State ex rel. Mitchell Humphrey & Co. v. Provaznik

854 S.W.2d 810, 1993 Mo. App. LEXIS 762, 1993 WL 171742
CourtMissouri Court of Appeals
DecidedMay 25, 1993
DocketNo. 63200
StatusPublished
Cited by3 cases

This text of 854 S.W.2d 810 (State ex rel. Mitchell Humphrey & Co. v. Provaznik) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Mitchell Humphrey & Co. v. Provaznik, 854 S.W.2d 810, 1993 Mo. App. LEXIS 762, 1993 WL 171742 (Mo. Ct. App. 1993).

Opinion

GRIMM, Presiding Judge.

Relators Mitchell Humphrey & Co. and Mitchell O. Humphrey (hereafter referred to collectively as Humphrey) seek a writ of prohibition to prevent respondent/judge from enforcing his order compelling production of documents. We issued our preliminary order in prohibition, which we now make absolute in part and quash in part.

I. Background

Humphrey is the plaintiff in the underlying malpractice action against defendant Price Waterhouse, a public accounting firm. Price Waterhouse provided tax and accounting services to Humphrey from 1986 to 1988.

In 1988, Humphrey discharged Price Wa-terhouse and hired the accounting firm of Anders, Minkler & Diehl (Anders) to provide these services.1 In his brief, Humphrey claims Anders also “provided assistance in a consulting capacity for [Humphrey’s] counsel in anticipation of the pending litigation against Price Waterhouse.”

Subsequently, Humphrey filed suit against Price Waterhouse. Humphrey sought damages for “careless and negligent tax preparation and accounting advice.” Price Waterhouse denied liability and alleged Humphrey was contributorily negligent because he did not (1) follow their advice, or (2) mitigate his damages.

In preparation for trial, Price Water-house served a subpoena duces tecum on Anders. Price Waterhouse sought to obtain materials prepared by Anders, including the amended and revised tax returns and all working papers, notes, financial statements, supporting calculations and documentation relevant thereto.

Pursuant to this subpoena, Anders produced most of the documents Price Water-house requested. However, Anders’ counsel advised them to withhold certain documents. Humphrey asserted a work product privilege with regard to the withheld documents, which include:

(1) January 30, 1989 faxed message from Humphrey’s counsel to Anders that transmitted an eighteen page report from Humphrey’s expert to Humphrey’s counsel.
[812]*812(2) Two copies of December 29, 1988 An-ders’ memo to Humphrey’s correspondence file.
(3) March 9, 1989 faxed message from Humphrey’s counsel to Anders that transmitted a March 9, 1989 letter from Humphrey’s attorney to Humphrey.
(4) Anders’ memos dated April 6 and 7, 1989 to Humphrey’s tax file.2
(5) Damage calculations.

Price Waterhouse moved to compel production of these documents. After hearing arguments, respondent/judge indicated “that unless prohibited from so doing [he would] ... sustain [Price Waterhouse’s] said motion on the grounds that [he] does not believe that the documents sought contain privileged communications.”

II. Standard of Review

Here, Humphrey is attacking the order respondent/judge proposes to enter. As such, Humphrey bears the burden of showing that the documents about to be ordered produced “are not relevant ...; or that they are in fact privileged; ...; or that respondent otherwise lacks jurisdiction or will exceed his jurisdiction in entering the order.” State ex rel. Terminal R.R. Ass’n of St. Louis v. Flynn, 363 Mo. 1065, 257 S.W.2d 69, 72 (banc 1953); State ex rel. Syntex Agri-Business, Inc. v. Adolf, 700 S.W.2d 886, 887 (Mo.App.E.D.1985).

A trial court has broad discretion in the administration of discovery rules. Absent an abuse of discretion, an appellate court should not disturb a trial court’s ruling. Klein v. General Elec. Co., 714 S.W.2d 896, 906 (Mo.App.E.D.1986).

When a trial court makes a discovery order that either exceeds its jurisdiction or is an abuse of discretion, prohibition is an appropriate remedy. State ex rel. Upjohn Co. v. Dalton, 829 S.W.2d 83, 85 (Mo.App.E.D.1992). Prohibition is similarly appropriate where the trial court orders “production of work product when there has been no showing, as required by Rule 56.01(b)(3) ‘that a 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 material by other means.’ ” Enke v. Anderson, 733 S.W.2d 462, 465 (Mo.App.S.D.1987). We, however, start with the presumption that the trial court acted appropriately. See Board of Registration for the Healing Arts v. Spinden, 798 S.W.2d 472, 475 (Mo.App.W.D.1990).

III. Work Product

We first note that although “work product” and “privilege” are at times used interchangeably, the two are not synonymous; rather, they are separate doctrines. See State ex rel. Spear v. Davis, 596 S.W.2d 499, 500 (Mo.App.E.D.1980).

If a relevant matter is privileged, it has complete immunity from discovery. See Rule 56.01(b)(1). If a matter is an attorney’s work product, however, it has qualified immunity under Rule 56.01(b)(3). See May Dept. Stores Co. v. Ryan, 699 S.W.2d 134, 136 (Mo.App.E.D.1985).

Work product “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.’ ” Id. (citing State ex rel. J.E. Dunn Constr. Co. v. Sprinkle, 650 S.W.2d 707, 710 (Mo.App.W.D.1983)); see also Rule 56.01(b)(3).

There are two types of work product: (1) trial preparation materials (documents and other tangible things) and (2) opinion work product. The first is entitled to qualified immunity: it may be discovered only upon a showing of substantial need [813]*813and undue hardship. The second, which includes the “mental impressions, conclusions, opinions, and legal theories of an attorney or other representatives of a party concerning the litigation,” is entitled to absolute immunity. Davis, 596 S.W.2d at 500-01; Rule 56.01(b)(3).

IV. Waiver and Other Contentions

Before determining whether the documents in question are in fact work product, we first address Price Waterhouse’s arguments made on respondent/judge’s behalf that the documents are not subject to any immunity.

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