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Nov 2, 2016

Mere Designation of an Expert Witness Does Not Waive the Work Product Doctrine Protections

ABSTRACT: A Missouri plaintiff did not irrevocably waive the protections of the work product doctrine simply by designating an expert witness and then withdrawing the designation without disclosing the expert's analysis or conclusions.

In Missouri, it has long been held that a party waives the protections of the work product doctrine by disclosing his expert’s opinions, analysis or conclusions. However, the mere act of designating an expert pursuant to Missouri Rule 56.01 “does not, standing alone, irrevocably waive the protections afforded by the work product doctrine,” according to a new decision of the Missouri Supreme Court.

In Malashock v. Jamison, the plaintiff sued for injuries allegedly resulting when his utility terrain vehicle (UTV) overturned.  The plaintiff designated four expert witnesses to testify at trial.  The designation for one of the experts stated that the expert would testify regarding the UTV’s “performance” at various speeds, the “forces” involved in the accident, and the “performance and factors impacting the performance” of the UTV.  However, the designation did not disclose the expert’s analysis or conclusions regarding any issues in the case.

Not long after designating experts, the plaintiff “de-endorsed” one expert.  Following the withdrawal of this expert, the defendant filed a motion to permit the deposition of the withdrawn expert.  The trial court granted the motion to depose the withdrawn expert “on the grounds that Plaintiff had waived the protections afforded by the work product doctrine by designating” the expert.

The plaintiff filed a writ of prohibition, and the Missouri Supreme Court reversed the trial court’s decision.  The Malashock court explained that the initial designation of an expert “begins a process of waiving privilege,” but that waiver is not complete “until there is a ‘disclosing event.’”  The court then announced that the “disclosing event” is “the actual disclosure of the expert’s opinions and conclusions, not simply the designation of the expert as a trial witness.” 

Because the waiver is not complete until the disclosure of the expert’s opinions and conclusions, the court reasoned that “when counsel rescinds the designation, the attorney can claim work product protection as to that retained expert, since the expert will not be called for trial.”  Because the plaintiff in Malashock rescinded the designation before disclosing the expert’s opinions or conclusions, the Supreme Court held that the plaintiff did not waive the work product doctrine protections.

Experienced litigators know that cases evolve over time.  A party may not need all of the experts originally designated.  The Malashock decision stands for the proposition that parties can withdraw experts without the risk of waiving the attorney work product doctrine as to that expert as long as the party rescinds the designation of the expert before disclosing the expert’s “opinions and conclusions.”