State ex rel. Seitrich v. Franklin, 15715

• Citation: 761 S.W.2d 756
• Decision Date: 12 December 1988
• Docket Number: No. 15715,15715
• Parties: STATE of Missouri, ex rel. Eugene SEITRICH, Relator, v. Honorable James FRANKLIN, Jr., Judge of the 26th Judicial Circuit of Missouri, Respondent.
• Court: Court of Appeal of Missouri (US)

Page 756

761 S.W.2d 756

STATE of Missouri, ex rel. Eugene SEITRICH, Relator, v. Honorable James FRANKLIN, Jr., Judge of the 26th Judicial

Circuit of Missouri, Respondent.

No. 15715.

Missouri Court of Appeals,

Southern District,

Division One.

Dec. 12, 1988.

John E. Curran, Curran & Clifford, Osage Beach, for relator.

Erik A. Bergmanis, Phillips, McElyea, Walker & Carpenter, P.C., Camdenton, for respondent.

ORIGINAL PROCEEDING IN PROHIBITION

GREENE, Judge.

PRELIMINARY WRIT OF PROHIBITION MADE ABSOLUTE

Relator, Eugene E. Seitrich, petitioned this court for a writ of prohibition to restrain respondent, the Honorable James Franklin, Jr., judge of the 26th Judicial Circuit of Missouri, from issuing a protective order designed to prevent Seitrich's inspecting and copying a survey plat prepared by expert witness David Krehbiel, whose deposition was being taken by Seitrich's attorney, but was continued pending ruling on the order.

After examination of the petition and related documents, this court issued a preliminary writ of prohibition directing Judge Franklin not to take any action on the protective order in question until further order of this court, and directed him to file his answer to relator's petition. After consideration of respondent's answer and accompanying suggestions, and relator's brief (respondent chose not to file a brief), we are of the opinion that our preliminary writ should be made absolute.

The facts are as follows. In the underlying cause of action, which is pending in the Circuit Court of Camden County, Paul F. Becherer and Anita R. Becherer are plaintiffs, and Eugene E. Seitrich is the defendant. In the suit, the Becherers claim that Seitrich, by building an extension to his existing boat dock located on the waters of the Lake of the Ozarks, is interfering with their rights to the use and enjoyment of the water and shoreline immediately in front of their property. The Becherers base such claim on the assertion that Seitrich's extension causes approximately 15 feet of his dock to be located in front of their property.

Following the filing of the lawsuit, Seitrich's attorney filed a request for production of documents, in which he requested that the Becherers produce for inspection and copying "copies of all surveys available to the Plaintiff[s] showing the location of the Defendant's boat dock on the waters of the Lake of the Ozarks in relation to and in conjunction with the Plaintiffs' real property...." In their response to the request, the Becherers objected to producing the surveys because "all documents of the nature requested by Defendant have been prepared by Plaintiffs' agent at Plaintiffs' request since the filing of this suit and have been prepared in anticipation of litigating this suit and are accordingly work product." The agent referred to was identified in answers to interrogatories as expert witness David Krehbiel, "[who] is generally expected to testify on the subject matter of surveying, surveying the property in question, and on the subject of boundary lines."

The attorney for Seitrich then filed notice to take Krehbiel's deposition, accompanied by a subpoena duces tecum directing Krehbiel to bring with him to the deposition all of the "survey plats, survey notes, field reports and affidavits with respect to surveying the boundary line between Eugene Seitrich and Paul Becherer." At the deposition, Krehbiel, on the advice of counsel, refused to produce the survey plats he had drawn, with the Becherers' attorney stating that they were "work product," and that they were "the principle [sic] expression of our mental impressions" which the Becherers intended to use at trial. Following the refusal to produce the documents, the taking of the deposition was continued to allow the Becherers to apply to the trial court for a protective order.

The Becherers then filed such a motion to prohibit Seitrich from obtaining copies of the documents in question. The motion stated that the ability to make a survey of the area in question was equally available to both parties and that it would not create an undue hardship for Seitrich to obtain his own survey. The motion further stated that the documents requested had been prepared by Krehbiel at the request of the Becherers and their attorney "in anticipation of litigation and for the trial of this matter."

Seitrich's attorney then filed a motion to compel production of the documents in question, citing as a basis for such order the refusal by Krehbiel to produce such documents during the taking of his deposition. Judge Franklin, after hearing arguments from the attorneys, denied the motion to compel production of the documents, and sustained the motion for a protective order as to the plat prepared by Krehbiel, but granted Seitrich 10 days to seek a writ of prohibition before the order...