Section 13 Acting in Excess of Jurisdiction

• Library: Remedies 2006

Another major use of the writ of prohibition is to control discovery matters. The courts have frequently held that the writ is available to remedy either the grant or denial of discovery that cannot be effectively corrected on appeal. State ex rel. Newman v. O’Malley, 54 S.W.3d 695 (Mo. App. W.D. 2001) (ordering disclosure of the defendant’s financial records without the requirement that the plaintiff first make a submissible case for punitive damages at trial); State ex rel. Atchison, Topeka & Santa Fe Ry. Co. v. O’Malley, 898 S.W.2d 552 (Mo. banc 1995) (preventing disclosure of work product concerning interviews of potential witnesses); State ex rel. Stecher v. Dowd, 912 S.W.2d 462 (Mo. banc 1995) (prohibiting personal injury plaintiff from executing overbroad release of medical and employment records).

Although the court has the power to make discovery orders, the fiction indulged in by the courts in these situations is that the court is either acting in excess of its jurisdiction or abusing its discretion. These conclusory phrases are not of much analytical help in determining whether to seek a writ, but they do provide a phrase that must be part of the incantations in the petition for a writ of prohibition. Obviously, the clearest case for the issuance of the writ is when the party seeking to prevent disclosure can point to a privilege that protects the documents or information being...