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State ex rel Ford Motor Co. v. Westbrooke11/23/2004
.R.D. 233, 236 (E.D. Wis. 1965). The party seeking discovery may attempt to establish that the materials' work product status has been lost by prior disclosure without an accompanying protective order or confidentiality agreement or that the party has substantial need of the materials and cannot, without undue hardship, obtain the substantial equivalent of the materials by other means. See Rule 56.01(b)(3). Limited discovery by deposition or otherwise regarding work product may be necessary. Through this process, the parties develop a factual record from which the trial court can render an informed decision.
In evaluating the merits of the asserted privilege or any claim of waiver or undue hardship, the trial court may order an in camera review of the disputed documents. See, e.g., State ex rel. Lester E. Cox Med. Ctr. v. Keet , 678 S.W.2d 813, 815 (Mo. banc 1984); State ex rel. Friedman v. Provaznik , 608 S.W.2d 76, 80 (Mo. banc 1984). If appropriate, the trial court may appoint a special master pursuant to Rule 68.01(a). In the appointment, the trial court should delineate the scope of the master's powers. Rule 68.01(e). The compensation of the master "shall be charged upon such of the parties . . . as the court may direct." Rule 68.01(a).
V.
The plaintiffs request that this Court quash the preliminary writ of prohibition and require Ford to disclose all the disputed documents. Ford, on the other hand, asks this Court for an order declaring that work product protection is "perpetual" and that all of its documents are protected. Yet neither of the parties has developed a factual record to support a determination of whether these documents are or are not work product or even which documents are still at issue.
VI.
The parties must develop a factual record before the trial court. The trial court shall determine what documents are at issue, whether each document (or class of documents) is or is not work product, whether work product protection has been lost by prior unprotected disclosure, and, if appropriate, whether the plaintiffs have substantial need of information contained in any of the documents and cannot obtain equivalent information without undue hardship. Ford has the burden of establishing that any particular document is entitled to work product status. Plaintiffs have the burden of establishing that this status has been lost by unprotected disclosure or that they have substantial need of information contained in any of the documents and cannot obtain equivalent information without undue hardship.
VII.
Finally, the Court must note the excessive amount of time that has passed since these documents were first requested. Missouri's litigators are reminded that " he discovery process was not designed to be a scorched earth battlefield upon which the rights of the litigants and the efficiency of the justice system should be sacrificed to mindless overzealous representation of plaintiffs and defendants." State ex rel. Madlock v. O'Malley , 8 S.W.3d 890, 891 (Mo. banc 1999). The discovery process was not designed to be an endless and unduly expensive ordeal. The rules of discovery are intended to allow pretrial discovery to be conducted as promptly and inexpensively as possible. Missouri litigators should act accordingly.
VIII.
The preliminary writ issued by this Court is made absolute as modified. The trial court and the parties are to proceed in accordance with this opinion.
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