVa
431441-42 (1995) stating
The attorney-client privilege is a broad doctrine however it is not unlimited In Syllabus Point 2 of State 11
Burton 163 WVa 40 254 SE2d 129 (1979) we statedIn order to assert an atto~ey-client privilege three main elements must be present (l) both parties must contemplate that the attorney-client relationship does or will exist (2) the advice must be sought by the client from that attorney in his capacity as a legal adviser (3) the communication between the attorney and client must be identified to be confidential
11 Addressing the attorney-client privilege requires the identification of the parties involved
relevant to this litigation at the time of the communioations to wit HlIDtington was acting
8$ Executor of the Estate of James D Gandee Dr Gandees will named Dr Gandees
- - Daughtersand the Gandee Trust as beneficiaries and the Gandee Trust named Gandees
Daughters as primary beneficiaries
12 Huntington asserts that attorney-client privilege applies and therefore necessarily alleges
all tbtee elements are met
13 The First Element of attomey-client privilege requires that the parties to the
conununication contemplate that the attorney-client relationship does or will exist
Huntington alleges that the attorney-client relationship exists by virtue of the attorneys
being present
14 The Second element of attomey~client privilege requires that the client must seek the
advice ofan attorney and that the attorneys advice must be in the attorneys capacity as
Page 12 of25
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Ma r 23 2017 3 38PM No 3265 P 1426
a legal adViSOt This element is highly questionable as it has been alleged that the
Defendants utilized attorneys in routine estate administration which an expert alleges
was primarily outside of the prevue of a legal advisor However it is difficult for the
Court to determine this without an itl camera review of all of the evidence alleged to be
confidential by attoroey-client privilege from Huntingtons Estate administration
15 The Third element of attorney-client privilege requires that the communication between
the attomey and the client must be identified as confidential Here again without review
of the information alleged to be confidential the Court cannot detennine if the
information was identified as confidential
16 Therefore the Court concludes there is a question of whether attomey client privilege
even applies to the communications at issue in this case It is therefore necessary for the
Court to conduct an in camera review of the materials in order to make further
determinations
17 Further there bas been a question raised Jegarding the applicability of the work product
doctrine regarding materials sought by tb~ Plaintiffs from the Defendant specifically
estate administration meeting notes
18 Rule 26(b)(3) of the West Virginia Rules ofeivil Procedure states
(3) Trial Preparation Materials Subject to the provisiOns of subdivision (b)(4) of this rule a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(l) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other PartYs representative (including the partys attoOley consultant surety indemnitor insurer or agent) only upon a shoWing that the party seeking discovery has substantial need ofthe materials in the preparation of the partys case and that the party is unable without undue hardshlp to obtain the substantial equivalent ofthe materials by other means In ordering discovery of such materials when the required showing has been made the court shall protect against disclosure ofthe mental impressions conclusions opinions or legal
Page 13 of25
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Mar 23 2017 338PM No 3265 P 1526
theories of an attorney or other representative of a party concerning the litigation
19 laquoThe work product doctrine creates a fom of qualified immunity from discovery but it
does not label protected material as privileged and thus outside the scope of discovery
under Rule 26(b)(l) Litigation Handbook sect 26(b)(3) at 721 (2012) State ex reI
Chaparro v Wilkes 438 SE2d 575 577-78 190 WVa 395 397-98 (1993)
20 The Supreme Court of Appeals of West Virginia has long recogoiz~d a distinction
between factual work product and opinion work produ~t holding
Where factual work product is involved the party demancling production must show a substantial need for the material in the sense that he cannot obtain the same or its equivalent through other means ltwithout undue hllldship Where opinion work product is involved the showing reqlrired to obtain discovery is even stronger because the rule states that the court sluill protect against disclosure ofmeota1 impressions conclusion opinions or legal theories
State ex reI Chaparro v Wilkes 438 SE2d575 577-78190 WVa 395 397-98 (1993)
bold added Citing In re Markle 174 WVa at 556-57 328 SE2d at 163 (1984)
21 Factual work product has been defined bythe Supreme Court of Appeals of West
Virginia as
[F]actual work product refers to documents and tangible things that were prepared in anticipation oflitigation or for trial (l) by or for a party or (2) by or fat that partys representative which includes an attomey consultant surety indemnitor insurer or agent When factual work product is involved the party demancling production must show a ltsubstantial need for the material and establish that the same material or its equivalent cannot be obtained through other means without undue hacdship
State ex reI Erie Ins Property amp Cas Co v Ma~one 625 SE2d 355361218 WVa
593 599 (2005) citing Litigation Handbook on West Virginia Rules ofCMl ProcedUre
sect 26(b)(3) at 557 (2000)
Page 14 of2S
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Mar 23 2017 338PM No 3265 P 1626
22 ~SubstantiaI need may be independently established where it is ShOVVll that the requested
infonnation relates to essential elements ofthe requesting partys cause ofaction and the
information is not reasonably reproducible by the requesting patty Ot obtainable by other
means See Litigation Handbook sect 26(b)(3) at 721 (2012)
23 In the current case factual infonnation regarding Huntingtons administration of the
estate is contained in the estate meeting notes The administration of the estate directly
relates to the essential elements of the c~uses of action resulting from the alleged
misadministration of the estate and is not reasonably reproducible by the Plaintiffs or
obtainable by other means
24 In the current case the Plaintiffs are unable to obtain the information from those
meetings through any other means other than discovery Any attempt to obtain the
infOllIlation through discovery will result in a question of whether attorney client
privilege applies as occurred in the deposition ofMs Parsons (Exhibit 11 to Plain1iffs
Supplemental Response - ExhibifG herein)
25 As the only factual information available pertaining to the estate administration is from
the various meetings dealing with estate administration and email correspondence
dealing with estate administration a substantial need clelllly exists which would require
the Defendants to provide those documents to the Plaintiffs Provided that any
information requested by the Defendants can be reviewed in camera iffurther objections
arise to infonnation contained in those documents
26 Opinion work product consists of lI1ental impressions) conclusion opinions or legal
theories found in factual work product and requires a much stronger showing in order for
it to be released See Litigation Handbook sect 26(b)(3) at 722 (2012) Opinion work
product is only discoverable in very rare and extraordinary circumstances Id
Page 15 of25
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Mar232017 339PM No 3265 P 1726
27 Documents prepared in anticipation of litigation were addressed State ex reZ Erie Ins
Property amp Cas Co vMazzone 648 SE2d 31 38 220 WVa 525 532 (2007) in
which the Court held in syllabus point seven of State ex reZ United Hospital Center
~nc v Bedell that middotin order bull [t]o determine whether a document was prepared in
anticipation of litigation and~ is therefore protected from disclosure under the work
product doctrine the primary motivating purpose behind the creation of the document t
must have been to assist in pending or probable futuJe litigation 199 WVa at 320 484
SE2d at 203 This means that the documents must not be prepared in the course of
everyday business Because the preparers ofilie reser~es information in the instant case
were non-lawyers we further note that-Rule ~6(b)(3) extends work product protection to
materials prepared by non-lawyers when the paramount purpose for generating the
materials is litigation Id [D]etermination of whether a document was prepared in
anticipation of litigation or in the ordinary course ofbusiness is a factual one which is
examined on a case-by-case basis State ex reI Erie Ins Property ampCas Co v Mazzone
648 SE2d 31 42~ 220 WYa 525 536 (2007) (internal citations omitted)
28 This case--by-case determination necessitates an in camera review of all documents for
which a privilege is claimed
29 The legal duty of a personal representative or e-gecutor ofthe estate of a deceased under
West Virginia law is as follows
The personal representative of the estate of a deceased acts in a fiduciary capacity His duty is to manage the estate under his control to the advantage of those interested in it and to act on their behalf In the discharge of this duty the executor or administratot of a decedents estate is held to thehighest degree of good faith and is required to exercise the ordinary care and reaso~able diligence which prudent persons ordinarily exercise under like circumstances in their own personal affairs j Syl pt 1 Latimer v
Page 16 of2S
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Mar 23 2017 339PM No 3265 P 1826
MechlingI71 WVa 729 301 SE2d 819 (1983) SyI Pt2 Pickens v Tribble 236 WVa 670 783 SE2d 310312 (2016)
30 Applied to the case at bar the legal duty of Huntington as Executor ofthe
Estate ofJames D Gandee under West Virginia law is as follows
Its duty is to manage the Gandee Estate under its control to the advantage ofthose interested in it and to act on their pehalf Further in the discharge ofits duty Huntington National Bank is held to the highest degree of good faith and is required to exercise the ordinary care and reasonable diligence which prudent persons ordinarily exercise under like circumstances in theiJ own personal affairs) Syl pt 1 Latimer v Mechling 171 W_Va 729 301 SE2d 819 (1983) Syi Pt 2 Pickens v Trtbble 236 WVa 670) 783 SE2d 310 312 (2016)
31 The Court concludes that the ~fiduciary exception legal principle bas not been directly
addressed by the West Virginia Supreme Court of Appeals and if presented would be a
question of first impression in West ViIginia See Plaintiffs Supplemental Response
(Exhibit G h~rein)
32 ~laintiff the Gandee Trust chose not to request that a certified question be submitted
regarding fiduciary exception because of the attendant delay~ it is ready for trial and
further asserted and requested that Allstate v Gaughan and existing case law be applied
to the Civil Action See Plaintiffs Supplemental Response (Exhibit G)
33 In the case ofState ex rel- Allstate 117SUtattce Company v Gaughan 508 SB 2d 75 CW
Va 1998) the West Virginia Supreme Court addressed the application of the attorneyshy
client prlVilege and work product rule in a third party bad faith insurance action where
the insured had signed a release ofhislher bad faith claim to the plaintiff InAllstate v
Gaughan the Courts conclusion that the attorney retained by the insurance company
really represents the insured was param01mt in rejecting prior rulings in third party bad
faith cases-Page 11 of25
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Mar232017 339PM No 3265 P 1926
34 In Allstate v Gaughan the Court focused on the point in time where the mutual or
conunon interest of the insurance company and insured terminated and broke off which
in that case was the date that plaintiff filed suit against the insurance company
35 Further anticipation of a law suit is insufficient to trigger work product protections as
stated in the Litigation Handbook on the Rules ofCivil Procedure (hereinafter Litigation
Handbook) Cleck1ey~ Davis amp PalmeJ Fourth Edition at page 723
the mere possibility that litigation may occur or even the mere fact that litigation does eventually ensue is insufficient to cloak materials with the mantle ofwork product protection
36 The Court concludes that in the instant Civil Action the mutual Or common interest of
Huntington as Executor and the Gandee Trust as beneficiary terminated and broke off
on March 9 2016 ilie date when the Gandee Trust filed its Joinder Motion
approximately one (1) month after its appointment as Trustee
37 The facts in this Civil Action are Illore compelling than in Allstate v Gaughan as a
fiduciary relationship exists in the instant case as opposed to contractual relationship as
in theAilstate v Gaughan case InAllstate v Gaughan the insured paid for no legal fees
ofthe insurer whereas in the instant matter the beneficiary (the Gandee Trust) paid for
all legal services provided by the attorney retained by Huntington through June 12016
38 Therefore for all the reasons set forth above the Court concludes that application ofthe
holdings inAllstate v Gaughan are proper to apply in the instant case as modified below
a Allstate v Gaughan is precedent for the conclusion that in the instant Civil Action the
time when the mutual interest of Defendant and the Gandee Trust terminated
(plaintiffs filing of complaint in Allstate v Gaughan) is the date ofMarch 92016
Page 18 of25
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Mar 23 2017 340PM No 3265 P 2026
h In line vvith the precedent in Allstate v Gaughan~ communications and documents
generated prior to March 9~ 2016 are presumptively considered not protected by
attorney-client privilege or work product protection
c InAllstate 11 Gaughan the Court crafted a quasi attorney-client privilege in order to
protect Insurers comm1l11ications with their Insured from being discoverable by tbirdshy
parties under very specific circumstances As the elements of proof for breach of
fiduciary duty in the instant Civii Action are so different than elements of a bad faith
claim the Court concludes that Allstate v Gaughan does not provide quasi attomeyshy
client privilege to the Huntingtons communications regarding estate administration
d Allstate v Gaughan provides guidelines to detennine whether a docuruent satisfied the
work product rule and guidelines for determining whether a compelling need exists to
receive a document which otherwise afforded work product protection These
guidelines serve as precedent in this Civil Action The Court notes that existing case
law also set forth the same holdings as in Allstate v Gaughan and also addresses
traditional attorney-client privilege guidelines fox determining whether a document
satisfies the work product rule and whether a compelling need exists to obtain a
document which satisf1es the work product true
ORDER
Based upon all pleadings and documents referenced herein (Exhibits A-I) atguments
presented by counsel at hearirlgs research of legal authorities and its findings of fact and
conclusions oflaw the Court hereby ORDERS that Allstate v Gaughan supra and existing West
Virginia law be applied to this Civil Action pursuant to the Orders set forth below
1 For purposes ofclarity and consistency the follOWing tenns used in this Order shall have
the same meaning as such terms are used in Allstate v Gaughan traditional attorney-
Page 19 of2S
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Mar232017 340PM No 3265 P 21126
client privilege work product rule and work product protection As discussed in
the December 222016 hearing the difference in opinion work product and fact work
product must be evaluated by the Special Commissioner and this Court
2 The Court ORDERS the materials previously reviewed in camera on December 22I1d
2016 by the Court and Discovery Commissioner and detennined to be discoverable to
be disclosed to the Plaintiffs for the reasons set forth above and at the hearing The Court
notes the Defendants objection
3 The Court DENIES the Defendants Motion for Protective Order precluding
consideration of the fiduciary exception for the reasons set forth above and at the
hearing The Court notes the Defendants objection
4 The Court GRANTS the Plaintiffs Mcgttion to Compel Defendant to Submit a
Supplemental Privilege Log as identified below The Supplemental Privilege Log is to
be supplied to the Court and Discovery Commissioner with attached documents and in
the form articulated below foran in camera review The Court notes the Defendants
objection
5 On December 22 2016 this Court ordered that Defendant provide a Supplemental
Privilege Log to this Court on or before January 6 2017 setting forth all communications
and documents for which Defendant claims attomey~client privilege or work product in
this case This Court hereby AMENDS the January 6 2017 deadline to AprilSth 2017
and AMENDS AND REFINES such Order as set forth below where all communications
and documents to be listed in the Supplemental Privilege Log are described
6 Defendant shall submit to this Court on or before April 5th 2017 a Supplemental
Privilege Log which lists all infonnation sought by discovery fOJ which a privilege is
claimed to be separated and identified into four separate groups The first tWo groups
Page 20 of25
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Ma r 23 2017 3 40 PM No 3265 P 2226
Group A and Group B include all communications- this includes letters omails and
other correspondence either written or vetbal The second two groups Group C and
Group D include all Documents Bach piece of evidence will be numbered individually
within the respective Group beginning with 1
a Group A Attorney~Client Privilege Communications Prior to March 9 2016 In
line withAllstate v Gaughan all communications relating to the Gandee Estate which
Defendant claims are protected by traditional attorney-client privilege generated prior
to March 92016 ate Group A Communications
b Group B Communications Genex-ated on or After March 9 2016 Note that
Allstate v Gaughan provides that all communications generated after the plaintiff qIed
suit (March 9 2016 in this Civil Action) must be specifically identified and requested
as opposed to a general request so centat a Circuit Court is notunduly burdenedin review
thereof However Huntington continued to have the highest duty under law to the
Gandee Trust as Executor after March 9 2016 Further Huntington decided to have
one law fum represent it as Executor and as Defendant in this matter and to have that
one law finn partiCipate in most estate adrobJistratio~ matters Although it will requjre
additional time by the Special Commissioner and this Court to review documents in
light of the above facts~ the Court ORDERS that the general request for
communications already made is sufficient without need for specific reference for all
Group B Communications generated from March 9 2016 through June 5 2016 June
5 2016 is the date when Executor _activity and conflict of interest decreased when all
Gandee Estate assets were distributed to the Gandee Trust
c Additionally any communication generated after June 5 2016 which relates solely to
the administration of the Gandee Estate or which in any manner relates to a
PageZ1of25
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Mar 23 2017 341PM No 3265 P 2326
conununication with the Sheriffs Office or the ATF regarding guns owned by the
Gandee Estate shall also be a Group B Communication
d Group C Work Product Rule Documents Generated Prior to March 9 2016 Each
document relating to the Gandee Estate for which Defendant claims work product
protection and which was generated or prepared prior to March 92016 is a Group C
Document
e Group D Work Product Rule Documents Generated on or After March 9 2016
The considerations and analysis set forth in Section (5)(a) above with regatd to
attorney-client privilege also applies to docU1ll8nts for which work product protection
is claimed by Defendant As such all documents generated for the period ofMarch 9
2016 through June 5 2016 ate Group D DOCUIllents and the general request already
made for documents is sufficient Gronp D Documents also mcludes any document
generated after June 5 2016 which relates to estate administration andor any document
relating to the guns owned by the Gandee Estate
7 Additionally~ written analysis shall be provided by Defendant with the Supplemental
Privilege Log on AprilSth 2017 to meet its burden of pro~f that each Group A andor
B Communication satisfies attorney-client privilege (if so claimed by Defendant)
Further Defendant shall provide a written analysis to prove that each Group C andor D
Document qualifies for work product protection Additionally Defendant shall provide
an exp1anation for each CommUnication and Document as to why it was necessary to
retain outside legal counsel for suchmatter and how the advice is legal advice as opposed
to routine estate administration adVice
8 WIthout limiting the foregoing each and every communication or document which has
already been provided by Huntington to the Gandee Trust in redacted form shall be listed
Page22of25
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Mar 23 2017 341PM No 3265 P 2426
in the Supplemental Privilege Log and attached to the Supplemental Privilege Log
without any redactions
9 The Special Conunissioner shall render a Report on which Group A and Group B
Communications satisfy attorney-client privilege whioh do not and why He shall also
include in his Supplemental Report which Group C andor Group D Documents satisfY
all requirements for work product priilege which do not and why
10 Additionally for all Communications and Documents which he finds satisfy attomeyshy
client privilege and work product protection he shallstate whether it was reasonable or
necessary for Defendant to utilize cmIDsel in such matter
11 Additionally for each Group Cor Gronp D Documentwbich qualifies fot work product
protection he shall find whether Plaintiff has a compelling need for such document In
that regard the Gandee Trust may provide an analysis within twenty (20) days after the
entry of this Order providing its analysis of compelling need for types or categories of
documents Ifthe Special Commissioner needs additional information he shall so infom
the Court
12 Undet the Courts guidelines in Allstate v Gaughan and the reasoning set forth above
Communications prior to March 9 2016 would generally not be privileged and
Documents generated prior to March 9 2016 would generally not qualify for work
product protection
13 As per Conclusions of Law 38(c) Huntington is not entitled to quasi attorney-client
privilege regarding Huntingtons communications regarding estate administration
14 As there was conflicting proffer of counsel at the January 42017 hearing Defendant
shall include with the Supplemental Privilege Log all billings by Frost Brown amp Todd
Page 23 of25
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Ma r 23 2017 3 41 PM No 3265 P 2526
through June I 2016 to Huntington to be paid by Huntington for representation of
Huntington for its litigation representation and payments thereon
15 Notwithstanding any other provision in this Order The Special Comnrissioner in bis
review of all conununications and documents shall identify any communication or
document which meets the guideline for the crimefraud exception as such exception
is set forth in Brison v Kaufinan The Special Commissioner shall be provided a copy
of the Amended Complaint to be apprised of factual circumstances which the Gandee
Trust bas alleged constitute bad faith by defendant
16 In the Supplement to Response to Defendants Motion for Protective Order filed by the
Gandee Trust a request was made under WVRCP 37(a)(4) that Huntington be required
to pay for all attorney fees ofthe Gandee Trust by payment ofthe hours spent by outside
counsel to the Gandee TrtlSt multiplied times their standard hourly rate for all work
relating to attorney-client privilege and work product protection for all legal services
rendered above and beyond its Motion to Compel documents and the hearing on October
242016 including appeals
The Court will address such request after it has completed its in-camera review
and entered an 9rder as to the communications and documents which must be provided to Plaintiff
A subsequent hearing shall be held ifneeded
17 The Court further ORDERS that all communications and docmnents to be provided to
the Gandee Trust by the ultimate Order entered by the Court after full in-camera review
shall be provided to the Gandee Trust and not Plamtiffs Dr Gandees Daughters
Plaintiffs Dr Gandees Daughters may make a motion requesting all or a portion of
such material if they so choose and all parties will have a right to subroit motions and
legal memoranda on such matter
Page 24 of2S
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Mar 23 2017 341PM No 3265 P 2626
18 Finally it is ORDERED that the Clerk of this Court mail andor ~therwise provide a
certified copy of this Order to all parties of record
ENTERED tbis ~rtJay ofMarch 2017
c c ~ 1lQ)m -- ct)02 It l Cp b- etJ82 1U
I) -()-fo W middot0cJraquo rqcIe O~f1IO 11 -ujtJ
S--of ltW r-) FiE
~ ~
f om tl1e records ITEST A trueJO~~the Clerk otthe (l~at~tdClnoulirtleo~ ~cpshur County West ClrCUI Virginia
Given under my hancl---l~~Pd~hiCDF
Page2S of25
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IN TIlE c~~tifiC0b1tf6iitiPSHUR COUNTY WEST VIRGINIA ~
DEANNAD GANDEE et aI
PLAINTIFF
vs Crvn ACTION NO lS-C-98
HUNTINGTON BANCSHARES INC et al
DEFENDANT
DISCOVERY COMMISSIONER REPORT
The Discovery Commissioner has reviewed the 1159 pages of e-mails that were provided in
this matter Upon review of the same it appears that there are two different groups of e-mails
1 E-mails relating to the pending litigation that are attorneyclient privilege type e-mails
2 E-mails that are referencing the administration and handling of the Estate
The e-mails which are attributable to the handling of the Estate should be discoverable in this
matter as the issues involved in litigation deal with breach of fiduciary duty I have prepared a
separate sheet setting forth the e-mails that I contend would be discoverable including a copy of the
same for the review of the Court This sheet and list of e-mails will be provided only to the Court for
review and determination of whether they should be disclosed to counsel
rin B NaImers 6358 Discovery Commissioner
APP 000409
CERTIFICATE OF SERVICE
[h I Steven B Nanners do hereby certify that on the it day of December 2016 I served the
following Discovery Commissioner Report by depositing a true copy thereof mthe UmtedStates
Mail in an envelope with sufficient postage attached thereto addressed to the following
Jared M Tully Esq Frost Brown Todd Laidley Tower Suite 401 500 Lee Street Charleston West VIrginia 25301
Alan S Brown Esq Frost Brown Todd 201 North illinois Street - Suite 1900 Indianapolis IN 46204
Gerald R Lacy Esq Lacy Law Offices LC 103 Pennsylvania Avenue PDBox589 Charleston West VIrginia 25322
Gordon C Lane Sr Lane amp Young 1538 Kanawha Blvd East Charleston WesfVIrginia 25311
S~~n B Nanners 6358 Discovery Commissioner Law Offices of Nanners amp Willett LC 45 West Main StreetmiddotU ( Buckhannon West VIrginia 26201 304-472-2048
APP000410
Mar 23 2017 336PM No 3265 P 626
5 On December 8 2015 Defendant filed a Motion to Dismiss Gandees Daughters
Complaint asserting that the Gandee Trost was effectively the sole beneficiary of the
Gandee Estate and since it was not a party to the action the complaint should be
dismissed
6 On March 9 2016~ the City NationalTrustee represented by Lane amp Young filed a
joinder motion approximately one (1) month after its appointment as Trustee in the
present action against Huntington alleging lIuntington breached their fiduciary duty
City NationallTrustee on behalf of the Gandee Trust thereafter filed an Amended
Complaint alleging negligence breach of its fiduciary duty bad faith and willful
misconduct by Huntington as Executor to the Gandee Trust (Exhibit I)
7 Defendant then dropped its Motion to Disntiss because the Gandee Trust as sole
beneficiary of the Gandee Estate joined the instant Civil Action and the Motion to
Dismiss was moot
8 The Court FINDS that addressing the attorney-client and work product issues in this
case necessarily requires a review of the issues in dispute in this litigation the litigation
conduct ofHuntington including utili2ation of outside counsel and potential conflicts of
interest of its outside counsel
9 In order to adequately address legal issues in this matter relating to attorney-client
privilege and the work product rule Plaintiff asserted and believed that it was necessary
for this Court and the Special Commissioner to have a fuller understanding of the
litigation conduct of Defendant and legal invoices submitted to the James D Gandee
Estate (the Gandee Estate) and alleged the below Facts
A Barry Griffith served as the Trust Officer of Huntington responsible for
administrating the Gandee Estate from May 27 2014 through the date of his
Page 5 oi2S
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Mar 232017 336PM No 3265 P 726
resignation from Huntington on May 262015 DocUIoentation exists that Mr
Griffith was informed of rainwater coming into the interior ofthe house causing
damage prior to December 31 2014 and ~gainMarch 20 2015 (the roofis falling
in) (Exhibit lA-lB to Plaintiffs Supplemental Response - ExhibitG herein)
As Executor Huntington obviously has the responsibility to make all repahs to
the roof and preserve the v~ue of the 4700 SF residence However there Yi8S
no reparr to the roof of the 4700 SF residence until a tarp was placed on the roof
in December 2015 (Exhibit 2 to Plaintiffs Supplemental Response - Exhibit G
herein)
B On July 15 2015 by Order of the County Commission ofUpshur County West
Virginia Carla Parsons Huntington)s Trust Officer) was designated as
Huntingtons representative With authority to administer the Gandee Estate On
August 92015 less than thirty (30) days after the appointment of Ms Parsons
Huntington retaixled three separate businesses (being a building contractor)
realtor and appraiser) to inspect the 4700 SF residence They informed
Huntington that the 4)700 SF residence no longer had any value IE (not worth
rebuilding) unfortunately it isatear down and no contributory value to the
land respectively) (see Exhibit 3 to Plaintiffs Supplemental Response -
Exhibit G herein) It waited another foUl (4) months to place the tarp on the roof
C There was evidence of a conflict of interest by Huntington as litigant and
Executor as early as August 9 2015 when Huntington was adVised by its
contractor appraiser and realtor that the 4700 SF residence no longer had value
(see Exhibit 3 above) The Gandee Estate asserts that Huntingtons conflict of
interest is evidenced by many facts such as the fact that Huntington never filed
Page 6 of2S
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Mar 23 2017 336PM No 3265 P 826
an insurance claim for total destruction to the 4700 SF lesidence after being
advised of the rainwater damage to the residence Huntington asserts that there
was no conflict ofinterest rather it simply never thought to look into whether an
insurance claim should be submitted Exhibit 4 to Plaintiffs Supplemental
Response - Exhibit G herein
D At mound the time Huntington was advised the 4700 SF residence had no value
Huntington appointed eight (8) employees to a Gandee Estate Team to
collectively administer the Gandee Estate as a team (Exhibit 5 to Plaintiffs
Supplemental Response - Exhibit G herein) Huntington also appointed Jared
Tully ~q a partner at Frost Brown amp Todd as a member of the estate
administration Team for the Gandee Estate to participate in many estate
administration meetings and actions visits to the residence and receive
communications (Exhibit 5 to Plaintiffs Supplemental Response - Exhibit G
herein) The top ranking member of the Team Tristan McCormick is a
member of the Board of Directors of the holding company the top trust office
nationally and responsible for risk management which includes loss from
litigation (see EJilibit 6 to Plaintiffs Supplemental Response ~ Exhibit G
herein)
E Plaintiffs fiduciary expert Mr John Rodgers stated in deposition that the legal
services of Frost Brovm amp Todd was appropriate and necessary for only one
matter (amount to be received from Virginia Young Estate - $7200) and that all
other legal work performed by Frost Brown amp Todd and billed to the Gandee
Estate in the amount of$9690220 was a waste of Estate assets because it is not
proper to involve outside counsel in routine estate administration matters (see
Page 7 of2S
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Mar 23 2017 336PM No 3265 P 926
Exhibit 7 to PHrlntifIs Supplemental Response - Exhibit G herein) This is
particularly true where the Executor is a publicly traded bank withvast experience
and resources such as Huntington Note that Huntingtons own internal
procedures as to an estates use of outside counsel does not provide that outside
counsel should be involved in routine estate admiI)jstration matters (Exhibit8 to
Plaintiffs Supplemental Response - Exhibit Gherein)
F A Motion to Compel Distribution was filed in response to Defendants deCision
that it would distribute only $100000 even though the Gandee Estate had cash
of $2560000 and was ready to sell a farm for another $590000 with outside
counsel at such meeting (Exhibits 9A and 9B to Plaintiffs Supplemental
Response - Exhibit G hetein) Defendant sent a letter to the Gandee Trust that it
would distribute all estate assets only ifa full release from litigation was provided
(Exhibit 10 to Plaintiffs Supplemental Response - Exhibit G herein) During
Ms Parsons deposition when Ms Parsons was ask~d to describe discussions at
the meeting the attorney for Defendant stated two (2) in~house counsel were
present and outside counsel was also present andthis meeting on distribution was
offlimits (Exhibit 11 to Plaintiffs Supplemental Response - Exhibit G herein)
~BROWN Well she needs to - one two three four five - there were six people at that meeting And three of them are lawyers So Im a little reluctant to let her get into it IftheIe are matters that she can testify to that didnt relate to the discussion strategy and giving of advice and requesting of advice she oan But on this Im skeptical thered be anything else in this discussion
And then stated -
Page 8 of 25
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Mar 23 2017 337PM No 3265 P 1026
ltBut because this thing is so riddled with lawyers I just dont know that when you get into what was discussed at the meeting that we can ever be able to separate the privileged from the nonpriviliged
G It was the decision of Tristan McCormick the top trust officer of Huntingto~ a
Board Member with primary responsibility for risk management froIlllitigation
who decided to riddle the thing with lawyers and cut off discovery Discovery
of routine estate administration decisions and matters was blocked because an
attorney was placed in a meeting and there was no need for an attorney to be
there particularly giving Executor advice as to how to hurt the beneficiaries in
the litigation
H As such a serious question arises as to whether Huntington is claiming attomeyshy
client privilege and work product protection for routine administtative matters
becanse it placed outside counsel as a member ofthe estate administration Team
to participate in estate administration matters and receive communications
relating thereto
I Huntingtons retention of only one firm to represent Huntington as Executor of
the Gandee Estate with the highest duty under law and also as Defendant
aggressively litigating against the beneficiary created a conflict of interest by
such law finn which coupled with Huntington having outside counsel in
attendance and participation in many routinemiddot estate administration matters has
blurred lines of duty and conduct in this Civil Action by Huntington
Huntingtons counsel has greatly exacerbated the complexity of the legal
analysis ofDefendant s claitns ofattomey-client privilege and work produc~ and
the time required ofthe Court in these matters
Page 9 of25
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Mar 23 2017 337PM No 3265 P 1126
CONCLUSIONS OF LAW
1 A threshold issue regarding all discovery requests is relevancy This is so because [t]he
question of the relevancy of the information sought through discovery essentially
involves a dete1lllination of how substantively the infom1ation requested bears on the
issues to be tried State ex reI Erie Ins Property amp Cas Co v Mazzone 625 SE2d
355358218 WVa 593596 (2005) citing SyI Pt 4 in part State Farm Mut AutoIns
Co v Stephens 188 WVa 622425 SE2d 577 (1992)
2 It is only after information is determined to be relevant that consideration is given to
whether the infonnation is subject to exclusion based upon the absolute or conditional
privilege of attorney-client communications or work-product information respectively
State ex reI Erie Ins Property ~ Cas Co v Mazzone 625 SE2d 355358218 WVa
593 596 (2005)
3 Relevance in the context of discovery means that the information sought is admissible
evidence or is reasonably calculated to lead to the discovery of admissible evidence
WVa RCivP 26(b)(1) see also Syl Pt 4 in part Keplinger v Virginia Elec and
Powet Co 208 WVa II 537 SE2d 632 (2000) SyI Pt 4 in part State Farm Mm
Auto Ins Co v Stephens 188 WVa 622 425 SE2d 577 (1992) State ex rel Erie
Ins Property amp Cas Co v Mazzone 625 SE2d 355 359~ 218 WVa 593597 (2005)
see also Syl Pt 5 State ex reI Montpelier US Ins Co v Bloom 757 SE2d 788 791
(2014)
4 In the present action there are factual allegations that could lead a jury to conclude that
Huntington Bank committed negligence ~reach ofits fiduciary duty bad faith and acted
with willful misconduct toward the Plaintiffs As discussed briefly in the findings offact
above thos~ alleged facts include Huntington failing to repair a hole in the roof which
Page 10 of2S
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allowed rainwater and animals into the home for approximately two years Huntington
failing to contact the home owners insurance regarding the damage to the home
Huntington billing approximately $9690220 for administration ofthe Gandee Estate by
outside counsel which might not be needed in routine estate administration matters
Huntington attempting to deem all information related to the administration of the
Gandee Estate as secret HuntiJigton withholding funds from the Trust in an attempt to
strong arm the beneficiaries and Trust into settlement etc
5 The information sought by the Plaintiffs is directly related to providing evidence to
support the various allegations in the complaint The infonnation from the meetings
emeils and conversations regarding the estate administration substantively beats on
the issues to be tried State ex tel Erie Ins Property amp Cos Co v Mazzone 625 SE2d
355
6 Furthermore the information is relevant in that the discovery requests are reasonably
calculated to lead to the discovery ofadmissible evidence ~ Wva RCivP 26(b )(1)
7 The issue with the discoverable information and the evidences adtnissibility revolves
atound the allegation that the Defendant placed attorneys unnecessarily in routine estate
administration matters The attorneys being present during these meetings triggers an
attorney-client privilege analysis
8 The attorney-olient privilege protects confidential communications between an attorney
and client from disclosure to encourage free and candid discussions between attorney
and client State ex ret USFampG v Canady460 SE 2d 677 (1995)
9 The attontey-client privilege is to be strictly construed against the party asserting
privilege because it is in derogation of the search for the truth and the burden of
Page 11 of25
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establishing the attorney-client privilege always rests upon the party asserting it STate
ex reI USFampG v Canady~ 460 SE 2d 677 (1995)
10 The West Virginia Supreme Court ofAppeals discussed the attorney-client privilege in
State ex reI us Fidelity and Guar Co v Canady 460 SE2d 677687-88 194 WVa
431441-42 (1995) stating
The attorney-client privilege is a broad doctrine however it is not unlimited In Syllabus Point 2 of State 11
Burton 163 WVa 40 254 SE2d 129 (1979) we statedIn order to assert an atto~ey-client privilege three main elements must be present (l) both parties must contemplate that the attorney-client relationship does or will exist (2) the advice must be sought by the client from that attorney in his capacity as a legal adviser (3) the communication between the attorney and client must be identified to be confidential
11 Addressing the attorney-client privilege requires the identification of the parties involved
relevant to this litigation at the time of the communioations to wit HlIDtington was acting
8$ Executor of the Estate of James D Gandee Dr Gandees will named Dr Gandees
- - Daughtersand the Gandee Trust as beneficiaries and the Gandee Trust named Gandees
Daughters as primary beneficiaries
12 Huntington asserts that attorney-client privilege applies and therefore necessarily alleges
all tbtee elements are met
13 The First Element of attomey-client privilege requires that the parties to the
conununication contemplate that the attorney-client relationship does or will exist
Huntington alleges that the attorney-client relationship exists by virtue of the attorneys
being present
14 The Second element of attomey~client privilege requires that the client must seek the
advice ofan attorney and that the attorneys advice must be in the attorneys capacity as
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a legal adViSOt This element is highly questionable as it has been alleged that the
Defendants utilized attorneys in routine estate administration which an expert alleges
was primarily outside of the prevue of a legal advisor However it is difficult for the
Court to determine this without an itl camera review of all of the evidence alleged to be
confidential by attoroey-client privilege from Huntingtons Estate administration
15 The Third element of attorney-client privilege requires that the communication between
the attomey and the client must be identified as confidential Here again without review
of the information alleged to be confidential the Court cannot detennine if the
information was identified as confidential
16 Therefore the Court concludes there is a question of whether attomey client privilege
even applies to the communications at issue in this case It is therefore necessary for the
Court to conduct an in camera review of the materials in order to make further
determinations
17 Further there bas been a question raised Jegarding the applicability of the work product
doctrine regarding materials sought by tb~ Plaintiffs from the Defendant specifically
estate administration meeting notes
18 Rule 26(b)(3) of the West Virginia Rules ofeivil Procedure states
(3) Trial Preparation Materials Subject to the provisiOns of subdivision (b)(4) of this rule a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(l) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other PartYs representative (including the partys attoOley consultant surety indemnitor insurer or agent) only upon a shoWing that the party seeking discovery has substantial need ofthe materials in the preparation of the partys case and that the party is unable without undue hardshlp to obtain the substantial equivalent ofthe materials by other means In ordering discovery of such materials when the required showing has been made the court shall protect against disclosure ofthe mental impressions conclusions opinions or legal
Page 13 of25
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Mar 23 2017 338PM No 3265 P 1526
theories of an attorney or other representative of a party concerning the litigation
19 laquoThe work product doctrine creates a fom of qualified immunity from discovery but it
does not label protected material as privileged and thus outside the scope of discovery
under Rule 26(b)(l) Litigation Handbook sect 26(b)(3) at 721 (2012) State ex reI
Chaparro v Wilkes 438 SE2d 575 577-78 190 WVa 395 397-98 (1993)
20 The Supreme Court of Appeals of West Virginia has long recogoiz~d a distinction
between factual work product and opinion work produ~t holding
Where factual work product is involved the party demancling production must show a substantial need for the material in the sense that he cannot obtain the same or its equivalent through other means ltwithout undue hllldship Where opinion work product is involved the showing reqlrired to obtain discovery is even stronger because the rule states that the court sluill protect against disclosure ofmeota1 impressions conclusion opinions or legal theories
State ex reI Chaparro v Wilkes 438 SE2d575 577-78190 WVa 395 397-98 (1993)
bold added Citing In re Markle 174 WVa at 556-57 328 SE2d at 163 (1984)
21 Factual work product has been defined bythe Supreme Court of Appeals of West
Virginia as
[F]actual work product refers to documents and tangible things that were prepared in anticipation oflitigation or for trial (l) by or for a party or (2) by or fat that partys representative which includes an attomey consultant surety indemnitor insurer or agent When factual work product is involved the party demancling production must show a ltsubstantial need for the material and establish that the same material or its equivalent cannot be obtained through other means without undue hacdship
State ex reI Erie Ins Property amp Cas Co v Ma~one 625 SE2d 355361218 WVa
593 599 (2005) citing Litigation Handbook on West Virginia Rules ofCMl ProcedUre
sect 26(b)(3) at 557 (2000)
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Mar 23 2017 338PM No 3265 P 1626
22 ~SubstantiaI need may be independently established where it is ShOVVll that the requested
infonnation relates to essential elements ofthe requesting partys cause ofaction and the
information is not reasonably reproducible by the requesting patty Ot obtainable by other
means See Litigation Handbook sect 26(b)(3) at 721 (2012)
23 In the current case factual infonnation regarding Huntingtons administration of the
estate is contained in the estate meeting notes The administration of the estate directly
relates to the essential elements of the c~uses of action resulting from the alleged
misadministration of the estate and is not reasonably reproducible by the Plaintiffs or
obtainable by other means
24 In the current case the Plaintiffs are unable to obtain the information from those
meetings through any other means other than discovery Any attempt to obtain the
infOllIlation through discovery will result in a question of whether attorney client
privilege applies as occurred in the deposition ofMs Parsons (Exhibit 11 to Plain1iffs
Supplemental Response - ExhibifG herein)
25 As the only factual information available pertaining to the estate administration is from
the various meetings dealing with estate administration and email correspondence
dealing with estate administration a substantial need clelllly exists which would require
the Defendants to provide those documents to the Plaintiffs Provided that any
information requested by the Defendants can be reviewed in camera iffurther objections
arise to infonnation contained in those documents
26 Opinion work product consists of lI1ental impressions) conclusion opinions or legal
theories found in factual work product and requires a much stronger showing in order for
it to be released See Litigation Handbook sect 26(b)(3) at 722 (2012) Opinion work
product is only discoverable in very rare and extraordinary circumstances Id
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Mar232017 339PM No 3265 P 1726
27 Documents prepared in anticipation of litigation were addressed State ex reZ Erie Ins
Property amp Cas Co vMazzone 648 SE2d 31 38 220 WVa 525 532 (2007) in
which the Court held in syllabus point seven of State ex reZ United Hospital Center
~nc v Bedell that middotin order bull [t]o determine whether a document was prepared in
anticipation of litigation and~ is therefore protected from disclosure under the work
product doctrine the primary motivating purpose behind the creation of the document t
must have been to assist in pending or probable futuJe litigation 199 WVa at 320 484
SE2d at 203 This means that the documents must not be prepared in the course of
everyday business Because the preparers ofilie reser~es information in the instant case
were non-lawyers we further note that-Rule ~6(b)(3) extends work product protection to
materials prepared by non-lawyers when the paramount purpose for generating the
materials is litigation Id [D]etermination of whether a document was prepared in
anticipation of litigation or in the ordinary course ofbusiness is a factual one which is
examined on a case-by-case basis State ex reI Erie Ins Property ampCas Co v Mazzone
648 SE2d 31 42~ 220 WYa 525 536 (2007) (internal citations omitted)
28 This case--by-case determination necessitates an in camera review of all documents for
which a privilege is claimed
29 The legal duty of a personal representative or e-gecutor ofthe estate of a deceased under
West Virginia law is as follows
The personal representative of the estate of a deceased acts in a fiduciary capacity His duty is to manage the estate under his control to the advantage of those interested in it and to act on their behalf In the discharge of this duty the executor or administratot of a decedents estate is held to thehighest degree of good faith and is required to exercise the ordinary care and reaso~able diligence which prudent persons ordinarily exercise under like circumstances in their own personal affairs j Syl pt 1 Latimer v
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Mar 23 2017 339PM No 3265 P 1826
MechlingI71 WVa 729 301 SE2d 819 (1983) SyI Pt2 Pickens v Tribble 236 WVa 670 783 SE2d 310312 (2016)
30 Applied to the case at bar the legal duty of Huntington as Executor ofthe
Estate ofJames D Gandee under West Virginia law is as follows
Its duty is to manage the Gandee Estate under its control to the advantage ofthose interested in it and to act on their pehalf Further in the discharge ofits duty Huntington National Bank is held to the highest degree of good faith and is required to exercise the ordinary care and reasonable diligence which prudent persons ordinarily exercise under like circumstances in theiJ own personal affairs) Syl pt 1 Latimer v Mechling 171 W_Va 729 301 SE2d 819 (1983) Syi Pt 2 Pickens v Trtbble 236 WVa 670) 783 SE2d 310 312 (2016)
31 The Court concludes that the ~fiduciary exception legal principle bas not been directly
addressed by the West Virginia Supreme Court of Appeals and if presented would be a
question of first impression in West ViIginia See Plaintiffs Supplemental Response
(Exhibit G h~rein)
32 ~laintiff the Gandee Trust chose not to request that a certified question be submitted
regarding fiduciary exception because of the attendant delay~ it is ready for trial and
further asserted and requested that Allstate v Gaughan and existing case law be applied
to the Civil Action See Plaintiffs Supplemental Response (Exhibit G)
33 In the case ofState ex rel- Allstate 117SUtattce Company v Gaughan 508 SB 2d 75 CW
Va 1998) the West Virginia Supreme Court addressed the application of the attorneyshy
client prlVilege and work product rule in a third party bad faith insurance action where
the insured had signed a release ofhislher bad faith claim to the plaintiff InAllstate v
Gaughan the Courts conclusion that the attorney retained by the insurance company
really represents the insured was param01mt in rejecting prior rulings in third party bad
faith cases-Page 11 of25
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Mar232017 339PM No 3265 P 1926
34 In Allstate v Gaughan the Court focused on the point in time where the mutual or
conunon interest of the insurance company and insured terminated and broke off which
in that case was the date that plaintiff filed suit against the insurance company
35 Further anticipation of a law suit is insufficient to trigger work product protections as
stated in the Litigation Handbook on the Rules ofCivil Procedure (hereinafter Litigation
Handbook) Cleck1ey~ Davis amp PalmeJ Fourth Edition at page 723
the mere possibility that litigation may occur or even the mere fact that litigation does eventually ensue is insufficient to cloak materials with the mantle ofwork product protection
36 The Court concludes that in the instant Civil Action the mutual Or common interest of
Huntington as Executor and the Gandee Trust as beneficiary terminated and broke off
on March 9 2016 ilie date when the Gandee Trust filed its Joinder Motion
approximately one (1) month after its appointment as Trustee
37 The facts in this Civil Action are Illore compelling than in Allstate v Gaughan as a
fiduciary relationship exists in the instant case as opposed to contractual relationship as
in theAilstate v Gaughan case InAllstate v Gaughan the insured paid for no legal fees
ofthe insurer whereas in the instant matter the beneficiary (the Gandee Trust) paid for
all legal services provided by the attorney retained by Huntington through June 12016
38 Therefore for all the reasons set forth above the Court concludes that application ofthe
holdings inAllstate v Gaughan are proper to apply in the instant case as modified below
a Allstate v Gaughan is precedent for the conclusion that in the instant Civil Action the
time when the mutual interest of Defendant and the Gandee Trust terminated
(plaintiffs filing of complaint in Allstate v Gaughan) is the date ofMarch 92016
Page 18 of25
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Mar 23 2017 340PM No 3265 P 2026
h In line vvith the precedent in Allstate v Gaughan~ communications and documents
generated prior to March 9~ 2016 are presumptively considered not protected by
attorney-client privilege or work product protection
c InAllstate 11 Gaughan the Court crafted a quasi attorney-client privilege in order to
protect Insurers comm1l11ications with their Insured from being discoverable by tbirdshy
parties under very specific circumstances As the elements of proof for breach of
fiduciary duty in the instant Civii Action are so different than elements of a bad faith
claim the Court concludes that Allstate v Gaughan does not provide quasi attomeyshy
client privilege to the Huntingtons communications regarding estate administration
d Allstate v Gaughan provides guidelines to detennine whether a docuruent satisfied the
work product rule and guidelines for determining whether a compelling need exists to
receive a document which otherwise afforded work product protection These
guidelines serve as precedent in this Civil Action The Court notes that existing case
law also set forth the same holdings as in Allstate v Gaughan and also addresses
traditional attorney-client privilege guidelines fox determining whether a document
satisfies the work product rule and whether a compelling need exists to obtain a
document which satisf1es the work product true
ORDER
Based upon all pleadings and documents referenced herein (Exhibits A-I) atguments
presented by counsel at hearirlgs research of legal authorities and its findings of fact and
conclusions oflaw the Court hereby ORDERS that Allstate v Gaughan supra and existing West
Virginia law be applied to this Civil Action pursuant to the Orders set forth below
1 For purposes ofclarity and consistency the follOWing tenns used in this Order shall have
the same meaning as such terms are used in Allstate v Gaughan traditional attorney-
Page 19 of2S
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Mar232017 340PM No 3265 P 21126
client privilege work product rule and work product protection As discussed in
the December 222016 hearing the difference in opinion work product and fact work
product must be evaluated by the Special Commissioner and this Court
2 The Court ORDERS the materials previously reviewed in camera on December 22I1d
2016 by the Court and Discovery Commissioner and detennined to be discoverable to
be disclosed to the Plaintiffs for the reasons set forth above and at the hearing The Court
notes the Defendants objection
3 The Court DENIES the Defendants Motion for Protective Order precluding
consideration of the fiduciary exception for the reasons set forth above and at the
hearing The Court notes the Defendants objection
4 The Court GRANTS the Plaintiffs Mcgttion to Compel Defendant to Submit a
Supplemental Privilege Log as identified below The Supplemental Privilege Log is to
be supplied to the Court and Discovery Commissioner with attached documents and in
the form articulated below foran in camera review The Court notes the Defendants
objection
5 On December 22 2016 this Court ordered that Defendant provide a Supplemental
Privilege Log to this Court on or before January 6 2017 setting forth all communications
and documents for which Defendant claims attomey~client privilege or work product in
this case This Court hereby AMENDS the January 6 2017 deadline to AprilSth 2017
and AMENDS AND REFINES such Order as set forth below where all communications
and documents to be listed in the Supplemental Privilege Log are described
6 Defendant shall submit to this Court on or before April 5th 2017 a Supplemental
Privilege Log which lists all infonnation sought by discovery fOJ which a privilege is
claimed to be separated and identified into four separate groups The first tWo groups
Page 20 of25
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Ma r 23 2017 3 40 PM No 3265 P 2226
Group A and Group B include all communications- this includes letters omails and
other correspondence either written or vetbal The second two groups Group C and
Group D include all Documents Bach piece of evidence will be numbered individually
within the respective Group beginning with 1
a Group A Attorney~Client Privilege Communications Prior to March 9 2016 In
line withAllstate v Gaughan all communications relating to the Gandee Estate which
Defendant claims are protected by traditional attorney-client privilege generated prior
to March 92016 ate Group A Communications
b Group B Communications Genex-ated on or After March 9 2016 Note that
Allstate v Gaughan provides that all communications generated after the plaintiff qIed
suit (March 9 2016 in this Civil Action) must be specifically identified and requested
as opposed to a general request so centat a Circuit Court is notunduly burdenedin review
thereof However Huntington continued to have the highest duty under law to the
Gandee Trust as Executor after March 9 2016 Further Huntington decided to have
one law fum represent it as Executor and as Defendant in this matter and to have that
one law finn partiCipate in most estate adrobJistratio~ matters Although it will requjre
additional time by the Special Commissioner and this Court to review documents in
light of the above facts~ the Court ORDERS that the general request for
communications already made is sufficient without need for specific reference for all
Group B Communications generated from March 9 2016 through June 5 2016 June
5 2016 is the date when Executor _activity and conflict of interest decreased when all
Gandee Estate assets were distributed to the Gandee Trust
c Additionally any communication generated after June 5 2016 which relates solely to
the administration of the Gandee Estate or which in any manner relates to a
PageZ1of25
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Mar 23 2017 341PM No 3265 P 2326
conununication with the Sheriffs Office or the ATF regarding guns owned by the
Gandee Estate shall also be a Group B Communication
d Group C Work Product Rule Documents Generated Prior to March 9 2016 Each
document relating to the Gandee Estate for which Defendant claims work product
protection and which was generated or prepared prior to March 92016 is a Group C
Document
e Group D Work Product Rule Documents Generated on or After March 9 2016
The considerations and analysis set forth in Section (5)(a) above with regatd to
attorney-client privilege also applies to docU1ll8nts for which work product protection
is claimed by Defendant As such all documents generated for the period ofMarch 9
2016 through June 5 2016 ate Group D DOCUIllents and the general request already
made for documents is sufficient Gronp D Documents also mcludes any document
generated after June 5 2016 which relates to estate administration andor any document
relating to the guns owned by the Gandee Estate
7 Additionally~ written analysis shall be provided by Defendant with the Supplemental
Privilege Log on AprilSth 2017 to meet its burden of pro~f that each Group A andor
B Communication satisfies attorney-client privilege (if so claimed by Defendant)
Further Defendant shall provide a written analysis to prove that each Group C andor D
