West Virginia Business Litigation Lawyer & Attorney : Law Office of Jeffrey V. Mehalic : Charleston, Huntington, Parkersburg

    The parties in West Virginia University’s breach of contract case against former head football coach Rich Rodriguez agreed not to release the videos of the depositions taken in the case, but fortunately for us, there is no such prohibition against releasing the transcripts themselves, as noted by this post from the blog published by the West Virginia University Sports & Entertainment Law Society. 

    So for your reading enjoyment, here are the deposition transcripts for WVU Athletic Director Ed Pastilong, Rodriguez, and Rodriguez’s agent, Mike Brown. 

    Here's one tidbit from Rodriguez's deposition.  According to this Associated Press story in USA Today last month, Rodriguez testified that in August 2007, several members of the WVU Board of Governors told him that his outstanding demands for the football program would be met once Mike Garrison was president of WVU.  The problem is that when the BOG members allegedly made those statements, WVU was conducting a supposedly nationwide search for the position and Garrison was simply one of the applicants. 

    Rodriguez’s testimony is being cited by some who opposed Garrison’s selection as evidence that the search was rigged and not intended to find the best candidate for the position.  The depositions of Garrison and his chief of staff, Craig Walker, are scheduled for later this month.

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    Largely overlooked in the discussion about the recusal, actual or possible, of various members of the Supreme Court of Appeals of West Virginia in Caperton v. A. T. Massey Coal Company, Inc.  is the lawsuit filed by Massey Energy Company and its subsidiary, Marfork Coal Company, against the Supreme Court of Appeals in the United States District Court for the Southern District of West Virginia in August 2006, which was assigned to Judge John T. Copenhaver, Jr.  Massey Energy Company v. Supreme Court of Appeals of West Virginia, 2:06-CV-00614. 

    Here is how the plaintiffs described their action in their complaint:

This is a civil action to challenge the constitutionality of a West Virginia rule of appellate procedure. Plaintiff Massey Energy and its subsidiary, Plaintiff Marfork Coal, seek declaratory and injunctive relief under 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201 and 2202 on the grounds that Rule 29 of the West Virginia Rules of Appellate Procedure (“Rule 29”) violates Plaintiffs’ Fourteenth Amendment due process right to a fair hearing before an impartial tribunal and to the appearance of justice insofar as the rule, as promulgated and applied, permits a single justice of the West Virginia Supreme Court of Appeals [sic] (“West Virginia Supreme Court”) who is the subject of a disqualification motion exclusively to determine the merits of that motion and does not provide for review or determination of such motion by an impartial judicial officer.

    Although the complaint purports to challenge the recusal procedure applicable to all members of the Supreme Court, specific allegations that refer to Justice Larry Starcher, who has criticized Massey and its chairman, Don Blankenship, suggest that he is its focus. 

    The emphasis on Justice Starcher's participation in cases involving Massey is reinforced by the fact that this case was filed while the Caperton appeal was before the Supreme Court.  As it turns out, Justice Starcher recused himself from the case, as did Chief Justice Elliott "Spike" Maynard.  Only Justice Brent Benjamin, whose recusal was sought by the plaintiffs in Caperton, did not recuse himself. 

    The Supreme Court moved to dismiss the complaint, which the district court denied.  Thereafter, the Supreme Court moved to strike certain paragraphs of the complaint that deal with Justice Starcher, and also moved to appeal the district court’s denial of its motion to dismiss.  Here are the memorandum in support of the motion to strike and the motion for certification. 

    The district court denied the motions to strike and for certification in this order.  The Supreme Court filed an interlocutory appeal of the order denying its motion to dismiss and also prosecuted a petition for a writ of mandamus that would require the district court to dismiss the complaint.

    Last month, the Fourth Circuit Court of Appeals denied the Supreme Court’s petition for a writ of mandamus. Then, two weeks ago, the Fourth Circuit dismissed the appeal of the denial of the motion to dismiss.

