State ex rel. Brooks v. Zakaib, Jr., Judge (dissenting)
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No. 31042 --SER Brooks v. Zakaib FILED June 23, 2003 McGraw, J., dissenting: RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA I fail to see how something that is no longer privileged, because it was published, or a doctor waived his or her privilege, can ever become privileged again. While the Circuit Court of Grant County theoretically could have sealed the information, if it did not seal it, I do not believe the Circuit Court of Kanawha County would have that power in this case. Unless one entitled to a privilege assiduously guards it by requesting protective orders when confidential information is used in open court, I cannot see how a second court could recover the lost confidentiality. Simply stated, short of mass hypnosis, the genie can t be put back in the bottle. For the reasons stated, I must respectfully dissent.
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