Document qualifies for work product protection Additionally Defendant shall provide
an exp1anation for each CommUnication and Document as to why it was necessary to
retain outside legal counsel for suchmatter and how the advice is legal advice as opposed
to routine estate administration adVice
8 WIthout limiting the foregoing each and every communication or document which has
already been provided by Huntington to the Gandee Trust in redacted form shall be listed
Page22of25
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Mar 23 2017 341PM No 3265 P 2426
in the Supplemental Privilege Log and attached to the Supplemental Privilege Log
without any redactions
9 The Special Conunissioner shall render a Report on which Group A and Group B
Communications satisfy attorney-client privilege whioh do not and why He shall also
include in his Supplemental Report which Group C andor Group D Documents satisfY
all requirements for work product priilege which do not and why
10 Additionally for all Communications and Documents which he finds satisfy attomeyshy
client privilege and work product protection he shallstate whether it was reasonable or
necessary for Defendant to utilize cmIDsel in such matter
11 Additionally for each Group Cor Gronp D Documentwbich qualifies fot work product
protection he shall find whether Plaintiff has a compelling need for such document In
that regard the Gandee Trust may provide an analysis within twenty (20) days after the
entry of this Order providing its analysis of compelling need for types or categories of
documents Ifthe Special Commissioner needs additional information he shall so infom
the Court
12 Undet the Courts guidelines in Allstate v Gaughan and the reasoning set forth above
Communications prior to March 9 2016 would generally not be privileged and
Documents generated prior to March 9 2016 would generally not qualify for work
product protection
13 As per Conclusions of Law 38(c) Huntington is not entitled to quasi attorney-client
privilege regarding Huntingtons communications regarding estate administration
14 As there was conflicting proffer of counsel at the January 42017 hearing Defendant
shall include with the Supplemental Privilege Log all billings by Frost Brown amp Todd
Page 23 of25
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Ma r 23 2017 3 41 PM No 3265 P 2526
through June I 2016 to Huntington to be paid by Huntington for representation of
Huntington for its litigation representation and payments thereon
15 Notwithstanding any other provision in this Order The Special Comnrissioner in bis
review of all conununications and documents shall identify any communication or
document which meets the guideline for the crimefraud exception as such exception
is set forth in Brison v Kaufinan The Special Commissioner shall be provided a copy
of the Amended Complaint to be apprised of factual circumstances which the Gandee
Trust bas alleged constitute bad faith by defendant
16 In the Supplement to Response to Defendants Motion for Protective Order filed by the
Gandee Trust a request was made under WVRCP 37(a)(4) that Huntington be required
to pay for all attorney fees ofthe Gandee Trust by payment ofthe hours spent by outside
counsel to the Gandee TrtlSt multiplied times their standard hourly rate for all work
relating to attorney-client privilege and work product protection for all legal services
rendered above and beyond its Motion to Compel documents and the hearing on October
242016 including appeals
The Court will address such request after it has completed its in-camera review
and entered an 9rder as to the communications and documents which must be provided to Plaintiff
A subsequent hearing shall be held ifneeded
17 The Court further ORDERS that all communications and docmnents to be provided to
the Gandee Trust by the ultimate Order entered by the Court after full in-camera review
shall be provided to the Gandee Trust and not Plamtiffs Dr Gandees Daughters
Plaintiffs Dr Gandees Daughters may make a motion requesting all or a portion of
such material if they so choose and all parties will have a right to subroit motions and
legal memoranda on such matter
Page 24 of2S
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Mar 23 2017 341PM No 3265 P 2626
18 Finally it is ORDERED that the Clerk of this Court mail andor ~therwise provide a
certified copy of this Order to all parties of record
ENTERED tbis ~rtJay ofMarch 2017
c c ~ 1lQ)m -- ct)02 It l Cp b- etJ82 1U
I) -()-fo W middot0cJraquo rqcIe O~f1IO 11 -ujtJ
S--of ltW r-) FiE
~ ~
f om tl1e records ITEST A trueJO~~the Clerk otthe (l~at~tdClnoulirtleo~ ~cpshur County West ClrCUI Virginia
Given under my hancl---l~~Pd~hiCDF
Page2S of25
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IN TIlE c~~tifiC0b1tf6iitiPSHUR COUNTY WEST VIRGINIA ~
DEANNAD GANDEE et aI
PLAINTIFF
vs Crvn ACTION NO lS-C-98
HUNTINGTON BANCSHARES INC et al
DEFENDANT
DISCOVERY COMMISSIONER REPORT
The Discovery Commissioner has reviewed the 1159 pages of e-mails that were provided in
this matter Upon review of the same it appears that there are two different groups of e-mails
1 E-mails relating to the pending litigation that are attorneyclient privilege type e-mails
2 E-mails that are referencing the administration and handling of the Estate
The e-mails which are attributable to the handling of the Estate should be discoverable in this
matter as the issues involved in litigation deal with breach of fiduciary duty I have prepared a
separate sheet setting forth the e-mails that I contend would be discoverable including a copy of the
same for the review of the Court This sheet and list of e-mails will be provided only to the Court for
review and determination of whether they should be disclosed to counsel
rin B NaImers 6358 Discovery Commissioner
APP 000409
CERTIFICATE OF SERVICE
[h I Steven B Nanners do hereby certify that on the it day of December 2016 I served the
following Discovery Commissioner Report by depositing a true copy thereof mthe UmtedStates
Mail in an envelope with sufficient postage attached thereto addressed to the following
Jared M Tully Esq Frost Brown Todd Laidley Tower Suite 401 500 Lee Street Charleston West VIrginia 25301
Alan S Brown Esq Frost Brown Todd 201 North illinois Street - Suite 1900 Indianapolis IN 46204
Gerald R Lacy Esq Lacy Law Offices LC 103 Pennsylvania Avenue PDBox589 Charleston West VIrginia 25322
Gordon C Lane Sr Lane amp Young 1538 Kanawha Blvd East Charleston WesfVIrginia 25311
S~~n B Nanners 6358 Discovery Commissioner Law Offices of Nanners amp Willett LC 45 West Main StreetmiddotU ( Buckhannon West VIrginia 26201 304-472-2048
APP000410
Mar 232017 336PM No 3265 P 726
resignation from Huntington on May 262015 DocUIoentation exists that Mr
Griffith was informed of rainwater coming into the interior ofthe house causing
damage prior to December 31 2014 and ~gainMarch 20 2015 (the roofis falling
in) (Exhibit lA-lB to Plaintiffs Supplemental Response - ExhibitG herein)
As Executor Huntington obviously has the responsibility to make all repahs to
the roof and preserve the v~ue of the 4700 SF residence However there Yi8S
no reparr to the roof of the 4700 SF residence until a tarp was placed on the roof
in December 2015 (Exhibit 2 to Plaintiffs Supplemental Response - Exhibit G
herein)
B On July 15 2015 by Order of the County Commission ofUpshur County West
Virginia Carla Parsons Huntington)s Trust Officer) was designated as
Huntingtons representative With authority to administer the Gandee Estate On
August 92015 less than thirty (30) days after the appointment of Ms Parsons
Huntington retaixled three separate businesses (being a building contractor)
realtor and appraiser) to inspect the 4700 SF residence They informed
Huntington that the 4)700 SF residence no longer had any value IE (not worth
rebuilding) unfortunately it isatear down and no contributory value to the
land respectively) (see Exhibit 3 to Plaintiffs Supplemental Response -
Exhibit G herein) It waited another foUl (4) months to place the tarp on the roof
C There was evidence of a conflict of interest by Huntington as litigant and
Executor as early as August 9 2015 when Huntington was adVised by its
contractor appraiser and realtor that the 4700 SF residence no longer had value
(see Exhibit 3 above) The Gandee Estate asserts that Huntingtons conflict of
interest is evidenced by many facts such as the fact that Huntington never filed
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Mar 23 2017 336PM No 3265 P 826
an insurance claim for total destruction to the 4700 SF lesidence after being
advised of the rainwater damage to the residence Huntington asserts that there
was no conflict ofinterest rather it simply never thought to look into whether an
insurance claim should be submitted Exhibit 4 to Plaintiffs Supplemental
Response - Exhibit G herein
D At mound the time Huntington was advised the 4700 SF residence had no value
Huntington appointed eight (8) employees to a Gandee Estate Team to
collectively administer the Gandee Estate as a team (Exhibit 5 to Plaintiffs
Supplemental Response - Exhibit G herein) Huntington also appointed Jared
Tully ~q a partner at Frost Brown amp Todd as a member of the estate
administration Team for the Gandee Estate to participate in many estate
administration meetings and actions visits to the residence and receive
communications (Exhibit 5 to Plaintiffs Supplemental Response - Exhibit G
herein) The top ranking member of the Team Tristan McCormick is a
member of the Board of Directors of the holding company the top trust office
nationally and responsible for risk management which includes loss from
litigation (see EJilibit 6 to Plaintiffs Supplemental Response ~ Exhibit G
herein)
E Plaintiffs fiduciary expert Mr John Rodgers stated in deposition that the legal
services of Frost Brovm amp Todd was appropriate and necessary for only one
matter (amount to be received from Virginia Young Estate - $7200) and that all
other legal work performed by Frost Brown amp Todd and billed to the Gandee
Estate in the amount of$9690220 was a waste of Estate assets because it is not
proper to involve outside counsel in routine estate administration matters (see
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Mar 23 2017 336PM No 3265 P 926
Exhibit 7 to PHrlntifIs Supplemental Response - Exhibit G herein) This is
particularly true where the Executor is a publicly traded bank withvast experience
and resources such as Huntington Note that Huntingtons own internal
procedures as to an estates use of outside counsel does not provide that outside
counsel should be involved in routine estate admiI)jstration matters (Exhibit8 to
Plaintiffs Supplemental Response - Exhibit Gherein)
F A Motion to Compel Distribution was filed in response to Defendants deCision
that it would distribute only $100000 even though the Gandee Estate had cash
of $2560000 and was ready to sell a farm for another $590000 with outside
counsel at such meeting (Exhibits 9A and 9B to Plaintiffs Supplemental
Response - Exhibit G hetein) Defendant sent a letter to the Gandee Trust that it
would distribute all estate assets only ifa full release from litigation was provided
(Exhibit 10 to Plaintiffs Supplemental Response - Exhibit G herein) During
Ms Parsons deposition when Ms Parsons was ask~d to describe discussions at
the meeting the attorney for Defendant stated two (2) in~house counsel were
present and outside counsel was also present andthis meeting on distribution was
offlimits (Exhibit 11 to Plaintiffs Supplemental Response - Exhibit G herein)
~BROWN Well she needs to - one two three four five - there were six people at that meeting And three of them are lawyers So Im a little reluctant to let her get into it IftheIe are matters that she can testify to that didnt relate to the discussion strategy and giving of advice and requesting of advice she oan But on this Im skeptical thered be anything else in this discussion
And then stated -
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ltBut because this thing is so riddled with lawyers I just dont know that when you get into what was discussed at the meeting that we can ever be able to separate the privileged from the nonpriviliged
G It was the decision of Tristan McCormick the top trust officer of Huntingto~ a
Board Member with primary responsibility for risk management froIlllitigation
who decided to riddle the thing with lawyers and cut off discovery Discovery
of routine estate administration decisions and matters was blocked because an
attorney was placed in a meeting and there was no need for an attorney to be
there particularly giving Executor advice as to how to hurt the beneficiaries in
the litigation
H As such a serious question arises as to whether Huntington is claiming attomeyshy
client privilege and work product protection for routine administtative matters
becanse it placed outside counsel as a member ofthe estate administration Team
to participate in estate administration matters and receive communications
relating thereto
I Huntingtons retention of only one firm to represent Huntington as Executor of
the Gandee Estate with the highest duty under law and also as Defendant
aggressively litigating against the beneficiary created a conflict of interest by
such law finn which coupled with Huntington having outside counsel in
attendance and participation in many routinemiddot estate administration matters has
blurred lines of duty and conduct in this Civil Action by Huntington
Huntingtons counsel has greatly exacerbated the complexity of the legal
analysis ofDefendant s claitns ofattomey-client privilege and work produc~ and
the time required ofthe Court in these matters
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Mar 23 2017 337PM No 3265 P 1126
CONCLUSIONS OF LAW
1 A threshold issue regarding all discovery requests is relevancy This is so because [t]he
question of the relevancy of the information sought through discovery essentially
involves a dete1lllination of how substantively the infom1ation requested bears on the
issues to be tried State ex reI Erie Ins Property amp Cas Co v Mazzone 625 SE2d
355358218 WVa 593596 (2005) citing SyI Pt 4 in part State Farm Mut AutoIns
Co v Stephens 188 WVa 622425 SE2d 577 (1992)
2 It is only after information is determined to be relevant that consideration is given to
whether the infonnation is subject to exclusion based upon the absolute or conditional
privilege of attorney-client communications or work-product information respectively
State ex reI Erie Ins Property ~ Cas Co v Mazzone 625 SE2d 355358218 WVa
593 596 (2005)
3 Relevance in the context of discovery means that the information sought is admissible
evidence or is reasonably calculated to lead to the discovery of admissible evidence
WVa RCivP 26(b)(1) see also Syl Pt 4 in part Keplinger v Virginia Elec and
Powet Co 208 WVa II 537 SE2d 632 (2000) SyI Pt 4 in part State Farm Mm
Auto Ins Co v Stephens 188 WVa 622 425 SE2d 577 (1992) State ex rel Erie
Ins Property amp Cas Co v Mazzone 625 SE2d 355 359~ 218 WVa 593597 (2005)
see also Syl Pt 5 State ex reI Montpelier US Ins Co v Bloom 757 SE2d 788 791
(2014)
4 In the present action there are factual allegations that could lead a jury to conclude that
Huntington Bank committed negligence ~reach ofits fiduciary duty bad faith and acted
with willful misconduct toward the Plaintiffs As discussed briefly in the findings offact
above thos~ alleged facts include Huntington failing to repair a hole in the roof which
Page 10 of2S
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Mar 23 2017 337PM No 3265 P 1226
allowed rainwater and animals into the home for approximately two years Huntington
failing to contact the home owners insurance regarding the damage to the home
Huntington billing approximately $9690220 for administration ofthe Gandee Estate by
outside counsel which might not be needed in routine estate administration matters
Huntington attempting to deem all information related to the administration of the
Gandee Estate as secret HuntiJigton withholding funds from the Trust in an attempt to
strong arm the beneficiaries and Trust into settlement etc
5 The information sought by the Plaintiffs is directly related to providing evidence to
support the various allegations in the complaint The infonnation from the meetings
emeils and conversations regarding the estate administration substantively beats on
the issues to be tried State ex tel Erie Ins Property amp Cos Co v Mazzone 625 SE2d
355
6 Furthermore the information is relevant in that the discovery requests are reasonably
calculated to lead to the discovery ofadmissible evidence ~ Wva RCivP 26(b )(1)
7 The issue with the discoverable information and the evidences adtnissibility revolves
atound the allegation that the Defendant placed attorneys unnecessarily in routine estate
administration matters The attorneys being present during these meetings triggers an
attorney-client privilege analysis
8 The attorney-olient privilege protects confidential communications between an attorney
and client from disclosure to encourage free and candid discussions between attorney
and client State ex ret USFampG v Canady460 SE 2d 677 (1995)
9 The attontey-client privilege is to be strictly construed against the party asserting
privilege because it is in derogation of the search for the truth and the burden of
Page 11 of25
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Mar232017 338PM No 3265 P 1326
establishing the attorney-client privilege always rests upon the party asserting it STate
ex reI USFampG v Canady~ 460 SE 2d 677 (1995)
10 The West Virginia Supreme Court ofAppeals discussed the attorney-client privilege in
State ex reI us Fidelity and Guar Co v Canady 460 SE2d 677687-88 194 WVa
431441-42 (1995) stating
The attorney-client privilege is a broad doctrine however it is not unlimited In Syllabus Point 2 of State 11
Burton 163 WVa 40 254 SE2d 129 (1979) we statedIn order to assert an atto~ey-client privilege three main elements must be present (l) both parties must contemplate that the attorney-client relationship does or will exist (2) the advice must be sought by the client from that attorney in his capacity as a legal adviser (3) the communication between the attorney and client must be identified to be confidential
11 Addressing the attorney-client privilege requires the identification of the parties involved
relevant to this litigation at the time of the communioations to wit HlIDtington was acting
8$ Executor of the Estate of James D Gandee Dr Gandees will named Dr Gandees
- - Daughtersand the Gandee Trust as beneficiaries and the Gandee Trust named Gandees
Daughters as primary beneficiaries
12 Huntington asserts that attorney-client privilege applies and therefore necessarily alleges
all tbtee elements are met
13 The First Element of attomey-client privilege requires that the parties to the
conununication contemplate that the attorney-client relationship does or will exist
Huntington alleges that the attorney-client relationship exists by virtue of the attorneys
being present
14 The Second element of attomey~client privilege requires that the client must seek the
advice ofan attorney and that the attorneys advice must be in the attorneys capacity as
Page 12 of25
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Ma r 23 2017 3 38PM No 3265 P 1426
a legal adViSOt This element is highly questionable as it has been alleged that the
Defendants utilized attorneys in routine estate administration which an expert alleges
was primarily outside of the prevue of a legal advisor However it is difficult for the
Court to determine this without an itl camera review of all of the evidence alleged to be
confidential by attoroey-client privilege from Huntingtons Estate administration
15 The Third element of attorney-client privilege requires that the communication between
the attomey and the client must be identified as confidential Here again without review
of the information alleged to be confidential the Court cannot detennine if the
information was identified as confidential
16 Therefore the Court concludes there is a question of whether attomey client privilege
even applies to the communications at issue in this case It is therefore necessary for the
Court to conduct an in camera review of the materials in order to make further
determinations
17 Further there bas been a question raised Jegarding the applicability of the work product
doctrine regarding materials sought by tb~ Plaintiffs from the Defendant specifically
estate administration meeting notes
18 Rule 26(b)(3) of the West Virginia Rules ofeivil Procedure states
(3) Trial Preparation Materials Subject to the provisiOns of subdivision (b)(4) of this rule a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(l) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other PartYs representative (including the partys attoOley consultant surety indemnitor insurer or agent) only upon a shoWing that the party seeking discovery has substantial need ofthe materials in the preparation of the partys case and that the party is unable without undue hardshlp to obtain the substantial equivalent ofthe materials by other means In ordering discovery of such materials when the required showing has been made the court shall protect against disclosure ofthe mental impressions conclusions opinions or legal
Page 13 of25
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Mar 23 2017 338PM No 3265 P 1526
theories of an attorney or other representative of a party concerning the litigation
19 laquoThe work product doctrine creates a fom of qualified immunity from discovery but it
does not label protected material as privileged and thus outside the scope of discovery
under Rule 26(b)(l) Litigation Handbook sect 26(b)(3) at 721 (2012) State ex reI
Chaparro v Wilkes 438 SE2d 575 577-78 190 WVa 395 397-98 (1993)
20 The Supreme Court of Appeals of West Virginia has long recogoiz~d a distinction
between factual work product and opinion work produ~t holding
Where factual work product is involved the party demancling production must show a substantial need for the material in the sense that he cannot obtain the same or its equivalent through other means ltwithout undue hllldship Where opinion work product is involved the showing reqlrired to obtain discovery is even stronger because the rule states that the court sluill protect against disclosure ofmeota1 impressions conclusion opinions or legal theories
State ex reI Chaparro v Wilkes 438 SE2d575 577-78190 WVa 395 397-98 (1993)
bold added Citing In re Markle 174 WVa at 556-57 328 SE2d at 163 (1984)
21 Factual work product has been defined bythe Supreme Court of Appeals of West
Virginia as
[F]actual work product refers to documents and tangible things that were prepared in anticipation oflitigation or for trial (l) by or for a party or (2) by or fat that partys representative which includes an attomey consultant surety indemnitor insurer or agent When factual work product is involved the party demancling production must show a ltsubstantial need for the material and establish that the same material or its equivalent cannot be obtained through other means without undue hacdship
State ex reI Erie Ins Property amp Cas Co v Ma~one 625 SE2d 355361218 WVa
593 599 (2005) citing Litigation Handbook on West Virginia Rules ofCMl ProcedUre
sect 26(b)(3) at 557 (2000)
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Mar 23 2017 338PM No 3265 P 1626
22 ~SubstantiaI need may be independently established where it is ShOVVll that the requested
infonnation relates to essential elements ofthe requesting partys cause ofaction and the
information is not reasonably reproducible by the requesting patty Ot obtainable by other
means See Litigation Handbook sect 26(b)(3) at 721 (2012)
23 In the current case factual infonnation regarding Huntingtons administration of the
estate is contained in the estate meeting notes The administration of the estate directly
relates to the essential elements of the c~uses of action resulting from the alleged
misadministration of the estate and is not reasonably reproducible by the Plaintiffs or
obtainable by other means
24 In the current case the Plaintiffs are unable to obtain the information from those
meetings through any other means other than discovery Any attempt to obtain the
infOllIlation through discovery will result in a question of whether attorney client
privilege applies as occurred in the deposition ofMs Parsons (Exhibit 11 to Plain1iffs
Supplemental Response - ExhibifG herein)
25 As the only factual information available pertaining to the estate administration is from
the various meetings dealing with estate administration and email correspondence
dealing with estate administration a substantial need clelllly exists which would require
the Defendants to provide those documents to the Plaintiffs Provided that any
information requested by the Defendants can be reviewed in camera iffurther objections
arise to infonnation contained in those documents
26 Opinion work product consists of lI1ental impressions) conclusion opinions or legal
theories found in factual work product and requires a much stronger showing in order for
it to be released See Litigation Handbook sect 26(b)(3) at 722 (2012) Opinion work
product is only discoverable in very rare and extraordinary circumstances Id
Page 15 of25
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Mar232017 339PM No 3265 P 1726
27 Documents prepared in anticipation of litigation were addressed State ex reZ Erie Ins
Property amp Cas Co vMazzone 648 SE2d 31 38 220 WVa 525 532 (2007) in
which the Court held in syllabus point seven of State ex reZ United Hospital Center
~nc v Bedell that middotin order bull [t]o determine whether a document was prepared in
anticipation of litigation and~ is therefore protected from disclosure under the work
product doctrine the primary motivating purpose behind the creation of the document t
must have been to assist in pending or probable futuJe litigation 199 WVa at 320 484
SE2d at 203 This means that the documents must not be prepared in the course of
everyday business Because the preparers ofilie reser~es information in the instant case
were non-lawyers we further note that-Rule ~6(b)(3) extends work product protection to
materials prepared by non-lawyers when the paramount purpose for generating the
materials is litigation Id [D]etermination of whether a document was prepared in
anticipation of litigation or in the ordinary course ofbusiness is a factual one which is
examined on a case-by-case basis State ex reI Erie Ins Property ampCas Co v Mazzone
648 SE2d 31 42~ 220 WYa 525 536 (2007) (internal citations omitted)
28 This case--by-case determination necessitates an in camera review of all documents for
which a privilege is claimed
29 The legal duty of a personal representative or e-gecutor ofthe estate of a deceased under
West Virginia law is as follows
The personal representative of the estate of a deceased acts in a fiduciary capacity His duty is to manage the estate under his control to the advantage of those interested in it and to act on their behalf In the discharge of this duty the executor or administratot of a decedents estate is held to thehighest degree of good faith and is required to exercise the ordinary care and reaso~able diligence which prudent persons ordinarily exercise under like circumstances in their own personal affairs j Syl pt 1 Latimer v
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Mar 23 2017 339PM No 3265 P 1826
MechlingI71 WVa 729 301 SE2d 819 (1983) SyI Pt2 Pickens v Tribble 236 WVa 670 783 SE2d 310312 (2016)
30 Applied to the case at bar the legal duty of Huntington as Executor ofthe
Estate ofJames D Gandee under West Virginia law is as follows
Its duty is to manage the Gandee Estate under its control to the advantage ofthose interested in it and to act on their pehalf Further in the discharge ofits duty Huntington National Bank is held to the highest degree of good faith and is required to exercise the ordinary care and reasonable diligence which prudent persons ordinarily exercise under like circumstances in theiJ own personal affairs) Syl pt 1 Latimer v Mechling 171 W_Va 729 301 SE2d 819 (1983) Syi Pt 2 Pickens v Trtbble 236 WVa 670) 783 SE2d 310 312 (2016)
31 The Court concludes that the ~fiduciary exception legal principle bas not been directly
addressed by the West Virginia Supreme Court of Appeals and if presented would be a
question of first impression in West ViIginia See Plaintiffs Supplemental Response
(Exhibit G h~rein)
32 ~laintiff the Gandee Trust chose not to request that a certified question be submitted
regarding fiduciary exception because of the attendant delay~ it is ready for trial and
further asserted and requested that Allstate v Gaughan and existing case law be applied
to the Civil Action See Plaintiffs Supplemental Response (Exhibit G)
33 In the case ofState ex rel- Allstate 117SUtattce Company v Gaughan 508 SB 2d 75 CW
Va 1998) the West Virginia Supreme Court addressed the application of the attorneyshy
client prlVilege and work product rule in a third party bad faith insurance action where
the insured had signed a release ofhislher bad faith claim to the plaintiff InAllstate v
Gaughan the Courts conclusion that the attorney retained by the insurance company
really represents the insured was param01mt in rejecting prior rulings in third party bad
faith cases-Page 11 of25
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Mar232017 339PM No 3265 P 1926
34 In Allstate v Gaughan the Court focused on the point in time where the mutual or
conunon interest of the insurance company and insured terminated and broke off which
in that case was the date that plaintiff filed suit against the insurance company
35 Further anticipation of a law suit is insufficient to trigger work product protections as
stated in the Litigation Handbook on the Rules ofCivil Procedure (hereinafter Litigation
Handbook) Cleck1ey~ Davis amp PalmeJ Fourth Edition at page 723
the mere possibility that litigation may occur or even the mere fact that litigation does eventually ensue is insufficient to cloak materials with the mantle ofwork product protection
36 The Court concludes that in the instant Civil Action the mutual Or common interest of
Huntington as Executor and the Gandee Trust as beneficiary terminated and broke off
on March 9 2016 ilie date when the Gandee Trust filed its Joinder Motion
approximately one (1) month after its appointment as Trustee
37 The facts in this Civil Action are Illore compelling than in Allstate v Gaughan as a
fiduciary relationship exists in the instant case as opposed to contractual relationship as
in theAilstate v Gaughan case InAllstate v Gaughan the insured paid for no legal fees
ofthe insurer whereas in the instant matter the beneficiary (the Gandee Trust) paid for
all legal services provided by the attorney retained by Huntington through June 12016
38 Therefore for all the reasons set forth above the Court concludes that application ofthe
holdings inAllstate v Gaughan are proper to apply in the instant case as modified below
a Allstate v Gaughan is precedent for the conclusion that in the instant Civil Action the
time when the mutual interest of Defendant and the Gandee Trust terminated
(plaintiffs filing of complaint in Allstate v Gaughan) is the date ofMarch 92016
Page 18 of25
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Mar 23 2017 340PM No 3265 P 2026
h In line vvith the precedent in Allstate v Gaughan~ communications and documents
generated prior to March 9~ 2016 are presumptively considered not protected by
attorney-client privilege or work product protection
c InAllstate 11 Gaughan the Court crafted a quasi attorney-client privilege in order to
protect Insurers comm1l11ications with their Insured from being discoverable by tbirdshy
parties under very specific circumstances As the elements of proof for breach of
fiduciary duty in the instant Civii Action are so different than elements of a bad faith
claim the Court concludes that Allstate v Gaughan does not provide quasi attomeyshy
client privilege to the Huntingtons communications regarding estate administration
d Allstate v Gaughan provides guidelines to detennine whether a docuruent satisfied the
work product rule and guidelines for determining whether a compelling need exists to
receive a document which otherwise afforded work product protection These
guidelines serve as precedent in this Civil Action The Court notes that existing case
law also set forth the same holdings as in Allstate v Gaughan and also addresses
traditional attorney-client privilege guidelines fox determining whether a document
satisfies the work product rule and whether a compelling need exists to obtain a
document which satisf1es the work product true
ORDER
Based upon all pleadings and documents referenced herein (Exhibits A-I) atguments
presented by counsel at hearirlgs research of legal authorities and its findings of fact and
conclusions oflaw the Court hereby ORDERS that Allstate v Gaughan supra and existing West
Virginia law be applied to this Civil Action pursuant to the Orders set forth below
1 For purposes ofclarity and consistency the follOWing tenns used in this Order shall have
the same meaning as such terms are used in Allstate v Gaughan traditional attorney-
Page 19 of2S
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Mar232017 340PM No 3265 P 21126
client privilege work product rule and work product protection As discussed in
the December 222016 hearing the difference in opinion work product and fact work
product must be evaluated by the Special Commissioner and this Court
2 The Court ORDERS the materials previously reviewed in camera on December 22I1d
2016 by the Court and Discovery Commissioner and detennined to be discoverable to
be disclosed to the Plaintiffs for the reasons set forth above and at the hearing The Court
notes the Defendants objection
3 The Court DENIES the Defendants Motion for Protective Order precluding
consideration of the fiduciary exception for the reasons set forth above and at the
hearing The Court notes the Defendants objection
4 The Court GRANTS the Plaintiffs Mcgttion to Compel Defendant to Submit a
Supplemental Privilege Log as identified below The Supplemental Privilege Log is to
be supplied to the Court and Discovery Commissioner with attached documents and in
the form articulated below foran in camera review The Court notes the Defendants
objection
5 On December 22 2016 this Court ordered that Defendant provide a Supplemental
Privilege Log to this Court on or before January 6 2017 setting forth all communications
and documents for which Defendant claims attomey~client privilege or work product in
this case This Court hereby AMENDS the January 6 2017 deadline to AprilSth 2017
and AMENDS AND REFINES such Order as set forth below where all communications
and documents to be listed in the Supplemental Privilege Log are described
6 Defendant shall submit to this Court on or before April 5th 2017 a Supplemental
Privilege Log which lists all infonnation sought by discovery fOJ which a privilege is
claimed to be separated and identified into four separate groups The first tWo groups
Page 20 of25
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Ma r 23 2017 3 40 PM No 3265 P 2226
Group A and Group B include all communications- this includes letters omails and
other correspondence either written or vetbal The second two groups Group C and
Group D include all Documents Bach piece of evidence will be numbered individually
within the respective Group beginning with 1
a Group A Attorney~Client Privilege Communications Prior to March 9 2016 In
line withAllstate v Gaughan all communications relating to the Gandee Estate which
Defendant claims are protected by traditional attorney-client privilege generated prior
to March 92016 ate Group A Communications
b Group B Communications Genex-ated on or After March 9 2016 Note that
Allstate v Gaughan provides that all communications generated after the plaintiff qIed
suit (March 9 2016 in this Civil Action) must be specifically identified and requested
as opposed to a general request so centat a Circuit Court is notunduly burdenedin review
thereof However Huntington continued to have the highest duty under law to the
Gandee Trust as Executor after March 9 2016 Further Huntington decided to have
one law fum represent it as Executor and as Defendant in this matter and to have that
one law finn partiCipate in most estate adrobJistratio~ matters Although it will requjre
additional time by the Special Commissioner and this Court to review documents in
light of the above facts~ the Court ORDERS that the general request for
communications already made is sufficient without need for specific reference for all
Group B Communications generated from March 9 2016 through June 5 2016 June
5 2016 is the date when Executor _activity and conflict of interest decreased when all
Gandee Estate assets were distributed to the Gandee Trust
c Additionally any communication generated after June 5 2016 which relates solely to
the administration of the Gandee Estate or which in any manner relates to a
PageZ1of25
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Mar 23 2017 341PM No 3265 P 2326
conununication with the Sheriffs Office or the ATF regarding guns owned by the
Gandee Estate shall also be a Group B Communication
d Group C Work Product Rule Documents Generated Prior to March 9 2016 Each
document relating to the Gandee Estate for which Defendant claims work product
protection and which was generated or prepared prior to March 92016 is a Group C
Document
e Group D Work Product Rule Documents Generated on or After March 9 2016
The considerations and analysis set forth in Section (5)(a) above with regatd to
attorney-client privilege also applies to docU1ll8nts for which work product protection
is claimed by Defendant As such all documents generated for the period ofMarch 9
2016 through June 5 2016 ate Group D DOCUIllents and the general request already
made for documents is sufficient Gronp D Documents also mcludes any document
generated after June 5 2016 which relates to estate administration andor any document
relating to the guns owned by the Gandee Estate
7 Additionally~ written analysis shall be provided by Defendant with the Supplemental
Privilege Log on AprilSth 2017 to meet its burden of pro~f that each Group A andor
B Communication satisfies attorney-client privilege (if so claimed by Defendant)
Further Defendant shall provide a written analysis to prove that each Group C andor D
Document qualifies for work product protection Additionally Defendant shall provide
an exp1anation for each CommUnication and Document as to why it was necessary to
retain outside legal counsel for suchmatter and how the advice is legal advice as opposed
to routine estate administration adVice
8 WIthout limiting the foregoing each and every communication or document which has
already been provided by Huntington to the Gandee Trust in redacted form shall be listed
Page22of25
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Mar 23 2017 341PM No 3265 P 2426
in the Supplemental Privilege Log and attached to the Supplemental Privilege Log
without any redactions
9 The Special Conunissioner shall render a Report on which Group A and Group B
Communications satisfy attorney-client privilege whioh do not and why He shall also
include in his Supplemental Report which Group C andor Group D Documents satisfY
all requirements for work product priilege which do not and why
10 Additionally for all Communications and Documents which he finds satisfy attomeyshy
client privilege and work product protection he shallstate whether it was reasonable or
necessary for Defendant to utilize cmIDsel in such matter
11 Additionally for each Group Cor Gronp D Documentwbich qualifies fot work product
protection he shall find whether Plaintiff has a compelling need for such document In
that regard the Gandee Trust may provide an analysis within twenty (20) days after the
entry of this Order providing its analysis of compelling need for types or categories of
documents Ifthe Special Commissioner needs additional information he shall so infom
the Court
12 Undet the Courts guidelines in Allstate v Gaughan and the reasoning set forth above
Communications prior to March 9 2016 would generally not be privileged and
Documents generated prior to March 9 2016 would generally not qualify for work
product protection
13 As per Conclusions of Law 38(c) Huntington is not entitled to quasi attorney-client
privilege regarding Huntingtons communications regarding estate administration
14 As there was conflicting proffer of counsel at the January 42017 hearing Defendant
shall include with the Supplemental Privilege Log all billings by Frost Brown amp Todd
Page 23 of25
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Ma r 23 2017 3 41 PM No 3265 P 2526
through June I 2016 to Huntington to be paid by Huntington for representation of
Huntington for its litigation representation and payments thereon
15 Notwithstanding any other provision in this Order The Special Comnrissioner in bis
review of all conununications and documents shall identify any communication or
document which meets the guideline for the crimefraud exception as such exception
is set forth in Brison v Kaufinan The Special Commissioner shall be provided a copy
of the Amended Complaint to be apprised of factual circumstances which the Gandee
Trust bas alleged constitute bad faith by defendant
16 In the Supplement to Response to Defendants Motion for Protective Order filed by the
Gandee Trust a request was made under WVRCP 37(a)(4) that Huntington be required
to pay for all attorney fees ofthe Gandee Trust by payment ofthe hours spent by outside
counsel to the Gandee TrtlSt multiplied times their standard hourly rate for all work
relating to attorney-client privilege and work product protection for all legal services
rendered above and beyond its Motion to Compel documents and the hearing on October
242016 including appeals
The Court will address such request after it has completed its in-camera review
and entered an 9rder as to the communications and documents which must be provided to Plaintiff
A subsequent hearing shall be held ifneeded
17 The Court further ORDERS that all communications and docmnents to be provided to
the Gandee Trust by the ultimate Order entered by the Court after full in-camera review
shall be provided to the Gandee Trust and not Plamtiffs Dr Gandees Daughters
Plaintiffs Dr Gandees Daughters may make a motion requesting all or a portion of
such material if they so choose and all parties will have a right to subroit motions and
legal memoranda on such matter
Page 24 of2S
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Mar 23 2017 341PM No 3265 P 2626
18 Finally it is ORDERED that the Clerk of this Court mail andor ~therwise provide a
certified copy of this Order to all parties of record
ENTERED tbis ~rtJay ofMarch 2017
c c ~ 1lQ)m -- ct)02 It l Cp b- etJ82 1U
I) -()-fo W middot0cJraquo rqcIe O~f1IO 11 -ujtJ
S--of ltW r-) FiE
~ ~
f om tl1e records ITEST A trueJO~~the Clerk otthe (l~at~tdClnoulirtleo~ ~cpshur County West ClrCUI Virginia
Given under my hancl---l~~Pd~hiCDF
Page2S of25
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IN TIlE c~~tifiC0b1tf6iitiPSHUR COUNTY WEST VIRGINIA ~
DEANNAD GANDEE et aI
PLAINTIFF
vs Crvn ACTION NO lS-C-98
HUNTINGTON BANCSHARES INC et al
DEFENDANT
DISCOVERY COMMISSIONER REPORT
The Discovery Commissioner has reviewed the 1159 pages of e-mails that were provided in
this matter Upon review of the same it appears that there are two different groups of e-mails
1 E-mails relating to the pending litigation that are attorneyclient privilege type e-mails
2 E-mails that are referencing the administration and handling of the Estate
The e-mails which are attributable to the handling of the Estate should be discoverable in this
matter as the issues involved in litigation deal with breach of fiduciary duty I have prepared a
separate sheet setting forth the e-mails that I contend would be discoverable including a copy of the
same for the review of the Court This sheet and list of e-mails will be provided only to the Court for
review and determination of whether they should be disclosed to counsel
rin B NaImers 6358 Discovery Commissioner
APP 000409
CERTIFICATE OF SERVICE
[h I Steven B Nanners do hereby certify that on the it day of December 2016 I served the
following Discovery Commissioner Report by depositing a true copy thereof mthe UmtedStates
Mail in an envelope with sufficient postage attached thereto addressed to the following
Jared M Tully Esq Frost Brown Todd Laidley Tower Suite 401 500 Lee Street Charleston West VIrginia 25301
Alan S Brown Esq Frost Brown Todd 201 North illinois Street - Suite 1900 Indianapolis IN 46204
Gerald R Lacy Esq Lacy Law Offices LC 103 Pennsylvania Avenue PDBox589 Charleston West VIrginia 25322
Gordon C Lane Sr Lane amp Young 1538 Kanawha Blvd East Charleston WesfVIrginia 25311
S~~n B Nanners 6358 Discovery Commissioner Law Offices of Nanners amp Willett LC 45 West Main StreetmiddotU ( Buckhannon West VIrginia 26201 304-472-2048
APP000410
Mar 23 2017 336PM No 3265 P 826
an insurance claim for total destruction to the 4700 SF lesidence after being
advised of the rainwater damage to the residence Huntington asserts that there
was no conflict ofinterest rather it simply never thought to look into whether an
insurance claim should be submitted Exhibit 4 to Plaintiffs Supplemental
Response - Exhibit G herein
D At mound the time Huntington was advised the 4700 SF residence had no value
Huntington appointed eight (8) employees to a Gandee Estate Team to
collectively administer the Gandee Estate as a team (Exhibit 5 to Plaintiffs
Supplemental Response - Exhibit G herein) Huntington also appointed Jared
Tully ~q a partner at Frost Brown amp Todd as a member of the estate
administration Team for the Gandee Estate to participate in many estate
administration meetings and actions visits to the residence and receive
communications (Exhibit 5 to Plaintiffs Supplemental Response - Exhibit G
herein) The top ranking member of the Team Tristan McCormick is a
member of the Board of Directors of the holding company the top trust office
nationally and responsible for risk management which includes loss from
litigation (see EJilibit 6 to Plaintiffs Supplemental Response ~ Exhibit G
herein)
E Plaintiffs fiduciary expert Mr John Rodgers stated in deposition that the legal
services of Frost Brovm amp Todd was appropriate and necessary for only one
matter (amount to be received from Virginia Young Estate - $7200) and that all
other legal work performed by Frost Brown amp Todd and billed to the Gandee
Estate in the amount of$9690220 was a waste of Estate assets because it is not
proper to involve outside counsel in routine estate administration matters (see
Page 7 of2S
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Mar 23 2017 336PM No 3265 P 926
Exhibit 7 to PHrlntifIs Supplemental Response - Exhibit G herein) This is
particularly true where the Executor is a publicly traded bank withvast experience
and resources such as Huntington Note that Huntingtons own internal
procedures as to an estates use of outside counsel does not provide that outside
counsel should be involved in routine estate admiI)jstration matters (Exhibit8 to
Plaintiffs Supplemental Response - Exhibit Gherein)
F A Motion to Compel Distribution was filed in response to Defendants deCision
that it would distribute only $100000 even though the Gandee Estate had cash
of $2560000 and was ready to sell a farm for another $590000 with outside
counsel at such meeting (Exhibits 9A and 9B to Plaintiffs Supplemental
Response - Exhibit G hetein) Defendant sent a letter to the Gandee Trust that it
would distribute all estate assets only ifa full release from litigation was provided
(Exhibit 10 to Plaintiffs Supplemental Response - Exhibit G herein) During
Ms Parsons deposition when Ms Parsons was ask~d to describe discussions at
the meeting the attorney for Defendant stated two (2) in~house counsel were
present and outside counsel was also present andthis meeting on distribution was
offlimits (Exhibit 11 to Plaintiffs Supplemental Response - Exhibit G herein)
~BROWN Well she needs to - one two three four five - there were six people at that meeting And three of them are lawyers So Im a little reluctant to let her get into it IftheIe are matters that she can testify to that didnt relate to the discussion strategy and giving of advice and requesting of advice she oan But on this Im skeptical thered be anything else in this discussion
And then stated -
Page 8 of 25
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Mar 23 2017 337PM No 3265 P 1026
ltBut because this thing is so riddled with lawyers I just dont know that when you get into what was discussed at the meeting that we can ever be able to separate the privileged from the nonpriviliged
G It was the decision of Tristan McCormick the top trust officer of Huntingto~ a
Board Member with primary responsibility for risk management froIlllitigation
who decided to riddle the thing with lawyers and cut off discovery Discovery
of routine estate administration decisions and matters was blocked because an
attorney was placed in a meeting and there was no need for an attorney to be
there particularly giving Executor advice as to how to hurt the beneficiaries in
the litigation
H As such a serious question arises as to whether Huntington is claiming attomeyshy
client privilege and work product protection for routine administtative matters
becanse it placed outside counsel as a member ofthe estate administration Team
to participate in estate administration matters and receive communications
relating thereto
I Huntingtons retention of only one firm to represent Huntington as Executor of
the Gandee Estate with the highest duty under law and also as Defendant
aggressively litigating against the beneficiary created a conflict of interest by
such law finn which coupled with Huntington having outside counsel in
attendance and participation in many routinemiddot estate administration matters has
blurred lines of duty and conduct in this Civil Action by Huntington
Huntingtons counsel has greatly exacerbated the complexity of the legal
analysis ofDefendant s claitns ofattomey-client privilege and work produc~ and
the time required ofthe Court in these matters
Page 9 of25
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Mar 23 2017 337PM No 3265 P 1126
CONCLUSIONS OF LAW
1 A threshold issue regarding all discovery requests is relevancy This is so because [t]he
question of the relevancy of the information sought through discovery essentially
involves a dete1lllination of how substantively the infom1ation requested bears on the
issues to be tried State ex reI Erie Ins Property amp Cas Co v Mazzone 625 SE2d
355358218 WVa 593596 (2005) citing SyI Pt 4 in part State Farm Mut AutoIns
Co v Stephens 188 WVa 622425 SE2d 577 (1992)
2 It is only after information is determined to be relevant that consideration is given to
whether the infonnation is subject to exclusion based upon the absolute or conditional
privilege of attorney-client communications or work-product information respectively
State ex reI Erie Ins Property ~ Cas Co v Mazzone 625 SE2d 355358218 WVa
593 596 (2005)
3 Relevance in the context of discovery means that the information sought is admissible
evidence or is reasonably calculated to lead to the discovery of admissible evidence
WVa RCivP 26(b)(1) see also Syl Pt 4 in part Keplinger v Virginia Elec and
Powet Co 208 WVa II 537 SE2d 632 (2000) SyI Pt 4 in part State Farm Mm
Auto Ins Co v Stephens 188 WVa 622 425 SE2d 577 (1992) State ex rel Erie
Ins Property amp Cas Co v Mazzone 625 SE2d 355 359~ 218 WVa 593597 (2005)
see also Syl Pt 5 State ex reI Montpelier US Ins Co v Bloom 757 SE2d 788 791
(2014)
4 In the present action there are factual allegations that could lead a jury to conclude that
Huntington Bank committed negligence ~reach ofits fiduciary duty bad faith and acted
with willful misconduct toward the Plaintiffs As discussed briefly in the findings offact
above thos~ alleged facts include Huntington failing to repair a hole in the roof which
Page 10 of2S
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Mar 23 2017 337PM No 3265 P 1226
allowed rainwater and animals into the home for approximately two years Huntington
failing to contact the home owners insurance regarding the damage to the home
Huntington billing approximately $9690220 for administration ofthe Gandee Estate by
outside counsel which might not be needed in routine estate administration matters
Huntington attempting to deem all information related to the administration of the
Gandee Estate as secret HuntiJigton withholding funds from the Trust in an attempt to
strong arm the beneficiaries and Trust into settlement etc
5 The information sought by the Plaintiffs is directly related to providing evidence to
support the various allegations in the complaint The infonnation from the meetings
emeils and conversations regarding the estate administration substantively beats on
the issues to be tried State ex tel Erie Ins Property amp Cos Co v Mazzone 625 SE2d
355
6 Furthermore the information is relevant in that the discovery requests are reasonably
calculated to lead to the discovery ofadmissible evidence ~ Wva RCivP 26(b )(1)
7 The issue with the discoverable information and the evidences adtnissibility revolves
atound the allegation that the Defendant placed attorneys unnecessarily in routine estate
administration matters The attorneys being present during these meetings triggers an
attorney-client privilege analysis
8 The attorney-olient privilege protects confidential communications between an attorney
and client from disclosure to encourage free and candid discussions between attorney
and client State ex ret USFampG v Canady460 SE 2d 677 (1995)
9 The attontey-client privilege is to be strictly construed against the party asserting
privilege because it is in derogation of the search for the truth and the burden of
Page 11 of25
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Mar232017 338PM No 3265 P 1326
establishing the attorney-client privilege always rests upon the party asserting it STate
ex reI USFampG v Canady~ 460 SE 2d 677 (1995)
10 The West Virginia Supreme Court ofAppeals discussed the attorney-client privilege in
State ex reI us Fidelity and Guar Co v Canady 460 SE2d 677687-88 194 WVa
431441-42 (1995) stating
The attorney-client privilege is a broad doctrine however it is not unlimited In Syllabus Point 2 of State 11
Burton 163 WVa 40 254 SE2d 129 (1979) we statedIn order to assert an atto~ey-client privilege three main elements must be present (l) both parties must contemplate that the attorney-client relationship does or will exist (2) the advice must be sought by the client from that attorney in his capacity as a legal adviser (3) the communication between the attorney and client must be identified to be confidential
11 Addressing the attorney-client privilege requires the identification of the parties involved
relevant to this litigation at the time of the communioations to wit HlIDtington was acting
8$ Executor of the Estate of James D Gandee Dr Gandees will named Dr Gandees
- - Daughtersand the Gandee Trust as beneficiaries and the Gandee Trust named Gandees
Daughters as primary beneficiaries
12 Huntington asserts that attorney-client privilege applies and therefore necessarily alleges
all tbtee elements are met
13 The First Element of attomey-client privilege requires that the parties to the
conununication contemplate that the attorney-client relationship does or will exist
Huntington alleges that the attorney-client relationship exists by virtue of the attorneys
being present
14 The Second element of attomey~client privilege requires that the client must seek the
advice ofan attorney and that the attorneys advice must be in the attorneys capacity as
Page 12 of25
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Ma r 23 2017 3 38PM No 3265 P 1426
a legal adViSOt This element is highly questionable as it has been alleged that the
Defendants utilized attorneys in routine estate administration which an expert alleges
was primarily outside of the prevue of a legal advisor However it is difficult for the
Court to determine this without an itl camera review of all of the evidence alleged to be
confidential by attoroey-client privilege from Huntingtons Estate administration
15 The Third element of attorney-client privilege requires that the communication between
the attomey and the client must be identified as confidential Here again without review
of the information alleged to be confidential the Court cannot detennine if the
information was identified as confidential
16 Therefore the Court concludes there is a question of whether attomey client privilege
even applies to the communications at issue in this case It is therefore necessary for the
Court to conduct an in camera review of the materials in order to make further
determinations
17 Further there bas been a question raised Jegarding the applicability of the work product
doctrine regarding materials sought by tb~ Plaintiffs from the Defendant specifically
estate administration meeting notes
18 Rule 26(b)(3) of the West Virginia Rules ofeivil Procedure states
(3) Trial Preparation Materials Subject to the provisiOns of subdivision (b)(4) of this rule a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(l) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other PartYs representative (including the partys attoOley consultant surety indemnitor insurer or agent) only upon a shoWing that the party seeking discovery has substantial need ofthe materials in the preparation of the partys case and that the party is unable without undue hardshlp to obtain the substantial equivalent ofthe materials by other means In ordering discovery of such materials when the required showing has been made the court shall protect against disclosure ofthe mental impressions conclusions opinions or legal
Page 13 of25
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Mar 23 2017 338PM No 3265 P 1526
theories of an attorney or other representative of a party concerning the litigation
19 laquoThe work product doctrine creates a fom of qualified immunity from discovery but it
does not label protected material as privileged and thus outside the scope of discovery
under Rule 26(b)(l) Litigation Handbook sect 26(b)(3) at 721 (2012) State ex reI
Chaparro v Wilkes 438 SE2d 575 577-78 190 WVa 395 397-98 (1993)
20 The Supreme Court of Appeals of West Virginia has long recogoiz~d a distinction
between factual work product and opinion work produ~t holding
Where factual work product is involved the party demancling production must show a substantial need for the material in the sense that he cannot obtain the same or its equivalent through other means ltwithout undue hllldship Where opinion work product is involved the showing reqlrired to obtain discovery is even stronger because the rule states that the court sluill protect against disclosure ofmeota1 impressions conclusion opinions or legal theories
State ex reI Chaparro v Wilkes 438 SE2d575 577-78190 WVa 395 397-98 (1993)
bold added Citing In re Markle 174 WVa at 556-57 328 SE2d at 163 (1984)
21 Factual work product has been defined bythe Supreme Court of Appeals of West
Virginia as
[F]actual work product refers to documents and tangible things that were prepared in anticipation oflitigation or for trial (l) by or for a party or (2) by or fat that partys representative which includes an attomey consultant surety indemnitor insurer or agent When factual work product is involved the party demancling production must show a ltsubstantial need for the material and establish that the same material or its equivalent cannot be obtained through other means without undue hacdship
State ex reI Erie Ins Property amp Cas Co v Ma~one 625 SE2d 355361218 WVa
593 599 (2005) citing Litigation Handbook on West Virginia Rules ofCMl ProcedUre
sect 26(b)(3) at 557 (2000)
Page 14 of2S
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Mar 23 2017 338PM No 3265 P 1626
22 ~SubstantiaI need may be independently established where it is ShOVVll that the requested
infonnation relates to essential elements ofthe requesting partys cause ofaction and the
information is not reasonably reproducible by the requesting patty Ot obtainable by other
means See Litigation Handbook sect 26(b)(3) at 721 (2012)
23 In the current case factual infonnation regarding Huntingtons administration of the
estate is contained in the estate meeting notes The administration of the estate directly
relates to the essential elements of the c~uses of action resulting from the alleged
misadministration of the estate and is not reasonably reproducible by the Plaintiffs or
obtainable by other means
24 In the current case the Plaintiffs are unable to obtain the information from those
meetings through any other means other than discovery Any attempt to obtain the
infOllIlation through discovery will result in a question of whether attorney client
