Missouri Supreme Court Rules That Settlement Documents are Not Protected by the Work Product Doctrine
A common affirmative defense for a defendant to plead in a personal injury matter is RSMo. Section 537.060, which permits a reduction in defendant’s liability by the amounts of settlements with joint tortfeasors. As the Missouri Supreme Court noted in Sanders v. Ahmed, 364 S.W.3d 195, 211-212 (Mo. 2012), “reduction requires a defendant to plead and prove 1) the existence of a settlement and 2) the stipulated amount of the agreement or the amount in fact paid.” In the event that a defendant learns of a settlement of relevance to the affirmative defense, a formal request for settlement documents is often made to confirm the settlement agreement and its terms. On occasion, such a request is met by an objection that the settlement documents are protected by the work product doctrine.
The Missouri Supreme Court recently addressed this issue in Kristine Hill and Dennis Hill v. The Honorable Stanley J. Wallach, No. SC 99650, issued on March 21, 2023. (It is acknowledged that this is not a final opinion until expiration of the rehearing period.) Plaintiff Kristine Hill and her husband filed a lawsuit against defendant Mercy Rehabilitation Hospital in which she alleged that she sustained back and spine injuries, while recovering from back surgery, as a result of Mercy’s negligence in failing to repair a malfunctioning hospital bed. In its Answer to plaintiffs’ Petition, defendant Mercy asserted the affirmative defense of reduction pursuant to RSMo. Section 537.060.
Plaintiff Hill allegedly aggravated her back and spine injuries in a motor vehicle accident six months after the hospital bed incident. Plaintiff Hill settled the motor vehicle accident claim with the at-fault driver’s insurance carrier for an undisclosed amount. In an effort to prove the settlement and the potential reduction, defendant Mercy requested production of settlement documents related to the motor vehicle accident.
In objecting to the production request, plaintiffs claimed, among other things, that the work product doctrine protected the requested documents from discovery pursuant to Missouri Supreme Court Rule 56.01(b)(5). In their privilege log, plaintiffs identified a settlement release and email correspondence between their counsel and the insurance company’s claims adjuster. The Circuit Court sustained defendant Mercy’s motion to compel production of the settlement documents. The Court of Appeals issued a preliminary writ of prohibition and then issued an opinion making the writ permanent. The Missouri Supreme Court quashed the writ of prohibition and ruled that the settlement documents and related communications sought by defendant Mercy were not protected by the work product doctrine.
In reaching its decision, the Court provided an overview of the work product doctrine dating back to the US Supreme Court case of Hickman v Taylor, 329 U.S. (1947). The Court then discussed Rule 56.01(b)(5) and Federal Rule of Civil Procedure 26(b)(3) which protect ordinary work product and opinion work product. Plaintiffs made no showing of opinion work product and, therefore, the Court considered only whether the documents sought constituted ordinary work product.
The Court determined that the settlement documents requested by defendant Mercy failed to constitute ordinary work product protected by Rule 56.01(b)(5). By disclosing the documents to the insurance claims adjuster in the motor vehicle accident, plaintiffs waived the protection afforded by the rule. The Court relied on federal court decisions finding that voluntary disclosure of protected material to an adversary waives the work product protection. For purposes of the rule, the Court considered the at-fault driver’s insurance company an adversary since, in the absence of a settlement, litigation would have commenced between Ms. Hill and the insurance company. In addition, the Court noted that “once the Hills disclosed the documents to any adversary, they waived work product protection of the settlement release and e-mail correspondence in the motor vehicle accident case and any subsequent case in which the documents would otherwise be discoverable.”
In a footnote, the Court addressed the plaintiffs’ claim that the settlement release at issue contained a confidentiality provision. Unimpressed with the argument, the Court noted that plaintiffs failed to “make any persuasive showing that the presence of a confidentiality provision is or should be dispositive of the issue presented here.”
The Court held that the Circuit Court properly concluded that the work product doctrine provided no protection to the settlement documents and related communications sought by defendant. In summarizing its position on the work product doctrine to the facts at hand, the Court found “no persuasive precedent supporting its application to settlement documents between adversaries, even when sought by a later adversary in an unrelated case.”