Section 2.31 Certain Trial Preparation Materials Discoverable—When

LibraryDiscovery 2015


As discussed in §2.29 above, matters that qualify as trial preparation materials (work product) receive only a qualified immunity from discovery as opposed to an absolute privilege. Thus, the materials themselves may be discovered if the following tests required by Rule 56.01(b)(3) are met:



· The materials must fall within the general scope of discovery set by Rule 56.01(b)(1).



· The party seeking discovery of the materials must show a substantial need for them in preparation of the case and an inability to obtain the substantial equivalent by other means without undue hardship.



While a showing will be required to discover the materials themselves, a showing is not required to discover such matters as:



· their existence;



· facts learned from the documents;



· persons from whom facts have been learned;



· when the documents were prepared; or



· the identity of the persons having possession of the documents.



See §2.29, supra. In fact, because discovery of the documents themselves will usually require a request to produce, the discovery of this information may be the only effective method of obtaining sufficient data to properly frame the request. The fact that these matters may have been learned as a result, or as a part, of a party’s investigation will not bar discovery of the information. See State ex rel. Pete Rhodes Supply Co. v. Crain, 373 S.W.2d 38 (Mo. banc 1963); State ex rel. Hof v. Cloyd, 394 S.W.2d 408 (Mo. banc 1965). Thus, an interrogatory requesting the date certain statements were taken, the identity of the person taking them, and the identity of the person’s employer when the statements were taken will be proper. Lincoln Gateway Realty Co. v. Carri-Craft, Inc., 53 F.R.D. 303 (W.D. Mo. 1971).



If a request for the production of the documents themselves is filed, an objection should be filed if the party believes they constitute trial preparation materials. In this regard, a request for production may be objectionable if it is so broad as to include within its terms trial preparation materials for which the required prior showing has not been made. St. Louis Little Rock Hosp., Inc. v. Gaertner, 682 S.W.2d 146 (Mo. App. E.D. 1984). The party seeking discovery may then file a motion under Rule 61.01(d) seeking an order compelling compliance, at which time it will be the opposing party’s burden to show that the documents are, in fact, trial preparation materials. A bare allegation of “work product” without describing the document or the circumstances of its preparation will not suffice. State ex rel. Faith Hosp. v. Enright, 706 S.W.2d 852 (Mo. banc 1986). If this showing is made, the party seeking discovery then has the burden to make the showing required for discovery under Rule...

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