privilege applies as occurred in the deposition ofMs Parsons (Exhibit 11 to Plain1iffs
Supplemental Response - ExhibifG herein)
25 As the only factual information available pertaining to the estate administration is from
the various meetings dealing with estate administration and email correspondence
dealing with estate administration a substantial need clelllly exists which would require
the Defendants to provide those documents to the Plaintiffs Provided that any
information requested by the Defendants can be reviewed in camera iffurther objections
arise to infonnation contained in those documents
26 Opinion work product consists of lI1ental impressions) conclusion opinions or legal
theories found in factual work product and requires a much stronger showing in order for
it to be released See Litigation Handbook sect 26(b)(3) at 722 (2012) Opinion work
product is only discoverable in very rare and extraordinary circumstances Id
Page 15 of25
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Mar232017 339PM No 3265 P 1726
27 Documents prepared in anticipation of litigation were addressed State ex reZ Erie Ins
Property amp Cas Co vMazzone 648 SE2d 31 38 220 WVa 525 532 (2007) in
which the Court held in syllabus point seven of State ex reZ United Hospital Center
~nc v Bedell that middotin order bull [t]o determine whether a document was prepared in
anticipation of litigation and~ is therefore protected from disclosure under the work
product doctrine the primary motivating purpose behind the creation of the document t
must have been to assist in pending or probable futuJe litigation 199 WVa at 320 484
SE2d at 203 This means that the documents must not be prepared in the course of
everyday business Because the preparers ofilie reser~es information in the instant case
were non-lawyers we further note that-Rule ~6(b)(3) extends work product protection to
materials prepared by non-lawyers when the paramount purpose for generating the
materials is litigation Id [D]etermination of whether a document was prepared in
anticipation of litigation or in the ordinary course ofbusiness is a factual one which is
examined on a case-by-case basis State ex reI Erie Ins Property ampCas Co v Mazzone
648 SE2d 31 42~ 220 WYa 525 536 (2007) (internal citations omitted)
28 This case--by-case determination necessitates an in camera review of all documents for
which a privilege is claimed
29 The legal duty of a personal representative or e-gecutor ofthe estate of a deceased under
West Virginia law is as follows
The personal representative of the estate of a deceased acts in a fiduciary capacity His duty is to manage the estate under his control to the advantage of those interested in it and to act on their behalf In the discharge of this duty the executor or administratot of a decedents estate is held to thehighest degree of good faith and is required to exercise the ordinary care and reaso~able diligence which prudent persons ordinarily exercise under like circumstances in their own personal affairs j Syl pt 1 Latimer v
Page 16 of2S
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Mar 23 2017 339PM No 3265 P 1826
MechlingI71 WVa 729 301 SE2d 819 (1983) SyI Pt2 Pickens v Tribble 236 WVa 670 783 SE2d 310312 (2016)
30 Applied to the case at bar the legal duty of Huntington as Executor ofthe
Estate ofJames D Gandee under West Virginia law is as follows
Its duty is to manage the Gandee Estate under its control to the advantage ofthose interested in it and to act on their pehalf Further in the discharge ofits duty Huntington National Bank is held to the highest degree of good faith and is required to exercise the ordinary care and reasonable diligence which prudent persons ordinarily exercise under like circumstances in theiJ own personal affairs) Syl pt 1 Latimer v Mechling 171 W_Va 729 301 SE2d 819 (1983) Syi Pt 2 Pickens v Trtbble 236 WVa 670) 783 SE2d 310 312 (2016)
31 The Court concludes that the ~fiduciary exception legal principle bas not been directly
addressed by the West Virginia Supreme Court of Appeals and if presented would be a
question of first impression in West ViIginia See Plaintiffs Supplemental Response
(Exhibit G h~rein)
32 ~laintiff the Gandee Trust chose not to request that a certified question be submitted
regarding fiduciary exception because of the attendant delay~ it is ready for trial and
further asserted and requested that Allstate v Gaughan and existing case law be applied
to the Civil Action See Plaintiffs Supplemental Response (Exhibit G)
33 In the case ofState ex rel- Allstate 117SUtattce Company v Gaughan 508 SB 2d 75 CW
Va 1998) the West Virginia Supreme Court addressed the application of the attorneyshy
client prlVilege and work product rule in a third party bad faith insurance action where
the insured had signed a release ofhislher bad faith claim to the plaintiff InAllstate v
Gaughan the Courts conclusion that the attorney retained by the insurance company
really represents the insured was param01mt in rejecting prior rulings in third party bad
faith cases-Page 11 of25
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Mar232017 339PM No 3265 P 1926
34 In Allstate v Gaughan the Court focused on the point in time where the mutual or
conunon interest of the insurance company and insured terminated and broke off which
in that case was the date that plaintiff filed suit against the insurance company
35 Further anticipation of a law suit is insufficient to trigger work product protections as
stated in the Litigation Handbook on the Rules ofCivil Procedure (hereinafter Litigation
Handbook) Cleck1ey~ Davis amp PalmeJ Fourth Edition at page 723
the mere possibility that litigation may occur or even the mere fact that litigation does eventually ensue is insufficient to cloak materials with the mantle ofwork product protection
36 The Court concludes that in the instant Civil Action the mutual Or common interest of
Huntington as Executor and the Gandee Trust as beneficiary terminated and broke off
on March 9 2016 ilie date when the Gandee Trust filed its Joinder Motion
approximately one (1) month after its appointment as Trustee
37 The facts in this Civil Action are Illore compelling than in Allstate v Gaughan as a
fiduciary relationship exists in the instant case as opposed to contractual relationship as
in theAilstate v Gaughan case InAllstate v Gaughan the insured paid for no legal fees
ofthe insurer whereas in the instant matter the beneficiary (the Gandee Trust) paid for
all legal services provided by the attorney retained by Huntington through June 12016
38 Therefore for all the reasons set forth above the Court concludes that application ofthe
holdings inAllstate v Gaughan are proper to apply in the instant case as modified below
a Allstate v Gaughan is precedent for the conclusion that in the instant Civil Action the
time when the mutual interest of Defendant and the Gandee Trust terminated
(plaintiffs filing of complaint in Allstate v Gaughan) is the date ofMarch 92016
Page 18 of25
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Mar 23 2017 340PM No 3265 P 2026
h In line vvith the precedent in Allstate v Gaughan~ communications and documents
generated prior to March 9~ 2016 are presumptively considered not protected by
attorney-client privilege or work product protection
c InAllstate 11 Gaughan the Court crafted a quasi attorney-client privilege in order to
protect Insurers comm1l11ications with their Insured from being discoverable by tbirdshy
parties under very specific circumstances As the elements of proof for breach of
fiduciary duty in the instant Civii Action are so different than elements of a bad faith
claim the Court concludes that Allstate v Gaughan does not provide quasi attomeyshy
client privilege to the Huntingtons communications regarding estate administration
d Allstate v Gaughan provides guidelines to detennine whether a docuruent satisfied the
work product rule and guidelines for determining whether a compelling need exists to
receive a document which otherwise afforded work product protection These
guidelines serve as precedent in this Civil Action The Court notes that existing case
law also set forth the same holdings as in Allstate v Gaughan and also addresses
traditional attorney-client privilege guidelines fox determining whether a document
satisfies the work product rule and whether a compelling need exists to obtain a
document which satisf1es the work product true
ORDER
Based upon all pleadings and documents referenced herein (Exhibits A-I) atguments
presented by counsel at hearirlgs research of legal authorities and its findings of fact and
conclusions oflaw the Court hereby ORDERS that Allstate v Gaughan supra and existing West
Virginia law be applied to this Civil Action pursuant to the Orders set forth below
1 For purposes ofclarity and consistency the follOWing tenns used in this Order shall have
the same meaning as such terms are used in Allstate v Gaughan traditional attorney-
Page 19 of2S
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Mar232017 340PM No 3265 P 21126
client privilege work product rule and work product protection As discussed in
the December 222016 hearing the difference in opinion work product and fact work
product must be evaluated by the Special Commissioner and this Court
2 The Court ORDERS the materials previously reviewed in camera on December 22I1d
2016 by the Court and Discovery Commissioner and detennined to be discoverable to
be disclosed to the Plaintiffs for the reasons set forth above and at the hearing The Court
notes the Defendants objection
3 The Court DENIES the Defendants Motion for Protective Order precluding
consideration of the fiduciary exception for the reasons set forth above and at the
hearing The Court notes the Defendants objection
4 The Court GRANTS the Plaintiffs Mcgttion to Compel Defendant to Submit a
Supplemental Privilege Log as identified below The Supplemental Privilege Log is to
be supplied to the Court and Discovery Commissioner with attached documents and in
the form articulated below foran in camera review The Court notes the Defendants
objection
5 On December 22 2016 this Court ordered that Defendant provide a Supplemental
Privilege Log to this Court on or before January 6 2017 setting forth all communications
and documents for which Defendant claims attomey~client privilege or work product in
this case This Court hereby AMENDS the January 6 2017 deadline to AprilSth 2017
and AMENDS AND REFINES such Order as set forth below where all communications
and documents to be listed in the Supplemental Privilege Log are described
6 Defendant shall submit to this Court on or before April 5th 2017 a Supplemental
Privilege Log which lists all infonnation sought by discovery fOJ which a privilege is
claimed to be separated and identified into four separate groups The first tWo groups
Page 20 of25
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Ma r 23 2017 3 40 PM No 3265 P 2226
Group A and Group B include all communications- this includes letters omails and
other correspondence either written or vetbal The second two groups Group C and
Group D include all Documents Bach piece of evidence will be numbered individually
within the respective Group beginning with 1
a Group A Attorney~Client Privilege Communications Prior to March 9 2016 In
line withAllstate v Gaughan all communications relating to the Gandee Estate which
Defendant claims are protected by traditional attorney-client privilege generated prior
to March 92016 ate Group A Communications
b Group B Communications Genex-ated on or After March 9 2016 Note that
Allstate v Gaughan provides that all communications generated after the plaintiff qIed
suit (March 9 2016 in this Civil Action) must be specifically identified and requested
as opposed to a general request so centat a Circuit Court is notunduly burdenedin review
thereof However Huntington continued to have the highest duty under law to the
Gandee Trust as Executor after March 9 2016 Further Huntington decided to have
one law fum represent it as Executor and as Defendant in this matter and to have that
one law finn partiCipate in most estate adrobJistratio~ matters Although it will requjre
additional time by the Special Commissioner and this Court to review documents in
light of the above facts~ the Court ORDERS that the general request for
communications already made is sufficient without need for specific reference for all
Group B Communications generated from March 9 2016 through June 5 2016 June
5 2016 is the date when Executor _activity and conflict of interest decreased when all
Gandee Estate assets were distributed to the Gandee Trust
c Additionally any communication generated after June 5 2016 which relates solely to
the administration of the Gandee Estate or which in any manner relates to a
PageZ1of25
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Mar 23 2017 341PM No 3265 P 2326
conununication with the Sheriffs Office or the ATF regarding guns owned by the
Gandee Estate shall also be a Group B Communication
d Group C Work Product Rule Documents Generated Prior to March 9 2016 Each
document relating to the Gandee Estate for which Defendant claims work product
protection and which was generated or prepared prior to March 92016 is a Group C
Document
e Group D Work Product Rule Documents Generated on or After March 9 2016
The considerations and analysis set forth in Section (5)(a) above with regatd to
attorney-client privilege also applies to docU1ll8nts for which work product protection
is claimed by Defendant As such all documents generated for the period ofMarch 9
2016 through June 5 2016 ate Group D DOCUIllents and the general request already
made for documents is sufficient Gronp D Documents also mcludes any document
generated after June 5 2016 which relates to estate administration andor any document
relating to the guns owned by the Gandee Estate
7 Additionally~ written analysis shall be provided by Defendant with the Supplemental
Privilege Log on AprilSth 2017 to meet its burden of pro~f that each Group A andor
B Communication satisfies attorney-client privilege (if so claimed by Defendant)
Further Defendant shall provide a written analysis to prove that each Group C andor D
Document qualifies for work product protection Additionally Defendant shall provide
an exp1anation for each CommUnication and Document as to why it was necessary to
retain outside legal counsel for suchmatter and how the advice is legal advice as opposed
to routine estate administration adVice
8 WIthout limiting the foregoing each and every communication or document which has
already been provided by Huntington to the Gandee Trust in redacted form shall be listed
Page22of25
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Mar 23 2017 341PM No 3265 P 2426
in the Supplemental Privilege Log and attached to the Supplemental Privilege Log
without any redactions
9 The Special Conunissioner shall render a Report on which Group A and Group B
Communications satisfy attorney-client privilege whioh do not and why He shall also
include in his Supplemental Report which Group C andor Group D Documents satisfY
all requirements for work product priilege which do not and why
10 Additionally for all Communications and Documents which he finds satisfy attomeyshy
client privilege and work product protection he shallstate whether it was reasonable or
necessary for Defendant to utilize cmIDsel in such matter
11 Additionally for each Group Cor Gronp D Documentwbich qualifies fot work product
protection he shall find whether Plaintiff has a compelling need for such document In
that regard the Gandee Trust may provide an analysis within twenty (20) days after the
entry of this Order providing its analysis of compelling need for types or categories of
documents Ifthe Special Commissioner needs additional information he shall so infom
the Court
12 Undet the Courts guidelines in Allstate v Gaughan and the reasoning set forth above
Communications prior to March 9 2016 would generally not be privileged and
Documents generated prior to March 9 2016 would generally not qualify for work
product protection
13 As per Conclusions of Law 38(c) Huntington is not entitled to quasi attorney-client
privilege regarding Huntingtons communications regarding estate administration
14 As there was conflicting proffer of counsel at the January 42017 hearing Defendant
shall include with the Supplemental Privilege Log all billings by Frost Brown amp Todd
Page 23 of25
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Ma r 23 2017 3 41 PM No 3265 P 2526
through June I 2016 to Huntington to be paid by Huntington for representation of
Huntington for its litigation representation and payments thereon
15 Notwithstanding any other provision in this Order The Special Comnrissioner in bis
review of all conununications and documents shall identify any communication or
document which meets the guideline for the crimefraud exception as such exception
is set forth in Brison v Kaufinan The Special Commissioner shall be provided a copy
of the Amended Complaint to be apprised of factual circumstances which the Gandee
Trust bas alleged constitute bad faith by defendant
16 In the Supplement to Response to Defendants Motion for Protective Order filed by the
Gandee Trust a request was made under WVRCP 37(a)(4) that Huntington be required
to pay for all attorney fees ofthe Gandee Trust by payment ofthe hours spent by outside
counsel to the Gandee TrtlSt multiplied times their standard hourly rate for all work
relating to attorney-client privilege and work product protection for all legal services
rendered above and beyond its Motion to Compel documents and the hearing on October
242016 including appeals
The Court will address such request after it has completed its in-camera review
and entered an 9rder as to the communications and documents which must be provided to Plaintiff
A subsequent hearing shall be held ifneeded
17 The Court further ORDERS that all communications and docmnents to be provided to
the Gandee Trust by the ultimate Order entered by the Court after full in-camera review
shall be provided to the Gandee Trust and not Plamtiffs Dr Gandees Daughters
Plaintiffs Dr Gandees Daughters may make a motion requesting all or a portion of
such material if they so choose and all parties will have a right to subroit motions and
legal memoranda on such matter
Page 24 of2S
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Mar 23 2017 341PM No 3265 P 2626
18 Finally it is ORDERED that the Clerk of this Court mail andor ~therwise provide a
certified copy of this Order to all parties of record
ENTERED tbis ~rtJay ofMarch 2017
c c ~ 1lQ)m -- ct)02 It l Cp b- etJ82 1U
I) -()-fo W middot0cJraquo rqcIe O~f1IO 11 -ujtJ
S--of ltW r-) FiE
~ ~
f om tl1e records ITEST A trueJO~~the Clerk otthe (l~at~tdClnoulirtleo~ ~cpshur County West ClrCUI Virginia
Given under my hancl---l~~Pd~hiCDF
Page2S of25
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IN TIlE c~~tifiC0b1tf6iitiPSHUR COUNTY WEST VIRGINIA ~
DEANNAD GANDEE et aI
PLAINTIFF
vs Crvn ACTION NO lS-C-98
HUNTINGTON BANCSHARES INC et al
DEFENDANT
DISCOVERY COMMISSIONER REPORT
The Discovery Commissioner has reviewed the 1159 pages of e-mails that were provided in
this matter Upon review of the same it appears that there are two different groups of e-mails
1 E-mails relating to the pending litigation that are attorneyclient privilege type e-mails
2 E-mails that are referencing the administration and handling of the Estate
The e-mails which are attributable to the handling of the Estate should be discoverable in this
matter as the issues involved in litigation deal with breach of fiduciary duty I have prepared a
separate sheet setting forth the e-mails that I contend would be discoverable including a copy of the
same for the review of the Court This sheet and list of e-mails will be provided only to the Court for
review and determination of whether they should be disclosed to counsel
rin B NaImers 6358 Discovery Commissioner
APP 000409
CERTIFICATE OF SERVICE
[h I Steven B Nanners do hereby certify that on the it day of December 2016 I served the
following Discovery Commissioner Report by depositing a true copy thereof mthe UmtedStates
Mail in an envelope with sufficient postage attached thereto addressed to the following
Jared M Tully Esq Frost Brown Todd Laidley Tower Suite 401 500 Lee Street Charleston West VIrginia 25301
Alan S Brown Esq Frost Brown Todd 201 North illinois Street - Suite 1900 Indianapolis IN 46204
Gerald R Lacy Esq Lacy Law Offices LC 103 Pennsylvania Avenue PDBox589 Charleston West VIrginia 25322
Gordon C Lane Sr Lane amp Young 1538 Kanawha Blvd East Charleston WesfVIrginia 25311
S~~n B Nanners 6358 Discovery Commissioner Law Offices of Nanners amp Willett LC 45 West Main StreetmiddotU ( Buckhannon West VIrginia 26201 304-472-2048
APP000410
Mar 23 2017 336PM No 3265 P 926
Exhibit 7 to PHrlntifIs Supplemental Response - Exhibit G herein) This is
particularly true where the Executor is a publicly traded bank withvast experience
and resources such as Huntington Note that Huntingtons own internal
procedures as to an estates use of outside counsel does not provide that outside
counsel should be involved in routine estate admiI)jstration matters (Exhibit8 to
Plaintiffs Supplemental Response - Exhibit Gherein)
F A Motion to Compel Distribution was filed in response to Defendants deCision
that it would distribute only $100000 even though the Gandee Estate had cash
of $2560000 and was ready to sell a farm for another $590000 with outside
counsel at such meeting (Exhibits 9A and 9B to Plaintiffs Supplemental
Response - Exhibit G hetein) Defendant sent a letter to the Gandee Trust that it
would distribute all estate assets only ifa full release from litigation was provided
(Exhibit 10 to Plaintiffs Supplemental Response - Exhibit G herein) During
Ms Parsons deposition when Ms Parsons was ask~d to describe discussions at
the meeting the attorney for Defendant stated two (2) in~house counsel were
present and outside counsel was also present andthis meeting on distribution was
offlimits (Exhibit 11 to Plaintiffs Supplemental Response - Exhibit G herein)
~BROWN Well she needs to - one two three four five - there were six people at that meeting And three of them are lawyers So Im a little reluctant to let her get into it IftheIe are matters that she can testify to that didnt relate to the discussion strategy and giving of advice and requesting of advice she oan But on this Im skeptical thered be anything else in this discussion
And then stated -
Page 8 of 25
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Mar 23 2017 337PM No 3265 P 1026
ltBut because this thing is so riddled with lawyers I just dont know that when you get into what was discussed at the meeting that we can ever be able to separate the privileged from the nonpriviliged
G It was the decision of Tristan McCormick the top trust officer of Huntingto~ a
Board Member with primary responsibility for risk management froIlllitigation
who decided to riddle the thing with lawyers and cut off discovery Discovery
of routine estate administration decisions and matters was blocked because an
attorney was placed in a meeting and there was no need for an attorney to be
there particularly giving Executor advice as to how to hurt the beneficiaries in
the litigation
H As such a serious question arises as to whether Huntington is claiming attomeyshy
client privilege and work product protection for routine administtative matters
becanse it placed outside counsel as a member ofthe estate administration Team
to participate in estate administration matters and receive communications
relating thereto
I Huntingtons retention of only one firm to represent Huntington as Executor of
the Gandee Estate with the highest duty under law and also as Defendant
aggressively litigating against the beneficiary created a conflict of interest by
such law finn which coupled with Huntington having outside counsel in
attendance and participation in many routinemiddot estate administration matters has
blurred lines of duty and conduct in this Civil Action by Huntington
Huntingtons counsel has greatly exacerbated the complexity of the legal
analysis ofDefendant s claitns ofattomey-client privilege and work produc~ and
the time required ofthe Court in these matters
Page 9 of25
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Mar 23 2017 337PM No 3265 P 1126
CONCLUSIONS OF LAW
1 A threshold issue regarding all discovery requests is relevancy This is so because [t]he
question of the relevancy of the information sought through discovery essentially
involves a dete1lllination of how substantively the infom1ation requested bears on the
issues to be tried State ex reI Erie Ins Property amp Cas Co v Mazzone 625 SE2d
355358218 WVa 593596 (2005) citing SyI Pt 4 in part State Farm Mut AutoIns
Co v Stephens 188 WVa 622425 SE2d 577 (1992)
2 It is only after information is determined to be relevant that consideration is given to
whether the infonnation is subject to exclusion based upon the absolute or conditional
privilege of attorney-client communications or work-product information respectively
State ex reI Erie Ins Property ~ Cas Co v Mazzone 625 SE2d 355358218 WVa
593 596 (2005)
3 Relevance in the context of discovery means that the information sought is admissible
evidence or is reasonably calculated to lead to the discovery of admissible evidence
WVa RCivP 26(b)(1) see also Syl Pt 4 in part Keplinger v Virginia Elec and
Powet Co 208 WVa II 537 SE2d 632 (2000) SyI Pt 4 in part State Farm Mm
Auto Ins Co v Stephens 188 WVa 622 425 SE2d 577 (1992) State ex rel Erie
Ins Property amp Cas Co v Mazzone 625 SE2d 355 359~ 218 WVa 593597 (2005)
see also Syl Pt 5 State ex reI Montpelier US Ins Co v Bloom 757 SE2d 788 791
(2014)
4 In the present action there are factual allegations that could lead a jury to conclude that
Huntington Bank committed negligence ~reach ofits fiduciary duty bad faith and acted
with willful misconduct toward the Plaintiffs As discussed briefly in the findings offact
above thos~ alleged facts include Huntington failing to repair a hole in the roof which
Page 10 of2S
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Mar 23 2017 337PM No 3265 P 1226
allowed rainwater and animals into the home for approximately two years Huntington
failing to contact the home owners insurance regarding the damage to the home
Huntington billing approximately $9690220 for administration ofthe Gandee Estate by
outside counsel which might not be needed in routine estate administration matters
Huntington attempting to deem all information related to the administration of the
Gandee Estate as secret HuntiJigton withholding funds from the Trust in an attempt to
strong arm the beneficiaries and Trust into settlement etc
5 The information sought by the Plaintiffs is directly related to providing evidence to
support the various allegations in the complaint The infonnation from the meetings
emeils and conversations regarding the estate administration substantively beats on
the issues to be tried State ex tel Erie Ins Property amp Cos Co v Mazzone 625 SE2d
355
6 Furthermore the information is relevant in that the discovery requests are reasonably
calculated to lead to the discovery ofadmissible evidence ~ Wva RCivP 26(b )(1)
7 The issue with the discoverable information and the evidences adtnissibility revolves
atound the allegation that the Defendant placed attorneys unnecessarily in routine estate
administration matters The attorneys being present during these meetings triggers an
attorney-client privilege analysis
8 The attorney-olient privilege protects confidential communications between an attorney
and client from disclosure to encourage free and candid discussions between attorney
and client State ex ret USFampG v Canady460 SE 2d 677 (1995)
9 The attontey-client privilege is to be strictly construed against the party asserting
privilege because it is in derogation of the search for the truth and the burden of
Page 11 of25
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Mar232017 338PM No 3265 P 1326
establishing the attorney-client privilege always rests upon the party asserting it STate
ex reI USFampG v Canady~ 460 SE 2d 677 (1995)
10 The West Virginia Supreme Court ofAppeals discussed the attorney-client privilege in
State ex reI us Fidelity and Guar Co v Canady 460 SE2d 677687-88 194 WVa
431441-42 (1995) stating
The attorney-client privilege is a broad doctrine however it is not unlimited In Syllabus Point 2 of State 11
Burton 163 WVa 40 254 SE2d 129 (1979) we statedIn order to assert an atto~ey-client privilege three main elements must be present (l) both parties must contemplate that the attorney-client relationship does or will exist (2) the advice must be sought by the client from that attorney in his capacity as a legal adviser (3) the communication between the attorney and client must be identified to be confidential
11 Addressing the attorney-client privilege requires the identification of the parties involved
relevant to this litigation at the time of the communioations to wit HlIDtington was acting
8$ Executor of the Estate of James D Gandee Dr Gandees will named Dr Gandees
- - Daughtersand the Gandee Trust as beneficiaries and the Gandee Trust named Gandees
Daughters as primary beneficiaries
12 Huntington asserts that attorney-client privilege applies and therefore necessarily alleges
all tbtee elements are met
13 The First Element of attomey-client privilege requires that the parties to the
conununication contemplate that the attorney-client relationship does or will exist
Huntington alleges that the attorney-client relationship exists by virtue of the attorneys
being present
14 The Second element of attomey~client privilege requires that the client must seek the
advice ofan attorney and that the attorneys advice must be in the attorneys capacity as
Page 12 of25
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Ma r 23 2017 3 38PM No 3265 P 1426
a legal adViSOt This element is highly questionable as it has been alleged that the
Defendants utilized attorneys in routine estate administration which an expert alleges
was primarily outside of the prevue of a legal advisor However it is difficult for the
Court to determine this without an itl camera review of all of the evidence alleged to be
confidential by attoroey-client privilege from Huntingtons Estate administration
15 The Third element of attorney-client privilege requires that the communication between
the attomey and the client must be identified as confidential Here again without review
of the information alleged to be confidential the Court cannot detennine if the
information was identified as confidential
16 Therefore the Court concludes there is a question of whether attomey client privilege
even applies to the communications at issue in this case It is therefore necessary for the
Court to conduct an in camera review of the materials in order to make further
determinations
17 Further there bas been a question raised Jegarding the applicability of the work product
doctrine regarding materials sought by tb~ Plaintiffs from the Defendant specifically
estate administration meeting notes
18 Rule 26(b)(3) of the West Virginia Rules ofeivil Procedure states
(3) Trial Preparation Materials Subject to the provisiOns of subdivision (b)(4) of this rule a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(l) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other PartYs representative (including the partys attoOley consultant surety indemnitor insurer or agent) only upon a shoWing that the party seeking discovery has substantial need ofthe materials in the preparation of the partys case and that the party is unable without undue hardshlp to obtain the substantial equivalent ofthe materials by other means In ordering discovery of such materials when the required showing has been made the court shall protect against disclosure ofthe mental impressions conclusions opinions or legal
Page 13 of25
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Mar 23 2017 338PM No 3265 P 1526
theories of an attorney or other representative of a party concerning the litigation
19 laquoThe work product doctrine creates a fom of qualified immunity from discovery but it
does not label protected material as privileged and thus outside the scope of discovery
under Rule 26(b)(l) Litigation Handbook sect 26(b)(3) at 721 (2012) State ex reI
Chaparro v Wilkes 438 SE2d 575 577-78 190 WVa 395 397-98 (1993)
20 The Supreme Court of Appeals of West Virginia has long recogoiz~d a distinction
between factual work product and opinion work produ~t holding
Where factual work product is involved the party demancling production must show a substantial need for the material in the sense that he cannot obtain the same or its equivalent through other means ltwithout undue hllldship Where opinion work product is involved the showing reqlrired to obtain discovery is even stronger because the rule states that the court sluill protect against disclosure ofmeota1 impressions conclusion opinions or legal theories
State ex reI Chaparro v Wilkes 438 SE2d575 577-78190 WVa 395 397-98 (1993)
bold added Citing In re Markle 174 WVa at 556-57 328 SE2d at 163 (1984)
21 Factual work product has been defined bythe Supreme Court of Appeals of West
Virginia as
[F]actual work product refers to documents and tangible things that were prepared in anticipation oflitigation or for trial (l) by or for a party or (2) by or fat that partys representative which includes an attomey consultant surety indemnitor insurer or agent When factual work product is involved the party demancling production must show a ltsubstantial need for the material and establish that the same material or its equivalent cannot be obtained through other means without undue hacdship
State ex reI Erie Ins Property amp Cas Co v Ma~one 625 SE2d 355361218 WVa
593 599 (2005) citing Litigation Handbook on West Virginia Rules ofCMl ProcedUre
sect 26(b)(3) at 557 (2000)
Page 14 of2S
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Mar 23 2017 338PM No 3265 P 1626
22 ~SubstantiaI need may be independently established where it is ShOVVll that the requested
infonnation relates to essential elements ofthe requesting partys cause ofaction and the
information is not reasonably reproducible by the requesting patty Ot obtainable by other
means See Litigation Handbook sect 26(b)(3) at 721 (2012)
23 In the current case factual infonnation regarding Huntingtons administration of the
estate is contained in the estate meeting notes The administration of the estate directly
relates to the essential elements of the c~uses of action resulting from the alleged
misadministration of the estate and is not reasonably reproducible by the Plaintiffs or
obtainable by other means
24 In the current case the Plaintiffs are unable to obtain the information from those
meetings through any other means other than discovery Any attempt to obtain the
infOllIlation through discovery will result in a question of whether attorney client
privilege applies as occurred in the deposition ofMs Parsons (Exhibit 11 to Plain1iffs
Supplemental Response - ExhibifG herein)
25 As the only factual information available pertaining to the estate administration is from
the various meetings dealing with estate administration and email correspondence
dealing with estate administration a substantial need clelllly exists which would require
the Defendants to provide those documents to the Plaintiffs Provided that any
information requested by the Defendants can be reviewed in camera iffurther objections
arise to infonnation contained in those documents
26 Opinion work product consists of lI1ental impressions) conclusion opinions or legal
theories found in factual work product and requires a much stronger showing in order for
it to be released See Litigation Handbook sect 26(b)(3) at 722 (2012) Opinion work
product is only discoverable in very rare and extraordinary circumstances Id
Page 15 of25
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Mar232017 339PM No 3265 P 1726
27 Documents prepared in anticipation of litigation were addressed State ex reZ Erie Ins
Property amp Cas Co vMazzone 648 SE2d 31 38 220 WVa 525 532 (2007) in
which the Court held in syllabus point seven of State ex reZ United Hospital Center
~nc v Bedell that middotin order bull [t]o determine whether a document was prepared in
anticipation of litigation and~ is therefore protected from disclosure under the work
product doctrine the primary motivating purpose behind the creation of the document t
must have been to assist in pending or probable futuJe litigation 199 WVa at 320 484
SE2d at 203 This means that the documents must not be prepared in the course of
everyday business Because the preparers ofilie reser~es information in the instant case
were non-lawyers we further note that-Rule ~6(b)(3) extends work product protection to
materials prepared by non-lawyers when the paramount purpose for generating the
materials is litigation Id [D]etermination of whether a document was prepared in
anticipation of litigation or in the ordinary course ofbusiness is a factual one which is
examined on a case-by-case basis State ex reI Erie Ins Property ampCas Co v Mazzone
648 SE2d 31 42~ 220 WYa 525 536 (2007) (internal citations omitted)
28 This case--by-case determination necessitates an in camera review of all documents for
which a privilege is claimed
29 The legal duty of a personal representative or e-gecutor ofthe estate of a deceased under
West Virginia law is as follows
The personal representative of the estate of a deceased acts in a fiduciary capacity His duty is to manage the estate under his control to the advantage of those interested in it and to act on their behalf In the discharge of this duty the executor or administratot of a decedents estate is held to thehighest degree of good faith and is required to exercise the ordinary care and reaso~able diligence which prudent persons ordinarily exercise under like circumstances in their own personal affairs j Syl pt 1 Latimer v
Page 16 of2S
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Mar 23 2017 339PM No 3265 P 1826
MechlingI71 WVa 729 301 SE2d 819 (1983) SyI Pt2 Pickens v Tribble 236 WVa 670 783 SE2d 310312 (2016)
30 Applied to the case at bar the legal duty of Huntington as Executor ofthe
Estate ofJames D Gandee under West Virginia law is as follows
Its duty is to manage the Gandee Estate under its control to the advantage ofthose interested in it and to act on their pehalf Further in the discharge ofits duty Huntington National Bank is held to the highest degree of good faith and is required to exercise the ordinary care and reasonable diligence which prudent persons ordinarily exercise under like circumstances in theiJ own personal affairs) Syl pt 1 Latimer v Mechling 171 W_Va 729 301 SE2d 819 (1983) Syi Pt 2 Pickens v Trtbble 236 WVa 670) 783 SE2d 310 312 (2016)
31 The Court concludes that the ~fiduciary exception legal principle bas not been directly
addressed by the West Virginia Supreme Court of Appeals and if presented would be a
question of first impression in West ViIginia See Plaintiffs Supplemental Response
(Exhibit G h~rein)
32 ~laintiff the Gandee Trust chose not to request that a certified question be submitted
regarding fiduciary exception because of the attendant delay~ it is ready for trial and
further asserted and requested that Allstate v Gaughan and existing case law be applied
to the Civil Action See Plaintiffs Supplemental Response (Exhibit G)
33 In the case ofState ex rel- Allstate 117SUtattce Company v Gaughan 508 SB 2d 75 CW
Va 1998) the West Virginia Supreme Court addressed the application of the attorneyshy
client prlVilege and work product rule in a third party bad faith insurance action where
the insured had signed a release ofhislher bad faith claim to the plaintiff InAllstate v
Gaughan the Courts conclusion that the attorney retained by the insurance company
really represents the insured was param01mt in rejecting prior rulings in third party bad
faith cases-Page 11 of25
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Mar232017 339PM No 3265 P 1926
34 In Allstate v Gaughan the Court focused on the point in time where the mutual or
conunon interest of the insurance company and insured terminated and broke off which
in that case was the date that plaintiff filed suit against the insurance company
35 Further anticipation of a law suit is insufficient to trigger work product protections as
stated in the Litigation Handbook on the Rules ofCivil Procedure (hereinafter Litigation
Handbook) Cleck1ey~ Davis amp PalmeJ Fourth Edition at page 723
the mere possibility that litigation may occur or even the mere fact that litigation does eventually ensue is insufficient to cloak materials with the mantle ofwork product protection
36 The Court concludes that in the instant Civil Action the mutual Or common interest of
Huntington as Executor and the Gandee Trust as beneficiary terminated and broke off
on March 9 2016 ilie date when the Gandee Trust filed its Joinder Motion
approximately one (1) month after its appointment as Trustee
37 The facts in this Civil Action are Illore compelling than in Allstate v Gaughan as a
fiduciary relationship exists in the instant case as opposed to contractual relationship as
in theAilstate v Gaughan case InAllstate v Gaughan the insured paid for no legal fees
ofthe insurer whereas in the instant matter the beneficiary (the Gandee Trust) paid for
all legal services provided by the attorney retained by Huntington through June 12016
38 Therefore for all the reasons set forth above the Court concludes that application ofthe
holdings inAllstate v Gaughan are proper to apply in the instant case as modified below
a Allstate v Gaughan is precedent for the conclusion that in the instant Civil Action the
time when the mutual interest of Defendant and the Gandee Trust terminated
(plaintiffs filing of complaint in Allstate v Gaughan) is the date ofMarch 92016
Page 18 of25
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Mar 23 2017 340PM No 3265 P 2026
h In line vvith the precedent in Allstate v Gaughan~ communications and documents
generated prior to March 9~ 2016 are presumptively considered not protected by
attorney-client privilege or work product protection
c InAllstate 11 Gaughan the Court crafted a quasi attorney-client privilege in order to
protect Insurers comm1l11ications with their Insured from being discoverable by tbirdshy
parties under very specific circumstances As the elements of proof for breach of
fiduciary duty in the instant Civii Action are so different than elements of a bad faith
claim the Court concludes that Allstate v Gaughan does not provide quasi attomeyshy
client privilege to the Huntingtons communications regarding estate administration
d Allstate v Gaughan provides guidelines to detennine whether a docuruent satisfied the
work product rule and guidelines for determining whether a compelling need exists to
receive a document which otherwise afforded work product protection These
guidelines serve as precedent in this Civil Action The Court notes that existing case
law also set forth the same holdings as in Allstate v Gaughan and also addresses
traditional attorney-client privilege guidelines fox determining whether a document
satisfies the work product rule and whether a compelling need exists to obtain a
document which satisf1es the work product true
ORDER
Based upon all pleadings and documents referenced herein (Exhibits A-I) atguments
presented by counsel at hearirlgs research of legal authorities and its findings of fact and
conclusions oflaw the Court hereby ORDERS that Allstate v Gaughan supra and existing West
Virginia law be applied to this Civil Action pursuant to the Orders set forth below
1 For purposes ofclarity and consistency the follOWing tenns used in this Order shall have
the same meaning as such terms are used in Allstate v Gaughan traditional attorney-
Page 19 of2S
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Mar232017 340PM No 3265 P 21126
client privilege work product rule and work product protection As discussed in
the December 222016 hearing the difference in opinion work product and fact work
product must be evaluated by the Special Commissioner and this Court
2 The Court ORDERS the materials previously reviewed in camera on December 22I1d
2016 by the Court and Discovery Commissioner and detennined to be discoverable to
be disclosed to the Plaintiffs for the reasons set forth above and at the hearing The Court
notes the Defendants objection
3 The Court DENIES the Defendants Motion for Protective Order precluding
consideration of the fiduciary exception for the reasons set forth above and at the
hearing The Court notes the Defendants objection
4 The Court GRANTS the Plaintiffs Mcgttion to Compel Defendant to Submit a
Supplemental Privilege Log as identified below The Supplemental Privilege Log is to
be supplied to the Court and Discovery Commissioner with attached documents and in
the form articulated below foran in camera review The Court notes the Defendants
objection
5 On December 22 2016 this Court ordered that Defendant provide a Supplemental
Privilege Log to this Court on or before January 6 2017 setting forth all communications
and documents for which Defendant claims attomey~client privilege or work product in
this case This Court hereby AMENDS the January 6 2017 deadline to AprilSth 2017
and AMENDS AND REFINES such Order as set forth below where all communications
and documents to be listed in the Supplemental Privilege Log are described
6 Defendant shall submit to this Court on or before April 5th 2017 a Supplemental
Privilege Log which lists all infonnation sought by discovery fOJ which a privilege is
claimed to be separated and identified into four separate groups The first tWo groups
Page 20 of25
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Ma r 23 2017 3 40 PM No 3265 P 2226
Group A and Group B include all communications- this includes letters omails and
other correspondence either written or vetbal The second two groups Group C and
Group D include all Documents Bach piece of evidence will be numbered individually
within the respective Group beginning with 1
a Group A Attorney~Client Privilege Communications Prior to March 9 2016 In
line withAllstate v Gaughan all communications relating to the Gandee Estate which
Defendant claims are protected by traditional attorney-client privilege generated prior
to March 92016 ate Group A Communications
b Group B Communications Genex-ated on or After March 9 2016 Note that
Allstate v Gaughan provides that all communications generated after the plaintiff qIed
suit (March 9 2016 in this Civil Action) must be specifically identified and requested
as opposed to a general request so centat a Circuit Court is notunduly burdenedin review
thereof However Huntington continued to have the highest duty under law to the
Gandee Trust as Executor after March 9 2016 Further Huntington decided to have
one law fum represent it as Executor and as Defendant in this matter and to have that
one law finn partiCipate in most estate adrobJistratio~ matters Although it will requjre
additional time by the Special Commissioner and this Court to review documents in
light of the above facts~ the Court ORDERS that the general request for
communications already made is sufficient without need for specific reference for all
Group B Communications generated from March 9 2016 through June 5 2016 June
5 2016 is the date when Executor _activity and conflict of interest decreased when all
Gandee Estate assets were distributed to the Gandee Trust
c Additionally any communication generated after June 5 2016 which relates solely to
the administration of the Gandee Estate or which in any manner relates to a
PageZ1of25
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Mar 23 2017 341PM No 3265 P 2326
conununication with the Sheriffs Office or the ATF regarding guns owned by the
Gandee Estate shall also be a Group B Communication
d Group C Work Product Rule Documents Generated Prior to March 9 2016 Each
document relating to the Gandee Estate for which Defendant claims work product
protection and which was generated or prepared prior to March 92016 is a Group C
Document
e Group D Work Product Rule Documents Generated on or After March 9 2016
The considerations and analysis set forth in Section (5)(a) above with regatd to
attorney-client privilege also applies to docU1ll8nts for which work product protection
is claimed by Defendant As such all documents generated for the period ofMarch 9
2016 through June 5 2016 ate Group D DOCUIllents and the general request already
made for documents is sufficient Gronp D Documents also mcludes any document
generated after June 5 2016 which relates to estate administration andor any document
relating to the guns owned by the Gandee Estate
7 Additionally~ written analysis shall be provided by Defendant with the Supplemental
Privilege Log on AprilSth 2017 to meet its burden of pro~f that each Group A andor
B Communication satisfies attorney-client privilege (if so claimed by Defendant)
Further Defendant shall provide a written analysis to prove that each Group C andor D
Document qualifies for work product protection Additionally Defendant shall provide
an exp1anation for each CommUnication and Document as to why it was necessary to
retain outside legal counsel for suchmatter and how the advice is legal advice as opposed
to routine estate administration adVice
8 WIthout limiting the foregoing each and every communication or document which has
already been provided by Huntington to the Gandee Trust in redacted form shall be listed
Page22of25
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Mar 23 2017 341PM No 3265 P 2426
in the Supplemental Privilege Log and attached to the Supplemental Privilege Log
without any redactions
9 The Special Conunissioner shall render a Report on which Group A and Group B
Communications satisfy attorney-client privilege whioh do not and why He shall also
include in his Supplemental Report which Group C andor Group D Documents satisfY
all requirements for work product priilege which do not and why
10 Additionally for all Communications and Documents which he finds satisfy attomeyshy
client privilege and work product protection he shallstate whether it was reasonable or
necessary for Defendant to utilize cmIDsel in such matter
11 Additionally for each Group Cor Gronp D Documentwbich qualifies fot work product
protection he shall find whether Plaintiff has a compelling need for such document In
that regard the Gandee Trust may provide an analysis within twenty (20) days after the
entry of this Order providing its analysis of compelling need for types or categories of
documents Ifthe Special Commissioner needs additional information he shall so infom
the Court
12 Undet the Courts guidelines in Allstate v Gaughan and the reasoning set forth above
Communications prior to March 9 2016 would generally not be privileged and
Documents generated prior to March 9 2016 would generally not qualify for work
product protection
13 As per Conclusions of Law 38(c) Huntington is not entitled to quasi attorney-client
privilege regarding Huntingtons communications regarding estate administration
14 As there was conflicting proffer of counsel at the January 42017 hearing Defendant
shall include with the Supplemental Privilege Log all billings by Frost Brown amp Todd
Page 23 of25
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Ma r 23 2017 3 41 PM No 3265 P 2526
through June I 2016 to Huntington to be paid by Huntington for representation of
Huntington for its litigation representation and payments thereon
15 Notwithstanding any other provision in this Order The Special Comnrissioner in bis
review of all conununications and documents shall identify any communication or
document which meets the guideline for the crimefraud exception as such exception
is set forth in Brison v Kaufinan The Special Commissioner shall be provided a copy
of the Amended Complaint to be apprised of factual circumstances which the Gandee
Trust bas alleged constitute bad faith by defendant
16 In the Supplement to Response to Defendants Motion for Protective Order filed by the
Gandee Trust a request was made under WVRCP 37(a)(4) that Huntington be required
to pay for all attorney fees ofthe Gandee Trust by payment ofthe hours spent by outside
counsel to the Gandee TrtlSt multiplied times their standard hourly rate for all work
relating to attorney-client privilege and work product protection for all legal services
rendered above and beyond its Motion to Compel documents and the hearing on October
242016 including appeals
The Court will address such request after it has completed its in-camera review
and entered an 9rder as to the communications and documents which must be provided to Plaintiff
A subsequent hearing shall be held ifneeded
17 The Court further ORDERS that all communications and docmnents to be provided to
the Gandee Trust by the ultimate Order entered by the Court after full in-camera review
shall be provided to the Gandee Trust and not Plamtiffs Dr Gandees Daughters
Plaintiffs Dr Gandees Daughters may make a motion requesting all or a portion of
such material if they so choose and all parties will have a right to subroit motions and
legal memoranda on such matter
Page 24 of2S
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Mar 23 2017 341PM No 3265 P 2626
18 Finally it is ORDERED that the Clerk of this Court mail andor ~therwise provide a
certified copy of this Order to all parties of record
ENTERED tbis ~rtJay ofMarch 2017
c c ~ 1lQ)m -- ct)02 It l Cp b- etJ82 1U
I) -()-fo W middot0cJraquo rqcIe O~f1IO 11 -ujtJ
S--of ltW r-) FiE
~ ~
f om tl1e records ITEST A trueJO~~the Clerk otthe (l~at~tdClnoulirtleo~ ~cpshur County West ClrCUI Virginia
Given under my hancl---l~~Pd~hiCDF
Page2S of25
PAGE 2626 RCVD AT 32312017 341 05 PM ~astem Daylight Time] I SVRPRFAX010 t DNIS1780115 t CSID t DURATION (mmss)D734 APP 000026
IN TIlE c~~tifiC0b1tf6iitiPSHUR COUNTY WEST VIRGINIA ~
DEANNAD GANDEE et aI
PLAINTIFF
vs Crvn ACTION NO lS-C-98
HUNTINGTON BANCSHARES INC et al
DEFENDANT
DISCOVERY COMMISSIONER REPORT
The Discovery Commissioner has reviewed the 1159 pages of e-mails that were provided in
this matter Upon review of the same it appears that there are two different groups of e-mails
1 E-mails relating to the pending litigation that are attorneyclient privilege type e-mails
2 E-mails that are referencing the administration and handling of the Estate
The e-mails which are attributable to the handling of the Estate should be discoverable in this
matter as the issues involved in litigation deal with breach of fiduciary duty I have prepared a
separate sheet setting forth the e-mails that I contend would be discoverable including a copy of the
same for the review of the Court This sheet and list of e-mails will be provided only to the Court for
review and determination of whether they should be disclosed to counsel
rin B NaImers 6358 Discovery Commissioner
APP 000409
CERTIFICATE OF SERVICE
[h I Steven B Nanners do hereby certify that on the it day of December 2016 I served the
following Discovery Commissioner Report by depositing a true copy thereof mthe UmtedStates
Mail in an envelope with sufficient postage attached thereto addressed to the following
Jared M Tully Esq Frost Brown Todd Laidley Tower Suite 401 500 Lee Street Charleston West VIrginia 25301
Alan S Brown Esq Frost Brown Todd 201 North illinois Street - Suite 1900 Indianapolis IN 46204
Gerald R Lacy Esq Lacy Law Offices LC 103 Pennsylvania Avenue PDBox589 Charleston West VIrginia 25322
Gordon C Lane Sr Lane amp Young 1538 Kanawha Blvd East Charleston WesfVIrginia 25311
S~~n B Nanners 6358 Discovery Commissioner Law Offices of Nanners amp Willett LC 45 West Main StreetmiddotU ( Buckhannon West VIrginia 26201 304-472-2048
APP000410
Mar 23 2017 337PM No 3265 P 1026
ltBut because this thing is so riddled with lawyers I just dont know that when you get into what was discussed at the meeting that we can ever be able to separate the privileged from the nonpriviliged
G It was the decision of Tristan McCormick the top trust officer of Huntingto~ a
Board Member with primary responsibility for risk management froIlllitigation
who decided to riddle the thing with lawyers and cut off discovery Discovery
of routine estate administration decisions and matters was blocked because an
attorney was placed in a meeting and there was no need for an attorney to be
there particularly giving Executor advice as to how to hurt the beneficiaries in
the litigation
H As such a serious question arises as to whether Huntington is claiming attomeyshy
client privilege and work product protection for routine administtative matters
becanse it placed outside counsel as a member ofthe estate administration Team
to participate in estate administration matters and receive communications
relating thereto
I Huntingtons retention of only one firm to represent Huntington as Executor of
the Gandee Estate with the highest duty under law and also as Defendant
aggressively litigating against the beneficiary created a conflict of interest by
such law finn which coupled with Huntington having outside counsel in
attendance and participation in many routinemiddot estate administration matters has
blurred lines of duty and conduct in this Civil Action by Huntington
Huntingtons counsel has greatly exacerbated the complexity of the legal
analysis ofDefendant s claitns ofattomey-client privilege and work produc~ and
the time required ofthe Court in these matters
Page 9 of25
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Mar 23 2017 337PM No 3265 P 1126
CONCLUSIONS OF LAW
1 A threshold issue regarding all discovery requests is relevancy This is so because [t]he
question of the relevancy of the information sought through discovery essentially
involves a dete1lllination of how substantively the infom1ation requested bears on the
issues to be tried State ex reI Erie Ins Property amp Cas Co v Mazzone 625 SE2d
355358218 WVa 593596 (2005) citing SyI Pt 4 in part State Farm Mut AutoIns
Co v Stephens 188 WVa 622425 SE2d 577 (1992)
2 It is only after information is determined to be relevant that consideration is given to
whether the infonnation is subject to exclusion based upon the absolute or conditional
privilege of attorney-client communications or work-product information respectively
State ex reI Erie Ins Property ~ Cas Co v Mazzone 625 SE2d 355358218 WVa
593 596 (2005)
3 Relevance in the context of discovery means that the information sought is admissible
evidence or is reasonably calculated to lead to the discovery of admissible evidence
WVa RCivP 26(b)(1) see also Syl Pt 4 in part Keplinger v Virginia Elec and
Powet Co 208 WVa II 537 SE2d 632 (2000) SyI Pt 4 in part State Farm Mm
Auto Ins Co v Stephens 188 WVa 622 425 SE2d 577 (1992) State ex rel Erie
Ins Property amp Cas Co v Mazzone 625 SE2d 355 359~ 218 WVa 593597 (2005)
see also Syl Pt 5 State ex reI Montpelier US Ins Co v Bloom 757 SE2d 788 791
(2014)
4 In the present action there are factual allegations that could lead a jury to conclude that
Huntington Bank committed negligence ~reach ofits fiduciary duty bad faith and acted
with willful misconduct toward the Plaintiffs As discussed briefly in the findings offact
above thos~ alleged facts include Huntington failing to repair a hole in the roof which
Page 10 of2S
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Mar 23 2017 337PM No 3265 P 1226
allowed rainwater and animals into the home for approximately two years Huntington
failing to contact the home owners insurance regarding the damage to the home
Huntington billing approximately $9690220 for administration ofthe Gandee Estate by
outside counsel which might not be needed in routine estate administration matters
Huntington attempting to deem all information related to the administration of the
Gandee Estate as secret HuntiJigton withholding funds from the Trust in an attempt to
strong arm the beneficiaries and Trust into settlement etc
5 The information sought by the Plaintiffs is directly related to providing evidence to
support the various allegations in the complaint The infonnation from the meetings
emeils and conversations regarding the estate administration substantively beats on
the issues to be tried State ex tel Erie Ins Property amp Cos Co v Mazzone 625 SE2d
355
6 Furthermore the information is relevant in that the discovery requests are reasonably
calculated to lead to the discovery ofadmissible evidence ~ Wva RCivP 26(b )(1)
7 The issue with the discoverable information and the evidences adtnissibility revolves
atound the allegation that the Defendant placed attorneys unnecessarily in routine estate
administration matters The attorneys being present during these meetings triggers an
attorney-client privilege analysis
8 The attorney-olient privilege protects confidential communications between an attorney
and client from disclosure to encourage free and candid discussions between attorney
and client State ex ret USFampG v Canady460 SE 2d 677 (1995)
9 The attontey-client privilege is to be strictly construed against the party asserting
