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Privileged documents inadvertently given by an insurer to its expert and turned over to the plaintiff prior to deposition are no longer privileged, the Missouri Supreme Court held Nov. 14 in an issue of first impression ( State ex rel. Jennifer Tracy v. The Honorable Joseph P. Dandurand, No. SC82316, Mo. Sup.). Farmers Insurance Co. hired Professor Jeffrey Thomas as its expert in a bad faith case filed by Jennifer Tracy. Tracy alleged Farmers failed to settle within her $50,000 policy limits the underlying wrongful death action against her, which resulted in a $1 million settlement. ATTORNEY DOCUMENTS Farmers inadvertently gave Thomas an attorney’s report prepared by its counsel, Lance LeFevre, and a letter from LeFevre to a claims manager as part of the file to inform him about the case in preparation for testifying. At deposition, Thomas provided all of the preparation documents to Tracy, as required by law. The documents were among 51 that had been withheld from the claims file given to Tracy during discovery because they were privileged. Tracy later questioned LeFevre about the documents, and he refused to answer. Farmers filed a motion for protective order and/or a motion in limine asking Tracy to return the documents. The trial judge sustained the motion in limine to exclude use of the documents and denied Tracy’s motion to compel LeFevre or any witness to answer questions about them. The Missouri Supreme Court issued a preliminary writ of prohibition in February. In its latest decision, the high court noted that Missouri law requires the expert to produce at deposition the materials he reviewed so that opposing counsel can intelligently cross-examine. There is no exception for documents given to an expert but not relied on, the high court said. PRIVILEGE WAIVED While disclosure of the documents to Thomas was alleged to be inadvertent, the high court said the privilege had been waived. Had Farmers discovered the documents in Thomas’ file, it could have withdrawn him as a witness and restored the documents’ secrecy. “The bell has been rung and cannot be unrung,” the panel said. The high court made its writ of prohibition absolute. It prohibits the trial judge from enforcing his order restricting use of documents obtained from Thomas and his order denying the motion to compel deposition answers of LeFevre. Counsel to Tracy are Steve Garner and Neil Chanter of Springfield, Mo. David W. Hauber and Christopher J. Eaton of Kansas City, Kan., and Donald P. Herron of Kansas City, Mo., represent Farmers. � Copyright 2000 Mealey Publications, Inc.

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