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WEST VIRGINIAEdward J. GeorgeROBINSON & McELWEE, PLLC400 Fifth Third Center700 Virginia Street, EastCharleston, WV 25301Phone (304) 344-5800www.ramlaw.comejg@ramlaw.com1. Does your state recognize an exemption from discovery (or a privilege) forpre-suit investigation materials? Is there a key to preserving thisexemption/privilege (i.e. involvement of counsel)?Pre-suit investigations and related material may be exempt from discovery in WestVirginia under the work product doctrine. Whether or not this privilege applies dependson why the pre-suit investigation was performed. Documents prepared in theanticipation of litigation are subject to the work product doctrine. Documents preparedin the normal course of business are not protected as work product. “[T]he test shouldbe whether, in light of the nature of the document and the factual situation in theparticular case, the document can fairly be said to have been prepared or obtainedbecause of the prospect of litigation. But the converse of this is that even thoughlitigation is already in prospect, there is no work product immunity for documentsprepared in the regular course of business rather than for purposes of litigation.” Stateex rel. United Hosp. Ctr., Inc. v. Bedell, 199 W. Va. 316, 328, 484 S.E.2d 199, 211(1997). “[T]o determine whether a document was prepared in anticipation of litigationand, is therefore, protected from disclosure under the work product doctrine, the primarymotivating purpose behind the creation of the document must have been to assist inpending or probable future litigation.” State ex rel. United Hosp. Ctr., Inc. v. Bedell, 199W. Va. 316, 330, 484 S.E.2d 199, 213 (1997). Although a pre-suit investigationprepared in anticipation of litigation is protected by the work product doctrine, thatinformation may still be discoverable. West Virginia distinguishes between “fact workproduct” and “opinion work product.” “[F]act work product, ordinarily, may bediscovered upon a showing of ‘substantial need’ and ‘undue hardship to obtain thesubstantial equivalent by other means.’ W.Va.R.Civ.P. 26(b)(3). . . opinion work producthowever is discoverable only where ‘very rare and extraordinary circumstances’ arepresent.” State ex rel. United Hosp. Ctr., Inc v. Bedell, 199 W. Va. at 331, 484 S.E.2d at214 (citations omitted).2. What is your state’s rule with regard to the discoverability of written orrecorded statements taken during investigation of an incident?The same standard outlined above in United Hospital would seem to apply to all writtenor recorded statements. United Hospital involved an “Investigation Report” whichcontained a written statement from a hospital employee.