privilege because it is in derogation of the search for the truth and the burden of
Page 11 of25
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Mar232017 338PM No 3265 P 1326
establishing the attorney-client privilege always rests upon the party asserting it STate
ex reI USFampG v Canady~ 460 SE 2d 677 (1995)
10 The West Virginia Supreme Court ofAppeals discussed the attorney-client privilege in
State ex reI us Fidelity and Guar Co v Canady 460 SE2d 677687-88 194 WVa
431441-42 (1995) stating
The attorney-client privilege is a broad doctrine however it is not unlimited In Syllabus Point 2 of State 11
Burton 163 WVa 40 254 SE2d 129 (1979) we statedIn order to assert an atto~ey-client privilege three main elements must be present (l) both parties must contemplate that the attorney-client relationship does or will exist (2) the advice must be sought by the client from that attorney in his capacity as a legal adviser (3) the communication between the attorney and client must be identified to be confidential
11 Addressing the attorney-client privilege requires the identification of the parties involved
relevant to this litigation at the time of the communioations to wit HlIDtington was acting
8$ Executor of the Estate of James D Gandee Dr Gandees will named Dr Gandees
- - Daughtersand the Gandee Trust as beneficiaries and the Gandee Trust named Gandees
Daughters as primary beneficiaries
12 Huntington asserts that attorney-client privilege applies and therefore necessarily alleges
all tbtee elements are met
13 The First Element of attomey-client privilege requires that the parties to the
conununication contemplate that the attorney-client relationship does or will exist
Huntington alleges that the attorney-client relationship exists by virtue of the attorneys
being present
14 The Second element of attomey~client privilege requires that the client must seek the
advice ofan attorney and that the attorneys advice must be in the attorneys capacity as
Page 12 of25
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Ma r 23 2017 3 38PM No 3265 P 1426
a legal adViSOt This element is highly questionable as it has been alleged that the
Defendants utilized attorneys in routine estate administration which an expert alleges
was primarily outside of the prevue of a legal advisor However it is difficult for the
Court to determine this without an itl camera review of all of the evidence alleged to be
confidential by attoroey-client privilege from Huntingtons Estate administration
15 The Third element of attorney-client privilege requires that the communication between
the attomey and the client must be identified as confidential Here again without review
of the information alleged to be confidential the Court cannot detennine if the
information was identified as confidential
16 Therefore the Court concludes there is a question of whether attomey client privilege
even applies to the communications at issue in this case It is therefore necessary for the
Court to conduct an in camera review of the materials in order to make further
determinations
17 Further there bas been a question raised Jegarding the applicability of the work product
doctrine regarding materials sought by tb~ Plaintiffs from the Defendant specifically
estate administration meeting notes
18 Rule 26(b)(3) of the West Virginia Rules ofeivil Procedure states
(3) Trial Preparation Materials Subject to the provisiOns of subdivision (b)(4) of this rule a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(l) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other PartYs representative (including the partys attoOley consultant surety indemnitor insurer or agent) only upon a shoWing that the party seeking discovery has substantial need ofthe materials in the preparation of the partys case and that the party is unable without undue hardshlp to obtain the substantial equivalent ofthe materials by other means In ordering discovery of such materials when the required showing has been made the court shall protect against disclosure ofthe mental impressions conclusions opinions or legal
Page 13 of25
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Mar 23 2017 338PM No 3265 P 1526
theories of an attorney or other representative of a party concerning the litigation
19 laquoThe work product doctrine creates a fom of qualified immunity from discovery but it
does not label protected material as privileged and thus outside the scope of discovery
under Rule 26(b)(l) Litigation Handbook sect 26(b)(3) at 721 (2012) State ex reI
Chaparro v Wilkes 438 SE2d 575 577-78 190 WVa 395 397-98 (1993)
20 The Supreme Court of Appeals of West Virginia has long recogoiz~d a distinction
between factual work product and opinion work produ~t holding
Where factual work product is involved the party demancling production must show a substantial need for the material in the sense that he cannot obtain the same or its equivalent through other means ltwithout undue hllldship Where opinion work product is involved the showing reqlrired to obtain discovery is even stronger because the rule states that the court sluill protect against disclosure ofmeota1 impressions conclusion opinions or legal theories
State ex reI Chaparro v Wilkes 438 SE2d575 577-78190 WVa 395 397-98 (1993)
bold added Citing In re Markle 174 WVa at 556-57 328 SE2d at 163 (1984)
21 Factual work product has been defined bythe Supreme Court of Appeals of West
Virginia as
[F]actual work product refers to documents and tangible things that were prepared in anticipation oflitigation or for trial (l) by or for a party or (2) by or fat that partys representative which includes an attomey consultant surety indemnitor insurer or agent When factual work product is involved the party demancling production must show a ltsubstantial need for the material and establish that the same material or its equivalent cannot be obtained through other means without undue hacdship
State ex reI Erie Ins Property amp Cas Co v Ma~one 625 SE2d 355361218 WVa
593 599 (2005) citing Litigation Handbook on West Virginia Rules ofCMl ProcedUre
sect 26(b)(3) at 557 (2000)
Page 14 of2S
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Mar 23 2017 338PM No 3265 P 1626
22 ~SubstantiaI need may be independently established where it is ShOVVll that the requested
infonnation relates to essential elements ofthe requesting partys cause ofaction and the
information is not reasonably reproducible by the requesting patty Ot obtainable by other
means See Litigation Handbook sect 26(b)(3) at 721 (2012)
23 In the current case factual infonnation regarding Huntingtons administration of the
estate is contained in the estate meeting notes The administration of the estate directly
relates to the essential elements of the c~uses of action resulting from the alleged
misadministration of the estate and is not reasonably reproducible by the Plaintiffs or
obtainable by other means
24 In the current case the Plaintiffs are unable to obtain the information from those
meetings through any other means other than discovery Any attempt to obtain the
infOllIlation through discovery will result in a question of whether attorney client
privilege applies as occurred in the deposition ofMs Parsons (Exhibit 11 to Plain1iffs
Supplemental Response - ExhibifG herein)
25 As the only factual information available pertaining to the estate administration is from
the various meetings dealing with estate administration and email correspondence
dealing with estate administration a substantial need clelllly exists which would require
the Defendants to provide those documents to the Plaintiffs Provided that any
information requested by the Defendants can be reviewed in camera iffurther objections
arise to infonnation contained in those documents
26 Opinion work product consists of lI1ental impressions) conclusion opinions or legal
theories found in factual work product and requires a much stronger showing in order for
it to be released See Litigation Handbook sect 26(b)(3) at 722 (2012) Opinion work
product is only discoverable in very rare and extraordinary circumstances Id
Page 15 of25
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Mar232017 339PM No 3265 P 1726
27 Documents prepared in anticipation of litigation were addressed State ex reZ Erie Ins
Property amp Cas Co vMazzone 648 SE2d 31 38 220 WVa 525 532 (2007) in
which the Court held in syllabus point seven of State ex reZ United Hospital Center
~nc v Bedell that middotin order bull [t]o determine whether a document was prepared in
anticipation of litigation and~ is therefore protected from disclosure under the work
product doctrine the primary motivating purpose behind the creation of the document t
must have been to assist in pending or probable futuJe litigation 199 WVa at 320 484
SE2d at 203 This means that the documents must not be prepared in the course of
everyday business Because the preparers ofilie reser~es information in the instant case
were non-lawyers we further note that-Rule ~6(b)(3) extends work product protection to
materials prepared by non-lawyers when the paramount purpose for generating the
materials is litigation Id [D]etermination of whether a document was prepared in
anticipation of litigation or in the ordinary course ofbusiness is a factual one which is
examined on a case-by-case basis State ex reI Erie Ins Property ampCas Co v Mazzone
648 SE2d 31 42~ 220 WYa 525 536 (2007) (internal citations omitted)
28 This case--by-case determination necessitates an in camera review of all documents for
which a privilege is claimed
29 The legal duty of a personal representative or e-gecutor ofthe estate of a deceased under
West Virginia law is as follows
The personal representative of the estate of a deceased acts in a fiduciary capacity His duty is to manage the estate under his control to the advantage of those interested in it and to act on their behalf In the discharge of this duty the executor or administratot of a decedents estate is held to thehighest degree of good faith and is required to exercise the ordinary care and reaso~able diligence which prudent persons ordinarily exercise under like circumstances in their own personal affairs j Syl pt 1 Latimer v
Page 16 of2S
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Mar 23 2017 339PM No 3265 P 1826
MechlingI71 WVa 729 301 SE2d 819 (1983) SyI Pt2 Pickens v Tribble 236 WVa 670 783 SE2d 310312 (2016)
30 Applied to the case at bar the legal duty of Huntington as Executor ofthe
Estate ofJames D Gandee under West Virginia law is as follows
Its duty is to manage the Gandee Estate under its control to the advantage ofthose interested in it and to act on their pehalf Further in the discharge ofits duty Huntington National Bank is held to the highest degree of good faith and is required to exercise the ordinary care and reasonable diligence which prudent persons ordinarily exercise under like circumstances in theiJ own personal affairs) Syl pt 1 Latimer v Mechling 171 W_Va 729 301 SE2d 819 (1983) Syi Pt 2 Pickens v Trtbble 236 WVa 670) 783 SE2d 310 312 (2016)
31 The Court concludes that the ~fiduciary exception legal principle bas not been directly
addressed by the West Virginia Supreme Court of Appeals and if presented would be a
question of first impression in West ViIginia See Plaintiffs Supplemental Response
(Exhibit G h~rein)
32 ~laintiff the Gandee Trust chose not to request that a certified question be submitted
regarding fiduciary exception because of the attendant delay~ it is ready for trial and
further asserted and requested that Allstate v Gaughan and existing case law be applied
to the Civil Action See Plaintiffs Supplemental Response (Exhibit G)
33 In the case ofState ex rel- Allstate 117SUtattce Company v Gaughan 508 SB 2d 75 CW
Va 1998) the West Virginia Supreme Court addressed the application of the attorneyshy
client prlVilege and work product rule in a third party bad faith insurance action where
the insured had signed a release ofhislher bad faith claim to the plaintiff InAllstate v
Gaughan the Courts conclusion that the attorney retained by the insurance company
really represents the insured was param01mt in rejecting prior rulings in third party bad
faith cases-Page 11 of25
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Mar232017 339PM No 3265 P 1926
34 In Allstate v Gaughan the Court focused on the point in time where the mutual or
conunon interest of the insurance company and insured terminated and broke off which
in that case was the date that plaintiff filed suit against the insurance company
35 Further anticipation of a law suit is insufficient to trigger work product protections as
stated in the Litigation Handbook on the Rules ofCivil Procedure (hereinafter Litigation
Handbook) Cleck1ey~ Davis amp PalmeJ Fourth Edition at page 723
the mere possibility that litigation may occur or even the mere fact that litigation does eventually ensue is insufficient to cloak materials with the mantle ofwork product protection
36 The Court concludes that in the instant Civil Action the mutual Or common interest of
Huntington as Executor and the Gandee Trust as beneficiary terminated and broke off
on March 9 2016 ilie date when the Gandee Trust filed its Joinder Motion
approximately one (1) month after its appointment as Trustee
37 The facts in this Civil Action are Illore compelling than in Allstate v Gaughan as a
fiduciary relationship exists in the instant case as opposed to contractual relationship as
in theAilstate v Gaughan case InAllstate v Gaughan the insured paid for no legal fees
ofthe insurer whereas in the instant matter the beneficiary (the Gandee Trust) paid for
all legal services provided by the attorney retained by Huntington through June 12016
38 Therefore for all the reasons set forth above the Court concludes that application ofthe
holdings inAllstate v Gaughan are proper to apply in the instant case as modified below
a Allstate v Gaughan is precedent for the conclusion that in the instant Civil Action the
time when the mutual interest of Defendant and the Gandee Trust terminated
(plaintiffs filing of complaint in Allstate v Gaughan) is the date ofMarch 92016
Page 18 of25
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Mar 23 2017 340PM No 3265 P 2026
h In line vvith the precedent in Allstate v Gaughan~ communications and documents
generated prior to March 9~ 2016 are presumptively considered not protected by
attorney-client privilege or work product protection
c InAllstate 11 Gaughan the Court crafted a quasi attorney-client privilege in order to
protect Insurers comm1l11ications with their Insured from being discoverable by tbirdshy
parties under very specific circumstances As the elements of proof for breach of
fiduciary duty in the instant Civii Action are so different than elements of a bad faith
claim the Court concludes that Allstate v Gaughan does not provide quasi attomeyshy
client privilege to the Huntingtons communications regarding estate administration
d Allstate v Gaughan provides guidelines to detennine whether a docuruent satisfied the
work product rule and guidelines for determining whether a compelling need exists to
receive a document which otherwise afforded work product protection These
guidelines serve as precedent in this Civil Action The Court notes that existing case
law also set forth the same holdings as in Allstate v Gaughan and also addresses
traditional attorney-client privilege guidelines fox determining whether a document
satisfies the work product rule and whether a compelling need exists to obtain a
document which satisf1es the work product true
ORDER
Based upon all pleadings and documents referenced herein (Exhibits A-I) atguments
presented by counsel at hearirlgs research of legal authorities and its findings of fact and
conclusions oflaw the Court hereby ORDERS that Allstate v Gaughan supra and existing West
Virginia law be applied to this Civil Action pursuant to the Orders set forth below
1 For purposes ofclarity and consistency the follOWing tenns used in this Order shall have
the same meaning as such terms are used in Allstate v Gaughan traditional attorney-
Page 19 of2S
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Mar232017 340PM No 3265 P 21126
client privilege work product rule and work product protection As discussed in
the December 222016 hearing the difference in opinion work product and fact work
product must be evaluated by the Special Commissioner and this Court
2 The Court ORDERS the materials previously reviewed in camera on December 22I1d
2016 by the Court and Discovery Commissioner and detennined to be discoverable to
be disclosed to the Plaintiffs for the reasons set forth above and at the hearing The Court
notes the Defendants objection
3 The Court DENIES the Defendants Motion for Protective Order precluding
consideration of the fiduciary exception for the reasons set forth above and at the
hearing The Court notes the Defendants objection
4 The Court GRANTS the Plaintiffs Mcgttion to Compel Defendant to Submit a
Supplemental Privilege Log as identified below The Supplemental Privilege Log is to
be supplied to the Court and Discovery Commissioner with attached documents and in
the form articulated below foran in camera review The Court notes the Defendants
objection
5 On December 22 2016 this Court ordered that Defendant provide a Supplemental
Privilege Log to this Court on or before January 6 2017 setting forth all communications
and documents for which Defendant claims attomey~client privilege or work product in
this case This Court hereby AMENDS the January 6 2017 deadline to AprilSth 2017
and AMENDS AND REFINES such Order as set forth below where all communications
and documents to be listed in the Supplemental Privilege Log are described
6 Defendant shall submit to this Court on or before April 5th 2017 a Supplemental
Privilege Log which lists all infonnation sought by discovery fOJ which a privilege is
claimed to be separated and identified into four separate groups The first tWo groups
Page 20 of25
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Ma r 23 2017 3 40 PM No 3265 P 2226
Group A and Group B include all communications- this includes letters omails and
other correspondence either written or vetbal The second two groups Group C and
Group D include all Documents Bach piece of evidence will be numbered individually
within the respective Group beginning with 1
a Group A Attorney~Client Privilege Communications Prior to March 9 2016 In
line withAllstate v Gaughan all communications relating to the Gandee Estate which
Defendant claims are protected by traditional attorney-client privilege generated prior
to March 92016 ate Group A Communications
b Group B Communications Genex-ated on or After March 9 2016 Note that
Allstate v Gaughan provides that all communications generated after the plaintiff qIed
suit (March 9 2016 in this Civil Action) must be specifically identified and requested
as opposed to a general request so centat a Circuit Court is notunduly burdenedin review
thereof However Huntington continued to have the highest duty under law to the
Gandee Trust as Executor after March 9 2016 Further Huntington decided to have
one law fum represent it as Executor and as Defendant in this matter and to have that
one law finn partiCipate in most estate adrobJistratio~ matters Although it will requjre
additional time by the Special Commissioner and this Court to review documents in
light of the above facts~ the Court ORDERS that the general request for
communications already made is sufficient without need for specific reference for all
Group B Communications generated from March 9 2016 through June 5 2016 June
5 2016 is the date when Executor _activity and conflict of interest decreased when all
Gandee Estate assets were distributed to the Gandee Trust
c Additionally any communication generated after June 5 2016 which relates solely to
the administration of the Gandee Estate or which in any manner relates to a
PageZ1of25
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Mar 23 2017 341PM No 3265 P 2326
conununication with the Sheriffs Office or the ATF regarding guns owned by the
Gandee Estate shall also be a Group B Communication
d Group C Work Product Rule Documents Generated Prior to March 9 2016 Each
document relating to the Gandee Estate for which Defendant claims work product
protection and which was generated or prepared prior to March 92016 is a Group C
Document
e Group D Work Product Rule Documents Generated on or After March 9 2016
The considerations and analysis set forth in Section (5)(a) above with regatd to
attorney-client privilege also applies to docU1ll8nts for which work product protection
is claimed by Defendant As such all documents generated for the period ofMarch 9
2016 through June 5 2016 ate Group D DOCUIllents and the general request already
made for documents is sufficient Gronp D Documents also mcludes any document
generated after June 5 2016 which relates to estate administration andor any document
relating to the guns owned by the Gandee Estate
7 Additionally~ written analysis shall be provided by Defendant with the Supplemental
Privilege Log on AprilSth 2017 to meet its burden of pro~f that each Group A andor
B Communication satisfies attorney-client privilege (if so claimed by Defendant)
Further Defendant shall provide a written analysis to prove that each Group C andor D
Document qualifies for work product protection Additionally Defendant shall provide
an exp1anation for each CommUnication and Document as to why it was necessary to
retain outside legal counsel for suchmatter and how the advice is legal advice as opposed
to routine estate administration adVice
8 WIthout limiting the foregoing each and every communication or document which has
already been provided by Huntington to the Gandee Trust in redacted form shall be listed
Page22of25
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Mar 23 2017 341PM No 3265 P 2426
in the Supplemental Privilege Log and attached to the Supplemental Privilege Log
without any redactions
9 The Special Conunissioner shall render a Report on which Group A and Group B
Communications satisfy attorney-client privilege whioh do not and why He shall also
include in his Supplemental Report which Group C andor Group D Documents satisfY
all requirements for work product priilege which do not and why
10 Additionally for all Communications and Documents which he finds satisfy attomeyshy
client privilege and work product protection he shallstate whether it was reasonable or
necessary for Defendant to utilize cmIDsel in such matter
11 Additionally for each Group Cor Gronp D Documentwbich qualifies fot work product
protection he shall find whether Plaintiff has a compelling need for such document In
that regard the Gandee Trust may provide an analysis within twenty (20) days after the
entry of this Order providing its analysis of compelling need for types or categories of
documents Ifthe Special Commissioner needs additional information he shall so infom
the Court
12 Undet the Courts guidelines in Allstate v Gaughan and the reasoning set forth above
Communications prior to March 9 2016 would generally not be privileged and
Documents generated prior to March 9 2016 would generally not qualify for work
product protection
13 As per Conclusions of Law 38(c) Huntington is not entitled to quasi attorney-client
privilege regarding Huntingtons communications regarding estate administration
14 As there was conflicting proffer of counsel at the January 42017 hearing Defendant
shall include with the Supplemental Privilege Log all billings by Frost Brown amp Todd
Page 23 of25
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Ma r 23 2017 3 41 PM No 3265 P 2526
through June I 2016 to Huntington to be paid by Huntington for representation of
Huntington for its litigation representation and payments thereon
15 Notwithstanding any other provision in this Order The Special Comnrissioner in bis
review of all conununications and documents shall identify any communication or
document which meets the guideline for the crimefraud exception as such exception
is set forth in Brison v Kaufinan The Special Commissioner shall be provided a copy
of the Amended Complaint to be apprised of factual circumstances which the Gandee
Trust bas alleged constitute bad faith by defendant
16 In the Supplement to Response to Defendants Motion for Protective Order filed by the
Gandee Trust a request was made under WVRCP 37(a)(4) that Huntington be required
to pay for all attorney fees ofthe Gandee Trust by payment ofthe hours spent by outside
counsel to the Gandee TrtlSt multiplied times their standard hourly rate for all work
relating to attorney-client privilege and work product protection for all legal services
rendered above and beyond its Motion to Compel documents and the hearing on October
242016 including appeals
The Court will address such request after it has completed its in-camera review
and entered an 9rder as to the communications and documents which must be provided to Plaintiff
A subsequent hearing shall be held ifneeded
17 The Court further ORDERS that all communications and docmnents to be provided to
the Gandee Trust by the ultimate Order entered by the Court after full in-camera review
shall be provided to the Gandee Trust and not Plamtiffs Dr Gandees Daughters
Plaintiffs Dr Gandees Daughters may make a motion requesting all or a portion of
such material if they so choose and all parties will have a right to subroit motions and
legal memoranda on such matter
Page 24 of2S
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Mar 23 2017 341PM No 3265 P 2626
18 Finally it is ORDERED that the Clerk of this Court mail andor ~therwise provide a
certified copy of this Order to all parties of record
ENTERED tbis ~rtJay ofMarch 2017
c c ~ 1lQ)m -- ct)02 It l Cp b- etJ82 1U
I) -()-fo W middot0cJraquo rqcIe O~f1IO 11 -ujtJ
S--of ltW r-) FiE
~ ~
f om tl1e records ITEST A trueJO~~the Clerk otthe (l~at~tdClnoulirtleo~ ~cpshur County West ClrCUI Virginia
Given under my hancl---l~~Pd~hiCDF
Page2S of25
PAGE 2626 RCVD AT 32312017 341 05 PM ~astem Daylight Time] I SVRPRFAX010 t DNIS1780115 t CSID t DURATION (mmss)D734 APP 000026
IN TIlE c~~tifiC0b1tf6iitiPSHUR COUNTY WEST VIRGINIA ~
DEANNAD GANDEE et aI
PLAINTIFF
vs Crvn ACTION NO lS-C-98
HUNTINGTON BANCSHARES INC et al
DEFENDANT
DISCOVERY COMMISSIONER REPORT
The Discovery Commissioner has reviewed the 1159 pages of e-mails that were provided in
this matter Upon review of the same it appears that there are two different groups of e-mails
1 E-mails relating to the pending litigation that are attorneyclient privilege type e-mails
2 E-mails that are referencing the administration and handling of the Estate
The e-mails which are attributable to the handling of the Estate should be discoverable in this
matter as the issues involved in litigation deal with breach of fiduciary duty I have prepared a
separate sheet setting forth the e-mails that I contend would be discoverable including a copy of the
same for the review of the Court This sheet and list of e-mails will be provided only to the Court for
review and determination of whether they should be disclosed to counsel
rin B NaImers 6358 Discovery Commissioner
APP 000409
CERTIFICATE OF SERVICE
[h I Steven B Nanners do hereby certify that on the it day of December 2016 I served the
following Discovery Commissioner Report by depositing a true copy thereof mthe UmtedStates
Mail in an envelope with sufficient postage attached thereto addressed to the following
Jared M Tully Esq Frost Brown Todd Laidley Tower Suite 401 500 Lee Street Charleston West VIrginia 25301
Alan S Brown Esq Frost Brown Todd 201 North illinois Street - Suite 1900 Indianapolis IN 46204
Gerald R Lacy Esq Lacy Law Offices LC 103 Pennsylvania Avenue PDBox589 Charleston West VIrginia 25322
Gordon C Lane Sr Lane amp Young 1538 Kanawha Blvd East Charleston WesfVIrginia 25311
S~~n B Nanners 6358 Discovery Commissioner Law Offices of Nanners amp Willett LC 45 West Main StreetmiddotU ( Buckhannon West VIrginia 26201 304-472-2048
APP000410
Mar 23 2017 337PM No 3265 P 1126
CONCLUSIONS OF LAW
1 A threshold issue regarding all discovery requests is relevancy This is so because [t]he
question of the relevancy of the information sought through discovery essentially
involves a dete1lllination of how substantively the infom1ation requested bears on the
issues to be tried State ex reI Erie Ins Property amp Cas Co v Mazzone 625 SE2d
355358218 WVa 593596 (2005) citing SyI Pt 4 in part State Farm Mut AutoIns
Co v Stephens 188 WVa 622425 SE2d 577 (1992)
2 It is only after information is determined to be relevant that consideration is given to
whether the infonnation is subject to exclusion based upon the absolute or conditional
privilege of attorney-client communications or work-product information respectively
State ex reI Erie Ins Property ~ Cas Co v Mazzone 625 SE2d 355358218 WVa
593 596 (2005)
3 Relevance in the context of discovery means that the information sought is admissible
evidence or is reasonably calculated to lead to the discovery of admissible evidence
WVa RCivP 26(b)(1) see also Syl Pt 4 in part Keplinger v Virginia Elec and
Powet Co 208 WVa II 537 SE2d 632 (2000) SyI Pt 4 in part State Farm Mm
Auto Ins Co v Stephens 188 WVa 622 425 SE2d 577 (1992) State ex rel Erie
Ins Property amp Cas Co v Mazzone 625 SE2d 355 359~ 218 WVa 593597 (2005)
see also Syl Pt 5 State ex reI Montpelier US Ins Co v Bloom 757 SE2d 788 791
(2014)
4 In the present action there are factual allegations that could lead a jury to conclude that
Huntington Bank committed negligence ~reach ofits fiduciary duty bad faith and acted
with willful misconduct toward the Plaintiffs As discussed briefly in the findings offact
above thos~ alleged facts include Huntington failing to repair a hole in the roof which
Page 10 of2S
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Mar 23 2017 337PM No 3265 P 1226
allowed rainwater and animals into the home for approximately two years Huntington
failing to contact the home owners insurance regarding the damage to the home
Huntington billing approximately $9690220 for administration ofthe Gandee Estate by
outside counsel which might not be needed in routine estate administration matters
Huntington attempting to deem all information related to the administration of the
Gandee Estate as secret HuntiJigton withholding funds from the Trust in an attempt to
strong arm the beneficiaries and Trust into settlement etc
5 The information sought by the Plaintiffs is directly related to providing evidence to
support the various allegations in the complaint The infonnation from the meetings
emeils and conversations regarding the estate administration substantively beats on
the issues to be tried State ex tel Erie Ins Property amp Cos Co v Mazzone 625 SE2d
355
6 Furthermore the information is relevant in that the discovery requests are reasonably
calculated to lead to the discovery ofadmissible evidence ~ Wva RCivP 26(b )(1)
7 The issue with the discoverable information and the evidences adtnissibility revolves
atound the allegation that the Defendant placed attorneys unnecessarily in routine estate
administration matters The attorneys being present during these meetings triggers an
attorney-client privilege analysis
8 The attorney-olient privilege protects confidential communications between an attorney
and client from disclosure to encourage free and candid discussions between attorney
and client State ex ret USFampG v Canady460 SE 2d 677 (1995)
9 The attontey-client privilege is to be strictly construed against the party asserting
privilege because it is in derogation of the search for the truth and the burden of
Page 11 of25
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Mar232017 338PM No 3265 P 1326
establishing the attorney-client privilege always rests upon the party asserting it STate
ex reI USFampG v Canady~ 460 SE 2d 677 (1995)
10 The West Virginia Supreme Court ofAppeals discussed the attorney-client privilege in
State ex reI us Fidelity and Guar Co v Canady 460 SE2d 677687-88 194 WVa
431441-42 (1995) stating
The attorney-client privilege is a broad doctrine however it is not unlimited In Syllabus Point 2 of State 11
Burton 163 WVa 40 254 SE2d 129 (1979) we statedIn order to assert an atto~ey-client privilege three main elements must be present (l) both parties must contemplate that the attorney-client relationship does or will exist (2) the advice must be sought by the client from that attorney in his capacity as a legal adviser (3) the communication between the attorney and client must be identified to be confidential
11 Addressing the attorney-client privilege requires the identification of the parties involved
relevant to this litigation at the time of the communioations to wit HlIDtington was acting
8$ Executor of the Estate of James D Gandee Dr Gandees will named Dr Gandees
- - Daughtersand the Gandee Trust as beneficiaries and the Gandee Trust named Gandees
Daughters as primary beneficiaries
12 Huntington asserts that attorney-client privilege applies and therefore necessarily alleges
all tbtee elements are met
13 The First Element of attomey-client privilege requires that the parties to the
conununication contemplate that the attorney-client relationship does or will exist
Huntington alleges that the attorney-client relationship exists by virtue of the attorneys
being present
14 The Second element of attomey~client privilege requires that the client must seek the
advice ofan attorney and that the attorneys advice must be in the attorneys capacity as
Page 12 of25
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Ma r 23 2017 3 38PM No 3265 P 1426
a legal adViSOt This element is highly questionable as it has been alleged that the
Defendants utilized attorneys in routine estate administration which an expert alleges
was primarily outside of the prevue of a legal advisor However it is difficult for the
Court to determine this without an itl camera review of all of the evidence alleged to be
confidential by attoroey-client privilege from Huntingtons Estate administration
15 The Third element of attorney-client privilege requires that the communication between
the attomey and the client must be identified as confidential Here again without review
of the information alleged to be confidential the Court cannot detennine if the
information was identified as confidential
16 Therefore the Court concludes there is a question of whether attomey client privilege
even applies to the communications at issue in this case It is therefore necessary for the
Court to conduct an in camera review of the materials in order to make further
determinations
17 Further there bas been a question raised Jegarding the applicability of the work product
doctrine regarding materials sought by tb~ Plaintiffs from the Defendant specifically
estate administration meeting notes
18 Rule 26(b)(3) of the West Virginia Rules ofeivil Procedure states
(3) Trial Preparation Materials Subject to the provisiOns of subdivision (b)(4) of this rule a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(l) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other PartYs representative (including the partys attoOley consultant surety indemnitor insurer or agent) only upon a shoWing that the party seeking discovery has substantial need ofthe materials in the preparation of the partys case and that the party is unable without undue hardshlp to obtain the substantial equivalent ofthe materials by other means In ordering discovery of such materials when the required showing has been made the court shall protect against disclosure ofthe mental impressions conclusions opinions or legal
Page 13 of25
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Mar 23 2017 338PM No 3265 P 1526
theories of an attorney or other representative of a party concerning the litigation
19 laquoThe work product doctrine creates a fom of qualified immunity from discovery but it
does not label protected material as privileged and thus outside the scope of discovery
under Rule 26(b)(l) Litigation Handbook sect 26(b)(3) at 721 (2012) State ex reI
Chaparro v Wilkes 438 SE2d 575 577-78 190 WVa 395 397-98 (1993)
20 The Supreme Court of Appeals of West Virginia has long recogoiz~d a distinction
between factual work product and opinion work produ~t holding
Where factual work product is involved the party demancling production must show a substantial need for the material in the sense that he cannot obtain the same or its equivalent through other means ltwithout undue hllldship Where opinion work product is involved the showing reqlrired to obtain discovery is even stronger because the rule states that the court sluill protect against disclosure ofmeota1 impressions conclusion opinions or legal theories
State ex reI Chaparro v Wilkes 438 SE2d575 577-78190 WVa 395 397-98 (1993)
bold added Citing In re Markle 174 WVa at 556-57 328 SE2d at 163 (1984)
21 Factual work product has been defined bythe Supreme Court of Appeals of West
Virginia as
[F]actual work product refers to documents and tangible things that were prepared in anticipation oflitigation or for trial (l) by or for a party or (2) by or fat that partys representative which includes an attomey consultant surety indemnitor insurer or agent When factual work product is involved the party demancling production must show a ltsubstantial need for the material and establish that the same material or its equivalent cannot be obtained through other means without undue hacdship
State ex reI Erie Ins Property amp Cas Co v Ma~one 625 SE2d 355361218 WVa
593 599 (2005) citing Litigation Handbook on West Virginia Rules ofCMl ProcedUre
sect 26(b)(3) at 557 (2000)
Page 14 of2S
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Mar 23 2017 338PM No 3265 P 1626
22 ~SubstantiaI need may be independently established where it is ShOVVll that the requested
infonnation relates to essential elements ofthe requesting partys cause ofaction and the
information is not reasonably reproducible by the requesting patty Ot obtainable by other
means See Litigation Handbook sect 26(b)(3) at 721 (2012)
23 In the current case factual infonnation regarding Huntingtons administration of the
estate is contained in the estate meeting notes The administration of the estate directly
relates to the essential elements of the c~uses of action resulting from the alleged
misadministration of the estate and is not reasonably reproducible by the Plaintiffs or
obtainable by other means
24 In the current case the Plaintiffs are unable to obtain the information from those
meetings through any other means other than discovery Any attempt to obtain the
infOllIlation through discovery will result in a question of whether attorney client
privilege applies as occurred in the deposition ofMs Parsons (Exhibit 11 to Plain1iffs
Supplemental Response - ExhibifG herein)
25 As the only factual information available pertaining to the estate administration is from
the various meetings dealing with estate administration and email correspondence
dealing with estate administration a substantial need clelllly exists which would require
the Defendants to provide those documents to the Plaintiffs Provided that any
information requested by the Defendants can be reviewed in camera iffurther objections
arise to infonnation contained in those documents
26 Opinion work product consists of lI1ental impressions) conclusion opinions or legal
theories found in factual work product and requires a much stronger showing in order for
it to be released See Litigation Handbook sect 26(b)(3) at 722 (2012) Opinion work
product is only discoverable in very rare and extraordinary circumstances Id
Page 15 of25
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Mar232017 339PM No 3265 P 1726
27 Documents prepared in anticipation of litigation were addressed State ex reZ Erie Ins
Property amp Cas Co vMazzone 648 SE2d 31 38 220 WVa 525 532 (2007) in
which the Court held in syllabus point seven of State ex reZ United Hospital Center
~nc v Bedell that middotin order bull [t]o determine whether a document was prepared in
anticipation of litigation and~ is therefore protected from disclosure under the work
product doctrine the primary motivating purpose behind the creation of the document t
must have been to assist in pending or probable futuJe litigation 199 WVa at 320 484
SE2d at 203 This means that the documents must not be prepared in the course of
everyday business Because the preparers ofilie reser~es information in the instant case
were non-lawyers we further note that-Rule ~6(b)(3) extends work product protection to
materials prepared by non-lawyers when the paramount purpose for generating the
materials is litigation Id [D]etermination of whether a document was prepared in
anticipation of litigation or in the ordinary course ofbusiness is a factual one which is
examined on a case-by-case basis State ex reI Erie Ins Property ampCas Co v Mazzone
648 SE2d 31 42~ 220 WYa 525 536 (2007) (internal citations omitted)
28 This case--by-case determination necessitates an in camera review of all documents for
which a privilege is claimed
29 The legal duty of a personal representative or e-gecutor ofthe estate of a deceased under
West Virginia law is as follows
The personal representative of the estate of a deceased acts in a fiduciary capacity His duty is to manage the estate under his control to the advantage of those interested in it and to act on their behalf In the discharge of this duty the executor or administratot of a decedents estate is held to thehighest degree of good faith and is required to exercise the ordinary care and reaso~able diligence which prudent persons ordinarily exercise under like circumstances in their own personal affairs j Syl pt 1 Latimer v
Page 16 of2S
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Mar 23 2017 339PM No 3265 P 1826
MechlingI71 WVa 729 301 SE2d 819 (1983) SyI Pt2 Pickens v Tribble 236 WVa 670 783 SE2d 310312 (2016)
30 Applied to the case at bar the legal duty of Huntington as Executor ofthe
Estate ofJames D Gandee under West Virginia law is as follows
Its duty is to manage the Gandee Estate under its control to the advantage ofthose interested in it and to act on their pehalf Further in the discharge ofits duty Huntington National Bank is held to the highest degree of good faith and is required to exercise the ordinary care and reasonable diligence which prudent persons ordinarily exercise under like circumstances in theiJ own personal affairs) Syl pt 1 Latimer v Mechling 171 W_Va 729 301 SE2d 819 (1983) Syi Pt 2 Pickens v Trtbble 236 WVa 670) 783 SE2d 310 312 (2016)
31 The Court concludes that the ~fiduciary exception legal principle bas not been directly
addressed by the West Virginia Supreme Court of Appeals and if presented would be a
question of first impression in West ViIginia See Plaintiffs Supplemental Response
(Exhibit G h~rein)
32 ~laintiff the Gandee Trust chose not to request that a certified question be submitted
regarding fiduciary exception because of the attendant delay~ it is ready for trial and
further asserted and requested that Allstate v Gaughan and existing case law be applied
to the Civil Action See Plaintiffs Supplemental Response (Exhibit G)
33 In the case ofState ex rel- Allstate 117SUtattce Company v Gaughan 508 SB 2d 75 CW
Va 1998) the West Virginia Supreme Court addressed the application of the attorneyshy
client prlVilege and work product rule in a third party bad faith insurance action where
the insured had signed a release ofhislher bad faith claim to the plaintiff InAllstate v
Gaughan the Courts conclusion that the attorney retained by the insurance company
really represents the insured was param01mt in rejecting prior rulings in third party bad
faith cases-Page 11 of25
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Mar232017 339PM No 3265 P 1926
34 In Allstate v Gaughan the Court focused on the point in time where the mutual or
conunon interest of the insurance company and insured terminated and broke off which
in that case was the date that plaintiff filed suit against the insurance company
35 Further anticipation of a law suit is insufficient to trigger work product protections as
stated in the Litigation Handbook on the Rules ofCivil Procedure (hereinafter Litigation
Handbook) Cleck1ey~ Davis amp PalmeJ Fourth Edition at page 723
the mere possibility that litigation may occur or even the mere fact that litigation does eventually ensue is insufficient to cloak materials with the mantle ofwork product protection
36 The Court concludes that in the instant Civil Action the mutual Or common interest of
Huntington as Executor and the Gandee Trust as beneficiary terminated and broke off
on March 9 2016 ilie date when the Gandee Trust filed its Joinder Motion
approximately one (1) month after its appointment as Trustee
37 The facts in this Civil Action are Illore compelling than in Allstate v Gaughan as a
fiduciary relationship exists in the instant case as opposed to contractual relationship as
in theAilstate v Gaughan case InAllstate v Gaughan the insured paid for no legal fees
ofthe insurer whereas in the instant matter the beneficiary (the Gandee Trust) paid for
all legal services provided by the attorney retained by Huntington through June 12016
38 Therefore for all the reasons set forth above the Court concludes that application ofthe
holdings inAllstate v Gaughan are proper to apply in the instant case as modified below
a Allstate v Gaughan is precedent for the conclusion that in the instant Civil Action the
time when the mutual interest of Defendant and the Gandee Trust terminated
(plaintiffs filing of complaint in Allstate v Gaughan) is the date ofMarch 92016
Page 18 of25
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Mar 23 2017 340PM No 3265 P 2026
h In line vvith the precedent in Allstate v Gaughan~ communications and documents
generated prior to March 9~ 2016 are presumptively considered not protected by
attorney-client privilege or work product protection
c InAllstate 11 Gaughan the Court crafted a quasi attorney-client privilege in order to
protect Insurers comm1l11ications with their Insured from being discoverable by tbirdshy
parties under very specific circumstances As the elements of proof for breach of
fiduciary duty in the instant Civii Action are so different than elements of a bad faith
claim the Court concludes that Allstate v Gaughan does not provide quasi attomeyshy
client privilege to the Huntingtons communications regarding estate administration
d Allstate v Gaughan provides guidelines to detennine whether a docuruent satisfied the
work product rule and guidelines for determining whether a compelling need exists to
receive a document which otherwise afforded work product protection These
guidelines serve as precedent in this Civil Action The Court notes that existing case
law also set forth the same holdings as in Allstate v Gaughan and also addresses
traditional attorney-client privilege guidelines fox determining whether a document
satisfies the work product rule and whether a compelling need exists to obtain a
document which satisf1es the work product true
ORDER
Based upon all pleadings and documents referenced herein (Exhibits A-I) atguments
presented by counsel at hearirlgs research of legal authorities and its findings of fact and
conclusions oflaw the Court hereby ORDERS that Allstate v Gaughan supra and existing West
Virginia law be applied to this Civil Action pursuant to the Orders set forth below
1 For purposes ofclarity and consistency the follOWing tenns used in this Order shall have
the same meaning as such terms are used in Allstate v Gaughan traditional attorney-
Page 19 of2S
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Mar232017 340PM No 3265 P 21126
client privilege work product rule and work product protection As discussed in
the December 222016 hearing the difference in opinion work product and fact work
product must be evaluated by the Special Commissioner and this Court
2 The Court ORDERS the materials previously reviewed in camera on December 22I1d
2016 by the Court and Discovery Commissioner and detennined to be discoverable to
be disclosed to the Plaintiffs for the reasons set forth above and at the hearing The Court
notes the Defendants objection
3 The Court DENIES the Defendants Motion for Protective Order precluding
consideration of the fiduciary exception for the reasons set forth above and at the
hearing The Court notes the Defendants objection
4 The Court GRANTS the Plaintiffs Mcgttion to Compel Defendant to Submit a
Supplemental Privilege Log as identified below The Supplemental Privilege Log is to
be supplied to the Court and Discovery Commissioner with attached documents and in
the form articulated below foran in camera review The Court notes the Defendants
objection
5 On December 22 2016 this Court ordered that Defendant provide a Supplemental
Privilege Log to this Court on or before January 6 2017 setting forth all communications
and documents for which Defendant claims attomey~client privilege or work product in
this case This Court hereby AMENDS the January 6 2017 deadline to AprilSth 2017
and AMENDS AND REFINES such Order as set forth below where all communications
and documents to be listed in the Supplemental Privilege Log are described
6 Defendant shall submit to this Court on or before April 5th 2017 a Supplemental
Privilege Log which lists all infonnation sought by discovery fOJ which a privilege is
claimed to be separated and identified into four separate groups The first tWo groups
Page 20 of25
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Ma r 23 2017 3 40 PM No 3265 P 2226
Group A and Group B include all communications- this includes letters omails and
other correspondence either written or vetbal The second two groups Group C and
Group D include all Documents Bach piece of evidence will be numbered individually
within the respective Group beginning with 1
a Group A Attorney~Client Privilege Communications Prior to March 9 2016 In
line withAllstate v Gaughan all communications relating to the Gandee Estate which
Defendant claims are protected by traditional attorney-client privilege generated prior
to March 92016 ate Group A Communications
b Group B Communications Genex-ated on or After March 9 2016 Note that
Allstate v Gaughan provides that all communications generated after the plaintiff qIed
suit (March 9 2016 in this Civil Action) must be specifically identified and requested
as opposed to a general request so centat a Circuit Court is notunduly burdenedin review
thereof However Huntington continued to have the highest duty under law to the
Gandee Trust as Executor after March 9 2016 Further Huntington decided to have
one law fum represent it as Executor and as Defendant in this matter and to have that
one law finn partiCipate in most estate adrobJistratio~ matters Although it will requjre
additional time by the Special Commissioner and this Court to review documents in
light of the above facts~ the Court ORDERS that the general request for
communications already made is sufficient without need for specific reference for all
Group B Communications generated from March 9 2016 through June 5 2016 June
5 2016 is the date when Executor _activity and conflict of interest decreased when all
Gandee Estate assets were distributed to the Gandee Trust
c Additionally any communication generated after June 5 2016 which relates solely to
the administration of the Gandee Estate or which in any manner relates to a
PageZ1of25
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Mar 23 2017 341PM No 3265 P 2326
conununication with the Sheriffs Office or the ATF regarding guns owned by the
Gandee Estate shall also be a Group B Communication
d Group C Work Product Rule Documents Generated Prior to March 9 2016 Each
document relating to the Gandee Estate for which Defendant claims work product
protection and which was generated or prepared prior to March 92016 is a Group C
Document
e Group D Work Product Rule Documents Generated on or After March 9 2016
The considerations and analysis set forth in Section (5)(a) above with regatd to
attorney-client privilege also applies to docU1ll8nts for which work product protection
is claimed by Defendant As such all documents generated for the period ofMarch 9
2016 through June 5 2016 ate Group D DOCUIllents and the general request already
made for documents is sufficient Gronp D Documents also mcludes any document
generated after June 5 2016 which relates to estate administration andor any document
relating to the guns owned by the Gandee Estate
7 Additionally~ written analysis shall be provided by Defendant with the Supplemental
Privilege Log on AprilSth 2017 to meet its burden of pro~f that each Group A andor
B Communication satisfies attorney-client privilege (if so claimed by Defendant)
Further Defendant shall provide a written analysis to prove that each Group C andor D
Document qualifies for work product protection Additionally Defendant shall provide
an exp1anation for each CommUnication and Document as to why it was necessary to
retain outside legal counsel for suchmatter and how the advice is legal advice as opposed
to routine estate administration adVice
8 WIthout limiting the foregoing each and every communication or document which has
already been provided by Huntington to the Gandee Trust in redacted form shall be listed
Page22of25
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Mar 23 2017 341PM No 3265 P 2426
in the Supplemental Privilege Log and attached to the Supplemental Privilege Log
without any redactions
9 The Special Conunissioner shall render a Report on which Group A and Group B
Communications satisfy attorney-client privilege whioh do not and why He shall also
include in his Supplemental Report which Group C andor Group D Documents satisfY
all requirements for work product priilege which do not and why
10 Additionally for all Communications and Documents which he finds satisfy attomeyshy
client privilege and work product protection he shallstate whether it was reasonable or
necessary for Defendant to utilize cmIDsel in such matter
11 Additionally for each Group Cor Gronp D Documentwbich qualifies fot work product
protection he shall find whether Plaintiff has a compelling need for such document In
that regard the Gandee Trust may provide an analysis within twenty (20) days after the
entry of this Order providing its analysis of compelling need for types or categories of
documents Ifthe Special Commissioner needs additional information he shall so infom
the Court
12 Undet the Courts guidelines in Allstate v Gaughan and the reasoning set forth above
Communications prior to March 9 2016 would generally not be privileged and
Documents generated prior to March 9 2016 would generally not qualify for work
product protection
13 As per Conclusions of Law 38(c) Huntington is not entitled to quasi attorney-client
privilege regarding Huntingtons communications regarding estate administration
14 As there was conflicting proffer of counsel at the January 42017 hearing Defendant
shall include with the Supplemental Privilege Log all billings by Frost Brown amp Todd
Page 23 of25
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Ma r 23 2017 3 41 PM No 3265 P 2526
through June I 2016 to Huntington to be paid by Huntington for representation of
Huntington for its litigation representation and payments thereon
15 Notwithstanding any other provision in this Order The Special Comnrissioner in bis
review of all conununications and documents shall identify any communication or
document which meets the guideline for the crimefraud exception as such exception
is set forth in Brison v Kaufinan The Special Commissioner shall be provided a copy
of the Amended Complaint to be apprised of factual circumstances which the Gandee
Trust bas alleged constitute bad faith by defendant
16 In the Supplement to Response to Defendants Motion for Protective Order filed by the
Gandee Trust a request was made under WVRCP 37(a)(4) that Huntington be required
to pay for all attorney fees ofthe Gandee Trust by payment ofthe hours spent by outside
counsel to the Gandee TrtlSt multiplied times their standard hourly rate for all work
relating to attorney-client privilege and work product protection for all legal services
rendered above and beyond its Motion to Compel documents and the hearing on October
242016 including appeals
The Court will address such request after it has completed its in-camera review
and entered an 9rder as to the communications and documents which must be provided to Plaintiff
A subsequent hearing shall be held ifneeded
17 The Court further ORDERS that all communications and docmnents to be provided to
the Gandee Trust by the ultimate Order entered by the Court after full in-camera review
shall be provided to the Gandee Trust and not Plamtiffs Dr Gandees Daughters
Plaintiffs Dr Gandees Daughters may make a motion requesting all or a portion of
such material if they so choose and all parties will have a right to subroit motions and
legal memoranda on such matter
Page 24 of2S
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Mar 23 2017 341PM No 3265 P 2626
18 Finally it is ORDERED that the Clerk of this Court mail andor ~therwise provide a
certified copy of this Order to all parties of record
ENTERED tbis ~rtJay ofMarch 2017
c c ~ 1lQ)m -- ct)02 It l Cp b- etJ82 1U
I) -()-fo W middot0cJraquo rqcIe O~f1IO 11 -ujtJ
S--of ltW r-) FiE
~ ~
f om tl1e records ITEST A trueJO~~the Clerk otthe (l~at~tdClnoulirtleo~ ~cpshur County West ClrCUI Virginia
Given under my hancl---l~~Pd~hiCDF
Page2S of25
PAGE 2626 RCVD AT 32312017 341 05 PM ~astem Daylight Time] I SVRPRFAX010 t DNIS1780115 t CSID t DURATION (mmss)D734 APP 000026
IN TIlE c~~tifiC0b1tf6iitiPSHUR COUNTY WEST VIRGINIA ~
DEANNAD GANDEE et aI
PLAINTIFF
vs Crvn ACTION NO lS-C-98
HUNTINGTON BANCSHARES INC et al
DEFENDANT
DISCOVERY COMMISSIONER REPORT
The Discovery Commissioner has reviewed the 1159 pages of e-mails that were provided in
this matter Upon review of the same it appears that there are two different groups of e-mails
1 E-mails relating to the pending litigation that are attorneyclient privilege type e-mails
2 E-mails that are referencing the administration and handling of the Estate
The e-mails which are attributable to the handling of the Estate should be discoverable in this
matter as the issues involved in litigation deal with breach of fiduciary duty I have prepared a
separate sheet setting forth the e-mails that I contend would be discoverable including a copy of the
same for the review of the Court This sheet and list of e-mails will be provided only to the Court for
review and determination of whether they should be disclosed to counsel
rin B NaImers 6358 Discovery Commissioner
APP 000409
CERTIFICATE OF SERVICE
[h I Steven B Nanners do hereby certify that on the it day of December 2016 I served the
following Discovery Commissioner Report by depositing a true copy thereof mthe UmtedStates
Mail in an envelope with sufficient postage attached thereto addressed to the following
Jared M Tully Esq Frost Brown Todd Laidley Tower Suite 401 500 Lee Street Charleston West VIrginia 25301
Alan S Brown Esq Frost Brown Todd 201 North illinois Street - Suite 1900 Indianapolis IN 46204
Gerald R Lacy Esq Lacy Law Offices LC 103 Pennsylvania Avenue PDBox589 Charleston West VIrginia 25322
Gordon C Lane Sr Lane amp Young 1538 Kanawha Blvd East Charleston WesfVIrginia 25311
S~~n B Nanners 6358 Discovery Commissioner Law Offices of Nanners amp Willett LC 45 West Main StreetmiddotU ( Buckhannon West VIrginia 26201 304-472-2048
APP000410
Mar 23 2017 337PM No 3265 P 1226
allowed rainwater and animals into the home for approximately two years Huntington
failing to contact the home owners insurance regarding the damage to the home
Huntington billing approximately $9690220 for administration ofthe Gandee Estate by
outside counsel which might not be needed in routine estate administration matters
Huntington attempting to deem all information related to the administration of the
Gandee Estate as secret HuntiJigton withholding funds from the Trust in an attempt to
strong arm the beneficiaries and Trust into settlement etc
5 The information sought by the Plaintiffs is directly related to providing evidence to
support the various allegations in the complaint The infonnation from the meetings
emeils and conversations regarding the estate administration substantively beats on
the issues to be tried State ex tel Erie Ins Property amp Cos Co v Mazzone 625 SE2d
355
6 Furthermore the information is relevant in that the discovery requests are reasonably
calculated to lead to the discovery ofadmissible evidence ~ Wva RCivP 26(b )(1)
7 The issue with the discoverable information and the evidences adtnissibility revolves
atound the allegation that the Defendant placed attorneys unnecessarily in routine estate
administration matters The attorneys being present during these meetings triggers an
attorney-client privilege analysis
8 The attorney-olient privilege protects confidential communications between an attorney
and client from disclosure to encourage free and candid discussions between attorney