    The (Charleston) Daily Mail wrote about the Fourth Circuit’s rulings, and also reported that the court’s legal fees have already reached nearly $250,000.  The district court had stayed discovery in the case pending the outcome of the appeal, but the plaintiffs asked the court to lift the stay shortly after the Fourth Circuit issued its decision. 

    In a scheduling order entered last November, the district court had allotted about four months for discovery, if deemed necessary by the parties, followed by briefing of the plaintiff’s motion for summary judgment.  The delay created by the appeal to the Fourth Circuit has caused several of those dates to pass, however, which will require the issuance of a new order. 

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    I’m late with this, but the uproar over the Supreme Court’s decision in Caperton v. A. T. Massey Coal Company, Inc. diverted my attention from the hearing last week in West Virginia University Board of Governors v. Rodriguez.  As far as I can tell from media accounts (I did not attend the hearing), the hearing was something of a draw.  

    According to the Associated Press story in last Friday's Charleston Gazette, Monongalia County Circuit Judge Robert Stone ruled that Rodriguez can present evidence that he was fraudulently induced to sign the contract that contained the $4 million buyout requirement, and granted WVU’s request to compel the production of documents related to Rodriguez’s hiring and contract negotiations with the University of Michigan.  

    Judge Stone also dismissed the West Virginia University Foundation, Inc. as a third-party defendant, although the basis for the dismissal is not clear.  Rodriguez had claimed that the only way to determine whether WVU had actually been harmed by his departure was to look at the Foundation’s books.  Rodriguez also claimed that the Foundation was a necessary party because it was “always the parties’ intent” that the Foundation would receive any payments pursuant to the buyout. I’m not sure that makes the Foundation a necessary party, but Rodriguez may be trying to get the same deal as John Beilein, who makes his buyout payments to the Foundation (and presumably receives a tax benefit as a result).  

    Judge Stone also declined to rule on the motion to expedite the trial schedule, and cautioned the parties that their hopes for a mid-summer trial were not realistic.  The parties were supposed to confer earlier this week to talk about a schedule, but apparently that didn’t happen.  The deposition of Ed Pastilong, WVU’s Athletic Director, is scheduled for April 18, while Rodriguez’s is scheduled for April 21.  Interestingly, WVU wants an agreement  to maintain the confidentiality of the videotape and written transcript, but Rodriguez has not signed on yet. 

    Finally, an Associated Press story by John Raby in today’s Gazette reports that neither Bob Huggins, WVU’s basketball coach who was hired last April to replace John Beilein, not Bill Stewart, the football coach who replaced Rodriguez, has signed a contract for his position, although each has signed a term sheet.  Here are summaries of the term sheets, which the AP received through a Freedom of Information Act request. 

    I would think that WVU’s experience would make it eager to have the coaches sign the contracts (which seems to be the attitude of other universities and professional franchises), but according to Raby’s article, handshake agreements are good enough for Athletic Director Pastilong.

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    Discovery regarding insurance reserves is a complicated issue.  A party in litigation against an insurance company in a bad faith or unfair trade practice case will often make a discovery request for the reserve set by the insurance company for the underlying claim on the theory that the reserve reflects the insurance company’s true valuation of the claim.  David Rossmiller at Insurance Coverage Law Blog has written about rulings made by federal courts in California (as described by J. Craig Williams at May It Please The Court) and Missouri in discovery disputes over reserve information.

    The issue has been addressed recently by the Supreme Court of Appeals of West Virginia in State ex rel. Erie Ins. Property & Cas. Co. v. Mazzone, 2007 WL 1661461 (W. Va. 2007), in which Erie Insurance Company sought a writ of prohibition to prevent enforcement of the circuit court’s order requiring disclosure of its insurance reserves to the plaintiff in a third-party bad faith case.

    Erie claimed that its reserve information constituted opinion work product, which, under West Virginia Rule of Civil Procedure 26(b)(3), may be disclosed “only upon a showing that the party seeking discovery has substantial need of the materials … and that the party is unable to without undue hardship to obtain the substantial equivalent of the materials by other means.”  Erie also contended that reserve information is generally treated as opinion work product. 

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