State Ex Rel. Polytech, Inc. v. Voorhees
1995 Mo. LEXIS 32, 895 S.W.2d 13, 1995 WL 124581 (1995)
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Rule of Law:
In Missouri, a witness's use of a privileged document to refresh their recollection before testifying does not waive the attorney-client or work product privileges, and the document is therefore not discoverable by the opposing party.
Facts:
- Polytech, Inc. was in a legal dispute with its broker, Sedgwick James of Missouri, Inc., over an alleged failure to secure sufficient insurance.
- At the request of Polytech's counsel, Douglas Hazel, a corporate officer for Polytech, wrote a one-page summary detailing his involvement with the broker.
- Hazel gave this summary directly to Polytech's attorney, and no one else saw the document.
- Prior to his deposition, Hazel reviewed this summary to refresh his recollection of the events.
- During the deposition, Hazel admitted that he had created the summary for his attorney and had reviewed it in preparation for his testimony.
Procedural Posture:
- Polytech, Inc. sued Sedgwick James of Missouri, Inc. in a state trial court.
- During the deposition of Polytech's officer, Douglas Hazel, Sedgwick requested a summary document Hazel had used to prepare.
- Polytech objected, asserting the document was protected by the attorney-client privilege and the work product doctrine.
- Sedgwick filed a motion to compel production of the summary.
- The trial court judge granted Sedgwick's motion and ordered Polytech to produce the document.
- Polytech unsuccessfully petitioned the intermediate court of appeals to block the trial court's order.
- Polytech then sought a writ of prohibition from the Supreme Court of Missouri to prevent the enforcement of the trial judge's disclosure order.
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Issue:
Does a witness's review of a document protected by the attorney-client and work product privileges to refresh memory before a deposition constitute a waiver of those privileges, thereby making the document discoverable?
Opinions:
Majority - Benton, Judge
No. A witness's use of a privileged document to refresh their memory before testifying does not waive either the attorney-client privilege or the work product doctrine. The court distinguished between refreshing recollection before testifying and while testifying. When a document is used while testifying, opposing counsel may examine it to ensure the testimony comes from memory, not from the document. However, when a witness uses a document to refresh memory before testifying, the testimony is considered a genuine recollection, reducing the need for inspection. The court affirmed that Hazel's summary was a confidential communication protected by the attorney-client privilege and a document prepared in anticipation of litigation protected by the work product doctrine. The court explicitly rejected the more discretionary federal rule (Fed. R. Evid. 612), reasoning that the Missouri rule better advances and protects these fundamental privileges from the 'chilling effect' of potential disclosure. The court overruled contrary appellate decisions in Barrett v. Mummert and State ex rel. McCulloch v. Lasky.
Analysis:
This decision solidifies a bright-line rule in Missouri that provides robust protection for privileged documents used in preparation for testimony. By rejecting the discretionary federal approach, the court prioritizes the sanctity of the attorney-client and work product privileges over the discovery interests of an opposing party. This ruling gives Missouri attorneys and their clients greater certainty that their confidential communications and litigation materials will be shielded from disclosure, even when a witness reviews them before a deposition. The decision creates a clear distinction between state and federal practice on this issue and reinforces that preparation for testimony, by itself, does not automatically waive privilege.