and client State ex ret USFampG v Canady460 SE 2d 677 (1995)
9 The attontey-client privilege is to be strictly construed against the party asserting
privilege because it is in derogation of the search for the truth and the burden of
Page 11 of25
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Mar232017 338PM No 3265 P 1326
establishing the attorney-client privilege always rests upon the party asserting it STate
ex reI USFampG v Canady~ 460 SE 2d 677 (1995)
10 The West Virginia Supreme Court ofAppeals discussed the attorney-client privilege in
State ex reI us Fidelity and Guar Co v Canady 460 SE2d 677687-88 194 WVa
431441-42 (1995) stating
The attorney-client privilege is a broad doctrine however it is not unlimited In Syllabus Point 2 of State 11
Burton 163 WVa 40 254 SE2d 129 (1979) we statedIn order to assert an atto~ey-client privilege three main elements must be present (l) both parties must contemplate that the attorney-client relationship does or will exist (2) the advice must be sought by the client from that attorney in his capacity as a legal adviser (3) the communication between the attorney and client must be identified to be confidential
11 Addressing the attorney-client privilege requires the identification of the parties involved
relevant to this litigation at the time of the communioations to wit HlIDtington was acting
8$ Executor of the Estate of James D Gandee Dr Gandees will named Dr Gandees
- - Daughtersand the Gandee Trust as beneficiaries and the Gandee Trust named Gandees
Daughters as primary beneficiaries
12 Huntington asserts that attorney-client privilege applies and therefore necessarily alleges
all tbtee elements are met
13 The First Element of attomey-client privilege requires that the parties to the
conununication contemplate that the attorney-client relationship does or will exist
Huntington alleges that the attorney-client relationship exists by virtue of the attorneys
being present
14 The Second element of attomey~client privilege requires that the client must seek the
advice ofan attorney and that the attorneys advice must be in the attorneys capacity as
Page 12 of25
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Ma r 23 2017 3 38PM No 3265 P 1426
a legal adViSOt This element is highly questionable as it has been alleged that the
Defendants utilized attorneys in routine estate administration which an expert alleges
was primarily outside of the prevue of a legal advisor However it is difficult for the
Court to determine this without an itl camera review of all of the evidence alleged to be
confidential by attoroey-client privilege from Huntingtons Estate administration
15 The Third element of attorney-client privilege requires that the communication between
the attomey and the client must be identified as confidential Here again without review
of the information alleged to be confidential the Court cannot detennine if the
information was identified as confidential
16 Therefore the Court concludes there is a question of whether attomey client privilege
even applies to the communications at issue in this case It is therefore necessary for the
Court to conduct an in camera review of the materials in order to make further
determinations
17 Further there bas been a question raised Jegarding the applicability of the work product
doctrine regarding materials sought by tb~ Plaintiffs from the Defendant specifically
estate administration meeting notes
18 Rule 26(b)(3) of the West Virginia Rules ofeivil Procedure states
(3) Trial Preparation Materials Subject to the provisiOns of subdivision (b)(4) of this rule a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(l) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other PartYs representative (including the partys attoOley consultant surety indemnitor insurer or agent) only upon a shoWing that the party seeking discovery has substantial need ofthe materials in the preparation of the partys case and that the party is unable without undue hardshlp to obtain the substantial equivalent ofthe materials by other means In ordering discovery of such materials when the required showing has been made the court shall protect against disclosure ofthe mental impressions conclusions opinions or legal
Page 13 of25
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Mar 23 2017 338PM No 3265 P 1526
theories of an attorney or other representative of a party concerning the litigation
19 laquoThe work product doctrine creates a fom of qualified immunity from discovery but it
does not label protected material as privileged and thus outside the scope of discovery
under Rule 26(b)(l) Litigation Handbook sect 26(b)(3) at 721 (2012) State ex reI
Chaparro v Wilkes 438 SE2d 575 577-78 190 WVa 395 397-98 (1993)
20 The Supreme Court of Appeals of West Virginia has long recogoiz~d a distinction
between factual work product and opinion work produ~t holding
Where factual work product is involved the party demancling production must show a substantial need for the material in the sense that he cannot obtain the same or its equivalent through other means ltwithout undue hllldship Where opinion work product is involved the showing reqlrired to obtain discovery is even stronger because the rule states that the court sluill protect against disclosure ofmeota1 impressions conclusion opinions or legal theories
State ex reI Chaparro v Wilkes 438 SE2d575 577-78190 WVa 395 397-98 (1993)
bold added Citing In re Markle 174 WVa at 556-57 328 SE2d at 163 (1984)
21 Factual work product has been defined bythe Supreme Court of Appeals of West
Virginia as
[F]actual work product refers to documents and tangible things that were prepared in anticipation oflitigation or for trial (l) by or for a party or (2) by or fat that partys representative which includes an attomey consultant surety indemnitor insurer or agent When factual work product is involved the party demancling production must show a ltsubstantial need for the material and establish that the same material or its equivalent cannot be obtained through other means without undue hacdship
State ex reI Erie Ins Property amp Cas Co v Ma~one 625 SE2d 355361218 WVa
593 599 (2005) citing Litigation Handbook on West Virginia Rules ofCMl ProcedUre
sect 26(b)(3) at 557 (2000)
Page 14 of2S
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Mar 23 2017 338PM No 3265 P 1626
22 ~SubstantiaI need may be independently established where it is ShOVVll that the requested
infonnation relates to essential elements ofthe requesting partys cause ofaction and the
information is not reasonably reproducible by the requesting patty Ot obtainable by other
means See Litigation Handbook sect 26(b)(3) at 721 (2012)
23 In the current case factual infonnation regarding Huntingtons administration of the
estate is contained in the estate meeting notes The administration of the estate directly
relates to the essential elements of the c~uses of action resulting from the alleged
misadministration of the estate and is not reasonably reproducible by the Plaintiffs or
obtainable by other means
24 In the current case the Plaintiffs are unable to obtain the information from those
meetings through any other means other than discovery Any attempt to obtain the
infOllIlation through discovery will result in a question of whether attorney client
privilege applies as occurred in the deposition ofMs Parsons (Exhibit 11 to Plain1iffs
Supplemental Response - ExhibifG herein)
25 As the only factual information available pertaining to the estate administration is from
the various meetings dealing with estate administration and email correspondence
dealing with estate administration a substantial need clelllly exists which would require
the Defendants to provide those documents to the Plaintiffs Provided that any
information requested by the Defendants can be reviewed in camera iffurther objections
arise to infonnation contained in those documents
26 Opinion work product consists of lI1ental impressions) conclusion opinions or legal
theories found in factual work product and requires a much stronger showing in order for
it to be released See Litigation Handbook sect 26(b)(3) at 722 (2012) Opinion work
product is only discoverable in very rare and extraordinary circumstances Id
Page 15 of25
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Mar232017 339PM No 3265 P 1726
27 Documents prepared in anticipation of litigation were addressed State ex reZ Erie Ins
Property amp Cas Co vMazzone 648 SE2d 31 38 220 WVa 525 532 (2007) in
which the Court held in syllabus point seven of State ex reZ United Hospital Center
~nc v Bedell that middotin order bull [t]o determine whether a document was prepared in
anticipation of litigation and~ is therefore protected from disclosure under the work
product doctrine the primary motivating purpose behind the creation of the document t
must have been to assist in pending or probable futuJe litigation 199 WVa at 320 484
SE2d at 203 This means that the documents must not be prepared in the course of
everyday business Because the preparers ofilie reser~es information in the instant case
were non-lawyers we further note that-Rule ~6(b)(3) extends work product protection to
materials prepared by non-lawyers when the paramount purpose for generating the
materials is litigation Id [D]etermination of whether a document was prepared in
anticipation of litigation or in the ordinary course ofbusiness is a factual one which is
examined on a case-by-case basis State ex reI Erie Ins Property ampCas Co v Mazzone
648 SE2d 31 42~ 220 WYa 525 536 (2007) (internal citations omitted)
28 This case--by-case determination necessitates an in camera review of all documents for
which a privilege is claimed
29 The legal duty of a personal representative or e-gecutor ofthe estate of a deceased under
West Virginia law is as follows
The personal representative of the estate of a deceased acts in a fiduciary capacity His duty is to manage the estate under his control to the advantage of those interested in it and to act on their behalf In the discharge of this duty the executor or administratot of a decedents estate is held to thehighest degree of good faith and is required to exercise the ordinary care and reaso~able diligence which prudent persons ordinarily exercise under like circumstances in their own personal affairs j Syl pt 1 Latimer v
Page 16 of2S
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Mar 23 2017 339PM No 3265 P 1826
MechlingI71 WVa 729 301 SE2d 819 (1983) SyI Pt2 Pickens v Tribble 236 WVa 670 783 SE2d 310312 (2016)
30 Applied to the case at bar the legal duty of Huntington as Executor ofthe
Estate ofJames D Gandee under West Virginia law is as follows
Its duty is to manage the Gandee Estate under its control to the advantage ofthose interested in it and to act on their pehalf Further in the discharge ofits duty Huntington National Bank is held to the highest degree of good faith and is required to exercise the ordinary care and reasonable diligence which prudent persons ordinarily exercise under like circumstances in theiJ own personal affairs) Syl pt 1 Latimer v Mechling 171 W_Va 729 301 SE2d 819 (1983) Syi Pt 2 Pickens v Trtbble 236 WVa 670) 783 SE2d 310 312 (2016)
31 The Court concludes that the ~fiduciary exception legal principle bas not been directly
addressed by the West Virginia Supreme Court of Appeals and if presented would be a
question of first impression in West ViIginia See Plaintiffs Supplemental Response
(Exhibit G h~rein)
32 ~laintiff the Gandee Trust chose not to request that a certified question be submitted
regarding fiduciary exception because of the attendant delay~ it is ready for trial and
further asserted and requested that Allstate v Gaughan and existing case law be applied
to the Civil Action See Plaintiffs Supplemental Response (Exhibit G)
33 In the case ofState ex rel- Allstate 117SUtattce Company v Gaughan 508 SB 2d 75 CW
Va 1998) the West Virginia Supreme Court addressed the application of the attorneyshy
client prlVilege and work product rule in a third party bad faith insurance action where
the insured had signed a release ofhislher bad faith claim to the plaintiff InAllstate v
Gaughan the Courts conclusion that the attorney retained by the insurance company
really represents the insured was param01mt in rejecting prior rulings in third party bad
faith cases-Page 11 of25
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Mar232017 339PM No 3265 P 1926
34 In Allstate v Gaughan the Court focused on the point in time where the mutual or
conunon interest of the insurance company and insured terminated and broke off which
in that case was the date that plaintiff filed suit against the insurance company
35 Further anticipation of a law suit is insufficient to trigger work product protections as
stated in the Litigation Handbook on the Rules ofCivil Procedure (hereinafter Litigation
Handbook) Cleck1ey~ Davis amp PalmeJ Fourth Edition at page 723
the mere possibility that litigation may occur or even the mere fact that litigation does eventually ensue is insufficient to cloak materials with the mantle ofwork product protection
36 The Court concludes that in the instant Civil Action the mutual Or common interest of
Huntington as Executor and the Gandee Trust as beneficiary terminated and broke off
on March 9 2016 ilie date when the Gandee Trust filed its Joinder Motion
approximately one (1) month after its appointment as Trustee
37 The facts in this Civil Action are Illore compelling than in Allstate v Gaughan as a
fiduciary relationship exists in the instant case as opposed to contractual relationship as
in theAilstate v Gaughan case InAllstate v Gaughan the insured paid for no legal fees
ofthe insurer whereas in the instant matter the beneficiary (the Gandee Trust) paid for
all legal services provided by the attorney retained by Huntington through June 12016
38 Therefore for all the reasons set forth above the Court concludes that application ofthe
holdings inAllstate v Gaughan are proper to apply in the instant case as modified below
a Allstate v Gaughan is precedent for the conclusion that in the instant Civil Action the
time when the mutual interest of Defendant and the Gandee Trust terminated
(plaintiffs filing of complaint in Allstate v Gaughan) is the date ofMarch 92016
Page 18 of25
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Mar 23 2017 340PM No 3265 P 2026
h In line vvith the precedent in Allstate v Gaughan~ communications and documents
generated prior to March 9~ 2016 are presumptively considered not protected by
attorney-client privilege or work product protection
c InAllstate 11 Gaughan the Court crafted a quasi attorney-client privilege in order to
protect Insurers comm1l11ications with their Insured from being discoverable by tbirdshy
parties under very specific circumstances As the elements of proof for breach of
fiduciary duty in the instant Civii Action are so different than elements of a bad faith
claim the Court concludes that Allstate v Gaughan does not provide quasi attomeyshy
client privilege to the Huntingtons communications regarding estate administration
d Allstate v Gaughan provides guidelines to detennine whether a docuruent satisfied the
work product rule and guidelines for determining whether a compelling need exists to
receive a document which otherwise afforded work product protection These
guidelines serve as precedent in this Civil Action The Court notes that existing case
law also set forth the same holdings as in Allstate v Gaughan and also addresses
traditional attorney-client privilege guidelines fox determining whether a document
satisfies the work product rule and whether a compelling need exists to obtain a
document which satisf1es the work product true
ORDER
Based upon all pleadings and documents referenced herein (Exhibits A-I) atguments
presented by counsel at hearirlgs research of legal authorities and its findings of fact and
conclusions oflaw the Court hereby ORDERS that Allstate v Gaughan supra and existing West
Virginia law be applied to this Civil Action pursuant to the Orders set forth below
1 For purposes ofclarity and consistency the follOWing tenns used in this Order shall have
the same meaning as such terms are used in Allstate v Gaughan traditional attorney-
Page 19 of2S
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Mar232017 340PM No 3265 P 21126
client privilege work product rule and work product protection As discussed in
the December 222016 hearing the difference in opinion work product and fact work
product must be evaluated by the Special Commissioner and this Court
2 The Court ORDERS the materials previously reviewed in camera on December 22I1d
2016 by the Court and Discovery Commissioner and detennined to be discoverable to
be disclosed to the Plaintiffs for the reasons set forth above and at the hearing The Court
notes the Defendants objection
3 The Court DENIES the Defendants Motion for Protective Order precluding
consideration of the fiduciary exception for the reasons set forth above and at the
hearing The Court notes the Defendants objection
4 The Court GRANTS the Plaintiffs Mcgttion to Compel Defendant to Submit a
Supplemental Privilege Log as identified below The Supplemental Privilege Log is to
be supplied to the Court and Discovery Commissioner with attached documents and in
the form articulated below foran in camera review The Court notes the Defendants
objection
5 On December 22 2016 this Court ordered that Defendant provide a Supplemental
Privilege Log to this Court on or before January 6 2017 setting forth all communications
and documents for which Defendant claims attomey~client privilege or work product in
this case This Court hereby AMENDS the January 6 2017 deadline to AprilSth 2017
and AMENDS AND REFINES such Order as set forth below where all communications
and documents to be listed in the Supplemental Privilege Log are described
6 Defendant shall submit to this Court on or before April 5th 2017 a Supplemental
Privilege Log which lists all infonnation sought by discovery fOJ which a privilege is
claimed to be separated and identified into four separate groups The first tWo groups
Page 20 of25
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Ma r 23 2017 3 40 PM No 3265 P 2226
Group A and Group B include all communications- this includes letters omails and
other correspondence either written or vetbal The second two groups Group C and
Group D include all Documents Bach piece of evidence will be numbered individually
within the respective Group beginning with 1
a Group A Attorney~Client Privilege Communications Prior to March 9 2016 In
line withAllstate v Gaughan all communications relating to the Gandee Estate which
Defendant claims are protected by traditional attorney-client privilege generated prior
to March 92016 ate Group A Communications
b Group B Communications Genex-ated on or After March 9 2016 Note that
Allstate v Gaughan provides that all communications generated after the plaintiff qIed
suit (March 9 2016 in this Civil Action) must be specifically identified and requested
as opposed to a general request so centat a Circuit Court is notunduly burdenedin review
thereof However Huntington continued to have the highest duty under law to the
Gandee Trust as Executor after March 9 2016 Further Huntington decided to have
one law fum represent it as Executor and as Defendant in this matter and to have that
one law finn partiCipate in most estate adrobJistratio~ matters Although it will requjre
additional time by the Special Commissioner and this Court to review documents in
light of the above facts~ the Court ORDERS that the general request for
communications already made is sufficient without need for specific reference for all
Group B Communications generated from March 9 2016 through June 5 2016 June
5 2016 is the date when Executor _activity and conflict of interest decreased when all
Gandee Estate assets were distributed to the Gandee Trust
c Additionally any communication generated after June 5 2016 which relates solely to
the administration of the Gandee Estate or which in any manner relates to a
PageZ1of25
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Mar 23 2017 341PM No 3265 P 2326
conununication with the Sheriffs Office or the ATF regarding guns owned by the
Gandee Estate shall also be a Group B Communication
d Group C Work Product Rule Documents Generated Prior to March 9 2016 Each
document relating to the Gandee Estate for which Defendant claims work product
protection and which was generated or prepared prior to March 92016 is a Group C
Document
e Group D Work Product Rule Documents Generated on or After March 9 2016
The considerations and analysis set forth in Section (5)(a) above with regatd to
attorney-client privilege also applies to docU1ll8nts for which work product protection
is claimed by Defendant As such all documents generated for the period ofMarch 9
2016 through June 5 2016 ate Group D DOCUIllents and the general request already
made for documents is sufficient Gronp D Documents also mcludes any document
generated after June 5 2016 which relates to estate administration andor any document
relating to the guns owned by the Gandee Estate
7 Additionally~ written analysis shall be provided by Defendant with the Supplemental
Privilege Log on AprilSth 2017 to meet its burden of pro~f that each Group A andor
B Communication satisfies attorney-client privilege (if so claimed by Defendant)
Further Defendant shall provide a written analysis to prove that each Group C andor D
Document qualifies for work product protection Additionally Defendant shall provide
an exp1anation for each CommUnication and Document as to why it was necessary to
retain outside legal counsel for suchmatter and how the advice is legal advice as opposed
to routine estate administration adVice
8 WIthout limiting the foregoing each and every communication or document which has
already been provided by Huntington to the Gandee Trust in redacted form shall be listed
Page22of25
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Mar 23 2017 341PM No 3265 P 2426
in the Supplemental Privilege Log and attached to the Supplemental Privilege Log
without any redactions
9 The Special Conunissioner shall render a Report on which Group A and Group B
Communications satisfy attorney-client privilege whioh do not and why He shall also
include in his Supplemental Report which Group C andor Group D Documents satisfY
all requirements for work product priilege which do not and why
10 Additionally for all Communications and Documents which he finds satisfy attomeyshy
client privilege and work product protection he shallstate whether it was reasonable or
necessary for Defendant to utilize cmIDsel in such matter
11 Additionally for each Group Cor Gronp D Documentwbich qualifies fot work product
protection he shall find whether Plaintiff has a compelling need for such document In
that regard the Gandee Trust may provide an analysis within twenty (20) days after the
entry of this Order providing its analysis of compelling need for types or categories of
documents Ifthe Special Commissioner needs additional information he shall so infom
the Court
12 Undet the Courts guidelines in Allstate v Gaughan and the reasoning set forth above
Communications prior to March 9 2016 would generally not be privileged and
Documents generated prior to March 9 2016 would generally not qualify for work
product protection
13 As per Conclusions of Law 38(c) Huntington is not entitled to quasi attorney-client
privilege regarding Huntingtons communications regarding estate administration
14 As there was conflicting proffer of counsel at the January 42017 hearing Defendant
shall include with the Supplemental Privilege Log all billings by Frost Brown amp Todd
Page 23 of25
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Ma r 23 2017 3 41 PM No 3265 P 2526
through June I 2016 to Huntington to be paid by Huntington for representation of
Huntington for its litigation representation and payments thereon
15 Notwithstanding any other provision in this Order The Special Comnrissioner in bis
review of all conununications and documents shall identify any communication or
document which meets the guideline for the crimefraud exception as such exception
is set forth in Brison v Kaufinan The Special Commissioner shall be provided a copy
of the Amended Complaint to be apprised of factual circumstances which the Gandee
Trust bas alleged constitute bad faith by defendant
16 In the Supplement to Response to Defendants Motion for Protective Order filed by the
Gandee Trust a request was made under WVRCP 37(a)(4) that Huntington be required
to pay for all attorney fees ofthe Gandee Trust by payment ofthe hours spent by outside
counsel to the Gandee TrtlSt multiplied times their standard hourly rate for all work
relating to attorney-client privilege and work product protection for all legal services
rendered above and beyond its Motion to Compel documents and the hearing on October
242016 including appeals
The Court will address such request after it has completed its in-camera review
and entered an 9rder as to the communications and documents which must be provided to Plaintiff
A subsequent hearing shall be held ifneeded
17 The Court further ORDERS that all communications and docmnents to be provided to
the Gandee Trust by the ultimate Order entered by the Court after full in-camera review
shall be provided to the Gandee Trust and not Plamtiffs Dr Gandees Daughters
Plaintiffs Dr Gandees Daughters may make a motion requesting all or a portion of
such material if they so choose and all parties will have a right to subroit motions and
legal memoranda on such matter
Page 24 of2S
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Mar 23 2017 341PM No 3265 P 2626
18 Finally it is ORDERED that the Clerk of this Court mail andor ~therwise provide a
certified copy of this Order to all parties of record
ENTERED tbis ~rtJay ofMarch 2017
c c ~ 1lQ)m -- ct)02 It l Cp b- etJ82 1U
I) -()-fo W middot0cJraquo rqcIe O~f1IO 11 -ujtJ
S--of ltW r-) FiE
~ ~
f om tl1e records ITEST A trueJO~~the Clerk otthe (l~at~tdClnoulirtleo~ ~cpshur County West ClrCUI Virginia
Given under my hancl---l~~Pd~hiCDF
Page2S of25
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IN TIlE c~~tifiC0b1tf6iitiPSHUR COUNTY WEST VIRGINIA ~
DEANNAD GANDEE et aI
PLAINTIFF
vs Crvn ACTION NO lS-C-98
HUNTINGTON BANCSHARES INC et al
DEFENDANT
DISCOVERY COMMISSIONER REPORT
The Discovery Commissioner has reviewed the 1159 pages of e-mails that were provided in
this matter Upon review of the same it appears that there are two different groups of e-mails
1 E-mails relating to the pending litigation that are attorneyclient privilege type e-mails
2 E-mails that are referencing the administration and handling of the Estate
The e-mails which are attributable to the handling of the Estate should be discoverable in this
matter as the issues involved in litigation deal with breach of fiduciary duty I have prepared a
separate sheet setting forth the e-mails that I contend would be discoverable including a copy of the
same for the review of the Court This sheet and list of e-mails will be provided only to the Court for
review and determination of whether they should be disclosed to counsel
rin B NaImers 6358 Discovery Commissioner
APP 000409
CERTIFICATE OF SERVICE
[h I Steven B Nanners do hereby certify that on the it day of December 2016 I served the
following Discovery Commissioner Report by depositing a true copy thereof mthe UmtedStates
Mail in an envelope with sufficient postage attached thereto addressed to the following
Jared M Tully Esq Frost Brown Todd Laidley Tower Suite 401 500 Lee Street Charleston West VIrginia 25301
Alan S Brown Esq Frost Brown Todd 201 North illinois Street - Suite 1900 Indianapolis IN 46204
Gerald R Lacy Esq Lacy Law Offices LC 103 Pennsylvania Avenue PDBox589 Charleston West VIrginia 25322
Gordon C Lane Sr Lane amp Young 1538 Kanawha Blvd East Charleston WesfVIrginia 25311
S~~n B Nanners 6358 Discovery Commissioner Law Offices of Nanners amp Willett LC 45 West Main StreetmiddotU ( Buckhannon West VIrginia 26201 304-472-2048
APP000410
Mar232017 338PM No 3265 P 1326
establishing the attorney-client privilege always rests upon the party asserting it STate
ex reI USFampG v Canady~ 460 SE 2d 677 (1995)
10 The West Virginia Supreme Court ofAppeals discussed the attorney-client privilege in
State ex reI us Fidelity and Guar Co v Canady 460 SE2d 677687-88 194 WVa
431441-42 (1995) stating
The attorney-client privilege is a broad doctrine however it is not unlimited In Syllabus Point 2 of State 11
Burton 163 WVa 40 254 SE2d 129 (1979) we statedIn order to assert an atto~ey-client privilege three main elements must be present (l) both parties must contemplate that the attorney-client relationship does or will exist (2) the advice must be sought by the client from that attorney in his capacity as a legal adviser (3) the communication between the attorney and client must be identified to be confidential
11 Addressing the attorney-client privilege requires the identification of the parties involved
relevant to this litigation at the time of the communioations to wit HlIDtington was acting
8$ Executor of the Estate of James D Gandee Dr Gandees will named Dr Gandees
- - Daughtersand the Gandee Trust as beneficiaries and the Gandee Trust named Gandees
Daughters as primary beneficiaries
12 Huntington asserts that attorney-client privilege applies and therefore necessarily alleges
all tbtee elements are met
13 The First Element of attomey-client privilege requires that the parties to the
conununication contemplate that the attorney-client relationship does or will exist
Huntington alleges that the attorney-client relationship exists by virtue of the attorneys
being present
14 The Second element of attomey~client privilege requires that the client must seek the
advice ofan attorney and that the attorneys advice must be in the attorneys capacity as
Page 12 of25
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Ma r 23 2017 3 38PM No 3265 P 1426
a legal adViSOt This element is highly questionable as it has been alleged that the
Defendants utilized attorneys in routine estate administration which an expert alleges
was primarily outside of the prevue of a legal advisor However it is difficult for the
Court to determine this without an itl camera review of all of the evidence alleged to be
confidential by attoroey-client privilege from Huntingtons Estate administration
15 The Third element of attorney-client privilege requires that the communication between
the attomey and the client must be identified as confidential Here again without review
of the information alleged to be confidential the Court cannot detennine if the
information was identified as confidential
16 Therefore the Court concludes there is a question of whether attomey client privilege
even applies to the communications at issue in this case It is therefore necessary for the
Court to conduct an in camera review of the materials in order to make further
determinations
17 Further there bas been a question raised Jegarding the applicability of the work product
doctrine regarding materials sought by tb~ Plaintiffs from the Defendant specifically
estate administration meeting notes
18 Rule 26(b)(3) of the West Virginia Rules ofeivil Procedure states
(3) Trial Preparation Materials Subject to the provisiOns of subdivision (b)(4) of this rule a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(l) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other PartYs representative (including the partys attoOley consultant surety indemnitor insurer or agent) only upon a shoWing that the party seeking discovery has substantial need ofthe materials in the preparation of the partys case and that the party is unable without undue hardshlp to obtain the substantial equivalent ofthe materials by other means In ordering discovery of such materials when the required showing has been made the court shall protect against disclosure ofthe mental impressions conclusions opinions or legal
Page 13 of25
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Mar 23 2017 338PM No 3265 P 1526
theories of an attorney or other representative of a party concerning the litigation
19 laquoThe work product doctrine creates a fom of qualified immunity from discovery but it
does not label protected material as privileged and thus outside the scope of discovery
under Rule 26(b)(l) Litigation Handbook sect 26(b)(3) at 721 (2012) State ex reI
Chaparro v Wilkes 438 SE2d 575 577-78 190 WVa 395 397-98 (1993)
20 The Supreme Court of Appeals of West Virginia has long recogoiz~d a distinction
between factual work product and opinion work produ~t holding
Where factual work product is involved the party demancling production must show a substantial need for the material in the sense that he cannot obtain the same or its equivalent through other means ltwithout undue hllldship Where opinion work product is involved the showing reqlrired to obtain discovery is even stronger because the rule states that the court sluill protect against disclosure ofmeota1 impressions conclusion opinions or legal theories
State ex reI Chaparro v Wilkes 438 SE2d575 577-78190 WVa 395 397-98 (1993)
bold added Citing In re Markle 174 WVa at 556-57 328 SE2d at 163 (1984)
21 Factual work product has been defined bythe Supreme Court of Appeals of West
Virginia as
[F]actual work product refers to documents and tangible things that were prepared in anticipation oflitigation or for trial (l) by or for a party or (2) by or fat that partys representative which includes an attomey consultant surety indemnitor insurer or agent When factual work product is involved the party demancling production must show a ltsubstantial need for the material and establish that the same material or its equivalent cannot be obtained through other means without undue hacdship
State ex reI Erie Ins Property amp Cas Co v Ma~one 625 SE2d 355361218 WVa
593 599 (2005) citing Litigation Handbook on West Virginia Rules ofCMl ProcedUre
sect 26(b)(3) at 557 (2000)
Page 14 of2S
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Mar 23 2017 338PM No 3265 P 1626
22 ~SubstantiaI need may be independently established where it is ShOVVll that the requested
infonnation relates to essential elements ofthe requesting partys cause ofaction and the
information is not reasonably reproducible by the requesting patty Ot obtainable by other
means See Litigation Handbook sect 26(b)(3) at 721 (2012)
23 In the current case factual infonnation regarding Huntingtons administration of the
estate is contained in the estate meeting notes The administration of the estate directly
relates to the essential elements of the c~uses of action resulting from the alleged
misadministration of the estate and is not reasonably reproducible by the Plaintiffs or
obtainable by other means
24 In the current case the Plaintiffs are unable to obtain the information from those
meetings through any other means other than discovery Any attempt to obtain the
infOllIlation through discovery will result in a question of whether attorney client
privilege applies as occurred in the deposition ofMs Parsons (Exhibit 11 to Plain1iffs
Supplemental Response - ExhibifG herein)
25 As the only factual information available pertaining to the estate administration is from
the various meetings dealing with estate administration and email correspondence
dealing with estate administration a substantial need clelllly exists which would require
the Defendants to provide those documents to the Plaintiffs Provided that any
information requested by the Defendants can be reviewed in camera iffurther objections
arise to infonnation contained in those documents
26 Opinion work product consists of lI1ental impressions) conclusion opinions or legal
theories found in factual work product and requires a much stronger showing in order for
it to be released See Litigation Handbook sect 26(b)(3) at 722 (2012) Opinion work
product is only discoverable in very rare and extraordinary circumstances Id
Page 15 of25
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Mar232017 339PM No 3265 P 1726
27 Documents prepared in anticipation of litigation were addressed State ex reZ Erie Ins
Property amp Cas Co vMazzone 648 SE2d 31 38 220 WVa 525 532 (2007) in
which the Court held in syllabus point seven of State ex reZ United Hospital Center
~nc v Bedell that middotin order bull [t]o determine whether a document was prepared in
anticipation of litigation and~ is therefore protected from disclosure under the work
product doctrine the primary motivating purpose behind the creation of the document t
must have been to assist in pending or probable futuJe litigation 199 WVa at 320 484
SE2d at 203 This means that the documents must not be prepared in the course of
everyday business Because the preparers ofilie reser~es information in the instant case
were non-lawyers we further note that-Rule ~6(b)(3) extends work product protection to
materials prepared by non-lawyers when the paramount purpose for generating the
materials is litigation Id [D]etermination of whether a document was prepared in
anticipation of litigation or in the ordinary course ofbusiness is a factual one which is
examined on a case-by-case basis State ex reI Erie Ins Property ampCas Co v Mazzone
648 SE2d 31 42~ 220 WYa 525 536 (2007) (internal citations omitted)
28 This case--by-case determination necessitates an in camera review of all documents for
which a privilege is claimed
29 The legal duty of a personal representative or e-gecutor ofthe estate of a deceased under
West Virginia law is as follows
The personal representative of the estate of a deceased acts in a fiduciary capacity His duty is to manage the estate under his control to the advantage of those interested in it and to act on their behalf In the discharge of this duty the executor or administratot of a decedents estate is held to thehighest degree of good faith and is required to exercise the ordinary care and reaso~able diligence which prudent persons ordinarily exercise under like circumstances in their own personal affairs j Syl pt 1 Latimer v
Page 16 of2S
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Mar 23 2017 339PM No 3265 P 1826
MechlingI71 WVa 729 301 SE2d 819 (1983) SyI Pt2 Pickens v Tribble 236 WVa 670 783 SE2d 310312 (2016)
30 Applied to the case at bar the legal duty of Huntington as Executor ofthe
Estate ofJames D Gandee under West Virginia law is as follows
Its duty is to manage the Gandee Estate under its control to the advantage ofthose interested in it and to act on their pehalf Further in the discharge ofits duty Huntington National Bank is held to the highest degree of good faith and is required to exercise the ordinary care and reasonable diligence which prudent persons ordinarily exercise under like circumstances in theiJ own personal affairs) Syl pt 1 Latimer v Mechling 171 W_Va 729 301 SE2d 819 (1983) Syi Pt 2 Pickens v Trtbble 236 WVa 670) 783 SE2d 310 312 (2016)
31 The Court concludes that the ~fiduciary exception legal principle bas not been directly
addressed by the West Virginia Supreme Court of Appeals and if presented would be a
question of first impression in West ViIginia See Plaintiffs Supplemental Response
(Exhibit G h~rein)
32 ~laintiff the Gandee Trust chose not to request that a certified question be submitted
regarding fiduciary exception because of the attendant delay~ it is ready for trial and
further asserted and requested that Allstate v Gaughan and existing case law be applied
to the Civil Action See Plaintiffs Supplemental Response (Exhibit G)
33 In the case ofState ex rel- Allstate 117SUtattce Company v Gaughan 508 SB 2d 75 CW
Va 1998) the West Virginia Supreme Court addressed the application of the attorneyshy
client prlVilege and work product rule in a third party bad faith insurance action where
the insured had signed a release ofhislher bad faith claim to the plaintiff InAllstate v
Gaughan the Courts conclusion that the attorney retained by the insurance company
really represents the insured was param01mt in rejecting prior rulings in third party bad
faith cases-Page 11 of25
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Mar232017 339PM No 3265 P 1926
34 In Allstate v Gaughan the Court focused on the point in time where the mutual or
conunon interest of the insurance company and insured terminated and broke off which
in that case was the date that plaintiff filed suit against the insurance company
35 Further anticipation of a law suit is insufficient to trigger work product protections as
stated in the Litigation Handbook on the Rules ofCivil Procedure (hereinafter Litigation
Handbook) Cleck1ey~ Davis amp PalmeJ Fourth Edition at page 723
the mere possibility that litigation may occur or even the mere fact that litigation does eventually ensue is insufficient to cloak materials with the mantle ofwork product protection
36 The Court concludes that in the instant Civil Action the mutual Or common interest of
Huntington as Executor and the Gandee Trust as beneficiary terminated and broke off
on March 9 2016 ilie date when the Gandee Trust filed its Joinder Motion
approximately one (1) month after its appointment as Trustee
37 The facts in this Civil Action are Illore compelling than in Allstate v Gaughan as a
fiduciary relationship exists in the instant case as opposed to contractual relationship as
in theAilstate v Gaughan case InAllstate v Gaughan the insured paid for no legal fees
ofthe insurer whereas in the instant matter the beneficiary (the Gandee Trust) paid for
all legal services provided by the attorney retained by Huntington through June 12016
38 Therefore for all the reasons set forth above the Court concludes that application ofthe
holdings inAllstate v Gaughan are proper to apply in the instant case as modified below
a Allstate v Gaughan is precedent for the conclusion that in the instant Civil Action the
time when the mutual interest of Defendant and the Gandee Trust terminated
(plaintiffs filing of complaint in Allstate v Gaughan) is the date ofMarch 92016
Page 18 of25
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Mar 23 2017 340PM No 3265 P 2026
h In line vvith the precedent in Allstate v Gaughan~ communications and documents
generated prior to March 9~ 2016 are presumptively considered not protected by
attorney-client privilege or work product protection
c InAllstate 11 Gaughan the Court crafted a quasi attorney-client privilege in order to
protect Insurers comm1l11ications with their Insured from being discoverable by tbirdshy
parties under very specific circumstances As the elements of proof for breach of
fiduciary duty in the instant Civii Action are so different than elements of a bad faith
claim the Court concludes that Allstate v Gaughan does not provide quasi attomeyshy
client privilege to the Huntingtons communications regarding estate administration
d Allstate v Gaughan provides guidelines to detennine whether a docuruent satisfied the
work product rule and guidelines for determining whether a compelling need exists to
receive a document which otherwise afforded work product protection These
guidelines serve as precedent in this Civil Action The Court notes that existing case
law also set forth the same holdings as in Allstate v Gaughan and also addresses
traditional attorney-client privilege guidelines fox determining whether a document
satisfies the work product rule and whether a compelling need exists to obtain a
document which satisf1es the work product true
ORDER
Based upon all pleadings and documents referenced herein (Exhibits A-I) atguments
presented by counsel at hearirlgs research of legal authorities and its findings of fact and
conclusions oflaw the Court hereby ORDERS that Allstate v Gaughan supra and existing West
Virginia law be applied to this Civil Action pursuant to the Orders set forth below
1 For purposes ofclarity and consistency the follOWing tenns used in this Order shall have
the same meaning as such terms are used in Allstate v Gaughan traditional attorney-
Page 19 of2S
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Mar232017 340PM No 3265 P 21126
client privilege work product rule and work product protection As discussed in
the December 222016 hearing the difference in opinion work product and fact work
product must be evaluated by the Special Commissioner and this Court
2 The Court ORDERS the materials previously reviewed in camera on December 22I1d
2016 by the Court and Discovery Commissioner and detennined to be discoverable to
be disclosed to the Plaintiffs for the reasons set forth above and at the hearing The Court
notes the Defendants objection
3 The Court DENIES the Defendants Motion for Protective Order precluding
consideration of the fiduciary exception for the reasons set forth above and at the
hearing The Court notes the Defendants objection
4 The Court GRANTS the Plaintiffs Mcgttion to Compel Defendant to Submit a
Supplemental Privilege Log as identified below The Supplemental Privilege Log is to
be supplied to the Court and Discovery Commissioner with attached documents and in
the form articulated below foran in camera review The Court notes the Defendants
objection
5 On December 22 2016 this Court ordered that Defendant provide a Supplemental
Privilege Log to this Court on or before January 6 2017 setting forth all communications
and documents for which Defendant claims attomey~client privilege or work product in
this case This Court hereby AMENDS the January 6 2017 deadline to AprilSth 2017
and AMENDS AND REFINES such Order as set forth below where all communications
and documents to be listed in the Supplemental Privilege Log are described
6 Defendant shall submit to this Court on or before April 5th 2017 a Supplemental
Privilege Log which lists all infonnation sought by discovery fOJ which a privilege is
claimed to be separated and identified into four separate groups The first tWo groups
Page 20 of25
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Ma r 23 2017 3 40 PM No 3265 P 2226
Group A and Group B include all communications- this includes letters omails and
other correspondence either written or vetbal The second two groups Group C and
Group D include all Documents Bach piece of evidence will be numbered individually
within the respective Group beginning with 1
a Group A Attorney~Client Privilege Communications Prior to March 9 2016 In
line withAllstate v Gaughan all communications relating to the Gandee Estate which
Defendant claims are protected by traditional attorney-client privilege generated prior
to March 92016 ate Group A Communications
b Group B Communications Genex-ated on or After March 9 2016 Note that
Allstate v Gaughan provides that all communications generated after the plaintiff qIed
suit (March 9 2016 in this Civil Action) must be specifically identified and requested
as opposed to a general request so centat a Circuit Court is notunduly burdenedin review
thereof However Huntington continued to have the highest duty under law to the
Gandee Trust as Executor after March 9 2016 Further Huntington decided to have
one law fum represent it as Executor and as Defendant in this matter and to have that
one law finn partiCipate in most estate adrobJistratio~ matters Although it will requjre
additional time by the Special Commissioner and this Court to review documents in
light of the above facts~ the Court ORDERS that the general request for
communications already made is sufficient without need for specific reference for all
Group B Communications generated from March 9 2016 through June 5 2016 June
5 2016 is the date when Executor _activity and conflict of interest decreased when all
Gandee Estate assets were distributed to the Gandee Trust
c Additionally any communication generated after June 5 2016 which relates solely to
the administration of the Gandee Estate or which in any manner relates to a
PageZ1of25
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Mar 23 2017 341PM No 3265 P 2326
conununication with the Sheriffs Office or the ATF regarding guns owned by the
Gandee Estate shall also be a Group B Communication
d Group C Work Product Rule Documents Generated Prior to March 9 2016 Each
document relating to the Gandee Estate for which Defendant claims work product
protection and which was generated or prepared prior to March 92016 is a Group C
Document
e Group D Work Product Rule Documents Generated on or After March 9 2016
The considerations and analysis set forth in Section (5)(a) above with regatd to
attorney-client privilege also applies to docU1ll8nts for which work product protection
is claimed by Defendant As such all documents generated for the period ofMarch 9
2016 through June 5 2016 ate Group D DOCUIllents and the general request already
made for documents is sufficient Gronp D Documents also mcludes any document
generated after June 5 2016 which relates to estate administration andor any document
relating to the guns owned by the Gandee Estate
7 Additionally~ written analysis shall be provided by Defendant with the Supplemental
Privilege Log on AprilSth 2017 to meet its burden of pro~f that each Group A andor
B Communication satisfies attorney-client privilege (if so claimed by Defendant)
Further Defendant shall provide a written analysis to prove that each Group C andor D
Document qualifies for work product protection Additionally Defendant shall provide
an exp1anation for each CommUnication and Document as to why it was necessary to
retain outside legal counsel for suchmatter and how the advice is legal advice as opposed
to routine estate administration adVice
8 WIthout limiting the foregoing each and every communication or document which has
already been provided by Huntington to the Gandee Trust in redacted form shall be listed
Page22of25
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Mar 23 2017 341PM No 3265 P 2426
in the Supplemental Privilege Log and attached to the Supplemental Privilege Log
without any redactions
9 The Special Conunissioner shall render a Report on which Group A and Group B
Communications satisfy attorney-client privilege whioh do not and why He shall also
include in his Supplemental Report which Group C andor Group D Documents satisfY
all requirements for work product priilege which do not and why
10 Additionally for all Communications and Documents which he finds satisfy attomeyshy
client privilege and work product protection he shallstate whether it was reasonable or
necessary for Defendant to utilize cmIDsel in such matter
11 Additionally for each Group Cor Gronp D Documentwbich qualifies fot work product
protection he shall find whether Plaintiff has a compelling need for such document In
that regard the Gandee Trust may provide an analysis within twenty (20) days after the
entry of this Order providing its analysis of compelling need for types or categories of
documents Ifthe Special Commissioner needs additional information he shall so infom
the Court
12 Undet the Courts guidelines in Allstate v Gaughan and the reasoning set forth above
Communications prior to March 9 2016 would generally not be privileged and
Documents generated prior to March 9 2016 would generally not qualify for work
product protection
13 As per Conclusions of Law 38(c) Huntington is not entitled to quasi attorney-client
privilege regarding Huntingtons communications regarding estate administration
14 As there was conflicting proffer of counsel at the January 42017 hearing Defendant
shall include with the Supplemental Privilege Log all billings by Frost Brown amp Todd
Page 23 of25
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Ma r 23 2017 3 41 PM No 3265 P 2526
through June I 2016 to Huntington to be paid by Huntington for representation of
Huntington for its litigation representation and payments thereon
15 Notwithstanding any other provision in this Order The Special Comnrissioner in bis
review of all conununications and documents shall identify any communication or
document which meets the guideline for the crimefraud exception as such exception
is set forth in Brison v Kaufinan The Special Commissioner shall be provided a copy
of the Amended Complaint to be apprised of factual circumstances which the Gandee
Trust bas alleged constitute bad faith by defendant
16 In the Supplement to Response to Defendants Motion for Protective Order filed by the
Gandee Trust a request was made under WVRCP 37(a)(4) that Huntington be required
to pay for all attorney fees ofthe Gandee Trust by payment ofthe hours spent by outside
counsel to the Gandee TrtlSt multiplied times their standard hourly rate for all work
relating to attorney-client privilege and work product protection for all legal services
rendered above and beyond its Motion to Compel documents and the hearing on October
242016 including appeals
The Court will address such request after it has completed its in-camera review
and entered an 9rder as to the communications and documents which must be provided to Plaintiff
A subsequent hearing shall be held ifneeded
17 The Court further ORDERS that all communications and docmnents to be provided to
the Gandee Trust by the ultimate Order entered by the Court after full in-camera review
shall be provided to the Gandee Trust and not Plamtiffs Dr Gandees Daughters
Plaintiffs Dr Gandees Daughters may make a motion requesting all or a portion of
such material if they so choose and all parties will have a right to subroit motions and
legal memoranda on such matter
Page 24 of2S
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Mar 23 2017 341PM No 3265 P 2626
18 Finally it is ORDERED that the Clerk of this Court mail andor ~therwise provide a
certified copy of this Order to all parties of record
ENTERED tbis ~rtJay ofMarch 2017
c c ~ 1lQ)m -- ct)02 It l Cp b- etJ82 1U
I) -()-fo W middot0cJraquo rqcIe O~f1IO 11 -ujtJ
S--of ltW r-) FiE
~ ~
f om tl1e records ITEST A trueJO~~the Clerk otthe (l~at~tdClnoulirtleo~ ~cpshur County West ClrCUI Virginia
Given under my hancl---l~~Pd~hiCDF
Page2S of25
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IN TIlE c~~tifiC0b1tf6iitiPSHUR COUNTY WEST VIRGINIA ~
DEANNAD GANDEE et aI
PLAINTIFF
vs Crvn ACTION NO lS-C-98
HUNTINGTON BANCSHARES INC et al
DEFENDANT
DISCOVERY COMMISSIONER REPORT
The Discovery Commissioner has reviewed the 1159 pages of e-mails that were provided in
this matter Upon review of the same it appears that there are two different groups of e-mails
1 E-mails relating to the pending litigation that are attorneyclient privilege type e-mails
2 E-mails that are referencing the administration and handling of the Estate
The e-mails which are attributable to the handling of the Estate should be discoverable in this
matter as the issues involved in litigation deal with breach of fiduciary duty I have prepared a
separate sheet setting forth the e-mails that I contend would be discoverable including a copy of the
same for the review of the Court This sheet and list of e-mails will be provided only to the Court for
review and determination of whether they should be disclosed to counsel
rin B NaImers 6358 Discovery Commissioner
APP 000409
CERTIFICATE OF SERVICE
[h I Steven B Nanners do hereby certify that on the it day of December 2016 I served the
following Discovery Commissioner Report by depositing a true copy thereof mthe UmtedStates
Mail in an envelope with sufficient postage attached thereto addressed to the following
Jared M Tully Esq Frost Brown Todd Laidley Tower Suite 401 500 Lee Street Charleston West VIrginia 25301
Alan S Brown Esq Frost Brown Todd 201 North illinois Street - Suite 1900 Indianapolis IN 46204
Gerald R Lacy Esq Lacy Law Offices LC 103 Pennsylvania Avenue PDBox589 Charleston West VIrginia 25322
Gordon C Lane Sr Lane amp Young 1538 Kanawha Blvd East Charleston WesfVIrginia 25311
S~~n B Nanners 6358 Discovery Commissioner Law Offices of Nanners amp Willett LC 45 West Main StreetmiddotU ( Buckhannon West VIrginia 26201 304-472-2048
APP000410
Ma r 23 2017 3 38PM No 3265 P 1426
a legal adViSOt This element is highly questionable as it has been alleged that the
Defendants utilized attorneys in routine estate administration which an expert alleges
was primarily outside of the prevue of a legal advisor However it is difficult for the
Court to determine this without an itl camera review of all of the evidence alleged to be
confidential by attoroey-client privilege from Huntingtons Estate administration
15 The Third element of attorney-client privilege requires that the communication between
the attomey and the client must be identified as confidential Here again without review
of the information alleged to be confidential the Court cannot detennine if the
information was identified as confidential
16 Therefore the Court concludes there is a question of whether attomey client privilege
even applies to the communications at issue in this case It is therefore necessary for the
Court to conduct an in camera review of the materials in order to make further
determinations
17 Further there bas been a question raised Jegarding the applicability of the work product
doctrine regarding materials sought by tb~ Plaintiffs from the Defendant specifically
estate administration meeting notes
18 Rule 26(b)(3) of the West Virginia Rules ofeivil Procedure states
(3) Trial Preparation Materials Subject to the provisiOns of subdivision (b)(4) of this rule a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(l) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other PartYs representative (including the partys attoOley consultant surety indemnitor insurer or agent) only upon a shoWing that the party seeking discovery has substantial need ofthe materials in the preparation of the partys case and that the party is unable without undue hardshlp to obtain the substantial equivalent ofthe materials by other means In ordering discovery of such materials when the required showing has been made the court shall protect against disclosure ofthe mental impressions conclusions opinions or legal
Page 13 of25
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Mar 23 2017 338PM No 3265 P 1526
theories of an attorney or other representative of a party concerning the litigation
19 laquoThe work product doctrine creates a fom of qualified immunity from discovery but it
does not label protected material as privileged and thus outside the scope of discovery
under Rule 26(b)(l) Litigation Handbook sect 26(b)(3) at 721 (2012) State ex reI
Chaparro v Wilkes 438 SE2d 575 577-78 190 WVa 395 397-98 (1993)
20 The Supreme Court of Appeals of West Virginia has long recogoiz~d a distinction
between factual work product and opinion work produ~t holding
Where factual work product is involved the party demancling production must show a substantial need for the material in the sense that he cannot obtain the same or its equivalent through other means ltwithout undue hllldship Where opinion work product is involved the showing reqlrired to obtain discovery is even stronger because the rule states that the court sluill protect against disclosure ofmeota1 impressions conclusion opinions or legal theories
State ex reI Chaparro v Wilkes 438 SE2d575 577-78190 WVa 395 397-98 (1993)
bold added Citing In re Markle 174 WVa at 556-57 328 SE2d at 163 (1984)
21 Factual work product has been defined bythe Supreme Court of Appeals of West
Virginia as
[F]actual work product refers to documents and tangible things that were prepared in anticipation oflitigation or for trial (l) by or for a party or (2) by or fat that partys representative which includes an attomey consultant surety indemnitor insurer or agent When factual work product is involved the party demancling production must show a ltsubstantial need for the material and establish that the same material or its equivalent cannot be obtained through other means without undue hacdship
State ex reI Erie Ins Property amp Cas Co v Ma~one 625 SE2d 355361218 WVa
593 599 (2005) citing Litigation Handbook on West Virginia Rules ofCMl ProcedUre
sect 26(b)(3) at 557 (2000)
Page 14 of2S
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Mar 23 2017 338PM No 3265 P 1626
22 ~SubstantiaI need may be independently established where it is ShOVVll that the requested
infonnation relates to essential elements ofthe requesting partys cause ofaction and the
information is not reasonably reproducible by the requesting patty Ot obtainable by other
means See Litigation Handbook sect 26(b)(3) at 721 (2012)
23 In the current case factual infonnation regarding Huntingtons administration of the
estate is contained in the estate meeting notes The administration of the estate directly
relates to the essential elements of the c~uses of action resulting from the alleged
misadministration of the estate and is not reasonably reproducible by the Plaintiffs or
obtainable by other means
24 In the current case the Plaintiffs are unable to obtain the information from those
meetings through any other means other than discovery Any attempt to obtain the
infOllIlation through discovery will result in a question of whether attorney client
privilege applies as occurred in the deposition ofMs Parsons (Exhibit 11 to Plain1iffs
Supplemental Response - ExhibifG herein)
