State ex rel. State Bd. of Pharmacy v. Otto

• Court: Missouri Court of Appeals
• Writing for the Court: Before TURNAGE; TURNAGE
• Citation: State ex rel. State Bd. of Pharmacy v. Otto, 866 S.W.2d 480 (Mo. App. 1993)
• Decision Date: 23 November 1993
• Docket Number: No. WD
• Parties: STATE of Missouri ex rel. STATE BOARD OF PHARMACY, Appellant, v. The Honorable Paul R. OTTO, Commissioner, Administrative Hearing Commission, Respondent. 47465.

Page 480

866 S.W.2d 480

STATE of Missouri ex rel. STATE BOARD OF PHARMACY, Appellant, v. The Honorable Paul R. OTTO, Commissioner, Administrative Hearing Commission, Respondent.

No. WD 47465.

Missouri Court of Appeals Western District.

Nov. 23, 1993.

As Modified Dec. 28, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Dec. 28, 1993.

Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, for appellant.

P. Terence Crebs, Hrant Norsigian, Jr., Herzog, Crebs & McGhee, St. Louis, for respondent.

Before TURNAGE, C.J., and LOWENSTEIN and HANNA, JJ.

TURNAGE, Chief Judge.

The State Board of Pharmacy filed a complaint before the Administrative Hearing Commission seeking to establish cause to discipline the pharmacist license of James E. Drake. Drake filed an interrogatory directed to the Board to which the Board objected. After the AHC overruled the objection, the Board sought and obtained a preliminary order in prohibition from the circuit court prohibiting the AHC from enforcing its discovery order. Thereafter, the court quashed its preliminary order. On appeal, the Board contends that the AHC acted in excess of its jurisdiction in requiring the Board to answer the interrogatory and to produce personnel and licensure files. Reversed in part and remanded.

D & D Pharmaceuticals Ltd. formerly owned Drake's Medical Center Pharmacy in Rolla. James Drake and his wife were the sole shareholders of D & D. D & D sold the pharmacy and transferred its possession in March 1988. Thereafter the business was operated under the name of Rolla Prescription Shop. In early April, Carl Garrett, an inspector employed by the Board, went to the pharmacy to perform an inspection upon the change of ownership. Garrett found Bruce Stoelting was the pharmacist in charge and Elwyn Wax was a staff pharmacist.

During his inspection Garrett discovered in Drake's prescription files evidence of numerous record keeping violations and the refilling of prescriptions without authorization. Garrett discovered other violations of Chapter 338, RSMo 1986. ¹ Garrett made a second visit to the pharmacy to perform a more detailed investigation of the files which were transferred as a result of the sale of the pharmacy and discovered more evidence of record keeping and refilling violations. Garrett made a report of his investigation to the Board.

After Garrett had filed his report with the Board, the Board filed a complaint with the AHC. After the complaint had been filed the Board's attorney began trial preparation by conducting witness interviews, reviewing documents and preparing notes and memoranda.

During the course of discovery before the AHC, Drake's attorney served interrogatories on the Board. Interrogatory No. 9 stated:

9. Whether or not you have conducted or have cause [sic] to be conducted any investigation or further investigation of Respondent, James E. Drake, after the inspection of April 4, 1988 of Drake's Medical Center Pharmacy, and if so state:

A. Identify each person conducting each such investigation or further investigation on your behalf;

B. Describe in detail each such investigation or further investigation;

C. Identify each person contacted during each such investigation or further investigation the date of each such contract [sic] and identify each person acting on your behalf who contacted each such person on each such date;

D. Describe in detail what each person said on each date when he/she was contacted and/or interviewed;

E. Describe in detail what was said to each person when he/she was contacted and/or interviewed on each such date;

F. Identify and describe in detail each document you obtained during each such investigation or further investigation;

G. Identify the person who provided you with each document identified in answer to Interrogatory No. 9G [sic] above; and

H. Identify and describe each document prepared during such investigation or further investigation.

The Board objected to Interrogatory No. 9 on the ground that it sought the mental impressions, theories, or conclusions of the Board's attorney and sought information which constituted opinion work product.

Drake's attorney subsequently served the Board with a request for production of documents by which he requested production of the personnel file and licensure files which the Board maintained on Garrett, Stoelting, Wax and the Rolla Prescription Shop and Garrett's reimbursement requests, receipts and travel expense vouchers. The Board objected to this request on the ground that these files are closed under § 620.010.14(7), RSMo Supp.1992.

