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Square peg, round hole. Ordinary work product claims not enough to keep settlement agreement from disclosure.

ABSTRACT: The Missouri Supreme Court recently issued a significant discovery decision in the case of Hill and Hill v. Wallach. The Court ruled that a car crash settlement is discoverable in a separate and unrelated negligence claim for an alleged injury caused by a malfunctioning hospital bed. In determining the discoverability of the settlement materials, the Supreme Court succinctly outlined the differences in ordinary work product and opinion work product and provided practitioners additional guidance as it relates to the protections of work product and waiver of those protections in Missouri personal injury cases.

Plaintiffs Kristine and Dennis Hill filed a personal injury lawsuit against Mercy, alleging that the hospital failed to repair a broken hospital bed and that this broken bed caused Kristine Hill considerable spinal injuries while she was being treated at Mercy Rehabilitation Hospital. 

During the discovery process, Mercy’s attorneys requested access to a settlement agreement and related email regarding a car accident that occurred after the alleged negligence in the subject Mercy hospital bed case.  The defense argued such settlement documents could lead to admissible information that supported and proved Mercy’s affirmative defense of reduction under R.S. Mo. §537.060, which permits a reduction in defendant’s liability by the amounts of settlements with joint tortfeasors.

The Hills argued that the settlement was not relevant to the current case and absolutely protected from discovery as ordinary work product per Rule 56.01(b)(5).  Initially, the trial court allowed for the discovery and an appellate court issued a writ prohibiting such discovery.  This writ was the subject of the Supreme Court’s decision.  In its ruling, the Supreme Court quashed the writ and determined that the settlement agreement was discoverable. 

Chief Justice Paul C. Wilson outlined the noted differences and distinctions between (a) ordinary work product (tangible); and (b) opinion work product, which is often absolutely protected from disclosure in that it contains the mental analysis and impressions of an attorney.  Ordinary work product is generally raw factual information – like that which appears in a settlement agreement (the parties, the allegations, injuries, conduct etc.).  This type of work product can be discovered with a showing of substantial need and an inability to find the information elsewhere. This is the type of protection the Hills argued shielded production.

The distinction between the two recognized types of work product in Missouri is not where this issue ends.  The Supreme Court took the analysis further, outlining the waiver and disclosure issues associated with settlement agreements and how disclosing the agreements to the adverse party (attorney, party, insurance carrier) necessary waives any argument that the settlement agreement should continue to be protected from disclosure, because the materials have been shared with the adversary in the adversarial proceeding. 

When the Hills’ attorney prepared the settlement agreement, it was work product.  But then, by sharing it with the opposing carrier with whom they settled their case, the Hills voluntarily waived any argument that the material should be protected from disclosure by the work product doctrine.  Once the work product protection is waived, it cannot be reclaimed because “waiver ordinarily deprives the privilege-holder the right to re-assert the privilege against anyone else.” CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2016.2 (3d ed. 2010)

Concluding with the vivid image of jamming “a square peg” of facts into the “round hole” of the work product protections doctrine, the Supreme Court’s decision has significant and practical implications for personal injury cases in Missouri. Succinctly, it means that settlement agreements, even those unrelated to the current case, may be subject to discovery because they are not protected by work product – certainly not ordinary work product.  The Supreme Court specifically noted that no facts supported any such arguments that the documents at issue were protected by intangible or opinion work product – maybe this will be the next challenge? 

This ruling further highlights the importance of carefully considering the rationale and reasoning behind objections and claims of privilege and provides another tool for defense attorneys to use in their continued efforts to gather all relevant and useful information regarding plaintiffs’ physical injuries, condition, and claims.