25 As the only factual information available pertaining to the estate administration is from
the various meetings dealing with estate administration and email correspondence
dealing with estate administration a substantial need clelllly exists which would require
the Defendants to provide those documents to the Plaintiffs Provided that any
information requested by the Defendants can be reviewed in camera iffurther objections
arise to infonnation contained in those documents
26 Opinion work product consists of lI1ental impressions) conclusion opinions or legal
theories found in factual work product and requires a much stronger showing in order for
it to be released See Litigation Handbook sect 26(b)(3) at 722 (2012) Opinion work
product is only discoverable in very rare and extraordinary circumstances Id
Page 15 of25
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Mar232017 339PM No 3265 P 1726
27 Documents prepared in anticipation of litigation were addressed State ex reZ Erie Ins
Property amp Cas Co vMazzone 648 SE2d 31 38 220 WVa 525 532 (2007) in
which the Court held in syllabus point seven of State ex reZ United Hospital Center
~nc v Bedell that middotin order bull [t]o determine whether a document was prepared in
anticipation of litigation and~ is therefore protected from disclosure under the work
product doctrine the primary motivating purpose behind the creation of the document t
must have been to assist in pending or probable futuJe litigation 199 WVa at 320 484
SE2d at 203 This means that the documents must not be prepared in the course of
everyday business Because the preparers ofilie reser~es information in the instant case
were non-lawyers we further note that-Rule ~6(b)(3) extends work product protection to
materials prepared by non-lawyers when the paramount purpose for generating the
materials is litigation Id [D]etermination of whether a document was prepared in
anticipation of litigation or in the ordinary course ofbusiness is a factual one which is
examined on a case-by-case basis State ex reI Erie Ins Property ampCas Co v Mazzone
648 SE2d 31 42~ 220 WYa 525 536 (2007) (internal citations omitted)
28 This case--by-case determination necessitates an in camera review of all documents for
which a privilege is claimed
29 The legal duty of a personal representative or e-gecutor ofthe estate of a deceased under
West Virginia law is as follows
The personal representative of the estate of a deceased acts in a fiduciary capacity His duty is to manage the estate under his control to the advantage of those interested in it and to act on their behalf In the discharge of this duty the executor or administratot of a decedents estate is held to thehighest degree of good faith and is required to exercise the ordinary care and reaso~able diligence which prudent persons ordinarily exercise under like circumstances in their own personal affairs j Syl pt 1 Latimer v
Page 16 of2S
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Mar 23 2017 339PM No 3265 P 1826
MechlingI71 WVa 729 301 SE2d 819 (1983) SyI Pt2 Pickens v Tribble 236 WVa 670 783 SE2d 310312 (2016)
30 Applied to the case at bar the legal duty of Huntington as Executor ofthe
Estate ofJames D Gandee under West Virginia law is as follows
Its duty is to manage the Gandee Estate under its control to the advantage ofthose interested in it and to act on their pehalf Further in the discharge ofits duty Huntington National Bank is held to the highest degree of good faith and is required to exercise the ordinary care and reasonable diligence which prudent persons ordinarily exercise under like circumstances in theiJ own personal affairs) Syl pt 1 Latimer v Mechling 171 W_Va 729 301 SE2d 819 (1983) Syi Pt 2 Pickens v Trtbble 236 WVa 670) 783 SE2d 310 312 (2016)
31 The Court concludes that the ~fiduciary exception legal principle bas not been directly
addressed by the West Virginia Supreme Court of Appeals and if presented would be a
question of first impression in West ViIginia See Plaintiffs Supplemental Response
(Exhibit G h~rein)
32 ~laintiff the Gandee Trust chose not to request that a certified question be submitted
regarding fiduciary exception because of the attendant delay~ it is ready for trial and
further asserted and requested that Allstate v Gaughan and existing case law be applied
to the Civil Action See Plaintiffs Supplemental Response (Exhibit G)
33 In the case ofState ex rel- Allstate 117SUtattce Company v Gaughan 508 SB 2d 75 CW
Va 1998) the West Virginia Supreme Court addressed the application of the attorneyshy
client prlVilege and work product rule in a third party bad faith insurance action where
the insured had signed a release ofhislher bad faith claim to the plaintiff InAllstate v
Gaughan the Courts conclusion that the attorney retained by the insurance company
really represents the insured was param01mt in rejecting prior rulings in third party bad
faith cases-Page 11 of25
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Mar232017 339PM No 3265 P 1926
34 In Allstate v Gaughan the Court focused on the point in time where the mutual or
conunon interest of the insurance company and insured terminated and broke off which
in that case was the date that plaintiff filed suit against the insurance company
35 Further anticipation of a law suit is insufficient to trigger work product protections as
stated in the Litigation Handbook on the Rules ofCivil Procedure (hereinafter Litigation
Handbook) Cleck1ey~ Davis amp PalmeJ Fourth Edition at page 723
the mere possibility that litigation may occur or even the mere fact that litigation does eventually ensue is insufficient to cloak materials with the mantle ofwork product protection
36 The Court concludes that in the instant Civil Action the mutual Or common interest of
Huntington as Executor and the Gandee Trust as beneficiary terminated and broke off
on March 9 2016 ilie date when the Gandee Trust filed its Joinder Motion
approximately one (1) month after its appointment as Trustee
37 The facts in this Civil Action are Illore compelling than in Allstate v Gaughan as a
fiduciary relationship exists in the instant case as opposed to contractual relationship as
in theAilstate v Gaughan case InAllstate v Gaughan the insured paid for no legal fees
ofthe insurer whereas in the instant matter the beneficiary (the Gandee Trust) paid for
all legal services provided by the attorney retained by Huntington through June 12016
38 Therefore for all the reasons set forth above the Court concludes that application ofthe
holdings inAllstate v Gaughan are proper to apply in the instant case as modified below
a Allstate v Gaughan is precedent for the conclusion that in the instant Civil Action the
time when the mutual interest of Defendant and the Gandee Trust terminated
(plaintiffs filing of complaint in Allstate v Gaughan) is the date ofMarch 92016
Page 18 of25
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Mar 23 2017 340PM No 3265 P 2026
h In line vvith the precedent in Allstate v Gaughan~ communications and documents
generated prior to March 9~ 2016 are presumptively considered not protected by
attorney-client privilege or work product protection
c InAllstate 11 Gaughan the Court crafted a quasi attorney-client privilege in order to
protect Insurers comm1l11ications with their Insured from being discoverable by tbirdshy
parties under very specific circumstances As the elements of proof for breach of
fiduciary duty in the instant Civii Action are so different than elements of a bad faith
claim the Court concludes that Allstate v Gaughan does not provide quasi attomeyshy
client privilege to the Huntingtons communications regarding estate administration
d Allstate v Gaughan provides guidelines to detennine whether a docuruent satisfied the
work product rule and guidelines for determining whether a compelling need exists to
receive a document which otherwise afforded work product protection These
guidelines serve as precedent in this Civil Action The Court notes that existing case
law also set forth the same holdings as in Allstate v Gaughan and also addresses
traditional attorney-client privilege guidelines fox determining whether a document
satisfies the work product rule and whether a compelling need exists to obtain a
document which satisf1es the work product true
ORDER
Based upon all pleadings and documents referenced herein (Exhibits A-I) atguments
presented by counsel at hearirlgs research of legal authorities and its findings of fact and
conclusions oflaw the Court hereby ORDERS that Allstate v Gaughan supra and existing West
Virginia law be applied to this Civil Action pursuant to the Orders set forth below
1 For purposes ofclarity and consistency the follOWing tenns used in this Order shall have
the same meaning as such terms are used in Allstate v Gaughan traditional attorney-
Page 19 of2S
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Mar232017 340PM No 3265 P 21126
client privilege work product rule and work product protection As discussed in
the December 222016 hearing the difference in opinion work product and fact work
product must be evaluated by the Special Commissioner and this Court
2 The Court ORDERS the materials previously reviewed in camera on December 22I1d
2016 by the Court and Discovery Commissioner and detennined to be discoverable to
be disclosed to the Plaintiffs for the reasons set forth above and at the hearing The Court
notes the Defendants objection
3 The Court DENIES the Defendants Motion for Protective Order precluding
consideration of the fiduciary exception for the reasons set forth above and at the
hearing The Court notes the Defendants objection
4 The Court GRANTS the Plaintiffs Mcgttion to Compel Defendant to Submit a
Supplemental Privilege Log as identified below The Supplemental Privilege Log is to
be supplied to the Court and Discovery Commissioner with attached documents and in
the form articulated below foran in camera review The Court notes the Defendants
objection
5 On December 22 2016 this Court ordered that Defendant provide a Supplemental
Privilege Log to this Court on or before January 6 2017 setting forth all communications
and documents for which Defendant claims attomey~client privilege or work product in
this case This Court hereby AMENDS the January 6 2017 deadline to AprilSth 2017
and AMENDS AND REFINES such Order as set forth below where all communications
and documents to be listed in the Supplemental Privilege Log are described
6 Defendant shall submit to this Court on or before April 5th 2017 a Supplemental
Privilege Log which lists all infonnation sought by discovery fOJ which a privilege is
claimed to be separated and identified into four separate groups The first tWo groups
Page 20 of25
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Ma r 23 2017 3 40 PM No 3265 P 2226
Group A and Group B include all communications- this includes letters omails and
other correspondence either written or vetbal The second two groups Group C and
Group D include all Documents Bach piece of evidence will be numbered individually
within the respective Group beginning with 1
a Group A Attorney~Client Privilege Communications Prior to March 9 2016 In
line withAllstate v Gaughan all communications relating to the Gandee Estate which
Defendant claims are protected by traditional attorney-client privilege generated prior
to March 92016 ate Group A Communications
b Group B Communications Genex-ated on or After March 9 2016 Note that
Allstate v Gaughan provides that all communications generated after the plaintiff qIed
suit (March 9 2016 in this Civil Action) must be specifically identified and requested
as opposed to a general request so centat a Circuit Court is notunduly burdenedin review
thereof However Huntington continued to have the highest duty under law to the
Gandee Trust as Executor after March 9 2016 Further Huntington decided to have
one law fum represent it as Executor and as Defendant in this matter and to have that
one law finn partiCipate in most estate adrobJistratio~ matters Although it will requjre
additional time by the Special Commissioner and this Court to review documents in
light of the above facts~ the Court ORDERS that the general request for
communications already made is sufficient without need for specific reference for all
Group B Communications generated from March 9 2016 through June 5 2016 June
5 2016 is the date when Executor _activity and conflict of interest decreased when all
Gandee Estate assets were distributed to the Gandee Trust
c Additionally any communication generated after June 5 2016 which relates solely to
the administration of the Gandee Estate or which in any manner relates to a
PageZ1of25
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Mar 23 2017 341PM No 3265 P 2326
conununication with the Sheriffs Office or the ATF regarding guns owned by the
Gandee Estate shall also be a Group B Communication
d Group C Work Product Rule Documents Generated Prior to March 9 2016 Each
document relating to the Gandee Estate for which Defendant claims work product
protection and which was generated or prepared prior to March 92016 is a Group C
Document
e Group D Work Product Rule Documents Generated on or After March 9 2016
The considerations and analysis set forth in Section (5)(a) above with regatd to
attorney-client privilege also applies to docU1ll8nts for which work product protection
is claimed by Defendant As such all documents generated for the period ofMarch 9
2016 through June 5 2016 ate Group D DOCUIllents and the general request already
made for documents is sufficient Gronp D Documents also mcludes any document
generated after June 5 2016 which relates to estate administration andor any document
relating to the guns owned by the Gandee Estate
7 Additionally~ written analysis shall be provided by Defendant with the Supplemental
Privilege Log on AprilSth 2017 to meet its burden of pro~f that each Group A andor
B Communication satisfies attorney-client privilege (if so claimed by Defendant)
Further Defendant shall provide a written analysis to prove that each Group C andor D
Document qualifies for work product protection Additionally Defendant shall provide
an exp1anation for each CommUnication and Document as to why it was necessary to
retain outside legal counsel for suchmatter and how the advice is legal advice as opposed
to routine estate administration adVice
8 WIthout limiting the foregoing each and every communication or document which has
already been provided by Huntington to the Gandee Trust in redacted form shall be listed
Page22of25
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Mar 23 2017 341PM No 3265 P 2426
in the Supplemental Privilege Log and attached to the Supplemental Privilege Log
without any redactions
9 The Special Conunissioner shall render a Report on which Group A and Group B
Communications satisfy attorney-client privilege whioh do not and why He shall also
include in his Supplemental Report which Group C andor Group D Documents satisfY
all requirements for work product priilege which do not and why
10 Additionally for all Communications and Documents which he finds satisfy attomeyshy
client privilege and work product protection he shallstate whether it was reasonable or
necessary for Defendant to utilize cmIDsel in such matter
11 Additionally for each Group Cor Gronp D Documentwbich qualifies fot work product
protection he shall find whether Plaintiff has a compelling need for such document In
that regard the Gandee Trust may provide an analysis within twenty (20) days after the
entry of this Order providing its analysis of compelling need for types or categories of
documents Ifthe Special Commissioner needs additional information he shall so infom
the Court
12 Undet the Courts guidelines in Allstate v Gaughan and the reasoning set forth above
Communications prior to March 9 2016 would generally not be privileged and
Documents generated prior to March 9 2016 would generally not qualify for work
product protection
13 As per Conclusions of Law 38(c) Huntington is not entitled to quasi attorney-client
privilege regarding Huntingtons communications regarding estate administration
14 As there was conflicting proffer of counsel at the January 42017 hearing Defendant
shall include with the Supplemental Privilege Log all billings by Frost Brown amp Todd
Page 23 of25
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Ma r 23 2017 3 41 PM No 3265 P 2526
through June I 2016 to Huntington to be paid by Huntington for representation of
Huntington for its litigation representation and payments thereon
15 Notwithstanding any other provision in this Order The Special Comnrissioner in bis
review of all conununications and documents shall identify any communication or
document which meets the guideline for the crimefraud exception as such exception
is set forth in Brison v Kaufinan The Special Commissioner shall be provided a copy
of the Amended Complaint to be apprised of factual circumstances which the Gandee
Trust bas alleged constitute bad faith by defendant
16 In the Supplement to Response to Defendants Motion for Protective Order filed by the
Gandee Trust a request was made under WVRCP 37(a)(4) that Huntington be required
to pay for all attorney fees ofthe Gandee Trust by payment ofthe hours spent by outside
counsel to the Gandee TrtlSt multiplied times their standard hourly rate for all work
relating to attorney-client privilege and work product protection for all legal services
rendered above and beyond its Motion to Compel documents and the hearing on October
242016 including appeals
The Court will address such request after it has completed its in-camera review
and entered an 9rder as to the communications and documents which must be provided to Plaintiff
A subsequent hearing shall be held ifneeded
17 The Court further ORDERS that all communications and docmnents to be provided to
the Gandee Trust by the ultimate Order entered by the Court after full in-camera review
shall be provided to the Gandee Trust and not Plamtiffs Dr Gandees Daughters
Plaintiffs Dr Gandees Daughters may make a motion requesting all or a portion of
such material if they so choose and all parties will have a right to subroit motions and
legal memoranda on such matter
Page 24 of2S
PAGE 25126 t RCVD AT 312312017 34105 PM [Eastern Da~ight Time] SVRPRFAX0110 aDNIS1780115 ~ CSID t DURATION (mmmiddotss)0734 APP 000025
Mar 23 2017 341PM No 3265 P 2626
18 Finally it is ORDERED that the Clerk of this Court mail andor ~therwise provide a
certified copy of this Order to all parties of record
ENTERED tbis ~rtJay ofMarch 2017
c c ~ 1lQ)m -- ct)02 It l Cp b- etJ82 1U
I) -()-fo W middot0cJraquo rqcIe O~f1IO 11 -ujtJ
S--of ltW r-) FiE
~ ~
f om tl1e records ITEST A trueJO~~the Clerk otthe (l~at~tdClnoulirtleo~ ~cpshur County West ClrCUI Virginia
Given under my hancl---l~~Pd~hiCDF
Page2S of25
PAGE 2626 RCVD AT 32312017 341 05 PM ~astem Daylight Time] I SVRPRFAX010 t DNIS1780115 t CSID t DURATION (mmss)D734 APP 000026
IN TIlE c~~tifiC0b1tf6iitiPSHUR COUNTY WEST VIRGINIA ~
DEANNAD GANDEE et aI
PLAINTIFF
vs Crvn ACTION NO lS-C-98
HUNTINGTON BANCSHARES INC et al
DEFENDANT
DISCOVERY COMMISSIONER REPORT
The Discovery Commissioner has reviewed the 1159 pages of e-mails that were provided in
this matter Upon review of the same it appears that there are two different groups of e-mails
1 E-mails relating to the pending litigation that are attorneyclient privilege type e-mails
2 E-mails that are referencing the administration and handling of the Estate
The e-mails which are attributable to the handling of the Estate should be discoverable in this
matter as the issues involved in litigation deal with breach of fiduciary duty I have prepared a
separate sheet setting forth the e-mails that I contend would be discoverable including a copy of the
same for the review of the Court This sheet and list of e-mails will be provided only to the Court for
review and determination of whether they should be disclosed to counsel
rin B NaImers 6358 Discovery Commissioner
APP 000409
CERTIFICATE OF SERVICE
[h I Steven B Nanners do hereby certify that on the it day of December 2016 I served the
following Discovery Commissioner Report by depositing a true copy thereof mthe UmtedStates
Mail in an envelope with sufficient postage attached thereto addressed to the following
Jared M Tully Esq Frost Brown Todd Laidley Tower Suite 401 500 Lee Street Charleston West VIrginia 25301
Alan S Brown Esq Frost Brown Todd 201 North illinois Street - Suite 1900 Indianapolis IN 46204
Gerald R Lacy Esq Lacy Law Offices LC 103 Pennsylvania Avenue PDBox589 Charleston West VIrginia 25322
Gordon C Lane Sr Lane amp Young 1538 Kanawha Blvd East Charleston WesfVIrginia 25311
S~~n B Nanners 6358 Discovery Commissioner Law Offices of Nanners amp Willett LC 45 West Main StreetmiddotU ( Buckhannon West VIrginia 26201 304-472-2048
APP000410
Mar 23 2017 338PM No 3265 P 1526
theories of an attorney or other representative of a party concerning the litigation
19 laquoThe work product doctrine creates a fom of qualified immunity from discovery but it
does not label protected material as privileged and thus outside the scope of discovery
under Rule 26(b)(l) Litigation Handbook sect 26(b)(3) at 721 (2012) State ex reI
Chaparro v Wilkes 438 SE2d 575 577-78 190 WVa 395 397-98 (1993)
20 The Supreme Court of Appeals of West Virginia has long recogoiz~d a distinction
between factual work product and opinion work produ~t holding
Where factual work product is involved the party demancling production must show a substantial need for the material in the sense that he cannot obtain the same or its equivalent through other means ltwithout undue hllldship Where opinion work product is involved the showing reqlrired to obtain discovery is even stronger because the rule states that the court sluill protect against disclosure ofmeota1 impressions conclusion opinions or legal theories
State ex reI Chaparro v Wilkes 438 SE2d575 577-78190 WVa 395 397-98 (1993)
bold added Citing In re Markle 174 WVa at 556-57 328 SE2d at 163 (1984)
21 Factual work product has been defined bythe Supreme Court of Appeals of West
Virginia as
[F]actual work product refers to documents and tangible things that were prepared in anticipation oflitigation or for trial (l) by or for a party or (2) by or fat that partys representative which includes an attomey consultant surety indemnitor insurer or agent When factual work product is involved the party demancling production must show a ltsubstantial need for the material and establish that the same material or its equivalent cannot be obtained through other means without undue hacdship
State ex reI Erie Ins Property amp Cas Co v Ma~one 625 SE2d 355361218 WVa
593 599 (2005) citing Litigation Handbook on West Virginia Rules ofCMl ProcedUre
sect 26(b)(3) at 557 (2000)
Page 14 of2S
PAGE 15126 ~ RCVD AT 312312017 34105 PM ~astem Daylight Timel SVRPRFAX0110 ~ DNIS1780115 ~ CSID ~ DURATION (mmmiddotss)07middot34 APP000015
Mar 23 2017 338PM No 3265 P 1626
22 ~SubstantiaI need may be independently established where it is ShOVVll that the requested
infonnation relates to essential elements ofthe requesting partys cause ofaction and the
information is not reasonably reproducible by the requesting patty Ot obtainable by other
means See Litigation Handbook sect 26(b)(3) at 721 (2012)
23 In the current case factual infonnation regarding Huntingtons administration of the
estate is contained in the estate meeting notes The administration of the estate directly
relates to the essential elements of the c~uses of action resulting from the alleged
misadministration of the estate and is not reasonably reproducible by the Plaintiffs or
obtainable by other means
24 In the current case the Plaintiffs are unable to obtain the information from those
meetings through any other means other than discovery Any attempt to obtain the
infOllIlation through discovery will result in a question of whether attorney client
privilege applies as occurred in the deposition ofMs Parsons (Exhibit 11 to Plain1iffs
Supplemental Response - ExhibifG herein)
25 As the only factual information available pertaining to the estate administration is from
the various meetings dealing with estate administration and email correspondence
dealing with estate administration a substantial need clelllly exists which would require
the Defendants to provide those documents to the Plaintiffs Provided that any
information requested by the Defendants can be reviewed in camera iffurther objections
arise to infonnation contained in those documents
26 Opinion work product consists of lI1ental impressions) conclusion opinions or legal
theories found in factual work product and requires a much stronger showing in order for
it to be released See Litigation Handbook sect 26(b)(3) at 722 (2012) Opinion work
product is only discoverable in very rare and extraordinary circumstances Id
Page 15 of25
PAGE 1626 ~ RCVD AT 3232017 34105 PM ~astern Daylight Timep SVRPRFAX01l0 ~ DNIS1780115 ~ CSID ~ DURATION (mm-ss)07-34 APP 000016
Mar232017 339PM No 3265 P 1726
27 Documents prepared in anticipation of litigation were addressed State ex reZ Erie Ins
Property amp Cas Co vMazzone 648 SE2d 31 38 220 WVa 525 532 (2007) in
which the Court held in syllabus point seven of State ex reZ United Hospital Center
~nc v Bedell that middotin order bull [t]o determine whether a document was prepared in
anticipation of litigation and~ is therefore protected from disclosure under the work
product doctrine the primary motivating purpose behind the creation of the document t
must have been to assist in pending or probable futuJe litigation 199 WVa at 320 484
SE2d at 203 This means that the documents must not be prepared in the course of
everyday business Because the preparers ofilie reser~es information in the instant case
were non-lawyers we further note that-Rule ~6(b)(3) extends work product protection to
materials prepared by non-lawyers when the paramount purpose for generating the
materials is litigation Id [D]etermination of whether a document was prepared in
anticipation of litigation or in the ordinary course ofbusiness is a factual one which is
examined on a case-by-case basis State ex reI Erie Ins Property ampCas Co v Mazzone
648 SE2d 31 42~ 220 WYa 525 536 (2007) (internal citations omitted)
28 This case--by-case determination necessitates an in camera review of all documents for
which a privilege is claimed
29 The legal duty of a personal representative or e-gecutor ofthe estate of a deceased under
West Virginia law is as follows
The personal representative of the estate of a deceased acts in a fiduciary capacity His duty is to manage the estate under his control to the advantage of those interested in it and to act on their behalf In the discharge of this duty the executor or administratot of a decedents estate is held to thehighest degree of good faith and is required to exercise the ordinary care and reaso~able diligence which prudent persons ordinarily exercise under like circumstances in their own personal affairs j Syl pt 1 Latimer v
Page 16 of2S
PAGE 1726 ~ RCVD AT 3232017 341 05 PM ~astern Daylight Time] ~ SVRPRFAX010 I DNIS1780115 CSID t DURATION (mmss)D734 APP 000017
Mar 23 2017 339PM No 3265 P 1826
MechlingI71 WVa 729 301 SE2d 819 (1983) SyI Pt2 Pickens v Tribble 236 WVa 670 783 SE2d 310312 (2016)
30 Applied to the case at bar the legal duty of Huntington as Executor ofthe
Estate ofJames D Gandee under West Virginia law is as follows
Its duty is to manage the Gandee Estate under its control to the advantage ofthose interested in it and to act on their pehalf Further in the discharge ofits duty Huntington National Bank is held to the highest degree of good faith and is required to exercise the ordinary care and reasonable diligence which prudent persons ordinarily exercise under like circumstances in theiJ own personal affairs) Syl pt 1 Latimer v Mechling 171 W_Va 729 301 SE2d 819 (1983) Syi Pt 2 Pickens v Trtbble 236 WVa 670) 783 SE2d 310 312 (2016)
31 The Court concludes that the ~fiduciary exception legal principle bas not been directly
addressed by the West Virginia Supreme Court of Appeals and if presented would be a
question of first impression in West ViIginia See Plaintiffs Supplemental Response
(Exhibit G h~rein)
32 ~laintiff the Gandee Trust chose not to request that a certified question be submitted
regarding fiduciary exception because of the attendant delay~ it is ready for trial and
further asserted and requested that Allstate v Gaughan and existing case law be applied
to the Civil Action See Plaintiffs Supplemental Response (Exhibit G)
33 In the case ofState ex rel- Allstate 117SUtattce Company v Gaughan 508 SB 2d 75 CW
Va 1998) the West Virginia Supreme Court addressed the application of the attorneyshy
client prlVilege and work product rule in a third party bad faith insurance action where
the insured had signed a release ofhislher bad faith claim to the plaintiff InAllstate v
Gaughan the Courts conclusion that the attorney retained by the insurance company
really represents the insured was param01mt in rejecting prior rulings in third party bad
faith cases-Page 11 of25
PAGE 1826 RCVD AT 3232017 341 05 PM Eastern Daylight Time] t SVRPRFAX010 DNIS1780115 CSID ~ DURATION (mm-ss)0734 APP 000018
Mar232017 339PM No 3265 P 1926
34 In Allstate v Gaughan the Court focused on the point in time where the mutual or
conunon interest of the insurance company and insured terminated and broke off which
in that case was the date that plaintiff filed suit against the insurance company
35 Further anticipation of a law suit is insufficient to trigger work product protections as
stated in the Litigation Handbook on the Rules ofCivil Procedure (hereinafter Litigation
Handbook) Cleck1ey~ Davis amp PalmeJ Fourth Edition at page 723
the mere possibility that litigation may occur or even the mere fact that litigation does eventually ensue is insufficient to cloak materials with the mantle ofwork product protection
36 The Court concludes that in the instant Civil Action the mutual Or common interest of
Huntington as Executor and the Gandee Trust as beneficiary terminated and broke off
on March 9 2016 ilie date when the Gandee Trust filed its Joinder Motion
approximately one (1) month after its appointment as Trustee
37 The facts in this Civil Action are Illore compelling than in Allstate v Gaughan as a
fiduciary relationship exists in the instant case as opposed to contractual relationship as
in theAilstate v Gaughan case InAllstate v Gaughan the insured paid for no legal fees
ofthe insurer whereas in the instant matter the beneficiary (the Gandee Trust) paid for
all legal services provided by the attorney retained by Huntington through June 12016
38 Therefore for all the reasons set forth above the Court concludes that application ofthe
holdings inAllstate v Gaughan are proper to apply in the instant case as modified below
a Allstate v Gaughan is precedent for the conclusion that in the instant Civil Action the
time when the mutual interest of Defendant and the Gandee Trust terminated
(plaintiffs filing of complaint in Allstate v Gaughan) is the date ofMarch 92016
Page 18 of25
PAGE 1926 RCVD AT 3232017 341 05 PM ~astern Daylight Time] aSVRPRFAXO10 aDNIS1780115 aCSID t DURATION (mmss)0734 APP 000019
Mar 23 2017 340PM No 3265 P 2026
h In line vvith the precedent in Allstate v Gaughan~ communications and documents
generated prior to March 9~ 2016 are presumptively considered not protected by
attorney-client privilege or work product protection
c InAllstate 11 Gaughan the Court crafted a quasi attorney-client privilege in order to
protect Insurers comm1l11ications with their Insured from being discoverable by tbirdshy
parties under very specific circumstances As the elements of proof for breach of
fiduciary duty in the instant Civii Action are so different than elements of a bad faith
claim the Court concludes that Allstate v Gaughan does not provide quasi attomeyshy
client privilege to the Huntingtons communications regarding estate administration
d Allstate v Gaughan provides guidelines to detennine whether a docuruent satisfied the
work product rule and guidelines for determining whether a compelling need exists to
receive a document which otherwise afforded work product protection These
guidelines serve as precedent in this Civil Action The Court notes that existing case
law also set forth the same holdings as in Allstate v Gaughan and also addresses
traditional attorney-client privilege guidelines fox determining whether a document
satisfies the work product rule and whether a compelling need exists to obtain a
document which satisf1es the work product true
ORDER
Based upon all pleadings and documents referenced herein (Exhibits A-I) atguments
presented by counsel at hearirlgs research of legal authorities and its findings of fact and
conclusions oflaw the Court hereby ORDERS that Allstate v Gaughan supra and existing West
Virginia law be applied to this Civil Action pursuant to the Orders set forth below
1 For purposes ofclarity and consistency the follOWing tenns used in this Order shall have
the same meaning as such terms are used in Allstate v Gaughan traditional attorney-
Page 19 of2S
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Mar232017 340PM No 3265 P 21126
client privilege work product rule and work product protection As discussed in
the December 222016 hearing the difference in opinion work product and fact work
product must be evaluated by the Special Commissioner and this Court
2 The Court ORDERS the materials previously reviewed in camera on December 22I1d
2016 by the Court and Discovery Commissioner and detennined to be discoverable to
be disclosed to the Plaintiffs for the reasons set forth above and at the hearing The Court
notes the Defendants objection
3 The Court DENIES the Defendants Motion for Protective Order precluding
consideration of the fiduciary exception for the reasons set forth above and at the
hearing The Court notes the Defendants objection
4 The Court GRANTS the Plaintiffs Mcgttion to Compel Defendant to Submit a
Supplemental Privilege Log as identified below The Supplemental Privilege Log is to
be supplied to the Court and Discovery Commissioner with attached documents and in
the form articulated below foran in camera review The Court notes the Defendants
objection
5 On December 22 2016 this Court ordered that Defendant provide a Supplemental
Privilege Log to this Court on or before January 6 2017 setting forth all communications
and documents for which Defendant claims attomey~client privilege or work product in
this case This Court hereby AMENDS the January 6 2017 deadline to AprilSth 2017
and AMENDS AND REFINES such Order as set forth below where all communications
and documents to be listed in the Supplemental Privilege Log are described
6 Defendant shall submit to this Court on or before April 5th 2017 a Supplemental
Privilege Log which lists all infonnation sought by discovery fOJ which a privilege is
claimed to be separated and identified into four separate groups The first tWo groups
Page 20 of25
PAGE 21126 ~ RCVD AT 312312017 341 05 PM [Eastern Daylight Time] SVRPRFAX0110 DNIS1780115 t CSID DURATION (mm-ss)D734 APP000021
Ma r 23 2017 3 40 PM No 3265 P 2226
Group A and Group B include all communications- this includes letters omails and
other correspondence either written or vetbal The second two groups Group C and
Group D include all Documents Bach piece of evidence will be numbered individually
within the respective Group beginning with 1
a Group A Attorney~Client Privilege Communications Prior to March 9 2016 In
line withAllstate v Gaughan all communications relating to the Gandee Estate which
Defendant claims are protected by traditional attorney-client privilege generated prior
to March 92016 ate Group A Communications
b Group B Communications Genex-ated on or After March 9 2016 Note that
Allstate v Gaughan provides that all communications generated after the plaintiff qIed
suit (March 9 2016 in this Civil Action) must be specifically identified and requested
as opposed to a general request so centat a Circuit Court is notunduly burdenedin review
thereof However Huntington continued to have the highest duty under law to the
Gandee Trust as Executor after March 9 2016 Further Huntington decided to have
one law fum represent it as Executor and as Defendant in this matter and to have that
one law finn partiCipate in most estate adrobJistratio~ matters Although it will requjre
additional time by the Special Commissioner and this Court to review documents in
light of the above facts~ the Court ORDERS that the general request for
communications already made is sufficient without need for specific reference for all
Group B Communications generated from March 9 2016 through June 5 2016 June
5 2016 is the date when Executor _activity and conflict of interest decreased when all
Gandee Estate assets were distributed to the Gandee Trust
c Additionally any communication generated after June 5 2016 which relates solely to
the administration of the Gandee Estate or which in any manner relates to a
PageZ1of25
PAGE 22126 ~ RCVD AT 312312017 34105 PM [Eastern Daylight Timel SVRPRFAX0110 t DNIS1780115 t CSID DURATION Immmiddotss)07-34 -APP 000022
Mar 23 2017 341PM No 3265 P 2326
conununication with the Sheriffs Office or the ATF regarding guns owned by the
Gandee Estate shall also be a Group B Communication
d Group C Work Product Rule Documents Generated Prior to March 9 2016 Each
document relating to the Gandee Estate for which Defendant claims work product
protection and which was generated or prepared prior to March 92016 is a Group C
Document
e Group D Work Product Rule Documents Generated on or After March 9 2016
The considerations and analysis set forth in Section (5)(a) above with regatd to
attorney-client privilege also applies to docU1ll8nts for which work product protection
is claimed by Defendant As such all documents generated for the period ofMarch 9
2016 through June 5 2016 ate Group D DOCUIllents and the general request already
made for documents is sufficient Gronp D Documents also mcludes any document
generated after June 5 2016 which relates to estate administration andor any document
relating to the guns owned by the Gandee Estate
7 Additionally~ written analysis shall be provided by Defendant with the Supplemental
Privilege Log on AprilSth 2017 to meet its burden of pro~f that each Group A andor
B Communication satisfies attorney-client privilege (if so claimed by Defendant)
Further Defendant shall provide a written analysis to prove that each Group C andor D
Document qualifies for work product protection Additionally Defendant shall provide
an exp1anation for each CommUnication and Document as to why it was necessary to
retain outside legal counsel for suchmatter and how the advice is legal advice as opposed
to routine estate administration adVice
8 WIthout limiting the foregoing each and every communication or document which has
already been provided by Huntington to the Gandee Trust in redacted form shall be listed
Page22of25
PAGE 23126 ~ RCVD AT 312312017 34105 PM ~astern Daylight Time] SVRPRFAX0110 ~ DNIS1780115 ~ CSID WDURATION (mmmiddotss)07J4 APP 000023
Mar 23 2017 341PM No 3265 P 2426
in the Supplemental Privilege Log and attached to the Supplemental Privilege Log
without any redactions
9 The Special Conunissioner shall render a Report on which Group A and Group B
Communications satisfy attorney-client privilege whioh do not and why He shall also
include in his Supplemental Report which Group C andor Group D Documents satisfY
all requirements for work product priilege which do not and why
10 Additionally for all Communications and Documents which he finds satisfy attomeyshy
client privilege and work product protection he shallstate whether it was reasonable or
necessary for Defendant to utilize cmIDsel in such matter
11 Additionally for each Group Cor Gronp D Documentwbich qualifies fot work product
protection he shall find whether Plaintiff has a compelling need for such document In
that regard the Gandee Trust may provide an analysis within twenty (20) days after the
entry of this Order providing its analysis of compelling need for types or categories of
documents Ifthe Special Commissioner needs additional information he shall so infom
the Court
12 Undet the Courts guidelines in Allstate v Gaughan and the reasoning set forth above
Communications prior to March 9 2016 would generally not be privileged and
Documents generated prior to March 9 2016 would generally not qualify for work
product protection
13 As per Conclusions of Law 38(c) Huntington is not entitled to quasi attorney-client
privilege regarding Huntingtons communications regarding estate administration
14 As there was conflicting proffer of counsel at the January 42017 hearing Defendant
shall include with the Supplemental Privilege Log all billings by Frost Brown amp Todd
Page 23 of25
PAGE 2426 t RCVD AT 31232017 341 05 PM ~astem Daylight Time] SVRPRFAX010 ~ DNIS1780115 t CSID ~ DURATION (mm-ss)0734 APP000024
Ma r 23 2017 3 41 PM No 3265 P 2526
through June I 2016 to Huntington to be paid by Huntington for representation of
Huntington for its litigation representation and payments thereon
15 Notwithstanding any other provision in this Order The Special Comnrissioner in bis
review of all conununications and documents shall identify any communication or
document which meets the guideline for the crimefraud exception as such exception
is set forth in Brison v Kaufinan The Special Commissioner shall be provided a copy
of the Amended Complaint to be apprised of factual circumstances which the Gandee
Trust bas alleged constitute bad faith by defendant
16 In the Supplement to Response to Defendants Motion for Protective Order filed by the
Gandee Trust a request was made under WVRCP 37(a)(4) that Huntington be required
to pay for all attorney fees ofthe Gandee Trust by payment ofthe hours spent by outside
counsel to the Gandee TrtlSt multiplied times their standard hourly rate for all work
relating to attorney-client privilege and work product protection for all legal services
rendered above and beyond its Motion to Compel documents and the hearing on October
242016 including appeals
The Court will address such request after it has completed its in-camera review
and entered an 9rder as to the communications and documents which must be provided to Plaintiff
A subsequent hearing shall be held ifneeded
17 The Court further ORDERS that all communications and docmnents to be provided to
the Gandee Trust by the ultimate Order entered by the Court after full in-camera review
shall be provided to the Gandee Trust and not Plamtiffs Dr Gandees Daughters
Plaintiffs Dr Gandees Daughters may make a motion requesting all or a portion of
such material if they so choose and all parties will have a right to subroit motions and
legal memoranda on such matter
Page 24 of2S
PAGE 25126 t RCVD AT 312312017 34105 PM [Eastern Da~ight Time] SVRPRFAX0110 aDNIS1780115 ~ CSID t DURATION (mmmiddotss)0734 APP 000025
Mar 23 2017 341PM No 3265 P 2626
18 Finally it is ORDERED that the Clerk of this Court mail andor ~therwise provide a
certified copy of this Order to all parties of record
ENTERED tbis ~rtJay ofMarch 2017
c c ~ 1lQ)m -- ct)02 It l Cp b- etJ82 1U
I) -()-fo W middot0cJraquo rqcIe O~f1IO 11 -ujtJ
S--of ltW r-) FiE
~ ~
f om tl1e records ITEST A trueJO~~the Clerk otthe (l~at~tdClnoulirtleo~ ~cpshur County West ClrCUI Virginia
Given under my hancl---l~~Pd~hiCDF
Page2S of25
PAGE 2626 RCVD AT 32312017 341 05 PM ~astem Daylight Time] I SVRPRFAX010 t DNIS1780115 t CSID t DURATION (mmss)D734 APP 000026
IN TIlE c~~tifiC0b1tf6iitiPSHUR COUNTY WEST VIRGINIA ~
DEANNAD GANDEE et aI
PLAINTIFF
vs Crvn ACTION NO lS-C-98
HUNTINGTON BANCSHARES INC et al
DEFENDANT
DISCOVERY COMMISSIONER REPORT
The Discovery Commissioner has reviewed the 1159 pages of e-mails that were provided in
this matter Upon review of the same it appears that there are two different groups of e-mails
1 E-mails relating to the pending litigation that are attorneyclient privilege type e-mails
2 E-mails that are referencing the administration and handling of the Estate
The e-mails which are attributable to the handling of the Estate should be discoverable in this
matter as the issues involved in litigation deal with breach of fiduciary duty I have prepared a
separate sheet setting forth the e-mails that I contend would be discoverable including a copy of the
same for the review of the Court This sheet and list of e-mails will be provided only to the Court for
review and determination of whether they should be disclosed to counsel
rin B NaImers 6358 Discovery Commissioner
APP 000409
CERTIFICATE OF SERVICE
[h I Steven B Nanners do hereby certify that on the it day of December 2016 I served the
following Discovery Commissioner Report by depositing a true copy thereof mthe UmtedStates
Mail in an envelope with sufficient postage attached thereto addressed to the following
Jared M Tully Esq Frost Brown Todd Laidley Tower Suite 401 500 Lee Street Charleston West VIrginia 25301
Alan S Brown Esq Frost Brown Todd 201 North illinois Street - Suite 1900 Indianapolis IN 46204
Gerald R Lacy Esq Lacy Law Offices LC 103 Pennsylvania Avenue PDBox589 Charleston West VIrginia 25322
Gordon C Lane Sr Lane amp Young 1538 Kanawha Blvd East Charleston WesfVIrginia 25311
S~~n B Nanners 6358 Discovery Commissioner Law Offices of Nanners amp Willett LC 45 West Main StreetmiddotU ( Buckhannon West VIrginia 26201 304-472-2048
APP000410
Mar 23 2017 338PM No 3265 P 1626
22 ~SubstantiaI need may be independently established where it is ShOVVll that the requested
infonnation relates to essential elements ofthe requesting partys cause ofaction and the
information is not reasonably reproducible by the requesting patty Ot obtainable by other
means See Litigation Handbook sect 26(b)(3) at 721 (2012)
23 In the current case factual infonnation regarding Huntingtons administration of the
estate is contained in the estate meeting notes The administration of the estate directly
relates to the essential elements of the c~uses of action resulting from the alleged
misadministration of the estate and is not reasonably reproducible by the Plaintiffs or
obtainable by other means
24 In the current case the Plaintiffs are unable to obtain the information from those
meetings through any other means other than discovery Any attempt to obtain the
infOllIlation through discovery will result in a question of whether attorney client
privilege applies as occurred in the deposition ofMs Parsons (Exhibit 11 to Plain1iffs
Supplemental Response - ExhibifG herein)
25 As the only factual information available pertaining to the estate administration is from
the various meetings dealing with estate administration and email correspondence
dealing with estate administration a substantial need clelllly exists which would require
the Defendants to provide those documents to the Plaintiffs Provided that any
information requested by the Defendants can be reviewed in camera iffurther objections
arise to infonnation contained in those documents
26 Opinion work product consists of lI1ental impressions) conclusion opinions or legal
theories found in factual work product and requires a much stronger showing in order for
it to be released See Litigation Handbook sect 26(b)(3) at 722 (2012) Opinion work
product is only discoverable in very rare and extraordinary circumstances Id
Page 15 of25
PAGE 1626 ~ RCVD AT 3232017 34105 PM ~astern Daylight Timep SVRPRFAX01l0 ~ DNIS1780115 ~ CSID ~ DURATION (mm-ss)07-34 APP 000016
Mar232017 339PM No 3265 P 1726
27 Documents prepared in anticipation of litigation were addressed State ex reZ Erie Ins
Property amp Cas Co vMazzone 648 SE2d 31 38 220 WVa 525 532 (2007) in
which the Court held in syllabus point seven of State ex reZ United Hospital Center
~nc v Bedell that middotin order bull [t]o determine whether a document was prepared in
anticipation of litigation and~ is therefore protected from disclosure under the work
product doctrine the primary motivating purpose behind the creation of the document t
must have been to assist in pending or probable futuJe litigation 199 WVa at 320 484
SE2d at 203 This means that the documents must not be prepared in the course of
everyday business Because the preparers ofilie reser~es information in the instant case
were non-lawyers we further note that-Rule ~6(b)(3) extends work product protection to
materials prepared by non-lawyers when the paramount purpose for generating the
materials is litigation Id [D]etermination of whether a document was prepared in
anticipation of litigation or in the ordinary course ofbusiness is a factual one which is
examined on a case-by-case basis State ex reI Erie Ins Property ampCas Co v Mazzone
648 SE2d 31 42~ 220 WYa 525 536 (2007) (internal citations omitted)
28 This case--by-case determination necessitates an in camera review of all documents for
which a privilege is claimed
29 The legal duty of a personal representative or e-gecutor ofthe estate of a deceased under
West Virginia law is as follows
The personal representative of the estate of a deceased acts in a fiduciary capacity His duty is to manage the estate under his control to the advantage of those interested in it and to act on their behalf In the discharge of this duty the executor or administratot of a decedents estate is held to thehighest degree of good faith and is required to exercise the ordinary care and reaso~able diligence which prudent persons ordinarily exercise under like circumstances in their own personal affairs j Syl pt 1 Latimer v
Page 16 of2S
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Mar 23 2017 339PM No 3265 P 1826
MechlingI71 WVa 729 301 SE2d 819 (1983) SyI Pt2 Pickens v Tribble 236 WVa 670 783 SE2d 310312 (2016)
30 Applied to the case at bar the legal duty of Huntington as Executor ofthe
Estate ofJames D Gandee under West Virginia law is as follows
Its duty is to manage the Gandee Estate under its control to the advantage ofthose interested in it and to act on their pehalf Further in the discharge ofits duty Huntington National Bank is held to the highest degree of good faith and is required to exercise the ordinary care and reasonable diligence which prudent persons ordinarily exercise under like circumstances in theiJ own personal affairs) Syl pt 1 Latimer v Mechling 171 W_Va 729 301 SE2d 819 (1983) Syi Pt 2 Pickens v Trtbble 236 WVa 670) 783 SE2d 310 312 (2016)
31 The Court concludes that the ~fiduciary exception legal principle bas not been directly
addressed by the West Virginia Supreme Court of Appeals and if presented would be a
question of first impression in West ViIginia See Plaintiffs Supplemental Response
(Exhibit G h~rein)
32 ~laintiff the Gandee Trust chose not to request that a certified question be submitted
regarding fiduciary exception because of the attendant delay~ it is ready for trial and
further asserted and requested that Allstate v Gaughan and existing case law be applied
to the Civil Action See Plaintiffs Supplemental Response (Exhibit G)
33 In the case ofState ex rel- Allstate 117SUtattce Company v Gaughan 508 SB 2d 75 CW
Va 1998) the West Virginia Supreme Court addressed the application of the attorneyshy
client prlVilege and work product rule in a third party bad faith insurance action where
the insured had signed a release ofhislher bad faith claim to the plaintiff InAllstate v
Gaughan the Courts conclusion that the attorney retained by the insurance company
really represents the insured was param01mt in rejecting prior rulings in third party bad
faith cases-Page 11 of25
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Mar232017 339PM No 3265 P 1926
34 In Allstate v Gaughan the Court focused on the point in time where the mutual or
conunon interest of the insurance company and insured terminated and broke off which
in that case was the date that plaintiff filed suit against the insurance company
35 Further anticipation of a law suit is insufficient to trigger work product protections as
stated in the Litigation Handbook on the Rules ofCivil Procedure (hereinafter Litigation
Handbook) Cleck1ey~ Davis amp PalmeJ Fourth Edition at page 723
the mere possibility that litigation may occur or even the mere fact that litigation does eventually ensue is insufficient to cloak materials with the mantle ofwork product protection
36 The Court concludes that in the instant Civil Action the mutual Or common interest of
Huntington as Executor and the Gandee Trust as beneficiary terminated and broke off
on March 9 2016 ilie date when the Gandee Trust filed its Joinder Motion
approximately one (1) month after its appointment as Trustee
37 The facts in this Civil Action are Illore compelling than in Allstate v Gaughan as a
fiduciary relationship exists in the instant case as opposed to contractual relationship as
in theAilstate v Gaughan case InAllstate v Gaughan the insured paid for no legal fees
ofthe insurer whereas in the instant matter the beneficiary (the Gandee Trust) paid for
all legal services provided by the attorney retained by Huntington through June 12016
38 Therefore for all the reasons set forth above the Court concludes that application ofthe
holdings inAllstate v Gaughan are proper to apply in the instant case as modified below
a Allstate v Gaughan is precedent for the conclusion that in the instant Civil Action the
time when the mutual interest of Defendant and the Gandee Trust terminated
(plaintiffs filing of complaint in Allstate v Gaughan) is the date ofMarch 92016
Page 18 of25
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Mar 23 2017 340PM No 3265 P 2026
h In line vvith the precedent in Allstate v Gaughan~ communications and documents
generated prior to March 9~ 2016 are presumptively considered not protected by
attorney-client privilege or work product protection
c InAllstate 11 Gaughan the Court crafted a quasi attorney-client privilege in order to
protect Insurers comm1l11ications with their Insured from being discoverable by tbirdshy
parties under very specific circumstances As the elements of proof for breach of
fiduciary duty in the instant Civii Action are so different than elements of a bad faith
claim the Court concludes that Allstate v Gaughan does not provide quasi attomeyshy
client privilege to the Huntingtons communications regarding estate administration
d Allstate v Gaughan provides guidelines to detennine whether a docuruent satisfied the
work product rule and guidelines for determining whether a compelling need exists to
receive a document which otherwise afforded work product protection These
guidelines serve as precedent in this Civil Action The Court notes that existing case
law also set forth the same holdings as in Allstate v Gaughan and also addresses
traditional attorney-client privilege guidelines fox determining whether a document
satisfies the work product rule and whether a compelling need exists to obtain a
document which satisf1es the work product true
ORDER
Based upon all pleadings and documents referenced herein (Exhibits A-I) atguments
presented by counsel at hearirlgs research of legal authorities and its findings of fact and
conclusions oflaw the Court hereby ORDERS that Allstate v Gaughan supra and existing West
Virginia law be applied to this Civil Action pursuant to the Orders set forth below
1 For purposes ofclarity and consistency the follOWing tenns used in this Order shall have
the same meaning as such terms are used in Allstate v Gaughan traditional attorney-
Page 19 of2S
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Mar232017 340PM No 3265 P 21126
client privilege work product rule and work product protection As discussed in
the December 222016 hearing the difference in opinion work product and fact work
product must be evaluated by the Special Commissioner and this Court
2 The Court ORDERS the materials previously reviewed in camera on December 22I1d
2016 by the Court and Discovery Commissioner and detennined to be discoverable to
be disclosed to the Plaintiffs for the reasons set forth above and at the hearing The Court
notes the Defendants objection
3 The Court DENIES the Defendants Motion for Protective Order precluding
consideration of the fiduciary exception for the reasons set forth above and at the
hearing The Court notes the Defendants objection
4 The Court GRANTS the Plaintiffs Mcgttion to Compel Defendant to Submit a
Supplemental Privilege Log as identified below The Supplemental Privilege Log is to
be supplied to the Court and Discovery Commissioner with attached documents and in
the form articulated below foran in camera review The Court notes the Defendants
objection
5 On December 22 2016 this Court ordered that Defendant provide a Supplemental
Privilege Log to this Court on or before January 6 2017 setting forth all communications
and documents for which Defendant claims attomey~client privilege or work product in
this case This Court hereby AMENDS the January 6 2017 deadline to AprilSth 2017
and AMENDS AND REFINES such Order as set forth below where all communications
and documents to be listed in the Supplemental Privilege Log are described
6 Defendant shall submit to this Court on or before April 5th 2017 a Supplemental
Privilege Log which lists all infonnation sought by discovery fOJ which a privilege is
claimed to be separated and identified into four separate groups The first tWo groups
Page 20 of25
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Ma r 23 2017 3 40 PM No 3265 P 2226
Group A and Group B include all communications- this includes letters omails and
other correspondence either written or vetbal The second two groups Group C and
Group D include all Documents Bach piece of evidence will be numbered individually
within the respective Group beginning with 1
a Group A Attorney~Client Privilege Communications Prior to March 9 2016 In
line withAllstate v Gaughan all communications relating to the Gandee Estate which
Defendant claims are protected by traditional attorney-client privilege generated prior
to March 92016 ate Group A Communications
b Group B Communications Genex-ated on or After March 9 2016 Note that
Allstate v Gaughan provides that all communications generated after the plaintiff qIed
suit (March 9 2016 in this Civil Action) must be specifically identified and requested
as opposed to a general request so centat a Circuit Court is notunduly burdenedin review
thereof However Huntington continued to have the highest duty under law to the
Gandee Trust as Executor after March 9 2016 Further Huntington decided to have
one law fum represent it as Executor and as Defendant in this matter and to have that
one law finn partiCipate in most estate adrobJistratio~ matters Although it will requjre
additional time by the Special Commissioner and this Court to review documents in
light of the above facts~ the Court ORDERS that the general request for
communications already made is sufficient without need for specific reference for all
Group B Communications generated from March 9 2016 through June 5 2016 June
5 2016 is the date when Executor _activity and conflict of interest decreased when all
Gandee Estate assets were distributed to the Gandee Trust
c Additionally any communication generated after June 5 2016 which relates solely to
the administration of the Gandee Estate or which in any manner relates to a
PageZ1of25
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Mar 23 2017 341PM No 3265 P 2326
conununication with the Sheriffs Office or the ATF regarding guns owned by the
Gandee Estate shall also be a Group B Communication
d Group C Work Product Rule Documents Generated Prior to March 9 2016 Each
document relating to the Gandee Estate for which Defendant claims work product
protection and which was generated or prepared prior to March 92016 is a Group C
Document
e Group D Work Product Rule Documents Generated on or After March 9 2016
The considerations and analysis set forth in Section (5)(a) above with regatd to
attorney-client privilege also applies to docU1ll8nts for which work product protection
is claimed by Defendant As such all documents generated for the period ofMarch 9
2016 through June 5 2016 ate Group D DOCUIllents and the general request already
made for documents is sufficient Gronp D Documents also mcludes any document
generated after June 5 2016 which relates to estate administration andor any document
relating to the guns owned by the Gandee Estate
7 Additionally~ written analysis shall be provided by Defendant with the Supplemental
Privilege Log on AprilSth 2017 to meet its burden of pro~f that each Group A andor
B Communication satisfies attorney-client privilege (if so claimed by Defendant)
Further Defendant shall provide a written analysis to prove that each Group C andor D
Document qualifies for work product protection Additionally Defendant shall provide
an exp1anation for each CommUnication and Document as to why it was necessary to
retain outside legal counsel for suchmatter and how the advice is legal advice as opposed
to routine estate administration adVice
8 WIthout limiting the foregoing each and every communication or document which has
already been provided by Huntington to the Gandee Trust in redacted form shall be listed
Page22of25
