May Dept. Stores Co. v. Ryan

• Decision Date: 08 October 1985
• Docket Number: No. 50429,50429
• Parties: The MAY DEPARTMENT STORES COMPANY and Sharon Lutz, Relators, v. The Honorable Brendan RYAN, Judge of the Missouri Circuit Court, 22nd Judicial Circuit, St. Louis, Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 134

699 S.W.2d 134

The MAY DEPARTMENT STORES COMPANY and Sharon Lutz, Relators, v. The Honorable Brendan RYAN, Judge of the Missouri Circuit Court, 22nd Judicial Circuit, St. Louis, Missouri Respondent.

No. 50429.

Missouri Court of Appeals,

Eastern District,

Division Four.

Oct. 8, 1985.

Riethmann and Soebbing, Ralph K. Soebbing, St. Louis, for relators.

James S. Collins, II, St. Louis, for respondent.

CARL R. GAERTNER, Presiding Judge.

We have previously issued a preliminary writ prohibiting the respondent-judge from enforcing his order compelling relators to produce an incident report. We now make the writ absolute.

The underlying action is one for false imprisonment brought by Maria Sanfilippo. She was allegedly detained for investigation of shoplifting by Sharon Lutz, an employee of The May Department Stores Company, on January 29, 1983. On that same date, Lutz prepared an incident report entitled "SECURITY CASE REPORT," with the word "CONFIDENTIAL" beneath the main heading. This report was transmitted to the May Company's liability insurer, Liberty Mutual Insurance Company.

Relators objected to the plaintiff's motion to produce numerous documents, including this report. Respondent ruled that the report was subject to discovery. Relators then filed their application for a writ of prohibition in this court. They argue that the report is attorney work product and hence non-discoverable absent a showing of hardship by plaintiff, and alternatively, relators contend that the report falls under the insurer-insured/attorney-client privilege. We agree with relators on both alternatives.

The public policy surrounding the attorney-client privilege has been a subject of extensive legal writing. In Sedler & Simeone, Privileges in the Law of Evidence: The Realities of Attorney-Client Confidences, 24 Ohio St.L.J. 1, 53-54 (1963); the authors state that the privilege "is socially desirable with a view toward effective functioning of attorney-client relationships to assure the client of secrecy in his communications with the attorney." The authors also opine:

As long as our society recognizes that advice as to matters relating to the law should be given by persons trained in the law--that is, by lawyers--anything that materially interferes with that relationship must be restricted or eliminated, and anything that fosters the success of that relationship must be retained and strengthened.

Id. at 3 (footnote omitted). Our state Supreme Court has fully accepted this viewpoint; see State ex rel. Great American Ins. Co. v. Smith, 574 S.W.2d 379, 383 (Mo. banc 1978).

Rule 56.01(b)(1) excludes from discovery any privileged matter, without exception. The shield from discovery under the "work product doctrine" (Rule 56.01(b)(3)), however, is not so broad.

"Work product" is a qualified immunity under Rule 56.01(b)(3). It denies to one's adversary materials "prepared in anticipation of litigation or for trial by or for another party, or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) ...," except upon a showing that the party seeking discovery "has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means."

State ex. rel. J.E. Dunn Construction Co. v. Sprinkle, 650 S.W.2d 707, 710 (Mo.App.1983). In other words, an attorney may not sit in a rocking chair and then blithely appropriate opposing counsel's efforts through discovery procedures.

Subsections (b)(1) and (b)(3) of Rule 56.01 have different, but sometimes overlapping, applications. The discovery of work product, limited by a showing of hardship, relates to documents and tangible things obtained or produced in anticipation of and preparation for litigation. This provision of the rule specifically applies to materials prepared for or by the other party's representative. Excluded under subdivision (b)(1) of the rule, however, from even this limited discovery are matters non-discoverable as privileged. Thus, any professionally oriented communication between attorney and client is absolutely privileged, in the absence of waiver, regardless of the anticipation of litigation. Bussen v. Del Commune, 239 Mo.App. 859, 199 S.W.2d 13, 21 (1947). Therefore, even though need and hardship be shown, and no such showing has been made here, Rule 56.01(b)(3) does not authorize discovery of communications between client and attorney whether made in anticipation of litigation and preparation for trial or not. ¹

An existing insured-insurer relationship, whereby an insured is contractually obligated to report promptly covered incidents to the insurer who in turn is obligated to defend and indemnify the insured, is similar to an attorney-client relationship insofar as discovery is concerned. Any communication between insured and insurer which relates to the former's duty to report incidents and the latter's duty to defend and to indemnify falls within the attorney-client privilege and is excluded from discovery under Rule 56.01(b)(1). State ex rel. Cain v. Barker, 540 S.W.2d 50, 53 (Mo. banc 1976). The opinion in Cain contains a thorough explanation of the public policy considerations underlying such a conclusion, which need not be repeated here. Suffice it to say, Cain surrounds the insured-insurer relationship with the same cloak of privileged confidentiality that protects the communications between attorney and client from discovery. Thus, a report made by an employee to his employer concerning the details of an incident, which is transmitted to the employer's attorney or insurer, is within the confidential communication privilege and is not subject to discovery, absent a waiver.

In the seminal case of State ex rel. Terminal Railroad Association v. Flynn, 363 Mo. 1065, 257 S.W.2d 69 (Mo. banc 1953), the Supreme Court, quoting from 58 Am.Jur. 282, Witnesses, Sec. 503, stated:

"A statement concerning an accident obtained by an employer from his servant for the bona fide purpose of being later transmitted to the employer's attorney for advice, or to be used by the attorney in connection with pending or threatened litigation, is privileged, because it is part of the communication from the client to his counsel. The same is true of a statement by the accredited agent of a corporation, giving his account of an accident for use of counsel in pending or threatened litigation...."

Id., 257 S.W.2d at 73.

Despite this quoted language respondent argues that Flynn, which concerned the production of photographs taken by an employee of defendant at the scene of an accident, is not authoritative in this case concerning an employee's written report to her employer. Perhaps some confusion may exist by reason of the fact the court in Flynn referred to privilege and to work product interchangeably. It must be remembered that prior to 1975 there was no need to distinguish between the two concepts because both were absolutely excluded from discovery. In that year the limited exception to the work product exclusion, set forth in Rule 56.01(b)(3), first became effective. Privileged matters, however, remain absolutely non-discoverable. Rule 56.01(b)(1). When viewed in the light of the present rule, Flynn is a work product case concerning production of tangible things, photographs, made in anticipation of litigation.

However, just three months after handing down the Flynn opinion, the Supreme Court of Missouri cited that case as authority in upholding the denial of a request for production of a communication between an attorney and his client. Martin v. Lingle Refrigeration Co., 260 S.W.2d 562, 566 (Mo.1953). Similarly, Flynn has more recently been cited as authority for the exclusion from discovery of employee prepared incident reports; see State ex rel. St. Louis Little Rock Hospital v. Gaertner, 682 S.W.2d 146, 149 (Mo.App.1984); and Lindberg v. Safeway Stores, Inc., 525 S.W.2d 571, 572 (Mo.App.1975). Thus, even though the quoted language from Flynn regarding privileged communications may be characterized as dicta, it has been confirmed and adopted in numerous...