Section 14.3 Privilege in Discovery—Privilege Versus Trial Preparation Materials and the Work Product Doctrine

• Library: Evidence 2017

III. (§14.3) Privilege in Discovery—Privilege Versus Trial Preparation Materials and the Work Product Doctrine

The very nature of an evidentiary privilege is that it removes evidence that is otherwise relevant and discoverable from the scope of discovery. See Rule 56.01(b)(1); State ex rel. Stinson v. House, 316 S.W.3d 915, 919 (Mo. banc 2010).

Evidence may be privileged from discovery or from use at trial, but “the scope of privilege in discovery is neither broader nor narrower than that which would be applied at trial.” State ex rel. Mo. Highway & Transp. Comm’n v. Anderson, 735 S.W.2d 350, 356 n.3 (Mo. banc 1987) (quoting 4 J. Moore et al., Moore’s Federal Practice § 26.60 (2^nd ed. 1985)). Privilege is absolute, while trial preparation materials are subject to limited disclosure. “Parties may obtain discovery regarding any matter, not privileged. . . .” Rule 56.01(b)(1). “‘Absent a waiver, privileged materials are immune from discovery.’” State ex rel. Behrendt v. Neill, 337 S.W.3d 727, 730 (Mo. App. E.D. 2011) (quoting State ex rel. Chase Resorts, Inc. v. Campbell, 913...