The AHC overruled the objection to Interrogatory No. 9 and ordered the Board to produce the files. The AHC ordered the personnel and licensure files to be made available to Drake's attorney for his inspection and ordered that a copy of any documents requested by him should be made available but the contents would only be made public in the course of any proceedings in the case.

The Board had previously made available to Drake the report made by Garrett after his inspections. Drake had also taken the depositions of Stoelting, Wax and Garrett.

The Board filed a petition for writ of prohibition in the Circuit Court of Cole County seeking to prohibit the AHC from enforcing its discovery orders. After issuing a preliminary order in prohibition, the court quashed such preliminary order.

The order of the circuit court quashing its preliminary writ is an appealable final judgment. Missouri Department of Social Services v. Administrative Hearing Commission, 826 S.W.2d 871, 872 (Mo.App.1992). Thus, this court has jurisdiction of this appeal.

Section 536.073.2(1) provides that in any contested case before an agency that any party may obtain discovery in the same manner as is provided for discovery in civil actions under the rules of civil procedure. The Board contends that Interrogatory No. 9 seeks information which is privileged opinion work product because it calls for disclosure of the mental impressions, conclusions, opinions or legal theories of its attorney concerning the litigation seeking to discipline Drake's license.

It should first be noted there is no dispute that the only investigation and preparation for trial made on behalf of the Board after Garrett's investigation was made by the Board's attorney.

The question presented is whether or not Interrogatory No. 9 calls for material which is privileged work product. In Board of Registration for the Healing Arts v. Spinden, 798 S.W.2d 472, 476[7, 8] (Mo.App.1990), this court noted that the work product doctrine applies to trial preparation materials and opinion work product. This court held that opinion work product which includes the mental impressions, conclusions, opinions or legal theories of an attorney representing a party in litigation is absolutely immune from discovery. Spinden at 476. For trial preparation materials the work product protection comes from Rule 56.01(b)(3). However, Rule 56.01(b)(3) grants no protection for opinion work product which is not in the form of "documents or tangible things." The protection for intangible opinion work product emanates from the decision in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). State ex rel. Spear v. Davis, 596 S.W.2d 499, 501 (Mo.App.1980).

There are no Missouri cases which consider the opinion work product in relation to interrogatories similar to those in question. Since Missouri and federal courts derive the protection for intangible opinion work product from Hickman, it is appropriate to look to federal cases interpreting this question. Several federal cases bear upon the question of whether or not Interrogatory No. 9 seeks discoverable or privileged information. A general definition of work product which Hickman protects was provided in In re Grand Jury Subpoena Dated Nov. 8, 1979, 622 F.2d 933, 935[1-4] (6th Cir.1980), which stated:

Work product consists of the tangible and intangible material which reflects an attorney's efforts at investigating and preparing a case, including one's pattern of investigation, assembling of information, determination of the relevant facts, preparation of legal theories, planning of strategy, and recording of mental impressions.

In Board of Education v. Admiral Heating, 104 F.R.D. 23, 32[11-12] (N.D.Ill.1984), the court held that a party may properly inquire into the identity and location of persons having knowledge of relevant facts. The court held that an interrogatory may not go beyond that to inquire into the identity of those the "defendants have interviewed, where and when such interviews took place and whether or not a record was made...." The court stated that to give information as to the identity of those interviewed does not give information of substantive relevant facts but rather affords the potential for significant insights into the lawyers' preparation of the case. A similar holding in Massachusetts v. First Nat'l Supermarkets, Inc., 112 F.R.D. 149 (D.Mass.1986), noted:

[T]he basis for not permitting interrogatories to be propounded which seek the names of persons interviewed by an adverse party is not found in Rule 26(b)(3), F.R.Civ.P., for that rule protects only "documents and things". Rather, the basis ... is the Supreme Court's holding in Hickman, that an attorney's "work-product" is protected ...

In Laxalt v. McClatchy, 116 F.R.D. 438, 443 (D.Nev.1987), the court stated that inquiry may not be made of whether particular persons have been interviewed because from this the opposition would be able to formulate a list of which witnesses counsel considered important and which were not. The court held this information is the type of mental impression and trial strategy which the work product rule is meant to protect.

Applying the above cases to Interrogatory No. 9 reveals that 9 A is not objectionable. The name of the persons conducting an investigation does not...