State ex rel. Tracy v. Dandurand, SC 82316.

• Decision Date: 14 November 2000
• Docket Number: No. SC 82316.,SC 82316.
• Citation: 30 S.W.3d 831
• Parties: STATE ex rel. Jennifer L. (Welch) TRACY, Relator, v. The Honorable Joseph P. DANDURAND, Judge, Circuit Court of Cass County, Missouri, Respondent.
• Court: Missouri Supreme Court

30 S.W.3d 831

STATE ex rel. Jennifer L. (Welch) TRACY, Relator, v. The Honorable Joseph P. DANDURAND, Judge, Circuit Court of Cass County, Missouri, Respondent.

No. SC 82316.

Supreme Court of Missouri, En Banc.

November 14, 2000.

Steve Garner, Neil Chanter, Springfield, for Relator.

David W. Hauber, Christopher J. Eaton, Donald P. Herron, Kansas City, for Respondent.

WOLFF, Judge.

Does a party continue to have an attorney-client privilege as to documents that the party has provided to its retained expert witness who is designated to testify? While trial courts frequently confront the subject of discovery as to retained experts, the question presented here appears to be one of first impression in this Court.

The expert witness in this case had reviewed the documents and gave them to opposing counsel at the witness' deposition, but the trial court entered an order prohibiting use of the documents. Because Rule 56.01(b)(4) allows discovery by deposition of facts known and opinions held by retained experts, and because the party claiming the privilege has waived it by providing the documents to its retained expert, a writ of prohibition is warranted.

Background

This writ proceeding results from the second lawsuit arising from a collision between cars driven by Jennifer (Welch) Tracy and Gary Noland. Noland died as a result of the collision. In the first case the Noland survivors filed a wrongful death action against Tracy and other defendants.¹ The Nolands' attorney asserted, while that case was pending, that Farmers was acting in bad faith in not settling the Nolands' claim against Tracy within the limits of the policy. On the first day of trial, the wrongful death claim against Tracy was settled for $1,000,000, an amount considerably in excess of the $50,000 liability limits available to Tracy.

Tracy then brought suit against Farmers for bad faith for allegedly exposing her to liability in excess of the policy coverage. In this second suit, Tracy's counsel requested production of Farmers' entire claim file.

Farmers produced the claim file, but withheld 51 documents, listed on a privilege log that it provided to Tracy. By providing a privilege log to Tracy, in response to Tracy's request for production of documents under Rule 58.01, Farmers complied with the procedure for making a proper objection, on privilege grounds, to requests for documents. Rule 58.01(b). Farmers later disclosed several of the privilege-log documents to Tracy, who is said to have waived her attorney-client privilege as to those documents that were involved in the first lawsuit, where counsel retained by Farmers represented Tracy.

In the bad faith case, Farmers designated Professor Jeffrey Thomas as an expert witness and provided him with factual materials that included some of the documents that were listed on the privilege log. Thomas produced his file to Tracy's counsel, as required by a notice duces tecum, when Tracy's counsel took his deposition as part of the discovery allowed as to experts under Rule 56.01(b)(4)(b).² Thomas was not questioned at his deposition about the documents in issue, which included a confidential attorney's report of July 29, 1994, written by Farmers' attorney, Lance LeFevre, and a letter of October 20, 1993, from LeFevre to a Farmers' claims manager. Farmers asserts that the privileged documents were inadvertently sent to Professor Thomas. Thomas testified that he had reviewed his entire file.

The Thomas deposition was in June 1999. About a month later, Tracy's counsel took the deposition of Lance LeFevre and asked him about the documents that LeFevre wrote, specifically the confidential attorney's report of July 29, 1994, and the letter of October 20, 1993. LeFevre refused to answer any questions regarding the documents, claiming they were protected by the attorney-client privilege. A few days later, Farmers' counsel took the videotaped deposition of Professor Thomas, the expert witness, for use at trial because Thomas was moving out of the country. Tracy's counsel cross-examined Thomas about the two documents. Shortly thereafter, Farmers filed a motion for protective order and/or motion in limine asking the court to order Tracy to return the documents to Farmers and that the court enter an order preventing use of the documents or reference to the documents at trial.

The trial court denied Farmers' motion for protective order on August 23, 1999, allowing Tracy to keep the documents, but took Farmers' motion in limine under advisement. Tracy thereafter filed a motion to compel Lance LeFevre to answer deposition questions relating to the documents.

