State of West Virginia ex rel. Katherine Anne Hoover, M.d., Petitioner v. Honorable Irene C. Berger, Judge of The…

Summary

The West Virginia Supreme Court granted a writ of prohibition halting enforcement of a Board of Medicine subpoena duces tecum directed to a court reporter privately retained by Dr. Hoover, the physician under investigation. Applying the five-part federal administrative-subpoena enforcement standards, the court held the Board failed to demonstrate a legislatively authorized purpose for the subpoena—its stated aim of verifying its minutes to avoid criminal liability fell outside its statutory power—and the transcript's contents were already known to the Board. The court further held that a subpoena may not compel a privately retained reporter to prepare a document that does not exist, leaving the parties' rights to the transcript governed by contract law. Prohibition was proper because the petitioner had no plain, speedy, and adequate remedy by appeal and the circuit court's enforcement order was clear error of law.