Section 2.30 Matters Protected as Trial Preparation Materials (Work Product)

LibraryDiscovery 2015


Unless a required showing is made, as discussed in §2.31 below, Rule 56.01(b)(3) protects matters from discovery that meet all of the following tests:



· They are documents or tangible things.



· They are prepared by or for a party or that party’s representative.



· They are prepared in anticipation of litigation or for trial.



See State ex rel. Polytech, Inc. v. Voorhees, 895 S.W.2d 13 (Mo. banc 1995). This is subject, however, to the exception that reports of an examining physician may be obtained under Rule 60.01.



The protection would thus apply to:



· written or recorded statements (except the statement of the party seeking discovery);



· reports;

· photographs;



· movies;



· maps;



· diagrams;



· charts;



· models; or



· other physical investigative matters or items of demonstrative evidence prepared by or for a party or the party’s representative in view of litigation or trial.



In State ex rel. State Farm Mutual Automobile Insurance Co. v. Keet, 601 S.W.2d 669 (Mo. App. S.D. 1980), the court acknowledged in an uninsured motorist case that the following types of documents would constitute trial preparation materials for which the required showing under Rule 56.01(b)(3) must be made for production:



· All photographs of each vehicle



· All diagrams, plats, or photographs taken of the scene



· All statements taken from people who claim to have knowledge of the accident and any written summary or documentation of any statements that were neither written nor recorded



· The insurance company’s investigation file concerning the accident



· All memoranda, statements, and other documentary material relating to the issue of liability insurance coverage by any insurer on the uninsured vehicle



In another case involving an uninsured motorist, the Missouri Court of Appeals found that an investigative file of an accident involving an uninsured motorist is work product even if the insured party and the insurance company are cooperative rather than “adversarial” when the investigation begins. State ex rel. Safeco Nat’l Ins. Co. of Am. v. Rauch, 849 S.W.2d 632 (Mo. App. E.D. 1993). In Safeco, the insured parties were in an accident with a phantom motorist; the insurance company conducted an investigation, and the parties proceeded to resolve the claim. A few months later, the insurance company obtained the identity of the phantom motorist and informed the insured parties that it would not pay the claim but would continue to investigate. The trial court granted...

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