The respondent trial judge sustained Farmers' motion in limine to exclude use of the documents and, thereafter, entered an order denying Tracy's motion to compel attorney LeFevre to answer deposition questions relating to the two documents. The trial judge also prohibited Tracy from questioning any witnesses about the documents.

This Court issued its preliminary writ of prohibition February 22, 2000, commanding respondent trial judge to show cause why a writ of prohibition should not issue and to take no action until further order of the Court.

Discovery of Facts Known by a Designated Expert

An expert retained for litigation, such as Professor Thomas, usually knows nothing about the facts of the controversy until contacted by the attorney. Rule 56.01(b)(4) provides for discovery of "facts known and opinions held" by such experts once they have been designated as trial witnesses. The discovery of facts known and opinions held by an expert are, until the expert is designated for trial, the work product of the attorney retaining the expert. See Rule 56.01(b)(3).³ Once the retaining attorney decides to use the expert at trial and discloses him or her as a witness, the expert is subject to discovery. Rule 56.01(b)(4).

Tracy claims that matters revealed in the documents contradict Thomas' opinion testimony and constitute admissions against interest on the part of Farmers. Farmers denies that the documents have such effect. For purposes of resolving this discovery matter, we need not decide this dispute over the effect of the documents.

Expert witnesses retained for litigation are unique. A lay witness may use a document that is either the attorney's work product or the subject of an attorney-client communication to refresh his recollection before testifying, and we have protected such a document from discovery. See State ex rel. Polytech, Inc. v. Voorhees, 895 S.W.2d 13, 14 (Mo. banc 1995). This protection would not extend to documents that a witness uses while testifying. Id. at 15.

But a retained expert witness, Professor Thomas in this case, has no memory of the events to refresh. The documents, materials, and other information provided to him are the sources of the facts that he knows.⁴

Rule 56.01(b)(4) sets forth the information that is to be provided by interrogatory answer regarding the expert and specifically provides: "A party may discover by deposition the facts and opinions to which the expert is expected to testify." The deposition, with no specific limitations, allows for opposing counsel to probe the expert on the expert's qualifications, knowledge of the subject, information the expert has been provided, the expert's opinions, and all other matters bearing on the expert's opinions and the bases for the opinions. The federal rules regarding experts, by comparison, start with a mandatory disclosure as to the expert, including a written report in which the expert sets forth specifically "the data or other information considered by the witness in forming the opinions...." (Emphasis added.) Rule 26(a)(2)(B), F.R.C.P. Under the federal rule, a party waives its work product privilege as to materials viewed by an expert before formulating the expert's opinion, even if the material ultimately was not useful. Karn v. Ingersoll-Rand, 168 F.R.D. 633 (N.D.Ind.1996).

Missouri cases require an expert to produce at deposition the materials that the expert has reviewed in order that the opposing attorney be able to "intelligently cross-examine the expert concerning what facts he used to formulate his opinion." State ex rel. Seitrich v. Franklin, 761 S.W.2d 756, 758 (Mo.App.1988). The method used in State ex rel. Seitrich v. Franklin was the subpoena duces tecum. In the present case, Tracy's counsel used a "notice duces tecum." Farmers does not challenge the efficacy of a notice duces tecum.

It may be suggested that materials given to an expert can be withheld from disclosure if the expert did not rely upon them. There is no such exception in the rule or Missouri precedents. State ex rel. Missouri Highway and Transp. Comm'n v. Anderson, 759 S.W.2d 102 (Mo.App. 1988). Rule 56.01(b)(4) should be read to require production of all of the materials provided to the expert. To hold otherwise would allow the expert witness or the party retaining the expert witness to select which documents to produce after the expert has reviewed the documents in preparation for the expert's testimony. Id. at 106. It is appropriate, at deposition or trial, to cross-examine an expert witness as to information provided to the expert that may contradict or weaken the bases for his or her opinion regardless of whether the expert relied upon or considered the information. Removing the privilege from the documents provided to the expert does not necessarily make the documents admissible at trial. As with other non-privileged documents, the law of evidence applies. In this case we deal with discovery, which Rule 56.01(b)(1) says merely requires that non-privileged material be "relevant to the subject matter involved in the pending action." Rule 56.01(b)(1) further states: "It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence."

We...