Designating Expert Does Not Waive Work Product Privilege: Miss. Sup. Ct.

Rescinding the designation of an expert witness does not, by itself, waive work product privilege, the Missouri Supreme Court has ruled. If counsel rescinds the designation of an expert witness without disclosing the expert's opinions or conclusions regarding the case, then there is no disclosing event that waives work product privilege.

In State ex rel. Malashock v. The Honorable Michael T. Jamison, Mo. Sup. Ct., Jason Malaschock, sued Chesterfield Valley Sports, Inc., alleging that his utility terrain vehicle (UTV) was defectively designed after the UTV's roof failed when it overturned, causing him serious injuries.

Malashock designated four expert witnesses to testify at trial, including Herbert Newbold, a forensic engineer and product liability expert witness. Newbold was designated to 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. The designation did not disclose his analysis or conclusions.

Two weeks after designating Newbold, Malashock notified Chesterfield that "we have de-endorsed Herb Newbold" as an expert witness. Chesterfield moved to amend the scheduling order to depose Newbold. The trial court sustained the motion: Malashock, the trial court found, had waived the protections of the work product doctrine by designating Newbold as an expert witness.

Malashock filed an instant petition for writ of prohibition, arguing that Nebold's "opinions and conclusions were protected from discovery the the work product doctrine."

The Missouri Supreme Court rejected the trial court's conclusions. The Supreme Court found that, for Malashock to waive the work product privilege, he had to intentionally relinquish those protections by disclosing Newbold's opinions or conclusions, which he had not done. This opinion was supported by case citations and by the Court's interpretation of the Missouri Rules of Civil Procedure, 56.01,, which "authorizes discovery by deposition". The designation of an expert witness only "begins a process of waiving privilege" which is not complete until there is a "disclosing event."

Since Newbold's opinions and conclusions were never disclosed by desposition, nor in his designation, there was no disclosing event what waived the work product privilege.