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Defendant John Doe, Inc. (hereinafter “JDI”) seeks to block the release of evidence relevant in another pending case involving a mutual Defendant, James Roe. JDI mistakenly contends that counsel for Plaintiffs wrongfully disclosed information subject to the Protective Order to counsel and/or litigants in the South Carolina action. Plaintiffs’ counsel is first seeking to modify the Protective Order to be able to use the information in the South Carolina case. No evidence exists that the Protective Order has been violated other than JDI’s wrong assumptions.


Secondly, JDI seeks to impose an inappropriate standard by arguing that Plaintiffs must allege or show “extraordinary circumstances” or a “compelling need” to justify modification. No such requirement has been established by any court in West Virginia and such requirement is overly restrictive. Imposing a stringent standard for modification would prevent access to necessary evidence to pursue or defend legal claims, thus, thwarting the goal of achieving justice.


JDI does suggest a lower good cause standard and proffers the factors used by the Third Circuit, however, JDI offers no justification for applying foreign factors to the determination of “good cause” when the courts of this state consistently determine what constitutes “good cause” under West Virginia Civil Rule 26(c) under West Virginia standards.


Finally, the information sought by Plaintiffs is only protected because JDI was granted the ability to determine whether the information was confidential in the Protective Order. No judicial determination was made as to whether the documents should be confidential. As Plaintiffs stated, they do not seek education records under FERPA 20 U.S.C. § 1236g. In fact, JDI provides internet access to the current Student Handbook, Faculty Handbook, and Employee Handbook, which are some of the documents listed in Appendix A to Plaintiffs’ Motion. Further, some Annual Security Reports are available on-line. Therefore, JDI apparently marked all documents confidential regardless of whether they were available to the public. These actions severely undercut JDI’s argument opposing the modification of the Protective Order.


The application of the good cause standard as developed by the West Virginia courts, when considering the blanket confidentiality claimed by JDI, provides ample justification for the modification of the Protective Order.


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Petitioner relies upon Syllabus Point 5 in Dunn, but relies upon an inapplicable portion of the syllabus. Syllabus Point 5 provides a framework for the determination of whether an action is time-barred. The framework can be summarized in the following steps:

  1.   Determination of the applicable statute of limitations;

  2.   Identification of when the requisite elements of the cause of action occurred;

  3.   Application of the discovery rule; 

  4.   If the discovery rule is not applicable, determination of whether the defendant engaged in fraudulent concealment; and,

  5.    If there is no fraudulent concealment, determination of whether some other tolling doctrine applies.[1]    

“Only the first step is purely a question of law; the resolution of steps two through five will generally involve questions of material fact that will need to be resolved by the trier of fact.” Syl. pt. 5, Dunn v. Rockwell, 225 W.Va. 43, 689 S.E.2d 255 (2009). 

Petitioner focuses on step 4 regarding fraudulent concealment but fails to follow the analysis in the opinion. Initially, the Dunn Court addressed the application of the discovery rule and determined that the plaintiffs knew they had been harmed by September 29, 2003. Id. at 59. Instead of determining the lawsuit was time-barred because it was filed in August 2006, more than two years after the date of discovery, the Dunn Court went on to consider whether any fraudulent concealment on the part of the defendants would also toll the statute of limitations. Id. The plaintiffs conceded no fraudulent concealment occurred. Id. The “fifth and final step” of the analysis involved a determination of whether “the statute of limitation periods were arrested by some other tolling doctrine.” Id. The Dunn Court determined a continuous relationship existed between the plaintiffs and the attorney defendant. Therefore. a question of fact existed regarding the continuation of the relationship and tolling of the statute, which prevented the dismissal of the action as to the attorney defendant.[2] Id. at 61.

Finally, the Dunn Court considered whether the statute would be tolled as to the other defendant, the attorney’s spouse, who was not an attorney. Id. Therefore, only after having performed an analysis under Step 5 to determine whether some other tolling doctrine applied (not Step 4 regarding fraudulent concealment) did the Court address the issue of tolling of the statute of limitations for a co-conspirator. The Court in Dunn then applied the general rule that “that if the statute of limitation is tolled as to one defendant in a civil conspiracy, it is tolled as to all alleged co-conspirators.” Id. Thus, the Dunn Court found that factual issues as to whether the action was timely filed existed with respect to the co-conspirator non-attorney spouse based upon the tolling under the doctrine of continuous representation, which was applied to the attorney spouse. Id.


[1] A five-step analysis should be applied to determine whether a cause of action is time-barred. First, the court should identify the applicable statute of limitation for each cause of action. Second, the court (or, if questions of material fact exist, the jury) should identify when the requisite elements of the cause of action occurred. Third, the discovery rule should be applied to determine when the statute of limitation began to run by determining when the plaintiff knew, or by the exercise of reasonable diligence should have known, of the elements of a possible cause of action, as set forth in Syllabus Point 4 of Gaither v. City Hosp., Inc., 199 W.Va. 706, 487 S.E.2d 901 (1997). Fourth, if the plaintiff is not entitled to the benefit of the discovery rule, then determine whether the defendant fraudulently concealed facts that prevented the plaintiff from discovering or pursuing the cause of action. Whenever a plaintiff is able to show that the defendant fraudulently concealed facts which prevented the plaintiff from discovering or pursuing the potential cause of action, the statute of limitation is tolled. And fifth, the court or the jury should determine if the statute of limitation period was arrested by some other tolling doctrine. Only the first step is purely a question of law; the resolution of steps two through five will generally involve questions of material fact that will need to be resolved by the trier of fact. Dunn, at Syl. Pt. 5.


[2] Petitioner misunderstands the reasoning in Dunn. Petitioner states that: “Importantly, the Court in Dunn was faced with claims that the statute of limitations should be tolled because the defendants (an attorney and his wife) allegedly hid material facts from the plaintiff which required a factual finding by the jury of whether the ‘continuous representation doctrine’ applied.” Petition at p. 11. Plaintiff is correct in that both fraudulent concealment and the continuous representation doctrine were considered by the Court; however, these issues were considered separately. The issue of whether the statute of limitations was tolled by the continuous representation doctrine was only considered after a determination that no fraudulent concealment occurred.


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