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Mar 23 2017 341PM No 3265 P 2426
in the Supplemental Privilege Log and attached to the Supplemental Privilege Log
without any redactions
9 The Special Conunissioner shall render a Report on which Group A and Group B
Communications satisfy attorney-client privilege whioh do not and why He shall also
include in his Supplemental Report which Group C andor Group D Documents satisfY
all requirements for work product priilege which do not and why
10 Additionally for all Communications and Documents which he finds satisfy attomeyshy
client privilege and work product protection he shallstate whether it was reasonable or
necessary for Defendant to utilize cmIDsel in such matter
11 Additionally for each Group Cor Gronp D Documentwbich qualifies fot work product
protection he shall find whether Plaintiff has a compelling need for such document In
that regard the Gandee Trust may provide an analysis within twenty (20) days after the
entry of this Order providing its analysis of compelling need for types or categories of
documents Ifthe Special Commissioner needs additional information he shall so infom
the Court
12 Undet the Courts guidelines in Allstate v Gaughan and the reasoning set forth above
Communications prior to March 9 2016 would generally not be privileged and
Documents generated prior to March 9 2016 would generally not qualify for work
product protection
13 As per Conclusions of Law 38(c) Huntington is not entitled to quasi attorney-client
privilege regarding Huntingtons communications regarding estate administration
14 As there was conflicting proffer of counsel at the January 42017 hearing Defendant
shall include with the Supplemental Privilege Log all billings by Frost Brown amp Todd
Page 23 of25
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Ma r 23 2017 3 41 PM No 3265 P 2526
through June I 2016 to Huntington to be paid by Huntington for representation of
Huntington for its litigation representation and payments thereon
15 Notwithstanding any other provision in this Order The Special Comnrissioner in bis
review of all conununications and documents shall identify any communication or
document which meets the guideline for the crimefraud exception as such exception
is set forth in Brison v Kaufinan The Special Commissioner shall be provided a copy
of the Amended Complaint to be apprised of factual circumstances which the Gandee
Trust bas alleged constitute bad faith by defendant
16 In the Supplement to Response to Defendants Motion for Protective Order filed by the
Gandee Trust a request was made under WVRCP 37(a)(4) that Huntington be required
to pay for all attorney fees ofthe Gandee Trust by payment ofthe hours spent by outside
counsel to the Gandee TrtlSt multiplied times their standard hourly rate for all work
relating to attorney-client privilege and work product protection for all legal services
rendered above and beyond its Motion to Compel documents and the hearing on October
242016 including appeals
The Court will address such request after it has completed its in-camera review
and entered an 9rder as to the communications and documents which must be provided to Plaintiff
A subsequent hearing shall be held ifneeded
17 The Court further ORDERS that all communications and docmnents to be provided to
the Gandee Trust by the ultimate Order entered by the Court after full in-camera review
shall be provided to the Gandee Trust and not Plamtiffs Dr Gandees Daughters
Plaintiffs Dr Gandees Daughters may make a motion requesting all or a portion of
such material if they so choose and all parties will have a right to subroit motions and
legal memoranda on such matter
Page 24 of2S
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Mar 23 2017 341PM No 3265 P 2626
18 Finally it is ORDERED that the Clerk of this Court mail andor ~therwise provide a
certified copy of this Order to all parties of record
ENTERED tbis ~rtJay ofMarch 2017
c c ~ 1lQ)m -- ct)02 It l Cp b- etJ82 1U
I) -()-fo W middot0cJraquo rqcIe O~f1IO 11 -ujtJ
S--of ltW r-) FiE
~ ~
f om tl1e records ITEST A trueJO~~the Clerk otthe (l~at~tdClnoulirtleo~ ~cpshur County West ClrCUI Virginia
Given under my hancl---l~~Pd~hiCDF
Page2S of25
PAGE 2626 RCVD AT 32312017 341 05 PM ~astem Daylight Time] I SVRPRFAX010 t DNIS1780115 t CSID t DURATION (mmss)D734 APP 000026
IN TIlE c~~tifiC0b1tf6iitiPSHUR COUNTY WEST VIRGINIA ~
DEANNAD GANDEE et aI
PLAINTIFF
vs Crvn ACTION NO lS-C-98
HUNTINGTON BANCSHARES INC et al
DEFENDANT
DISCOVERY COMMISSIONER REPORT
The Discovery Commissioner has reviewed the 1159 pages of e-mails that were provided in
this matter Upon review of the same it appears that there are two different groups of e-mails
1 E-mails relating to the pending litigation that are attorneyclient privilege type e-mails
2 E-mails that are referencing the administration and handling of the Estate
The e-mails which are attributable to the handling of the Estate should be discoverable in this
matter as the issues involved in litigation deal with breach of fiduciary duty I have prepared a
separate sheet setting forth the e-mails that I contend would be discoverable including a copy of the
same for the review of the Court This sheet and list of e-mails will be provided only to the Court for
review and determination of whether they should be disclosed to counsel
rin B NaImers 6358 Discovery Commissioner
APP 000409
CERTIFICATE OF SERVICE
[h I Steven B Nanners do hereby certify that on the it day of December 2016 I served the
following Discovery Commissioner Report by depositing a true copy thereof mthe UmtedStates
Mail in an envelope with sufficient postage attached thereto addressed to the following
Jared M Tully Esq Frost Brown Todd Laidley Tower Suite 401 500 Lee Street Charleston West VIrginia 25301
Alan S Brown Esq Frost Brown Todd 201 North illinois Street - Suite 1900 Indianapolis IN 46204
Gerald R Lacy Esq Lacy Law Offices LC 103 Pennsylvania Avenue PDBox589 Charleston West VIrginia 25322
Gordon C Lane Sr Lane amp Young 1538 Kanawha Blvd East Charleston WesfVIrginia 25311
S~~n B Nanners 6358 Discovery Commissioner Law Offices of Nanners amp Willett LC 45 West Main StreetmiddotU ( Buckhannon West VIrginia 26201 304-472-2048
APP000410
Mar232017 339PM No 3265 P 1726
27 Documents prepared in anticipation of litigation were addressed State ex reZ Erie Ins
Property amp Cas Co vMazzone 648 SE2d 31 38 220 WVa 525 532 (2007) in
which the Court held in syllabus point seven of State ex reZ United Hospital Center
~nc v Bedell that middotin order bull [t]o determine whether a document was prepared in
anticipation of litigation and~ is therefore protected from disclosure under the work
product doctrine the primary motivating purpose behind the creation of the document t
must have been to assist in pending or probable futuJe litigation 199 WVa at 320 484
SE2d at 203 This means that the documents must not be prepared in the course of
everyday business Because the preparers ofilie reser~es information in the instant case
were non-lawyers we further note that-Rule ~6(b)(3) extends work product protection to
materials prepared by non-lawyers when the paramount purpose for generating the
materials is litigation Id [D]etermination of whether a document was prepared in
anticipation of litigation or in the ordinary course ofbusiness is a factual one which is
examined on a case-by-case basis State ex reI Erie Ins Property ampCas Co v Mazzone
648 SE2d 31 42~ 220 WYa 525 536 (2007) (internal citations omitted)
28 This case--by-case determination necessitates an in camera review of all documents for
which a privilege is claimed
29 The legal duty of a personal representative or e-gecutor ofthe estate of a deceased under
West Virginia law is as follows
The personal representative of the estate of a deceased acts in a fiduciary capacity His duty is to manage the estate under his control to the advantage of those interested in it and to act on their behalf In the discharge of this duty the executor or administratot of a decedents estate is held to thehighest degree of good faith and is required to exercise the ordinary care and reaso~able diligence which prudent persons ordinarily exercise under like circumstances in their own personal affairs j Syl pt 1 Latimer v
Page 16 of2S
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Mar 23 2017 339PM No 3265 P 1826
MechlingI71 WVa 729 301 SE2d 819 (1983) SyI Pt2 Pickens v Tribble 236 WVa 670 783 SE2d 310312 (2016)
30 Applied to the case at bar the legal duty of Huntington as Executor ofthe
Estate ofJames D Gandee under West Virginia law is as follows
Its duty is to manage the Gandee Estate under its control to the advantage ofthose interested in it and to act on their pehalf Further in the discharge ofits duty Huntington National Bank is held to the highest degree of good faith and is required to exercise the ordinary care and reasonable diligence which prudent persons ordinarily exercise under like circumstances in theiJ own personal affairs) Syl pt 1 Latimer v Mechling 171 W_Va 729 301 SE2d 819 (1983) Syi Pt 2 Pickens v Trtbble 236 WVa 670) 783 SE2d 310 312 (2016)
31 The Court concludes that the ~fiduciary exception legal principle bas not been directly
addressed by the West Virginia Supreme Court of Appeals and if presented would be a
question of first impression in West ViIginia See Plaintiffs Supplemental Response
(Exhibit G h~rein)
32 ~laintiff the Gandee Trust chose not to request that a certified question be submitted
regarding fiduciary exception because of the attendant delay~ it is ready for trial and
further asserted and requested that Allstate v Gaughan and existing case law be applied
to the Civil Action See Plaintiffs Supplemental Response (Exhibit G)
33 In the case ofState ex rel- Allstate 117SUtattce Company v Gaughan 508 SB 2d 75 CW
Va 1998) the West Virginia Supreme Court addressed the application of the attorneyshy
client prlVilege and work product rule in a third party bad faith insurance action where
the insured had signed a release ofhislher bad faith claim to the plaintiff InAllstate v
Gaughan the Courts conclusion that the attorney retained by the insurance company
really represents the insured was param01mt in rejecting prior rulings in third party bad
faith cases-Page 11 of25
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Mar232017 339PM No 3265 P 1926
34 In Allstate v Gaughan the Court focused on the point in time where the mutual or
conunon interest of the insurance company and insured terminated and broke off which
in that case was the date that plaintiff filed suit against the insurance company
35 Further anticipation of a law suit is insufficient to trigger work product protections as
stated in the Litigation Handbook on the Rules ofCivil Procedure (hereinafter Litigation
Handbook) Cleck1ey~ Davis amp PalmeJ Fourth Edition at page 723
the mere possibility that litigation may occur or even the mere fact that litigation does eventually ensue is insufficient to cloak materials with the mantle ofwork product protection
36 The Court concludes that in the instant Civil Action the mutual Or common interest of
Huntington as Executor and the Gandee Trust as beneficiary terminated and broke off
on March 9 2016 ilie date when the Gandee Trust filed its Joinder Motion
approximately one (1) month after its appointment as Trustee
37 The facts in this Civil Action are Illore compelling than in Allstate v Gaughan as a
fiduciary relationship exists in the instant case as opposed to contractual relationship as
in theAilstate v Gaughan case InAllstate v Gaughan the insured paid for no legal fees
ofthe insurer whereas in the instant matter the beneficiary (the Gandee Trust) paid for
all legal services provided by the attorney retained by Huntington through June 12016
38 Therefore for all the reasons set forth above the Court concludes that application ofthe
holdings inAllstate v Gaughan are proper to apply in the instant case as modified below
a Allstate v Gaughan is precedent for the conclusion that in the instant Civil Action the
time when the mutual interest of Defendant and the Gandee Trust terminated
(plaintiffs filing of complaint in Allstate v Gaughan) is the date ofMarch 92016
Page 18 of25
PAGE 1926 RCVD AT 3232017 341 05 PM ~astern Daylight Time] aSVRPRFAXO10 aDNIS1780115 aCSID t DURATION (mmss)0734 APP 000019
Mar 23 2017 340PM No 3265 P 2026
h In line vvith the precedent in Allstate v Gaughan~ communications and documents
generated prior to March 9~ 2016 are presumptively considered not protected by
attorney-client privilege or work product protection
c InAllstate 11 Gaughan the Court crafted a quasi attorney-client privilege in order to
protect Insurers comm1l11ications with their Insured from being discoverable by tbirdshy
parties under very specific circumstances As the elements of proof for breach of
fiduciary duty in the instant Civii Action are so different than elements of a bad faith
claim the Court concludes that Allstate v Gaughan does not provide quasi attomeyshy
client privilege to the Huntingtons communications regarding estate administration
d Allstate v Gaughan provides guidelines to detennine whether a docuruent satisfied the
work product rule and guidelines for determining whether a compelling need exists to
receive a document which otherwise afforded work product protection These
guidelines serve as precedent in this Civil Action The Court notes that existing case
law also set forth the same holdings as in Allstate v Gaughan and also addresses
traditional attorney-client privilege guidelines fox determining whether a document
satisfies the work product rule and whether a compelling need exists to obtain a
document which satisf1es the work product true
ORDER
Based upon all pleadings and documents referenced herein (Exhibits A-I) atguments
presented by counsel at hearirlgs research of legal authorities and its findings of fact and
conclusions oflaw the Court hereby ORDERS that Allstate v Gaughan supra and existing West
Virginia law be applied to this Civil Action pursuant to the Orders set forth below
1 For purposes ofclarity and consistency the follOWing tenns used in this Order shall have
the same meaning as such terms are used in Allstate v Gaughan traditional attorney-
Page 19 of2S
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Mar232017 340PM No 3265 P 21126
client privilege work product rule and work product protection As discussed in
the December 222016 hearing the difference in opinion work product and fact work
product must be evaluated by the Special Commissioner and this Court
2 The Court ORDERS the materials previously reviewed in camera on December 22I1d
2016 by the Court and Discovery Commissioner and detennined to be discoverable to
be disclosed to the Plaintiffs for the reasons set forth above and at the hearing The Court
notes the Defendants objection
3 The Court DENIES the Defendants Motion for Protective Order precluding
consideration of the fiduciary exception for the reasons set forth above and at the
hearing The Court notes the Defendants objection
4 The Court GRANTS the Plaintiffs Mcgttion to Compel Defendant to Submit a
Supplemental Privilege Log as identified below The Supplemental Privilege Log is to
be supplied to the Court and Discovery Commissioner with attached documents and in
the form articulated below foran in camera review The Court notes the Defendants
objection
5 On December 22 2016 this Court ordered that Defendant provide a Supplemental
Privilege Log to this Court on or before January 6 2017 setting forth all communications
and documents for which Defendant claims attomey~client privilege or work product in
this case This Court hereby AMENDS the January 6 2017 deadline to AprilSth 2017
and AMENDS AND REFINES such Order as set forth below where all communications
and documents to be listed in the Supplemental Privilege Log are described
6 Defendant shall submit to this Court on or before April 5th 2017 a Supplemental
Privilege Log which lists all infonnation sought by discovery fOJ which a privilege is
claimed to be separated and identified into four separate groups The first tWo groups
Page 20 of25
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Ma r 23 2017 3 40 PM No 3265 P 2226
Group A and Group B include all communications- this includes letters omails and
other correspondence either written or vetbal The second two groups Group C and
Group D include all Documents Bach piece of evidence will be numbered individually
within the respective Group beginning with 1
a Group A Attorney~Client Privilege Communications Prior to March 9 2016 In
line withAllstate v Gaughan all communications relating to the Gandee Estate which
Defendant claims are protected by traditional attorney-client privilege generated prior
to March 92016 ate Group A Communications
b Group B Communications Genex-ated on or After March 9 2016 Note that
Allstate v Gaughan provides that all communications generated after the plaintiff qIed
suit (March 9 2016 in this Civil Action) must be specifically identified and requested
as opposed to a general request so centat a Circuit Court is notunduly burdenedin review
thereof However Huntington continued to have the highest duty under law to the
Gandee Trust as Executor after March 9 2016 Further Huntington decided to have
one law fum represent it as Executor and as Defendant in this matter and to have that
one law finn partiCipate in most estate adrobJistratio~ matters Although it will requjre
additional time by the Special Commissioner and this Court to review documents in
light of the above facts~ the Court ORDERS that the general request for
communications already made is sufficient without need for specific reference for all
Group B Communications generated from March 9 2016 through June 5 2016 June
5 2016 is the date when Executor _activity and conflict of interest decreased when all
Gandee Estate assets were distributed to the Gandee Trust
c Additionally any communication generated after June 5 2016 which relates solely to
the administration of the Gandee Estate or which in any manner relates to a
PageZ1of25
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Mar 23 2017 341PM No 3265 P 2326
conununication with the Sheriffs Office or the ATF regarding guns owned by the
Gandee Estate shall also be a Group B Communication
d Group C Work Product Rule Documents Generated Prior to March 9 2016 Each
document relating to the Gandee Estate for which Defendant claims work product
protection and which was generated or prepared prior to March 92016 is a Group C
Document
e Group D Work Product Rule Documents Generated on or After March 9 2016
The considerations and analysis set forth in Section (5)(a) above with regatd to
attorney-client privilege also applies to docU1ll8nts for which work product protection
is claimed by Defendant As such all documents generated for the period ofMarch 9
2016 through June 5 2016 ate Group D DOCUIllents and the general request already
made for documents is sufficient Gronp D Documents also mcludes any document
generated after June 5 2016 which relates to estate administration andor any document
relating to the guns owned by the Gandee Estate
7 Additionally~ written analysis shall be provided by Defendant with the Supplemental
Privilege Log on AprilSth 2017 to meet its burden of pro~f that each Group A andor
B Communication satisfies attorney-client privilege (if so claimed by Defendant)
Further Defendant shall provide a written analysis to prove that each Group C andor D
Document qualifies for work product protection Additionally Defendant shall provide
an exp1anation for each CommUnication and Document as to why it was necessary to
retain outside legal counsel for suchmatter and how the advice is legal advice as opposed
to routine estate administration adVice
8 WIthout limiting the foregoing each and every communication or document which has
already been provided by Huntington to the Gandee Trust in redacted form shall be listed
Page22of25
PAGE 23126 ~ RCVD AT 312312017 34105 PM ~astern Daylight Time] SVRPRFAX0110 ~ DNIS1780115 ~ CSID WDURATION (mmmiddotss)07J4 APP 000023
Mar 23 2017 341PM No 3265 P 2426
in the Supplemental Privilege Log and attached to the Supplemental Privilege Log
without any redactions
9 The Special Conunissioner shall render a Report on which Group A and Group B
Communications satisfy attorney-client privilege whioh do not and why He shall also
include in his Supplemental Report which Group C andor Group D Documents satisfY
all requirements for work product priilege which do not and why
10 Additionally for all Communications and Documents which he finds satisfy attomeyshy
client privilege and work product protection he shallstate whether it was reasonable or
necessary for Defendant to utilize cmIDsel in such matter
11 Additionally for each Group Cor Gronp D Documentwbich qualifies fot work product
protection he shall find whether Plaintiff has a compelling need for such document In
that regard the Gandee Trust may provide an analysis within twenty (20) days after the
entry of this Order providing its analysis of compelling need for types or categories of
documents Ifthe Special Commissioner needs additional information he shall so infom
the Court
12 Undet the Courts guidelines in Allstate v Gaughan and the reasoning set forth above
Communications prior to March 9 2016 would generally not be privileged and
Documents generated prior to March 9 2016 would generally not qualify for work
product protection
13 As per Conclusions of Law 38(c) Huntington is not entitled to quasi attorney-client
privilege regarding Huntingtons communications regarding estate administration
14 As there was conflicting proffer of counsel at the January 42017 hearing Defendant
shall include with the Supplemental Privilege Log all billings by Frost Brown amp Todd
Page 23 of25
PAGE 2426 t RCVD AT 31232017 341 05 PM ~astem Daylight Time] SVRPRFAX010 ~ DNIS1780115 t CSID ~ DURATION (mm-ss)0734 APP000024
Ma r 23 2017 3 41 PM No 3265 P 2526
through June I 2016 to Huntington to be paid by Huntington for representation of
Huntington for its litigation representation and payments thereon
15 Notwithstanding any other provision in this Order The Special Comnrissioner in bis
review of all conununications and documents shall identify any communication or
document which meets the guideline for the crimefraud exception as such exception
is set forth in Brison v Kaufinan The Special Commissioner shall be provided a copy
of the Amended Complaint to be apprised of factual circumstances which the Gandee
Trust bas alleged constitute bad faith by defendant
16 In the Supplement to Response to Defendants Motion for Protective Order filed by the
Gandee Trust a request was made under WVRCP 37(a)(4) that Huntington be required
to pay for all attorney fees ofthe Gandee Trust by payment ofthe hours spent by outside
counsel to the Gandee TrtlSt multiplied times their standard hourly rate for all work
relating to attorney-client privilege and work product protection for all legal services
rendered above and beyond its Motion to Compel documents and the hearing on October
242016 including appeals
The Court will address such request after it has completed its in-camera review
and entered an 9rder as to the communications and documents which must be provided to Plaintiff
A subsequent hearing shall be held ifneeded
17 The Court further ORDERS that all communications and docmnents to be provided to
the Gandee Trust by the ultimate Order entered by the Court after full in-camera review
shall be provided to the Gandee Trust and not Plamtiffs Dr Gandees Daughters
Plaintiffs Dr Gandees Daughters may make a motion requesting all or a portion of
such material if they so choose and all parties will have a right to subroit motions and
legal memoranda on such matter
Page 24 of2S
PAGE 25126 t RCVD AT 312312017 34105 PM [Eastern Da~ight Time] SVRPRFAX0110 aDNIS1780115 ~ CSID t DURATION (mmmiddotss)0734 APP 000025
Mar 23 2017 341PM No 3265 P 2626
18 Finally it is ORDERED that the Clerk of this Court mail andor ~therwise provide a
certified copy of this Order to all parties of record
ENTERED tbis ~rtJay ofMarch 2017
c c ~ 1lQ)m -- ct)02 It l Cp b- etJ82 1U
I) -()-fo W middot0cJraquo rqcIe O~f1IO 11 -ujtJ
S--of ltW r-) FiE
~ ~
f om tl1e records ITEST A trueJO~~the Clerk otthe (l~at~tdClnoulirtleo~ ~cpshur County West ClrCUI Virginia
Given under my hancl---l~~Pd~hiCDF
Page2S of25
PAGE 2626 RCVD AT 32312017 341 05 PM ~astem Daylight Time] I SVRPRFAX010 t DNIS1780115 t CSID t DURATION (mmss)D734 APP 000026
IN TIlE c~~tifiC0b1tf6iitiPSHUR COUNTY WEST VIRGINIA ~
DEANNAD GANDEE et aI
PLAINTIFF
vs Crvn ACTION NO lS-C-98
HUNTINGTON BANCSHARES INC et al
DEFENDANT
DISCOVERY COMMISSIONER REPORT
The Discovery Commissioner has reviewed the 1159 pages of e-mails that were provided in
this matter Upon review of the same it appears that there are two different groups of e-mails
1 E-mails relating to the pending litigation that are attorneyclient privilege type e-mails
2 E-mails that are referencing the administration and handling of the Estate
The e-mails which are attributable to the handling of the Estate should be discoverable in this
matter as the issues involved in litigation deal with breach of fiduciary duty I have prepared a
separate sheet setting forth the e-mails that I contend would be discoverable including a copy of the
same for the review of the Court This sheet and list of e-mails will be provided only to the Court for
review and determination of whether they should be disclosed to counsel
rin B NaImers 6358 Discovery Commissioner
APP 000409
CERTIFICATE OF SERVICE
[h I Steven B Nanners do hereby certify that on the it day of December 2016 I served the
following Discovery Commissioner Report by depositing a true copy thereof mthe UmtedStates
Mail in an envelope with sufficient postage attached thereto addressed to the following
Jared M Tully Esq Frost Brown Todd Laidley Tower Suite 401 500 Lee Street Charleston West VIrginia 25301
Alan S Brown Esq Frost Brown Todd 201 North illinois Street - Suite 1900 Indianapolis IN 46204
Gerald R Lacy Esq Lacy Law Offices LC 103 Pennsylvania Avenue PDBox589 Charleston West VIrginia 25322
Gordon C Lane Sr Lane amp Young 1538 Kanawha Blvd East Charleston WesfVIrginia 25311
S~~n B Nanners 6358 Discovery Commissioner Law Offices of Nanners amp Willett LC 45 West Main StreetmiddotU ( Buckhannon West VIrginia 26201 304-472-2048
APP000410
Mar 23 2017 339PM No 3265 P 1826
MechlingI71 WVa 729 301 SE2d 819 (1983) SyI Pt2 Pickens v Tribble 236 WVa 670 783 SE2d 310312 (2016)
30 Applied to the case at bar the legal duty of Huntington as Executor ofthe
Estate ofJames D Gandee under West Virginia law is as follows
Its duty is to manage the Gandee Estate under its control to the advantage ofthose interested in it and to act on their pehalf Further in the discharge ofits duty Huntington National Bank is held to the highest degree of good faith and is required to exercise the ordinary care and reasonable diligence which prudent persons ordinarily exercise under like circumstances in theiJ own personal affairs) Syl pt 1 Latimer v Mechling 171 W_Va 729 301 SE2d 819 (1983) Syi Pt 2 Pickens v Trtbble 236 WVa 670) 783 SE2d 310 312 (2016)
31 The Court concludes that the ~fiduciary exception legal principle bas not been directly
addressed by the West Virginia Supreme Court of Appeals and if presented would be a
question of first impression in West ViIginia See Plaintiffs Supplemental Response
(Exhibit G h~rein)
32 ~laintiff the Gandee Trust chose not to request that a certified question be submitted
regarding fiduciary exception because of the attendant delay~ it is ready for trial and
further asserted and requested that Allstate v Gaughan and existing case law be applied
to the Civil Action See Plaintiffs Supplemental Response (Exhibit G)
33 In the case ofState ex rel- Allstate 117SUtattce Company v Gaughan 508 SB 2d 75 CW
Va 1998) the West Virginia Supreme Court addressed the application of the attorneyshy
client prlVilege and work product rule in a third party bad faith insurance action where
the insured had signed a release ofhislher bad faith claim to the plaintiff InAllstate v
Gaughan the Courts conclusion that the attorney retained by the insurance company
really represents the insured was param01mt in rejecting prior rulings in third party bad
faith cases-Page 11 of25
PAGE 1826 RCVD AT 3232017 341 05 PM Eastern Daylight Time] t SVRPRFAX010 DNIS1780115 CSID ~ DURATION (mm-ss)0734 APP 000018
Mar232017 339PM No 3265 P 1926
34 In Allstate v Gaughan the Court focused on the point in time where the mutual or
conunon interest of the insurance company and insured terminated and broke off which
in that case was the date that plaintiff filed suit against the insurance company
35 Further anticipation of a law suit is insufficient to trigger work product protections as
stated in the Litigation Handbook on the Rules ofCivil Procedure (hereinafter Litigation
Handbook) Cleck1ey~ Davis amp PalmeJ Fourth Edition at page 723
the mere possibility that litigation may occur or even the mere fact that litigation does eventually ensue is insufficient to cloak materials with the mantle ofwork product protection
36 The Court concludes that in the instant Civil Action the mutual Or common interest of
Huntington as Executor and the Gandee Trust as beneficiary terminated and broke off
on March 9 2016 ilie date when the Gandee Trust filed its Joinder Motion
approximately one (1) month after its appointment as Trustee
37 The facts in this Civil Action are Illore compelling than in Allstate v Gaughan as a
fiduciary relationship exists in the instant case as opposed to contractual relationship as
in theAilstate v Gaughan case InAllstate v Gaughan the insured paid for no legal fees
ofthe insurer whereas in the instant matter the beneficiary (the Gandee Trust) paid for
all legal services provided by the attorney retained by Huntington through June 12016
38 Therefore for all the reasons set forth above the Court concludes that application ofthe
holdings inAllstate v Gaughan are proper to apply in the instant case as modified below
a Allstate v Gaughan is precedent for the conclusion that in the instant Civil Action the
time when the mutual interest of Defendant and the Gandee Trust terminated
(plaintiffs filing of complaint in Allstate v Gaughan) is the date ofMarch 92016
Page 18 of25
PAGE 1926 RCVD AT 3232017 341 05 PM ~astern Daylight Time] aSVRPRFAXO10 aDNIS1780115 aCSID t DURATION (mmss)0734 APP 000019
Mar 23 2017 340PM No 3265 P 2026
h In line vvith the precedent in Allstate v Gaughan~ communications and documents
generated prior to March 9~ 2016 are presumptively considered not protected by
attorney-client privilege or work product protection
c InAllstate 11 Gaughan the Court crafted a quasi attorney-client privilege in order to
protect Insurers comm1l11ications with their Insured from being discoverable by tbirdshy
parties under very specific circumstances As the elements of proof for breach of
fiduciary duty in the instant Civii Action are so different than elements of a bad faith
claim the Court concludes that Allstate v Gaughan does not provide quasi attomeyshy
client privilege to the Huntingtons communications regarding estate administration
d Allstate v Gaughan provides guidelines to detennine whether a docuruent satisfied the
work product rule and guidelines for determining whether a compelling need exists to
receive a document which otherwise afforded work product protection These
guidelines serve as precedent in this Civil Action The Court notes that existing case
law also set forth the same holdings as in Allstate v Gaughan and also addresses
traditional attorney-client privilege guidelines fox determining whether a document
satisfies the work product rule and whether a compelling need exists to obtain a
document which satisf1es the work product true
ORDER
Based upon all pleadings and documents referenced herein (Exhibits A-I) atguments
presented by counsel at hearirlgs research of legal authorities and its findings of fact and
conclusions oflaw the Court hereby ORDERS that Allstate v Gaughan supra and existing West
Virginia law be applied to this Civil Action pursuant to the Orders set forth below
1 For purposes ofclarity and consistency the follOWing tenns used in this Order shall have
the same meaning as such terms are used in Allstate v Gaughan traditional attorney-
Page 19 of2S
PAGE 20126 ~ RCYO AT 32312017 341 05 PM ~astern Daylight Time] SVRPRFAX0110 ~ DNIS1780115 t CSID t DURATION (mm-ss)0734 APP 000020
Mar232017 340PM No 3265 P 21126
client privilege work product rule and work product protection As discussed in
the December 222016 hearing the difference in opinion work product and fact work
product must be evaluated by the Special Commissioner and this Court
2 The Court ORDERS the materials previously reviewed in camera on December 22I1d
2016 by the Court and Discovery Commissioner and detennined to be discoverable to
be disclosed to the Plaintiffs for the reasons set forth above and at the hearing The Court
notes the Defendants objection
3 The Court DENIES the Defendants Motion for Protective Order precluding
consideration of the fiduciary exception for the reasons set forth above and at the
hearing The Court notes the Defendants objection
4 The Court GRANTS the Plaintiffs Mcgttion to Compel Defendant to Submit a
Supplemental Privilege Log as identified below The Supplemental Privilege Log is to
be supplied to the Court and Discovery Commissioner with attached documents and in
the form articulated below foran in camera review The Court notes the Defendants
objection
5 On December 22 2016 this Court ordered that Defendant provide a Supplemental
Privilege Log to this Court on or before January 6 2017 setting forth all communications
and documents for which Defendant claims attomey~client privilege or work product in
this case This Court hereby AMENDS the January 6 2017 deadline to AprilSth 2017
and AMENDS AND REFINES such Order as set forth below where all communications
and documents to be listed in the Supplemental Privilege Log are described
6 Defendant shall submit to this Court on or before April 5th 2017 a Supplemental
Privilege Log which lists all infonnation sought by discovery fOJ which a privilege is
claimed to be separated and identified into four separate groups The first tWo groups
Page 20 of25
PAGE 21126 ~ RCVD AT 312312017 341 05 PM [Eastern Daylight Time] SVRPRFAX0110 DNIS1780115 t CSID DURATION (mm-ss)D734 APP000021
Ma r 23 2017 3 40 PM No 3265 P 2226
Group A and Group B include all communications- this includes letters omails and
other correspondence either written or vetbal The second two groups Group C and
Group D include all Documents Bach piece of evidence will be numbered individually
within the respective Group beginning with 1
a Group A Attorney~Client Privilege Communications Prior to March 9 2016 In
line withAllstate v Gaughan all communications relating to the Gandee Estate which
Defendant claims are protected by traditional attorney-client privilege generated prior
to March 92016 ate Group A Communications
b Group B Communications Genex-ated on or After March 9 2016 Note that
Allstate v Gaughan provides that all communications generated after the plaintiff qIed
suit (March 9 2016 in this Civil Action) must be specifically identified and requested
as opposed to a general request so centat a Circuit Court is notunduly burdenedin review
thereof However Huntington continued to have the highest duty under law to the
Gandee Trust as Executor after March 9 2016 Further Huntington decided to have
one law fum represent it as Executor and as Defendant in this matter and to have that
one law finn partiCipate in most estate adrobJistratio~ matters Although it will requjre
additional time by the Special Commissioner and this Court to review documents in
light of the above facts~ the Court ORDERS that the general request for
communications already made is sufficient without need for specific reference for all
Group B Communications generated from March 9 2016 through June 5 2016 June
5 2016 is the date when Executor _activity and conflict of interest decreased when all
Gandee Estate assets were distributed to the Gandee Trust
c Additionally any communication generated after June 5 2016 which relates solely to
the administration of the Gandee Estate or which in any manner relates to a
PageZ1of25
PAGE 22126 ~ RCVD AT 312312017 34105 PM [Eastern Daylight Timel SVRPRFAX0110 t DNIS1780115 t CSID DURATION Immmiddotss)07-34 -APP 000022
Mar 23 2017 341PM No 3265 P 2326
conununication with the Sheriffs Office or the ATF regarding guns owned by the
Gandee Estate shall also be a Group B Communication
d Group C Work Product Rule Documents Generated Prior to March 9 2016 Each
document relating to the Gandee Estate for which Defendant claims work product
protection and which was generated or prepared prior to March 92016 is a Group C
Document
e Group D Work Product Rule Documents Generated on or After March 9 2016
The considerations and analysis set forth in Section (5)(a) above with regatd to
attorney-client privilege also applies to docU1ll8nts for which work product protection
is claimed by Defendant As such all documents generated for the period ofMarch 9
2016 through June 5 2016 ate Group D DOCUIllents and the general request already
made for documents is sufficient Gronp D Documents also mcludes any document
generated after June 5 2016 which relates to estate administration andor any document
relating to the guns owned by the Gandee Estate
7 Additionally~ written analysis shall be provided by Defendant with the Supplemental
Privilege Log on AprilSth 2017 to meet its burden of pro~f that each Group A andor
B Communication satisfies attorney-client privilege (if so claimed by Defendant)
Further Defendant shall provide a written analysis to prove that each Group C andor D
Document qualifies for work product protection Additionally Defendant shall provide
an exp1anation for each CommUnication and Document as to why it was necessary to
retain outside legal counsel for suchmatter and how the advice is legal advice as opposed
to routine estate administration adVice
8 WIthout limiting the foregoing each and every communication or document which has
already been provided by Huntington to the Gandee Trust in redacted form shall be listed
Page22of25
PAGE 23126 ~ RCVD AT 312312017 34105 PM ~astern Daylight Time] SVRPRFAX0110 ~ DNIS1780115 ~ CSID WDURATION (mmmiddotss)07J4 APP 000023
Mar 23 2017 341PM No 3265 P 2426
in the Supplemental Privilege Log and attached to the Supplemental Privilege Log
without any redactions
9 The Special Conunissioner shall render a Report on which Group A and Group B
Communications satisfy attorney-client privilege whioh do not and why He shall also
include in his Supplemental Report which Group C andor Group D Documents satisfY
all requirements for work product priilege which do not and why
10 Additionally for all Communications and Documents which he finds satisfy attomeyshy
client privilege and work product protection he shallstate whether it was reasonable or
necessary for Defendant to utilize cmIDsel in such matter
11 Additionally for each Group Cor Gronp D Documentwbich qualifies fot work product
protection he shall find whether Plaintiff has a compelling need for such document In
that regard the Gandee Trust may provide an analysis within twenty (20) days after the
entry of this Order providing its analysis of compelling need for types or categories of
documents Ifthe Special Commissioner needs additional information he shall so infom
the Court
12 Undet the Courts guidelines in Allstate v Gaughan and the reasoning set forth above
Communications prior to March 9 2016 would generally not be privileged and
Documents generated prior to March 9 2016 would generally not qualify for work
product protection
13 As per Conclusions of Law 38(c) Huntington is not entitled to quasi attorney-client
privilege regarding Huntingtons communications regarding estate administration
14 As there was conflicting proffer of counsel at the January 42017 hearing Defendant
shall include with the Supplemental Privilege Log all billings by Frost Brown amp Todd
Page 23 of25
PAGE 2426 t RCVD AT 31232017 341 05 PM ~astem Daylight Time] SVRPRFAX010 ~ DNIS1780115 t CSID ~ DURATION (mm-ss)0734 APP000024
Ma r 23 2017 3 41 PM No 3265 P 2526
through June I 2016 to Huntington to be paid by Huntington for representation of
Huntington for its litigation representation and payments thereon
15 Notwithstanding any other provision in this Order The Special Comnrissioner in bis
review of all conununications and documents shall identify any communication or
document which meets the guideline for the crimefraud exception as such exception
is set forth in Brison v Kaufinan The Special Commissioner shall be provided a copy
of the Amended Complaint to be apprised of factual circumstances which the Gandee
Trust bas alleged constitute bad faith by defendant
16 In the Supplement to Response to Defendants Motion for Protective Order filed by the
Gandee Trust a request was made under WVRCP 37(a)(4) that Huntington be required
to pay for all attorney fees ofthe Gandee Trust by payment ofthe hours spent by outside
counsel to the Gandee TrtlSt multiplied times their standard hourly rate for all work
relating to attorney-client privilege and work product protection for all legal services
rendered above and beyond its Motion to Compel documents and the hearing on October
242016 including appeals
The Court will address such request after it has completed its in-camera review
and entered an 9rder as to the communications and documents which must be provided to Plaintiff
A subsequent hearing shall be held ifneeded
17 The Court further ORDERS that all communications and docmnents to be provided to
the Gandee Trust by the ultimate Order entered by the Court after full in-camera review
shall be provided to the Gandee Trust and not Plamtiffs Dr Gandees Daughters
Plaintiffs Dr Gandees Daughters may make a motion requesting all or a portion of
such material if they so choose and all parties will have a right to subroit motions and
legal memoranda on such matter
Page 24 of2S
PAGE 25126 t RCVD AT 312312017 34105 PM [Eastern Da~ight Time] SVRPRFAX0110 aDNIS1780115 ~ CSID t DURATION (mmmiddotss)0734 APP 000025
Mar 23 2017 341PM No 3265 P 2626
18 Finally it is ORDERED that the Clerk of this Court mail andor ~therwise provide a
certified copy of this Order to all parties of record
ENTERED tbis ~rtJay ofMarch 2017
c c ~ 1lQ)m -- ct)02 It l Cp b- etJ82 1U
I) -()-fo W middot0cJraquo rqcIe O~f1IO 11 -ujtJ
S--of ltW r-) FiE
~ ~
f om tl1e records ITEST A trueJO~~the Clerk otthe (l~at~tdClnoulirtleo~ ~cpshur County West ClrCUI Virginia
Given under my hancl---l~~Pd~hiCDF
Page2S of25
PAGE 2626 RCVD AT 32312017 341 05 PM ~astem Daylight Time] I SVRPRFAX010 t DNIS1780115 t CSID t DURATION (mmss)D734 APP 000026
IN TIlE c~~tifiC0b1tf6iitiPSHUR COUNTY WEST VIRGINIA ~
DEANNAD GANDEE et aI
PLAINTIFF
vs Crvn ACTION NO lS-C-98
HUNTINGTON BANCSHARES INC et al
DEFENDANT
DISCOVERY COMMISSIONER REPORT
The Discovery Commissioner has reviewed the 1159 pages of e-mails that were provided in
this matter Upon review of the same it appears that there are two different groups of e-mails
1 E-mails relating to the pending litigation that are attorneyclient privilege type e-mails
2 E-mails that are referencing the administration and handling of the Estate
The e-mails which are attributable to the handling of the Estate should be discoverable in this
matter as the issues involved in litigation deal with breach of fiduciary duty I have prepared a
separate sheet setting forth the e-mails that I contend would be discoverable including a copy of the
same for the review of the Court This sheet and list of e-mails will be provided only to the Court for
review and determination of whether they should be disclosed to counsel
rin B NaImers 6358 Discovery Commissioner
APP 000409
CERTIFICATE OF SERVICE
[h I Steven B Nanners do hereby certify that on the it day of December 2016 I served the
following Discovery Commissioner Report by depositing a true copy thereof mthe UmtedStates
Mail in an envelope with sufficient postage attached thereto addressed to the following
Jared M Tully Esq Frost Brown Todd Laidley Tower Suite 401 500 Lee Street Charleston West VIrginia 25301
Alan S Brown Esq Frost Brown Todd 201 North illinois Street - Suite 1900 Indianapolis IN 46204
Gerald R Lacy Esq Lacy Law Offices LC 103 Pennsylvania Avenue PDBox589 Charleston West VIrginia 25322
Gordon C Lane Sr Lane amp Young 1538 Kanawha Blvd East Charleston WesfVIrginia 25311
S~~n B Nanners 6358 Discovery Commissioner Law Offices of Nanners amp Willett LC 45 West Main StreetmiddotU ( Buckhannon West VIrginia 26201 304-472-2048
APP000410
Mar232017 339PM No 3265 P 1926
34 In Allstate v Gaughan the Court focused on the point in time where the mutual or
conunon interest of the insurance company and insured terminated and broke off which
in that case was the date that plaintiff filed suit against the insurance company
35 Further anticipation of a law suit is insufficient to trigger work product protections as
stated in the Litigation Handbook on the Rules ofCivil Procedure (hereinafter Litigation
Handbook) Cleck1ey~ Davis amp PalmeJ Fourth Edition at page 723
the mere possibility that litigation may occur or even the mere fact that litigation does eventually ensue is insufficient to cloak materials with the mantle ofwork product protection
36 The Court concludes that in the instant Civil Action the mutual Or common interest of
Huntington as Executor and the Gandee Trust as beneficiary terminated and broke off
on March 9 2016 ilie date when the Gandee Trust filed its Joinder Motion
approximately one (1) month after its appointment as Trustee
37 The facts in this Civil Action are Illore compelling than in Allstate v Gaughan as a
fiduciary relationship exists in the instant case as opposed to contractual relationship as
in theAilstate v Gaughan case InAllstate v Gaughan the insured paid for no legal fees
ofthe insurer whereas in the instant matter the beneficiary (the Gandee Trust) paid for
all legal services provided by the attorney retained by Huntington through June 12016
38 Therefore for all the reasons set forth above the Court concludes that application ofthe
holdings inAllstate v Gaughan are proper to apply in the instant case as modified below
a Allstate v Gaughan is precedent for the conclusion that in the instant Civil Action the
time when the mutual interest of Defendant and the Gandee Trust terminated
(plaintiffs filing of complaint in Allstate v Gaughan) is the date ofMarch 92016
Page 18 of25
PAGE 1926 RCVD AT 3232017 341 05 PM ~astern Daylight Time] aSVRPRFAXO10 aDNIS1780115 aCSID t DURATION (mmss)0734 APP 000019
Mar 23 2017 340PM No 3265 P 2026
h In line vvith the precedent in Allstate v Gaughan~ communications and documents
generated prior to March 9~ 2016 are presumptively considered not protected by
attorney-client privilege or work product protection
c InAllstate 11 Gaughan the Court crafted a quasi attorney-client privilege in order to
protect Insurers comm1l11ications with their Insured from being discoverable by tbirdshy
parties under very specific circumstances As the elements of proof for breach of
fiduciary duty in the instant Civii Action are so different than elements of a bad faith
claim the Court concludes that Allstate v Gaughan does not provide quasi attomeyshy
client privilege to the Huntingtons communications regarding estate administration
d Allstate v Gaughan provides guidelines to detennine whether a docuruent satisfied the
work product rule and guidelines for determining whether a compelling need exists to
receive a document which otherwise afforded work product protection These
guidelines serve as precedent in this Civil Action The Court notes that existing case
law also set forth the same holdings as in Allstate v Gaughan and also addresses
traditional attorney-client privilege guidelines fox determining whether a document
satisfies the work product rule and whether a compelling need exists to obtain a
document which satisf1es the work product true
ORDER
Based upon all pleadings and documents referenced herein (Exhibits A-I) atguments
presented by counsel at hearirlgs research of legal authorities and its findings of fact and
conclusions oflaw the Court hereby ORDERS that Allstate v Gaughan supra and existing West
Virginia law be applied to this Civil Action pursuant to the Orders set forth below
1 For purposes ofclarity and consistency the follOWing tenns used in this Order shall have
the same meaning as such terms are used in Allstate v Gaughan traditional attorney-
Page 19 of2S
PAGE 20126 ~ RCYO AT 32312017 341 05 PM ~astern Daylight Time] SVRPRFAX0110 ~ DNIS1780115 t CSID t DURATION (mm-ss)0734 APP 000020
Mar232017 340PM No 3265 P 21126
client privilege work product rule and work product protection As discussed in
the December 222016 hearing the difference in opinion work product and fact work
product must be evaluated by the Special Commissioner and this Court
2 The Court ORDERS the materials previously reviewed in camera on December 22I1d
2016 by the Court and Discovery Commissioner and detennined to be discoverable to
be disclosed to the Plaintiffs for the reasons set forth above and at the hearing The Court
notes the Defendants objection
3 The Court DENIES the Defendants Motion for Protective Order precluding
consideration of the fiduciary exception for the reasons set forth above and at the
hearing The Court notes the Defendants objection
4 The Court GRANTS the Plaintiffs Mcgttion to Compel Defendant to Submit a
Supplemental Privilege Log as identified below The Supplemental Privilege Log is to
be supplied to the Court and Discovery Commissioner with attached documents and in
the form articulated below foran in camera review The Court notes the Defendants
objection
5 On December 22 2016 this Court ordered that Defendant provide a Supplemental
Privilege Log to this Court on or before January 6 2017 setting forth all communications
and documents for which Defendant claims attomey~client privilege or work product in
this case This Court hereby AMENDS the January 6 2017 deadline to AprilSth 2017
and AMENDS AND REFINES such Order as set forth below where all communications
and documents to be listed in the Supplemental Privilege Log are described
6 Defendant shall submit to this Court on or before April 5th 2017 a Supplemental
Privilege Log which lists all infonnation sought by discovery fOJ which a privilege is
claimed to be separated and identified into four separate groups The first tWo groups
Page 20 of25
PAGE 21126 ~ RCVD AT 312312017 341 05 PM [Eastern Daylight Time] SVRPRFAX0110 DNIS1780115 t CSID DURATION (mm-ss)D734 APP000021
Ma r 23 2017 3 40 PM No 3265 P 2226
Group A and Group B include all communications- this includes letters omails and
other correspondence either written or vetbal The second two groups Group C and
Group D include all Documents Bach piece of evidence will be numbered individually
within the respective Group beginning with 1
a Group A Attorney~Client Privilege Communications Prior to March 9 2016 In
line withAllstate v Gaughan all communications relating to the Gandee Estate which
Defendant claims are protected by traditional attorney-client privilege generated prior
to March 92016 ate Group A Communications
b Group B Communications Genex-ated on or After March 9 2016 Note that
Allstate v Gaughan provides that all communications generated after the plaintiff qIed
suit (March 9 2016 in this Civil Action) must be specifically identified and requested
as opposed to a general request so centat a Circuit Court is notunduly burdenedin review
thereof However Huntington continued to have the highest duty under law to the
Gandee Trust as Executor after March 9 2016 Further Huntington decided to have
one law fum represent it as Executor and as Defendant in this matter and to have that
one law finn partiCipate in most estate adrobJistratio~ matters Although it will requjre
additional time by the Special Commissioner and this Court to review documents in
light of the above facts~ the Court ORDERS that the general request for
communications already made is sufficient without need for specific reference for all
Group B Communications generated from March 9 2016 through June 5 2016 June
5 2016 is the date when Executor _activity and conflict of interest decreased when all
Gandee Estate assets were distributed to the Gandee Trust
c Additionally any communication generated after June 5 2016 which relates solely to
the administration of the Gandee Estate or which in any manner relates to a
PageZ1of25
PAGE 22126 ~ RCVD AT 312312017 34105 PM [Eastern Daylight Timel SVRPRFAX0110 t DNIS1780115 t CSID DURATION Immmiddotss)07-34 -APP 000022
Mar 23 2017 341PM No 3265 P 2326
conununication with the Sheriffs Office or the ATF regarding guns owned by the
Gandee Estate shall also be a Group B Communication
d Group C Work Product Rule Documents Generated Prior to March 9 2016 Each
document relating to the Gandee Estate for which Defendant claims work product
protection and which was generated or prepared prior to March 92016 is a Group C
Document
e Group D Work Product Rule Documents Generated on or After March 9 2016
The considerations and analysis set forth in Section (5)(a) above with regatd to
attorney-client privilege also applies to docU1ll8nts for which work product protection
is claimed by Defendant As such all documents generated for the period ofMarch 9
2016 through June 5 2016 ate Group D DOCUIllents and the general request already
made for documents is sufficient Gronp D Documents also mcludes any document
generated after June 5 2016 which relates to estate administration andor any document
relating to the guns owned by the Gandee Estate
7 Additionally~ written analysis shall be provided by Defendant with the Supplemental
Privilege Log on AprilSth 2017 to meet its burden of pro~f that each Group A andor
B Communication satisfies attorney-client privilege (if so claimed by Defendant)
Further Defendant shall provide a written analysis to prove that each Group C andor D
Document qualifies for work product protection Additionally Defendant shall provide
an exp1anation for each CommUnication and Document as to why it was necessary to
retain outside legal counsel for suchmatter and how the advice is legal advice as opposed
to routine estate administration adVice
8 WIthout limiting the foregoing each and every communication or document which has
already been provided by Huntington to the Gandee Trust in redacted form shall be listed
Page22of25
PAGE 23126 ~ RCVD AT 312312017 34105 PM ~astern Daylight Time] SVRPRFAX0110 ~ DNIS1780115 ~ CSID WDURATION (mmmiddotss)07J4 APP 000023
Mar 23 2017 341PM No 3265 P 2426
in the Supplemental Privilege Log and attached to the Supplemental Privilege Log
without any redactions
9 The Special Conunissioner shall render a Report on which Group A and Group B
Communications satisfy attorney-client privilege whioh do not and why He shall also
include in his Supplemental Report which Group C andor Group D Documents satisfY
all requirements for work product priilege which do not and why
10 Additionally for all Communications and Documents which he finds satisfy attomeyshy
client privilege and work product protection he shallstate whether it was reasonable or
necessary for Defendant to utilize cmIDsel in such matter
11 Additionally for each Group Cor Gronp D Documentwbich qualifies fot work product
protection he shall find whether Plaintiff has a compelling need for such document In
that regard the Gandee Trust may provide an analysis within twenty (20) days after the
entry of this Order providing its analysis of compelling need for types or categories of
documents Ifthe Special Commissioner needs additional information he shall so infom
the Court
12 Undet the Courts guidelines in Allstate v Gaughan and the reasoning set forth above
Communications prior to March 9 2016 would generally not be privileged and
Documents generated prior to March 9 2016 would generally not qualify for work
product protection
13 As per Conclusions of Law 38(c) Huntington is not entitled to quasi attorney-client
privilege regarding Huntingtons communications regarding estate administration
14 As there was conflicting proffer of counsel at the January 42017 hearing Defendant
shall include with the Supplemental Privilege Log all billings by Frost Brown amp Todd
Page 23 of25
PAGE 2426 t RCVD AT 31232017 341 05 PM ~astem Daylight Time] SVRPRFAX010 ~ DNIS1780115 t CSID ~ DURATION (mm-ss)0734 APP000024
Ma r 23 2017 3 41 PM No 3265 P 2526
through June I 2016 to Huntington to be paid by Huntington for representation of
Huntington for its litigation representation and payments thereon
15 Notwithstanding any other provision in this Order The Special Comnrissioner in bis
review of all conununications and documents shall identify any communication or
document which meets the guideline for the crimefraud exception as such exception
is set forth in Brison v Kaufinan The Special Commissioner shall be provided a copy
of the Amended Complaint to be apprised of factual circumstances which the Gandee
Trust bas alleged constitute bad faith by defendant
16 In the Supplement to Response to Defendants Motion for Protective Order filed by the
Gandee Trust a request was made under WVRCP 37(a)(4) that Huntington be required
to pay for all attorney fees ofthe Gandee Trust by payment ofthe hours spent by outside
counsel to the Gandee TrtlSt multiplied times their standard hourly rate for all work
relating to attorney-client privilege and work product protection for all legal services
rendered above and beyond its Motion to Compel documents and the hearing on October
242016 including appeals
The Court will address such request after it has completed its in-camera review
and entered an 9rder as to the communications and documents which must be provided to Plaintiff
A subsequent hearing shall be held ifneeded
17 The Court further ORDERS that all communications and docmnents to be provided to
the Gandee Trust by the ultimate Order entered by the Court after full in-camera review
shall be provided to the Gandee Trust and not Plamtiffs Dr Gandees Daughters
Plaintiffs Dr Gandees Daughters may make a motion requesting all or a portion of
such material if they so choose and all parties will have a right to subroit motions and
legal memoranda on such matter
Page 24 of2S
PAGE 25126 t RCVD AT 312312017 34105 PM [Eastern Da~ight Time] SVRPRFAX0110 aDNIS1780115 ~ CSID t DURATION (mmmiddotss)0734 APP 000025
Mar 23 2017 341PM No 3265 P 2626
18 Finally it is ORDERED that the Clerk of this Court mail andor ~therwise provide a
certified copy of this Order to all parties of record
ENTERED tbis ~rtJay ofMarch 2017
c c ~ 1lQ)m -- ct)02 It l Cp b- etJ82 1U
I) -()-fo W middot0cJraquo rqcIe O~f1IO 11 -ujtJ
S--of ltW r-) FiE
~ ~
f om tl1e records ITEST A trueJO~~the Clerk otthe (l~at~tdClnoulirtleo~ ~cpshur County West ClrCUI Virginia
Given under my hancl---l~~Pd~hiCDF
Page2S of25
PAGE 2626 RCVD AT 32312017 341 05 PM ~astem Daylight Time] I SVRPRFAX010 t DNIS1780115 t CSID t DURATION (mmss)D734 APP 000026
IN TIlE c~~tifiC0b1tf6iitiPSHUR COUNTY WEST VIRGINIA ~
DEANNAD GANDEE et aI
PLAINTIFF
vs Crvn ACTION NO lS-C-98
HUNTINGTON BANCSHARES INC et al
DEFENDANT
DISCOVERY COMMISSIONER REPORT
The Discovery Commissioner has reviewed the 1159 pages of e-mails that were provided in
this matter Upon review of the same it appears that there are two different groups of e-mails
1 E-mails relating to the pending litigation that are attorneyclient privilege type e-mails
2 E-mails that are referencing the administration and handling of the Estate
The e-mails which are attributable to the handling of the Estate should be discoverable in this
matter as the issues involved in litigation deal with breach of fiduciary duty I have prepared a
separate sheet setting forth the e-mails that I contend would be discoverable including a copy of the
same for the review of the Court This sheet and list of e-mails will be provided only to the Court for
review and determination of whether they should be disclosed to counsel
rin B NaImers 6358 Discovery Commissioner
APP 000409
CERTIFICATE OF SERVICE
[h I Steven B Nanners do hereby certify that on the it day of December 2016 I served the
following Discovery Commissioner Report by depositing a true copy thereof mthe UmtedStates
Mail in an envelope with sufficient postage attached thereto addressed to the following
Jared M Tully Esq Frost Brown Todd Laidley Tower Suite 401 500 Lee Street Charleston West VIrginia 25301
Alan S Brown Esq Frost Brown Todd 201 North illinois Street - Suite 1900 Indianapolis IN 46204
Gerald R Lacy Esq Lacy Law Offices LC 103 Pennsylvania Avenue PDBox589 Charleston West VIrginia 25322
Gordon C Lane Sr Lane amp Young 1538 Kanawha Blvd East Charleston WesfVIrginia 25311
S~~n B Nanners 6358 Discovery Commissioner Law Offices of Nanners amp Willett LC 45 West Main StreetmiddotU ( Buckhannon West VIrginia 26201 304-472-2048
APP000410
Mar 23 2017 340PM No 3265 P 2026
