337 S.W.3d 727
Mo. Ct. App.2011Background
- Relators are defendants in a state malicious-prosecution action against them alleging filing unfounded federal lawsuits to derail a downtown St. Louis development.
- Plaintiffs sue Relators in state court after federal actions were dismissed; liability issue remaining is whether Relators acted maliciously in instituting those federal suits.
- Attorney Matthew Ghio consulted with and represented Relators in the federal lawsuits; Plaintiffs subpoenaed Ghio's research and memos for evaluating probable cause.
- A prior subpoena was quashed conditioned on Relators waiving their right to assert advice-of-counsel as a defense; Relators timely filed a written waiver.
- Respondent ordered production of Ghio communications by holding that Relators placed the subject matter of the privileged communications in issue via their pleadings and deposition testimony.
- The court ultimately held the attorney-client privilege was not waived by Relators' pleadings/depositions and prohibited production, making the waiver ineffective.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the privilege waived by pleadings? | Plaintiffs: Relators placed advice-of-counsel in issue by defense theory. | Relators: did not plead advice of counsel and did not volunt arily waive. | No waiver; privilege remains. |
| Was the waiver voluntary? | Waiver occurred due to Relators' deposition and defense statements. | Waiver extorted under cross-examination or in response to adverse inquiry is not voluntary. | Waiver not voluntary; no waiver. |
| Can advisory communications be discovered where privilege is not waived? | Relators' communications are relevant to the defense and should be discoverable. | privileges protect confidential communications absent a voluntary waiver. | Privilege not waived; discovery denied. |
| Is prohibition the proper vehicle to challenge the discovery order? | Question of privilege should be resolved before discovery. | Prohibition appropriate to prevent disclosure of privileged material. | Prohibition granted; order set aside. |
Key Cases Cited
- Sappington v. Miller, 821 S.W.2d 901 (Mo. App. W.D. 1992) (waiver when subject matter placed in issue; admissibility context)
- Chase Resorts, Inc. v. Campbell, 913 S.W.2d 832 (Mo. App. 1995) (confidentiality and voluntary waiver principles; privilege as policy)
- Smith v. Smith, 839 S.W.2d 382 (Mo. App. 1992) (extorted cross-examination or adverse inquiry not voluntary waiver)
- Chance v. Sweeney, 70 S.W.3d 664 (Mo. App. 2002) (disclosure in response to adverse inquiry is involuntary)
- Cain v. Barker, 540 S.W.2d 50 (Mo. banc 1976) (prior relator did not waive privilege; distinction from Keet)
- State ex rel. Peabody Coal Co. v. Clark, 863 S.W.2d 604 (Mo. banc 1993) (attorney-client privilege sanctity; defense of confidentiality)
- Great American Ins. Co. v. Smith, 574 S.W.2d 379 (Mo. banc 1978) (confidentiality essential for attorney-client relationships)