Section 5.9 Confidential Materials

• Library: Discovery 2015

Caselaw provides some protection from discovery for documents and things generally considered confidential. These items typically include employment records, medical records, and trade secrets.

Employees have a fundamental right of privacy in employment records. State ex rel. Crowden v. Dandurand, 970 S.W.2d 340, 343 (Mo. banc 1998) (the plaintiff waived the right to privacy to the extent the pleadings raised issues to which the records related). To obtain employment records, a request must be narrowly tailored to the issues that are raised in the pleadings, such as wage information. Id.; see also State ex rel. Madlock v. O’Malley, 8 S.W.3d 890, 891 (Mo. banc 1999) (the defendant’s proposed “any and all” authorization for the plaintiff’s employment records was overly broad even though the plaintiff made a lost wages claim); State ex rel. Delmar Gardens N. Operating, LLC v. Gaertner, 239 S.W.3d 608, 612 (Mo. banc 2007) (the nonparty employer had standing to object to producing its nonparty employee’s employment file, and “[p]ermitting discovery of a witness’ entire personnel file solely for a collateral matter such as impeachment would eviscerate the right of privacy that employees enjoy as to those records”).

A plaintiff generally waives the patient-physician privilege for medical records that relate to a physical condition that is at issue in the petition. State ex rel. McNutt v. Keet...