h In line vvith the precedent in Allstate v Gaughan~ communications and documents
generated prior to March 9~ 2016 are presumptively considered not protected by
attorney-client privilege or work product protection
c InAllstate 11 Gaughan the Court crafted a quasi attorney-client privilege in order to
protect Insurers comm1l11ications with their Insured from being discoverable by tbirdshy
parties under very specific circumstances As the elements of proof for breach of
fiduciary duty in the instant Civii Action are so different than elements of a bad faith
claim the Court concludes that Allstate v Gaughan does not provide quasi attomeyshy
client privilege to the Huntingtons communications regarding estate administration
d Allstate v Gaughan provides guidelines to detennine whether a docuruent satisfied the
work product rule and guidelines for determining whether a compelling need exists to
receive a document which otherwise afforded work product protection These
guidelines serve as precedent in this Civil Action The Court notes that existing case
law also set forth the same holdings as in Allstate v Gaughan and also addresses
traditional attorney-client privilege guidelines fox determining whether a document
satisfies the work product rule and whether a compelling need exists to obtain a
document which satisf1es the work product true
ORDER
Based upon all pleadings and documents referenced herein (Exhibits A-I) atguments
presented by counsel at hearirlgs research of legal authorities and its findings of fact and
conclusions oflaw the Court hereby ORDERS that Allstate v Gaughan supra and existing West
Virginia law be applied to this Civil Action pursuant to the Orders set forth below
1 For purposes ofclarity and consistency the follOWing tenns used in this Order shall have
the same meaning as such terms are used in Allstate v Gaughan traditional attorney-
Page 19 of2S
PAGE 20126 ~ RCYO AT 32312017 341 05 PM ~astern Daylight Time] SVRPRFAX0110 ~ DNIS1780115 t CSID t DURATION (mm-ss)0734 APP 000020
Mar232017 340PM No 3265 P 21126
client privilege work product rule and work product protection As discussed in
the December 222016 hearing the difference in opinion work product and fact work
product must be evaluated by the Special Commissioner and this Court
2 The Court ORDERS the materials previously reviewed in camera on December 22I1d
2016 by the Court and Discovery Commissioner and detennined to be discoverable to
be disclosed to the Plaintiffs for the reasons set forth above and at the hearing The Court
notes the Defendants objection
3 The Court DENIES the Defendants Motion for Protective Order precluding
consideration of the fiduciary exception for the reasons set forth above and at the
hearing The Court notes the Defendants objection
4 The Court GRANTS the Plaintiffs Mcgttion to Compel Defendant to Submit a
Supplemental Privilege Log as identified below The Supplemental Privilege Log is to
be supplied to the Court and Discovery Commissioner with attached documents and in
the form articulated below foran in camera review The Court notes the Defendants
objection
5 On December 22 2016 this Court ordered that Defendant provide a Supplemental
Privilege Log to this Court on or before January 6 2017 setting forth all communications
and documents for which Defendant claims attomey~client privilege or work product in
this case This Court hereby AMENDS the January 6 2017 deadline to AprilSth 2017
and AMENDS AND REFINES such Order as set forth below where all communications
and documents to be listed in the Supplemental Privilege Log are described
6 Defendant shall submit to this Court on or before April 5th 2017 a Supplemental
Privilege Log which lists all infonnation sought by discovery fOJ which a privilege is
claimed to be separated and identified into four separate groups The first tWo groups
Page 20 of25
PAGE 21126 ~ RCVD AT 312312017 341 05 PM [Eastern Daylight Time] SVRPRFAX0110 DNIS1780115 t CSID DURATION (mm-ss)D734 APP000021
Ma r 23 2017 3 40 PM No 3265 P 2226
Group A and Group B include all communications- this includes letters omails and
other correspondence either written or vetbal The second two groups Group C and
Group D include all Documents Bach piece of evidence will be numbered individually
within the respective Group beginning with 1
a Group A Attorney~Client Privilege Communications Prior to March 9 2016 In
line withAllstate v Gaughan all communications relating to the Gandee Estate which
Defendant claims are protected by traditional attorney-client privilege generated prior
to March 92016 ate Group A Communications
b Group B Communications Genex-ated on or After March 9 2016 Note that
Allstate v Gaughan provides that all communications generated after the plaintiff qIed
suit (March 9 2016 in this Civil Action) must be specifically identified and requested
as opposed to a general request so centat a Circuit Court is notunduly burdenedin review
thereof However Huntington continued to have the highest duty under law to the
Gandee Trust as Executor after March 9 2016 Further Huntington decided to have
one law fum represent it as Executor and as Defendant in this matter and to have that
one law finn partiCipate in most estate adrobJistratio~ matters Although it will requjre
additional time by the Special Commissioner and this Court to review documents in
light of the above facts~ the Court ORDERS that the general request for
communications already made is sufficient without need for specific reference for all
Group B Communications generated from March 9 2016 through June 5 2016 June
5 2016 is the date when Executor _activity and conflict of interest decreased when all
Gandee Estate assets were distributed to the Gandee Trust
c Additionally any communication generated after June 5 2016 which relates solely to
the administration of the Gandee Estate or which in any manner relates to a
PageZ1of25
PAGE 22126 ~ RCVD AT 312312017 34105 PM [Eastern Daylight Timel SVRPRFAX0110 t DNIS1780115 t CSID DURATION Immmiddotss)07-34 -APP 000022
Mar 23 2017 341PM No 3265 P 2326
conununication with the Sheriffs Office or the ATF regarding guns owned by the
Gandee Estate shall also be a Group B Communication
d Group C Work Product Rule Documents Generated Prior to March 9 2016 Each
document relating to the Gandee Estate for which Defendant claims work product
protection and which was generated or prepared prior to March 92016 is a Group C
Document
e Group D Work Product Rule Documents Generated on or After March 9 2016
The considerations and analysis set forth in Section (5)(a) above with regatd to
attorney-client privilege also applies to docU1ll8nts for which work product protection
is claimed by Defendant As such all documents generated for the period ofMarch 9
2016 through June 5 2016 ate Group D DOCUIllents and the general request already
made for documents is sufficient Gronp D Documents also mcludes any document
generated after June 5 2016 which relates to estate administration andor any document
relating to the guns owned by the Gandee Estate
7 Additionally~ written analysis shall be provided by Defendant with the Supplemental
Privilege Log on AprilSth 2017 to meet its burden of pro~f that each Group A andor
B Communication satisfies attorney-client privilege (if so claimed by Defendant)
Further Defendant shall provide a written analysis to prove that each Group C andor D
Document qualifies for work product protection Additionally Defendant shall provide
an exp1anation for each CommUnication and Document as to why it was necessary to
retain outside legal counsel for suchmatter and how the advice is legal advice as opposed
to routine estate administration adVice
8 WIthout limiting the foregoing each and every communication or document which has
already been provided by Huntington to the Gandee Trust in redacted form shall be listed
Page22of25
PAGE 23126 ~ RCVD AT 312312017 34105 PM ~astern Daylight Time] SVRPRFAX0110 ~ DNIS1780115 ~ CSID WDURATION (mmmiddotss)07J4 APP 000023
Mar 23 2017 341PM No 3265 P 2426
in the Supplemental Privilege Log and attached to the Supplemental Privilege Log
without any redactions
9 The Special Conunissioner shall render a Report on which Group A and Group B
Communications satisfy attorney-client privilege whioh do not and why He shall also
include in his Supplemental Report which Group C andor Group D Documents satisfY
all requirements for work product priilege which do not and why
10 Additionally for all Communications and Documents which he finds satisfy attomeyshy
client privilege and work product protection he shallstate whether it was reasonable or
necessary for Defendant to utilize cmIDsel in such matter
11 Additionally for each Group Cor Gronp D Documentwbich qualifies fot work product
protection he shall find whether Plaintiff has a compelling need for such document In
that regard the Gandee Trust may provide an analysis within twenty (20) days after the
entry of this Order providing its analysis of compelling need for types or categories of
documents Ifthe Special Commissioner needs additional information he shall so infom
the Court
12 Undet the Courts guidelines in Allstate v Gaughan and the reasoning set forth above
Communications prior to March 9 2016 would generally not be privileged and
Documents generated prior to March 9 2016 would generally not qualify for work
product protection
13 As per Conclusions of Law 38(c) Huntington is not entitled to quasi attorney-client
privilege regarding Huntingtons communications regarding estate administration
14 As there was conflicting proffer of counsel at the January 42017 hearing Defendant
shall include with the Supplemental Privilege Log all billings by Frost Brown amp Todd
Page 23 of25
PAGE 2426 t RCVD AT 31232017 341 05 PM ~astem Daylight Time] SVRPRFAX010 ~ DNIS1780115 t CSID ~ DURATION (mm-ss)0734 APP000024
Ma r 23 2017 3 41 PM No 3265 P 2526
through June I 2016 to Huntington to be paid by Huntington for representation of
Huntington for its litigation representation and payments thereon
15 Notwithstanding any other provision in this Order The Special Comnrissioner in bis
review of all conununications and documents shall identify any communication or
document which meets the guideline for the crimefraud exception as such exception
is set forth in Brison v Kaufinan The Special Commissioner shall be provided a copy
of the Amended Complaint to be apprised of factual circumstances which the Gandee
Trust bas alleged constitute bad faith by defendant
16 In the Supplement to Response to Defendants Motion for Protective Order filed by the
Gandee Trust a request was made under WVRCP 37(a)(4) that Huntington be required
to pay for all attorney fees ofthe Gandee Trust by payment ofthe hours spent by outside
counsel to the Gandee TrtlSt multiplied times their standard hourly rate for all work
relating to attorney-client privilege and work product protection for all legal services
rendered above and beyond its Motion to Compel documents and the hearing on October
242016 including appeals
The Court will address such request after it has completed its in-camera review
and entered an 9rder as to the communications and documents which must be provided to Plaintiff
A subsequent hearing shall be held ifneeded
17 The Court further ORDERS that all communications and docmnents to be provided to
the Gandee Trust by the ultimate Order entered by the Court after full in-camera review
shall be provided to the Gandee Trust and not Plamtiffs Dr Gandees Daughters
Plaintiffs Dr Gandees Daughters may make a motion requesting all or a portion of
such material if they so choose and all parties will have a right to subroit motions and
legal memoranda on such matter
Page 24 of2S
PAGE 25126 t RCVD AT 312312017 34105 PM [Eastern Da~ight Time] SVRPRFAX0110 aDNIS1780115 ~ CSID t DURATION (mmmiddotss)0734 APP 000025
Mar 23 2017 341PM No 3265 P 2626
18 Finally it is ORDERED that the Clerk of this Court mail andor ~therwise provide a
certified copy of this Order to all parties of record
ENTERED tbis ~rtJay ofMarch 2017
c c ~ 1lQ)m -- ct)02 It l Cp b- etJ82 1U
I) -()-fo W middot0cJraquo rqcIe O~f1IO 11 -ujtJ
S--of ltW r-) FiE
~ ~
f om tl1e records ITEST A trueJO~~the Clerk otthe (l~at~tdClnoulirtleo~ ~cpshur County West ClrCUI Virginia
Given under my hancl---l~~Pd~hiCDF
Page2S of25
PAGE 2626 RCVD AT 32312017 341 05 PM ~astem Daylight Time] I SVRPRFAX010 t DNIS1780115 t CSID t DURATION (mmss)D734 APP 000026
IN TIlE c~~tifiC0b1tf6iitiPSHUR COUNTY WEST VIRGINIA ~
DEANNAD GANDEE et aI
PLAINTIFF
vs Crvn ACTION NO lS-C-98
HUNTINGTON BANCSHARES INC et al
DEFENDANT
DISCOVERY COMMISSIONER REPORT
The Discovery Commissioner has reviewed the 1159 pages of e-mails that were provided in
this matter Upon review of the same it appears that there are two different groups of e-mails
1 E-mails relating to the pending litigation that are attorneyclient privilege type e-mails
2 E-mails that are referencing the administration and handling of the Estate
The e-mails which are attributable to the handling of the Estate should be discoverable in this
matter as the issues involved in litigation deal with breach of fiduciary duty I have prepared a
separate sheet setting forth the e-mails that I contend would be discoverable including a copy of the
same for the review of the Court This sheet and list of e-mails will be provided only to the Court for
review and determination of whether they should be disclosed to counsel
rin B NaImers 6358 Discovery Commissioner
APP 000409
CERTIFICATE OF SERVICE
[h I Steven B Nanners do hereby certify that on the it day of December 2016 I served the
following Discovery Commissioner Report by depositing a true copy thereof mthe UmtedStates
Mail in an envelope with sufficient postage attached thereto addressed to the following
Jared M Tully Esq Frost Brown Todd Laidley Tower Suite 401 500 Lee Street Charleston West VIrginia 25301
Alan S Brown Esq Frost Brown Todd 201 North illinois Street - Suite 1900 Indianapolis IN 46204
Gerald R Lacy Esq Lacy Law Offices LC 103 Pennsylvania Avenue PDBox589 Charleston West VIrginia 25322
Gordon C Lane Sr Lane amp Young 1538 Kanawha Blvd East Charleston WesfVIrginia 25311
S~~n B Nanners 6358 Discovery Commissioner Law Offices of Nanners amp Willett LC 45 West Main StreetmiddotU ( Buckhannon West VIrginia 26201 304-472-2048
APP000410
Mar232017 340PM No 3265 P 21126
client privilege work product rule and work product protection As discussed in
the December 222016 hearing the difference in opinion work product and fact work
product must be evaluated by the Special Commissioner and this Court
2 The Court ORDERS the materials previously reviewed in camera on December 22I1d
2016 by the Court and Discovery Commissioner and detennined to be discoverable to
be disclosed to the Plaintiffs for the reasons set forth above and at the hearing The Court
notes the Defendants objection
3 The Court DENIES the Defendants Motion for Protective Order precluding
consideration of the fiduciary exception for the reasons set forth above and at the
hearing The Court notes the Defendants objection
4 The Court GRANTS the Plaintiffs Mcgttion to Compel Defendant to Submit a
Supplemental Privilege Log as identified below The Supplemental Privilege Log is to
be supplied to the Court and Discovery Commissioner with attached documents and in
the form articulated below foran in camera review The Court notes the Defendants
objection
5 On December 22 2016 this Court ordered that Defendant provide a Supplemental
Privilege Log to this Court on or before January 6 2017 setting forth all communications
and documents for which Defendant claims attomey~client privilege or work product in
this case This Court hereby AMENDS the January 6 2017 deadline to AprilSth 2017
and AMENDS AND REFINES such Order as set forth below where all communications
and documents to be listed in the Supplemental Privilege Log are described
6 Defendant shall submit to this Court on or before April 5th 2017 a Supplemental
Privilege Log which lists all infonnation sought by discovery fOJ which a privilege is
claimed to be separated and identified into four separate groups The first tWo groups
Page 20 of25
PAGE 21126 ~ RCVD AT 312312017 341 05 PM [Eastern Daylight Time] SVRPRFAX0110 DNIS1780115 t CSID DURATION (mm-ss)D734 APP000021
Ma r 23 2017 3 40 PM No 3265 P 2226
Group A and Group B include all communications- this includes letters omails and
other correspondence either written or vetbal The second two groups Group C and
Group D include all Documents Bach piece of evidence will be numbered individually
within the respective Group beginning with 1
a Group A Attorney~Client Privilege Communications Prior to March 9 2016 In
line withAllstate v Gaughan all communications relating to the Gandee Estate which
Defendant claims are protected by traditional attorney-client privilege generated prior
to March 92016 ate Group A Communications
b Group B Communications Genex-ated on or After March 9 2016 Note that
Allstate v Gaughan provides that all communications generated after the plaintiff qIed
suit (March 9 2016 in this Civil Action) must be specifically identified and requested
as opposed to a general request so centat a Circuit Court is notunduly burdenedin review
thereof However Huntington continued to have the highest duty under law to the
Gandee Trust as Executor after March 9 2016 Further Huntington decided to have
one law fum represent it as Executor and as Defendant in this matter and to have that
one law finn partiCipate in most estate adrobJistratio~ matters Although it will requjre
additional time by the Special Commissioner and this Court to review documents in
light of the above facts~ the Court ORDERS that the general request for
communications already made is sufficient without need for specific reference for all
Group B Communications generated from March 9 2016 through June 5 2016 June
5 2016 is the date when Executor _activity and conflict of interest decreased when all
Gandee Estate assets were distributed to the Gandee Trust
c Additionally any communication generated after June 5 2016 which relates solely to
the administration of the Gandee Estate or which in any manner relates to a
PageZ1of25
PAGE 22126 ~ RCVD AT 312312017 34105 PM [Eastern Daylight Timel SVRPRFAX0110 t DNIS1780115 t CSID DURATION Immmiddotss)07-34 -APP 000022
Mar 23 2017 341PM No 3265 P 2326
conununication with the Sheriffs Office or the ATF regarding guns owned by the
Gandee Estate shall also be a Group B Communication
d Group C Work Product Rule Documents Generated Prior to March 9 2016 Each
document relating to the Gandee Estate for which Defendant claims work product
protection and which was generated or prepared prior to March 92016 is a Group C
Document
e Group D Work Product Rule Documents Generated on or After March 9 2016
The considerations and analysis set forth in Section (5)(a) above with regatd to
attorney-client privilege also applies to docU1ll8nts for which work product protection
is claimed by Defendant As such all documents generated for the period ofMarch 9
2016 through June 5 2016 ate Group D DOCUIllents and the general request already
made for documents is sufficient Gronp D Documents also mcludes any document
generated after June 5 2016 which relates to estate administration andor any document
relating to the guns owned by the Gandee Estate
7 Additionally~ written analysis shall be provided by Defendant with the Supplemental
Privilege Log on AprilSth 2017 to meet its burden of pro~f that each Group A andor
B Communication satisfies attorney-client privilege (if so claimed by Defendant)
Further Defendant shall provide a written analysis to prove that each Group C andor D
Document qualifies for work product protection Additionally Defendant shall provide
an exp1anation for each CommUnication and Document as to why it was necessary to
retain outside legal counsel for suchmatter and how the advice is legal advice as opposed
to routine estate administration adVice
8 WIthout limiting the foregoing each and every communication or document which has
already been provided by Huntington to the Gandee Trust in redacted form shall be listed
Page22of25
PAGE 23126 ~ RCVD AT 312312017 34105 PM ~astern Daylight Time] SVRPRFAX0110 ~ DNIS1780115 ~ CSID WDURATION (mmmiddotss)07J4 APP 000023
Mar 23 2017 341PM No 3265 P 2426
in the Supplemental Privilege Log and attached to the Supplemental Privilege Log
without any redactions
9 The Special Conunissioner shall render a Report on which Group A and Group B
Communications satisfy attorney-client privilege whioh do not and why He shall also
include in his Supplemental Report which Group C andor Group D Documents satisfY
all requirements for work product priilege which do not and why
10 Additionally for all Communications and Documents which he finds satisfy attomeyshy
client privilege and work product protection he shallstate whether it was reasonable or
necessary for Defendant to utilize cmIDsel in such matter
11 Additionally for each Group Cor Gronp D Documentwbich qualifies fot work product
protection he shall find whether Plaintiff has a compelling need for such document In
that regard the Gandee Trust may provide an analysis within twenty (20) days after the
entry of this Order providing its analysis of compelling need for types or categories of
documents Ifthe Special Commissioner needs additional information he shall so infom
the Court
12 Undet the Courts guidelines in Allstate v Gaughan and the reasoning set forth above
Communications prior to March 9 2016 would generally not be privileged and
Documents generated prior to March 9 2016 would generally not qualify for work
product protection
13 As per Conclusions of Law 38(c) Huntington is not entitled to quasi attorney-client
privilege regarding Huntingtons communications regarding estate administration
14 As there was conflicting proffer of counsel at the January 42017 hearing Defendant
shall include with the Supplemental Privilege Log all billings by Frost Brown amp Todd
Page 23 of25
PAGE 2426 t RCVD AT 31232017 341 05 PM ~astem Daylight Time] SVRPRFAX010 ~ DNIS1780115 t CSID ~ DURATION (mm-ss)0734 APP000024
Ma r 23 2017 3 41 PM No 3265 P 2526
through June I 2016 to Huntington to be paid by Huntington for representation of
Huntington for its litigation representation and payments thereon
15 Notwithstanding any other provision in this Order The Special Comnrissioner in bis
review of all conununications and documents shall identify any communication or
document which meets the guideline for the crimefraud exception as such exception
is set forth in Brison v Kaufinan The Special Commissioner shall be provided a copy
of the Amended Complaint to be apprised of factual circumstances which the Gandee
Trust bas alleged constitute bad faith by defendant
16 In the Supplement to Response to Defendants Motion for Protective Order filed by the
Gandee Trust a request was made under WVRCP 37(a)(4) that Huntington be required
to pay for all attorney fees ofthe Gandee Trust by payment ofthe hours spent by outside
counsel to the Gandee TrtlSt multiplied times their standard hourly rate for all work
relating to attorney-client privilege and work product protection for all legal services
rendered above and beyond its Motion to Compel documents and the hearing on October
242016 including appeals
The Court will address such request after it has completed its in-camera review
and entered an 9rder as to the communications and documents which must be provided to Plaintiff
A subsequent hearing shall be held ifneeded
17 The Court further ORDERS that all communications and docmnents to be provided to
the Gandee Trust by the ultimate Order entered by the Court after full in-camera review
shall be provided to the Gandee Trust and not Plamtiffs Dr Gandees Daughters
Plaintiffs Dr Gandees Daughters may make a motion requesting all or a portion of
such material if they so choose and all parties will have a right to subroit motions and
legal memoranda on such matter
Page 24 of2S
PAGE 25126 t RCVD AT 312312017 34105 PM [Eastern Da~ight Time] SVRPRFAX0110 aDNIS1780115 ~ CSID t DURATION (mmmiddotss)0734 APP 000025
Mar 23 2017 341PM No 3265 P 2626
18 Finally it is ORDERED that the Clerk of this Court mail andor ~therwise provide a
certified copy of this Order to all parties of record
ENTERED tbis ~rtJay ofMarch 2017
c c ~ 1lQ)m -- ct)02 It l Cp b- etJ82 1U
I) -()-fo W middot0cJraquo rqcIe O~f1IO 11 -ujtJ
S--of ltW r-) FiE
~ ~
f om tl1e records ITEST A trueJO~~the Clerk otthe (l~at~tdClnoulirtleo~ ~cpshur County West ClrCUI Virginia
Given under my hancl---l~~Pd~hiCDF
Page2S of25
PAGE 2626 RCVD AT 32312017 341 05 PM ~astem Daylight Time] I SVRPRFAX010 t DNIS1780115 t CSID t DURATION (mmss)D734 APP 000026
IN TIlE c~~tifiC0b1tf6iitiPSHUR COUNTY WEST VIRGINIA ~
DEANNAD GANDEE et aI
PLAINTIFF
vs Crvn ACTION NO lS-C-98
HUNTINGTON BANCSHARES INC et al
DEFENDANT
DISCOVERY COMMISSIONER REPORT
The Discovery Commissioner has reviewed the 1159 pages of e-mails that were provided in
this matter Upon review of the same it appears that there are two different groups of e-mails
1 E-mails relating to the pending litigation that are attorneyclient privilege type e-mails
2 E-mails that are referencing the administration and handling of the Estate
The e-mails which are attributable to the handling of the Estate should be discoverable in this
matter as the issues involved in litigation deal with breach of fiduciary duty I have prepared a
separate sheet setting forth the e-mails that I contend would be discoverable including a copy of the
same for the review of the Court This sheet and list of e-mails will be provided only to the Court for
review and determination of whether they should be disclosed to counsel
rin B NaImers 6358 Discovery Commissioner
APP 000409
CERTIFICATE OF SERVICE
[h I Steven B Nanners do hereby certify that on the it day of December 2016 I served the
following Discovery Commissioner Report by depositing a true copy thereof mthe UmtedStates
Mail in an envelope with sufficient postage attached thereto addressed to the following
Jared M Tully Esq Frost Brown Todd Laidley Tower Suite 401 500 Lee Street Charleston West VIrginia 25301
Alan S Brown Esq Frost Brown Todd 201 North illinois Street - Suite 1900 Indianapolis IN 46204
Gerald R Lacy Esq Lacy Law Offices LC 103 Pennsylvania Avenue PDBox589 Charleston West VIrginia 25322
Gordon C Lane Sr Lane amp Young 1538 Kanawha Blvd East Charleston WesfVIrginia 25311
S~~n B Nanners 6358 Discovery Commissioner Law Offices of Nanners amp Willett LC 45 West Main StreetmiddotU ( Buckhannon West VIrginia 26201 304-472-2048
APP000410
Ma r 23 2017 3 40 PM No 3265 P 2226
Group A and Group B include all communications- this includes letters omails and
other correspondence either written or vetbal The second two groups Group C and
Group D include all Documents Bach piece of evidence will be numbered individually
within the respective Group beginning with 1
a Group A Attorney~Client Privilege Communications Prior to March 9 2016 In
line withAllstate v Gaughan all communications relating to the Gandee Estate which
Defendant claims are protected by traditional attorney-client privilege generated prior
to March 92016 ate Group A Communications
b Group B Communications Genex-ated on or After March 9 2016 Note that
Allstate v Gaughan provides that all communications generated after the plaintiff qIed
suit (March 9 2016 in this Civil Action) must be specifically identified and requested
as opposed to a general request so centat a Circuit Court is notunduly burdenedin review
thereof However Huntington continued to have the highest duty under law to the
Gandee Trust as Executor after March 9 2016 Further Huntington decided to have
one law fum represent it as Executor and as Defendant in this matter and to have that
one law finn partiCipate in most estate adrobJistratio~ matters Although it will requjre
additional time by the Special Commissioner and this Court to review documents in
light of the above facts~ the Court ORDERS that the general request for
communications already made is sufficient without need for specific reference for all
Group B Communications generated from March 9 2016 through June 5 2016 June
5 2016 is the date when Executor _activity and conflict of interest decreased when all
Gandee Estate assets were distributed to the Gandee Trust
c Additionally any communication generated after June 5 2016 which relates solely to
the administration of the Gandee Estate or which in any manner relates to a
PageZ1of25
PAGE 22126 ~ RCVD AT 312312017 34105 PM [Eastern Daylight Timel SVRPRFAX0110 t DNIS1780115 t CSID DURATION Immmiddotss)07-34 -APP 000022
Mar 23 2017 341PM No 3265 P 2326
conununication with the Sheriffs Office or the ATF regarding guns owned by the
Gandee Estate shall also be a Group B Communication
d Group C Work Product Rule Documents Generated Prior to March 9 2016 Each
document relating to the Gandee Estate for which Defendant claims work product
protection and which was generated or prepared prior to March 92016 is a Group C
Document
e Group D Work Product Rule Documents Generated on or After March 9 2016
The considerations and analysis set forth in Section (5)(a) above with regatd to
attorney-client privilege also applies to docU1ll8nts for which work product protection
is claimed by Defendant As such all documents generated for the period ofMarch 9
2016 through June 5 2016 ate Group D DOCUIllents and the general request already
made for documents is sufficient Gronp D Documents also mcludes any document
generated after June 5 2016 which relates to estate administration andor any document
relating to the guns owned by the Gandee Estate
7 Additionally~ written analysis shall be provided by Defendant with the Supplemental
Privilege Log on AprilSth 2017 to meet its burden of pro~f that each Group A andor
B Communication satisfies attorney-client privilege (if so claimed by Defendant)
Further Defendant shall provide a written analysis to prove that each Group C andor D
Document qualifies for work product protection Additionally Defendant shall provide
an exp1anation for each CommUnication and Document as to why it was necessary to
retain outside legal counsel for suchmatter and how the advice is legal advice as opposed
to routine estate administration adVice
8 WIthout limiting the foregoing each and every communication or document which has
already been provided by Huntington to the Gandee Trust in redacted form shall be listed
Page22of25
PAGE 23126 ~ RCVD AT 312312017 34105 PM ~astern Daylight Time] SVRPRFAX0110 ~ DNIS1780115 ~ CSID WDURATION (mmmiddotss)07J4 APP 000023
Mar 23 2017 341PM No 3265 P 2426
in the Supplemental Privilege Log and attached to the Supplemental Privilege Log
without any redactions
9 The Special Conunissioner shall render a Report on which Group A and Group B
Communications satisfy attorney-client privilege whioh do not and why He shall also
include in his Supplemental Report which Group C andor Group D Documents satisfY
all requirements for work product priilege which do not and why
10 Additionally for all Communications and Documents which he finds satisfy attomeyshy
client privilege and work product protection he shallstate whether it was reasonable or
necessary for Defendant to utilize cmIDsel in such matter
11 Additionally for each Group Cor Gronp D Documentwbich qualifies fot work product
protection he shall find whether Plaintiff has a compelling need for such document In
that regard the Gandee Trust may provide an analysis within twenty (20) days after the
entry of this Order providing its analysis of compelling need for types or categories of
documents Ifthe Special Commissioner needs additional information he shall so infom
the Court
12 Undet the Courts guidelines in Allstate v Gaughan and the reasoning set forth above
Communications prior to March 9 2016 would generally not be privileged and
Documents generated prior to March 9 2016 would generally not qualify for work
product protection
13 As per Conclusions of Law 38(c) Huntington is not entitled to quasi attorney-client
privilege regarding Huntingtons communications regarding estate administration
14 As there was conflicting proffer of counsel at the January 42017 hearing Defendant
shall include with the Supplemental Privilege Log all billings by Frost Brown amp Todd
Page 23 of25
PAGE 2426 t RCVD AT 31232017 341 05 PM ~astem Daylight Time] SVRPRFAX010 ~ DNIS1780115 t CSID ~ DURATION (mm-ss)0734 APP000024
Ma r 23 2017 3 41 PM No 3265 P 2526
through June I 2016 to Huntington to be paid by Huntington for representation of
Huntington for its litigation representation and payments thereon
15 Notwithstanding any other provision in this Order The Special Comnrissioner in bis
review of all conununications and documents shall identify any communication or
document which meets the guideline for the crimefraud exception as such exception
is set forth in Brison v Kaufinan The Special Commissioner shall be provided a copy
of the Amended Complaint to be apprised of factual circumstances which the Gandee
Trust bas alleged constitute bad faith by defendant
16 In the Supplement to Response to Defendants Motion for Protective Order filed by the
Gandee Trust a request was made under WVRCP 37(a)(4) that Huntington be required
to pay for all attorney fees ofthe Gandee Trust by payment ofthe hours spent by outside
counsel to the Gandee TrtlSt multiplied times their standard hourly rate for all work
relating to attorney-client privilege and work product protection for all legal services
rendered above and beyond its Motion to Compel documents and the hearing on October
242016 including appeals
The Court will address such request after it has completed its in-camera review
and entered an 9rder as to the communications and documents which must be provided to Plaintiff
A subsequent hearing shall be held ifneeded
17 The Court further ORDERS that all communications and docmnents to be provided to
the Gandee Trust by the ultimate Order entered by the Court after full in-camera review
shall be provided to the Gandee Trust and not Plamtiffs Dr Gandees Daughters
Plaintiffs Dr Gandees Daughters may make a motion requesting all or a portion of
such material if they so choose and all parties will have a right to subroit motions and
legal memoranda on such matter
Page 24 of2S
PAGE 25126 t RCVD AT 312312017 34105 PM [Eastern Da~ight Time] SVRPRFAX0110 aDNIS1780115 ~ CSID t DURATION (mmmiddotss)0734 APP 000025
Mar 23 2017 341PM No 3265 P 2626
18 Finally it is ORDERED that the Clerk of this Court mail andor ~therwise provide a
certified copy of this Order to all parties of record
ENTERED tbis ~rtJay ofMarch 2017
c c ~ 1lQ)m -- ct)02 It l Cp b- etJ82 1U
I) -()-fo W middot0cJraquo rqcIe O~f1IO 11 -ujtJ
S--of ltW r-) FiE
~ ~
f om tl1e records ITEST A trueJO~~the Clerk otthe (l~at~tdClnoulirtleo~ ~cpshur County West ClrCUI Virginia
Given under my hancl---l~~Pd~hiCDF
Page2S of25
PAGE 2626 RCVD AT 32312017 341 05 PM ~astem Daylight Time] I SVRPRFAX010 t DNIS1780115 t CSID t DURATION (mmss)D734 APP 000026
IN TIlE c~~tifiC0b1tf6iitiPSHUR COUNTY WEST VIRGINIA ~
DEANNAD GANDEE et aI
PLAINTIFF
vs Crvn ACTION NO lS-C-98
HUNTINGTON BANCSHARES INC et al
DEFENDANT
DISCOVERY COMMISSIONER REPORT
The Discovery Commissioner has reviewed the 1159 pages of e-mails that were provided in
this matter Upon review of the same it appears that there are two different groups of e-mails
1 E-mails relating to the pending litigation that are attorneyclient privilege type e-mails
2 E-mails that are referencing the administration and handling of the Estate
The e-mails which are attributable to the handling of the Estate should be discoverable in this
matter as the issues involved in litigation deal with breach of fiduciary duty I have prepared a
separate sheet setting forth the e-mails that I contend would be discoverable including a copy of the
same for the review of the Court This sheet and list of e-mails will be provided only to the Court for
review and determination of whether they should be disclosed to counsel
rin B NaImers 6358 Discovery Commissioner
APP 000409
CERTIFICATE OF SERVICE
[h I Steven B Nanners do hereby certify that on the it day of December 2016 I served the
following Discovery Commissioner Report by depositing a true copy thereof mthe UmtedStates
Mail in an envelope with sufficient postage attached thereto addressed to the following
Jared M Tully Esq Frost Brown Todd Laidley Tower Suite 401 500 Lee Street Charleston West VIrginia 25301
Alan S Brown Esq Frost Brown Todd 201 North illinois Street - Suite 1900 Indianapolis IN 46204
Gerald R Lacy Esq Lacy Law Offices LC 103 Pennsylvania Avenue PDBox589 Charleston West VIrginia 25322
Gordon C Lane Sr Lane amp Young 1538 Kanawha Blvd East Charleston WesfVIrginia 25311
S~~n B Nanners 6358 Discovery Commissioner Law Offices of Nanners amp Willett LC 45 West Main StreetmiddotU ( Buckhannon West VIrginia 26201 304-472-2048
APP000410
Mar 23 2017 341PM No 3265 P 2326
conununication with the Sheriffs Office or the ATF regarding guns owned by the
Gandee Estate shall also be a Group B Communication
d Group C Work Product Rule Documents Generated Prior to March 9 2016 Each
document relating to the Gandee Estate for which Defendant claims work product
protection and which was generated or prepared prior to March 92016 is a Group C
Document
e Group D Work Product Rule Documents Generated on or After March 9 2016
The considerations and analysis set forth in Section (5)(a) above with regatd to
attorney-client privilege also applies to docU1ll8nts for which work product protection
is claimed by Defendant As such all documents generated for the period ofMarch 9
2016 through June 5 2016 ate Group D DOCUIllents and the general request already
made for documents is sufficient Gronp D Documents also mcludes any document
generated after June 5 2016 which relates to estate administration andor any document
relating to the guns owned by the Gandee Estate
7 Additionally~ written analysis shall be provided by Defendant with the Supplemental
Privilege Log on AprilSth 2017 to meet its burden of pro~f that each Group A andor
B Communication satisfies attorney-client privilege (if so claimed by Defendant)
Further Defendant shall provide a written analysis to prove that each Group C andor D
Document qualifies for work product protection Additionally Defendant shall provide
an exp1anation for each CommUnication and Document as to why it was necessary to
retain outside legal counsel for suchmatter and how the advice is legal advice as opposed
to routine estate administration adVice
8 WIthout limiting the foregoing each and every communication or document which has
already been provided by Huntington to the Gandee Trust in redacted form shall be listed
Page22of25
PAGE 23126 ~ RCVD AT 312312017 34105 PM ~astern Daylight Time] SVRPRFAX0110 ~ DNIS1780115 ~ CSID WDURATION (mmmiddotss)07J4 APP 000023
Mar 23 2017 341PM No 3265 P 2426
in the Supplemental Privilege Log and attached to the Supplemental Privilege Log
without any redactions
9 The Special Conunissioner shall render a Report on which Group A and Group B
Communications satisfy attorney-client privilege whioh do not and why He shall also
include in his Supplemental Report which Group C andor Group D Documents satisfY
all requirements for work product priilege which do not and why
10 Additionally for all Communications and Documents which he finds satisfy attomeyshy
client privilege and work product protection he shallstate whether it was reasonable or
necessary for Defendant to utilize cmIDsel in such matter
11 Additionally for each Group Cor Gronp D Documentwbich qualifies fot work product
protection he shall find whether Plaintiff has a compelling need for such document In
that regard the Gandee Trust may provide an analysis within twenty (20) days after the
entry of this Order providing its analysis of compelling need for types or categories of
documents Ifthe Special Commissioner needs additional information he shall so infom
the Court
12 Undet the Courts guidelines in Allstate v Gaughan and the reasoning set forth above
Communications prior to March 9 2016 would generally not be privileged and
Documents generated prior to March 9 2016 would generally not qualify for work
product protection
13 As per Conclusions of Law 38(c) Huntington is not entitled to quasi attorney-client
privilege regarding Huntingtons communications regarding estate administration
14 As there was conflicting proffer of counsel at the January 42017 hearing Defendant
shall include with the Supplemental Privilege Log all billings by Frost Brown amp Todd
Page 23 of25
PAGE 2426 t RCVD AT 31232017 341 05 PM ~astem Daylight Time] SVRPRFAX010 ~ DNIS1780115 t CSID ~ DURATION (mm-ss)0734 APP000024
Ma r 23 2017 3 41 PM No 3265 P 2526
through June I 2016 to Huntington to be paid by Huntington for representation of
Huntington for its litigation representation and payments thereon
15 Notwithstanding any other provision in this Order The Special Comnrissioner in bis
review of all conununications and documents shall identify any communication or
document which meets the guideline for the crimefraud exception as such exception
is set forth in Brison v Kaufinan The Special Commissioner shall be provided a copy
of the Amended Complaint to be apprised of factual circumstances which the Gandee
Trust bas alleged constitute bad faith by defendant
16 In the Supplement to Response to Defendants Motion for Protective Order filed by the
Gandee Trust a request was made under WVRCP 37(a)(4) that Huntington be required
to pay for all attorney fees ofthe Gandee Trust by payment ofthe hours spent by outside
counsel to the Gandee TrtlSt multiplied times their standard hourly rate for all work
relating to attorney-client privilege and work product protection for all legal services
rendered above and beyond its Motion to Compel documents and the hearing on October
242016 including appeals
The Court will address such request after it has completed its in-camera review
and entered an 9rder as to the communications and documents which must be provided to Plaintiff
A subsequent hearing shall be held ifneeded
17 The Court further ORDERS that all communications and docmnents to be provided to
the Gandee Trust by the ultimate Order entered by the Court after full in-camera review
shall be provided to the Gandee Trust and not Plamtiffs Dr Gandees Daughters
Plaintiffs Dr Gandees Daughters may make a motion requesting all or a portion of
such material if they so choose and all parties will have a right to subroit motions and
legal memoranda on such matter
Page 24 of2S
PAGE 25126 t RCVD AT 312312017 34105 PM [Eastern Da~ight Time] SVRPRFAX0110 aDNIS1780115 ~ CSID t DURATION (mmmiddotss)0734 APP 000025
Mar 23 2017 341PM No 3265 P 2626
18 Finally it is ORDERED that the Clerk of this Court mail andor ~therwise provide a
certified copy of this Order to all parties of record
ENTERED tbis ~rtJay ofMarch 2017
c c ~ 1lQ)m -- ct)02 It l Cp b- etJ82 1U
I) -()-fo W middot0cJraquo rqcIe O~f1IO 11 -ujtJ
S--of ltW r-) FiE
~ ~
f om tl1e records ITEST A trueJO~~the Clerk otthe (l~at~tdClnoulirtleo~ ~cpshur County West ClrCUI Virginia
Given under my hancl---l~~Pd~hiCDF
Page2S of25
PAGE 2626 RCVD AT 32312017 341 05 PM ~astem Daylight Time] I SVRPRFAX010 t DNIS1780115 t CSID t DURATION (mmss)D734 APP 000026
IN TIlE c~~tifiC0b1tf6iitiPSHUR COUNTY WEST VIRGINIA ~
DEANNAD GANDEE et aI
PLAINTIFF
vs Crvn ACTION NO lS-C-98
HUNTINGTON BANCSHARES INC et al
DEFENDANT
DISCOVERY COMMISSIONER REPORT
The Discovery Commissioner has reviewed the 1159 pages of e-mails that were provided in
this matter Upon review of the same it appears that there are two different groups of e-mails
1 E-mails relating to the pending litigation that are attorneyclient privilege type e-mails
2 E-mails that are referencing the administration and handling of the Estate
The e-mails which are attributable to the handling of the Estate should be discoverable in this
matter as the issues involved in litigation deal with breach of fiduciary duty I have prepared a
separate sheet setting forth the e-mails that I contend would be discoverable including a copy of the
same for the review of the Court This sheet and list of e-mails will be provided only to the Court for
review and determination of whether they should be disclosed to counsel
rin B NaImers 6358 Discovery Commissioner
APP 000409
CERTIFICATE OF SERVICE
[h I Steven B Nanners do hereby certify that on the it day of December 2016 I served the
following Discovery Commissioner Report by depositing a true copy thereof mthe UmtedStates
Mail in an envelope with sufficient postage attached thereto addressed to the following
Jared M Tully Esq Frost Brown Todd Laidley Tower Suite 401 500 Lee Street Charleston West VIrginia 25301
Alan S Brown Esq Frost Brown Todd 201 North illinois Street - Suite 1900 Indianapolis IN 46204
Gerald R Lacy Esq Lacy Law Offices LC 103 Pennsylvania Avenue PDBox589 Charleston West VIrginia 25322
Gordon C Lane Sr Lane amp Young 1538 Kanawha Blvd East Charleston WesfVIrginia 25311
S~~n B Nanners 6358 Discovery Commissioner Law Offices of Nanners amp Willett LC 45 West Main StreetmiddotU ( Buckhannon West VIrginia 26201 304-472-2048
APP000410
Mar 23 2017 341PM No 3265 P 2426
in the Supplemental Privilege Log and attached to the Supplemental Privilege Log
without any redactions
9 The Special Conunissioner shall render a Report on which Group A and Group B
Communications satisfy attorney-client privilege whioh do not and why He shall also
include in his Supplemental Report which Group C andor Group D Documents satisfY
all requirements for work product priilege which do not and why
10 Additionally for all Communications and Documents which he finds satisfy attomeyshy
client privilege and work product protection he shallstate whether it was reasonable or
necessary for Defendant to utilize cmIDsel in such matter
11 Additionally for each Group Cor Gronp D Documentwbich qualifies fot work product
protection he shall find whether Plaintiff has a compelling need for such document In
that regard the Gandee Trust may provide an analysis within twenty (20) days after the
entry of this Order providing its analysis of compelling need for types or categories of
documents Ifthe Special Commissioner needs additional information he shall so infom
the Court
12 Undet the Courts guidelines in Allstate v Gaughan and the reasoning set forth above
Communications prior to March 9 2016 would generally not be privileged and
Documents generated prior to March 9 2016 would generally not qualify for work
product protection
13 As per Conclusions of Law 38(c) Huntington is not entitled to quasi attorney-client
privilege regarding Huntingtons communications regarding estate administration
14 As there was conflicting proffer of counsel at the January 42017 hearing Defendant
shall include with the Supplemental Privilege Log all billings by Frost Brown amp Todd
Page 23 of25
PAGE 2426 t RCVD AT 31232017 341 05 PM ~astem Daylight Time] SVRPRFAX010 ~ DNIS1780115 t CSID ~ DURATION (mm-ss)0734 APP000024
Ma r 23 2017 3 41 PM No 3265 P 2526
through June I 2016 to Huntington to be paid by Huntington for representation of
Huntington for its litigation representation and payments thereon
15 Notwithstanding any other provision in this Order The Special Comnrissioner in bis
review of all conununications and documents shall identify any communication or
document which meets the guideline for the crimefraud exception as such exception
is set forth in Brison v Kaufinan The Special Commissioner shall be provided a copy
of the Amended Complaint to be apprised of factual circumstances which the Gandee
Trust bas alleged constitute bad faith by defendant
16 In the Supplement to Response to Defendants Motion for Protective Order filed by the
Gandee Trust a request was made under WVRCP 37(a)(4) that Huntington be required
to pay for all attorney fees ofthe Gandee Trust by payment ofthe hours spent by outside
counsel to the Gandee TrtlSt multiplied times their standard hourly rate for all work
relating to attorney-client privilege and work product protection for all legal services
rendered above and beyond its Motion to Compel documents and the hearing on October
242016 including appeals
The Court will address such request after it has completed its in-camera review
and entered an 9rder as to the communications and documents which must be provided to Plaintiff
A subsequent hearing shall be held ifneeded
17 The Court further ORDERS that all communications and docmnents to be provided to
the Gandee Trust by the ultimate Order entered by the Court after full in-camera review
shall be provided to the Gandee Trust and not Plamtiffs Dr Gandees Daughters
Plaintiffs Dr Gandees Daughters may make a motion requesting all or a portion of
such material if they so choose and all parties will have a right to subroit motions and
legal memoranda on such matter
Page 24 of2S
PAGE 25126 t RCVD AT 312312017 34105 PM [Eastern Da~ight Time] SVRPRFAX0110 aDNIS1780115 ~ CSID t DURATION (mmmiddotss)0734 APP 000025
Mar 23 2017 341PM No 3265 P 2626
18 Finally it is ORDERED that the Clerk of this Court mail andor ~therwise provide a
certified copy of this Order to all parties of record
ENTERED tbis ~rtJay ofMarch 2017
c c ~ 1lQ)m -- ct)02 It l Cp b- etJ82 1U
I) -()-fo W middot0cJraquo rqcIe O~f1IO 11 -ujtJ
S--of ltW r-) FiE
~ ~
f om tl1e records ITEST A trueJO~~the Clerk otthe (l~at~tdClnoulirtleo~ ~cpshur County West ClrCUI Virginia
Given under my hancl---l~~Pd~hiCDF
Page2S of25
PAGE 2626 RCVD AT 32312017 341 05 PM ~astem Daylight Time] I SVRPRFAX010 t DNIS1780115 t CSID t DURATION (mmss)D734 APP 000026
IN TIlE c~~tifiC0b1tf6iitiPSHUR COUNTY WEST VIRGINIA ~
DEANNAD GANDEE et aI
PLAINTIFF
vs Crvn ACTION NO lS-C-98
HUNTINGTON BANCSHARES INC et al
DEFENDANT
DISCOVERY COMMISSIONER REPORT
The Discovery Commissioner has reviewed the 1159 pages of e-mails that were provided in
this matter Upon review of the same it appears that there are two different groups of e-mails
1 E-mails relating to the pending litigation that are attorneyclient privilege type e-mails
2 E-mails that are referencing the administration and handling of the Estate
The e-mails which are attributable to the handling of the Estate should be discoverable in this
matter as the issues involved in litigation deal with breach of fiduciary duty I have prepared a
separate sheet setting forth the e-mails that I contend would be discoverable including a copy of the
same for the review of the Court This sheet and list of e-mails will be provided only to the Court for
review and determination of whether they should be disclosed to counsel
rin B NaImers 6358 Discovery Commissioner
APP 000409
CERTIFICATE OF SERVICE
[h I Steven B Nanners do hereby certify that on the it day of December 2016 I served the
following Discovery Commissioner Report by depositing a true copy thereof mthe UmtedStates
Mail in an envelope with sufficient postage attached thereto addressed to the following
Jared M Tully Esq Frost Brown Todd Laidley Tower Suite 401 500 Lee Street Charleston West VIrginia 25301
Alan S Brown Esq Frost Brown Todd 201 North illinois Street - Suite 1900 Indianapolis IN 46204
Gerald R Lacy Esq Lacy Law Offices LC 103 Pennsylvania Avenue PDBox589 Charleston West VIrginia 25322
Gordon C Lane Sr Lane amp Young 1538 Kanawha Blvd East Charleston WesfVIrginia 25311
S~~n B Nanners 6358 Discovery Commissioner Law Offices of Nanners amp Willett LC 45 West Main StreetmiddotU ( Buckhannon West VIrginia 26201 304-472-2048
APP000410
Ma r 23 2017 3 41 PM No 3265 P 2526
through June I 2016 to Huntington to be paid by Huntington for representation of
Huntington for its litigation representation and payments thereon
15 Notwithstanding any other provision in this Order The Special Comnrissioner in bis
review of all conununications and documents shall identify any communication or
document which meets the guideline for the crimefraud exception as such exception
is set forth in Brison v Kaufinan The Special Commissioner shall be provided a copy
of the Amended Complaint to be apprised of factual circumstances which the Gandee
Trust bas alleged constitute bad faith by defendant
16 In the Supplement to Response to Defendants Motion for Protective Order filed by the
Gandee Trust a request was made under WVRCP 37(a)(4) that Huntington be required
to pay for all attorney fees ofthe Gandee Trust by payment ofthe hours spent by outside
counsel to the Gandee TrtlSt multiplied times their standard hourly rate for all work
relating to attorney-client privilege and work product protection for all legal services
rendered above and beyond its Motion to Compel documents and the hearing on October
242016 including appeals
The Court will address such request after it has completed its in-camera review
and entered an 9rder as to the communications and documents which must be provided to Plaintiff
A subsequent hearing shall be held ifneeded
17 The Court further ORDERS that all communications and docmnents to be provided to
the Gandee Trust by the ultimate Order entered by the Court after full in-camera review
shall be provided to the Gandee Trust and not Plamtiffs Dr Gandees Daughters
Plaintiffs Dr Gandees Daughters may make a motion requesting all or a portion of
such material if they so choose and all parties will have a right to subroit motions and
legal memoranda on such matter
Page 24 of2S
PAGE 25126 t RCVD AT 312312017 34105 PM [Eastern Da~ight Time] SVRPRFAX0110 aDNIS1780115 ~ CSID t DURATION (mmmiddotss)0734 APP 000025
Mar 23 2017 341PM No 3265 P 2626
18 Finally it is ORDERED that the Clerk of this Court mail andor ~therwise provide a
certified copy of this Order to all parties of record
ENTERED tbis ~rtJay ofMarch 2017
c c ~ 1lQ)m -- ct)02 It l Cp b- etJ82 1U
I) -()-fo W middot0cJraquo rqcIe O~f1IO 11 -ujtJ
S--of ltW r-) FiE
~ ~
f om tl1e records ITEST A trueJO~~the Clerk otthe (l~at~tdClnoulirtleo~ ~cpshur County West ClrCUI Virginia
Given under my hancl---l~~Pd~hiCDF
Page2S of25
PAGE 2626 RCVD AT 32312017 341 05 PM ~astem Daylight Time] I SVRPRFAX010 t DNIS1780115 t CSID t DURATION (mmss)D734 APP 000026
IN TIlE c~~tifiC0b1tf6iitiPSHUR COUNTY WEST VIRGINIA ~
DEANNAD GANDEE et aI
PLAINTIFF
vs Crvn ACTION NO lS-C-98
HUNTINGTON BANCSHARES INC et al
DEFENDANT
DISCOVERY COMMISSIONER REPORT
The Discovery Commissioner has reviewed the 1159 pages of e-mails that were provided in
this matter Upon review of the same it appears that there are two different groups of e-mails
1 E-mails relating to the pending litigation that are attorneyclient privilege type e-mails
2 E-mails that are referencing the administration and handling of the Estate
The e-mails which are attributable to the handling of the Estate should be discoverable in this
matter as the issues involved in litigation deal with breach of fiduciary duty I have prepared a
separate sheet setting forth the e-mails that I contend would be discoverable including a copy of the
same for the review of the Court This sheet and list of e-mails will be provided only to the Court for
review and determination of whether they should be disclosed to counsel
rin B NaImers 6358 Discovery Commissioner
APP 000409
CERTIFICATE OF SERVICE
[h I Steven B Nanners do hereby certify that on the it day of December 2016 I served the
following Discovery Commissioner Report by depositing a true copy thereof mthe UmtedStates
Mail in an envelope with sufficient postage attached thereto addressed to the following
Jared M Tully Esq Frost Brown Todd Laidley Tower Suite 401 500 Lee Street Charleston West VIrginia 25301
Alan S Brown Esq Frost Brown Todd 201 North illinois Street - Suite 1900 Indianapolis IN 46204
Gerald R Lacy Esq Lacy Law Offices LC 103 Pennsylvania Avenue PDBox589 Charleston West VIrginia 25322
Gordon C Lane Sr Lane amp Young 1538 Kanawha Blvd East Charleston WesfVIrginia 25311
S~~n B Nanners 6358 Discovery Commissioner Law Offices of Nanners amp Willett LC 45 West Main StreetmiddotU ( Buckhannon West VIrginia 26201 304-472-2048
APP000410
Mar 23 2017 341PM No 3265 P 2626
18 Finally it is ORDERED that the Clerk of this Court mail andor ~therwise provide a
certified copy of this Order to all parties of record
ENTERED tbis ~rtJay ofMarch 2017
c c ~ 1lQ)m -- ct)02 It l Cp b- etJ82 1U
I) -()-fo W middot0cJraquo rqcIe O~f1IO 11 -ujtJ
S--of ltW r-) FiE
~ ~
f om tl1e records ITEST A trueJO~~the Clerk otthe (l~at~tdClnoulirtleo~ ~cpshur County West ClrCUI Virginia
Given under my hancl---l~~Pd~hiCDF
Page2S of25
PAGE 2626 RCVD AT 32312017 341 05 PM ~astem Daylight Time] I SVRPRFAX010 t DNIS1780115 t CSID t DURATION (mmss)D734 APP 000026
IN TIlE c~~tifiC0b1tf6iitiPSHUR COUNTY WEST VIRGINIA ~
DEANNAD GANDEE et aI
PLAINTIFF
vs Crvn ACTION NO lS-C-98
HUNTINGTON BANCSHARES INC et al
DEFENDANT
DISCOVERY COMMISSIONER REPORT
The Discovery Commissioner has reviewed the 1159 pages of e-mails that were provided in
this matter Upon review of the same it appears that there are two different groups of e-mails
1 E-mails relating to the pending litigation that are attorneyclient privilege type e-mails
2 E-mails that are referencing the administration and handling of the Estate
The e-mails which are attributable to the handling of the Estate should be discoverable in this
matter as the issues involved in litigation deal with breach of fiduciary duty I have prepared a
separate sheet setting forth the e-mails that I contend would be discoverable including a copy of the
same for the review of the Court This sheet and list of e-mails will be provided only to the Court for
review and determination of whether they should be disclosed to counsel
rin B NaImers 6358 Discovery Commissioner
APP 000409
CERTIFICATE OF SERVICE
[h I Steven B Nanners do hereby certify that on the it day of December 2016 I served the
following Discovery Commissioner Report by depositing a true copy thereof mthe UmtedStates
Mail in an envelope with sufficient postage attached thereto addressed to the following
Jared M Tully Esq Frost Brown Todd Laidley Tower Suite 401 500 Lee Street Charleston West VIrginia 25301
Alan S Brown Esq Frost Brown Todd 201 North illinois Street - Suite 1900 Indianapolis IN 46204
Gerald R Lacy Esq Lacy Law Offices LC 103 Pennsylvania Avenue PDBox589 Charleston West VIrginia 25322
Gordon C Lane Sr Lane amp Young 1538 Kanawha Blvd East Charleston WesfVIrginia 25311
S~~n B Nanners 6358 Discovery Commissioner Law Offices of Nanners amp Willett LC 45 West Main StreetmiddotU ( Buckhannon West VIrginia 26201 304-472-2048
APP000410
IN TIlE c~~tifiC0b1tf6iitiPSHUR COUNTY WEST VIRGINIA ~
DEANNAD GANDEE et aI
PLAINTIFF
vs Crvn ACTION NO lS-C-98
HUNTINGTON BANCSHARES INC et al
DEFENDANT
DISCOVERY COMMISSIONER REPORT
The Discovery Commissioner has reviewed the 1159 pages of e-mails that were provided in
this matter Upon review of the same it appears that there are two different groups of e-mails
1 E-mails relating to the pending litigation that are attorneyclient privilege type e-mails
2 E-mails that are referencing the administration and handling of the Estate
The e-mails which are attributable to the handling of the Estate should be discoverable in this
matter as the issues involved in litigation deal with breach of fiduciary duty I have prepared a
separate sheet setting forth the e-mails that I contend would be discoverable including a copy of the
same for the review of the Court This sheet and list of e-mails will be provided only to the Court for
review and determination of whether they should be disclosed to counsel
rin B NaImers 6358 Discovery Commissioner
APP 000409
CERTIFICATE OF SERVICE
[h I Steven B Nanners do hereby certify that on the it day of December 2016 I served the
following Discovery Commissioner Report by depositing a true copy thereof mthe UmtedStates
Mail in an envelope with sufficient postage attached thereto addressed to the following
Jared M Tully Esq Frost Brown Todd Laidley Tower Suite 401 500 Lee Street Charleston West VIrginia 25301
Alan S Brown Esq Frost Brown Todd 201 North illinois Street - Suite 1900 Indianapolis IN 46204
Gerald R Lacy Esq Lacy Law Offices LC 103 Pennsylvania Avenue PDBox589 Charleston West VIrginia 25322
Gordon C Lane Sr Lane amp Young 1538 Kanawha Blvd East Charleston WesfVIrginia 25311
S~~n B Nanners 6358 Discovery Commissioner Law Offices of Nanners amp Willett LC 45 West Main StreetmiddotU ( Buckhannon West VIrginia 26201 304-472-2048
APP000410
CERTIFICATE OF SERVICE
[h I Steven B Nanners do hereby certify that on the it day of December 2016 I served the
following Discovery Commissioner Report by depositing a true copy thereof mthe UmtedStates
Mail in an envelope with sufficient postage attached thereto addressed to the following
Jared M Tully Esq Frost Brown Todd Laidley Tower Suite 401 500 Lee Street Charleston West VIrginia 25301
Alan S Brown Esq Frost Brown Todd 201 North illinois Street - Suite 1900 Indianapolis IN 46204
Gerald R Lacy Esq Lacy Law Offices LC 103 Pennsylvania Avenue PDBox589 Charleston West VIrginia 25322
Gordon C Lane Sr Lane amp Young 1538 Kanawha Blvd East Charleston WesfVIrginia 25311
S~~n B Nanners 6358 Discovery Commissioner Law Offices of Nanners amp Willett LC 45 West Main StreetmiddotU ( Buckhannon West VIrginia 26201 304-472-2048
APP000410