Tuesday, August 26, 2008

State ex rel. Rogers v. Cohen[1]

Opinion handed down August 26, 2008
Link to Mo. Sup. Ct. Opinion

The Missouri Supreme Court held that a transcript of a recorded interview taken in anticipation of litigation is not discoverable by a grand jury subpoena unless it consists of tangible work product, and substantial need and undue hardship are shown. Furthermore, a court may never order disclosure of intangible work product, even if a party demonstrates substantial need and undue hardship.

I. Facts and Holding[2]

In June 2003, John Rogers’ client reported to the St. Louis police that someone stole his parked vehicle with his younger son inside the car. The police recovered the vehicle, but the fate of the younger son remains unknown. [3] Soon after the reported theft, police interviewed the client's older son, the brother of the missing child. The police never attempted to interview him again.

Following the disappearance the client hired Rogers, a criminal defense attorney, as counsel to represent him in connection with possible charges arising out of the disappearance of his younger son. Nearly four years after the incident, in March 2007, Rogers took a sworn statement from his client’s older son on the client’s behalf.

A St. Louis County Grand Jury issued a subpoena duces tecum directing Rogers to provide the grand jury with a copy of the sworn statement of the older son. Rogers’ motion to quash the subpoena was overruled. Rogers sought a writ of prohibition from the Missouri Supreme Court seeking relief from the subpoena.

The Missouri Supreme Court quashed the subpoena, holding that the transcript constituted work product. The Court held that in order for the grand jury to discover the statement, the statement must be tangible work product, and the grand jury must show a substantial need for the statement and an undue hardship in obtaining the statement or its substantial equivalent. Here, the grand jury failed to meet this burden.

II. Legal Background

Unlike criminal and civil proceedings, the Missouri Rules of Court do not govern grand jury proceedings.[4] Rather, the United States and Missouri constitutions, statutes and case precedent govern grand jury proceedings.[5] As no existing statutes govern work product in state grand jury proceedings, the common law controls what work product is discoverable.[6]

The United States Supreme Court first recognized the work-product doctrine in Hickman v. Taylor. At its core, the work-product doctrine allows “a lawyer [to] work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.”[7] In addition, the United States Supreme Court reasoned that if opposing counsel could discover “work-product,” such as interviews, statements, memoranda, correspondence, briefs, mental impressions, etc., a lawyer’s thoughts would remain unwritten.[8] Such a result would breed inefficiency and be a disservice to clients.[9] Despite the need to protect work product, public policy at times supports reasonable and necessary inquiries into the circumstance surrounding a case or potential case.[10] Hickman recognized that in certain instances opposing parties could obtain work product but only after they “establish adequate reasons to justify production through a subpoena or court order.”[11]

Since Hickman, Missouri courts have noted that the ability for a party to discover work product depends on the type of work product sought to be discovered.[12] Tangible work product consists of trial preparation documents such as written statements, briefs and attorney memoranda.[13] Conversely, intangible work product consists of attorney’s mental impressions, conclusions, opinions and legal theories.[14] While “[d]iscovery of tangible work-product will inevitably disclose the attorney’s mental impressions, conclusions, opinions, and legal theories, and therefore, must be protected,”[15] courts recognize that at times this information may still be discoverable. When a party requesting the material is able to show a substantial need for the material and is unable to obtain the material’s substantial equivalent without undue hardship, courts will consider impinging upon the work-product doctrine.[16] In contrast, intangible work product is not discoverable at all, regardless of a party’s substantial need and undue hardship.[17]

In ruling to quash the subpoena, the Missouri Supreme Court relied on the precedent established in State ex rel. Friedman v. Provaznik, which recognized the work-product doctrine as a potential bar to the power of a grand jury to subpoena attorney work product.[18] There, a grand jury issued a subpoena for client and billing records of a law firm to investigate criminal conduct within the firm.[19] The firm sought to quash the subpoena because attorney-client privilege and the work-product doctrine protected the records.[20] The Court defined the work-product doctrine as “prevent[ing] an opposing party from discovering ‘materials collected by an adverse party’s counsel in the course of preparation for litigation.’”[21] The work-product doctrine, in the Court’s view, should “shield[] materials from discovery by an adverse party in a particular cause of action” and is needed to “prevent[] a party from reaping the benefits of his opponent’s labor."[22]

Here, the Court deemed that the older son’s statement was work product because it was taken in the course of preparation for possible litigation.[23] More specifically, the statement, as a written record of an interview, is tangible work product.[24] As tangible work product, the document could be discovered upon a showing of substantial need and undue hardship.[25] The grand jury, however, failed to plead or prove any substantial need for the statement or undue hardship in obtaining its substantial equivalent.[26] Consequently, the Court quashed the grand jury’s subpoena.[27]

III. Commentary

In Rogers, the Court sought to balance the need to protect a lawyer’s privacy and prevent unreasonable intrusions from opposing parties in the preparation of a client’s case with the public policy of permitting necessary and reasonable inquiries by a grand jury, a neutral government entity. The Court strikes an appropriate balance by recognizing that grand juries are accorded wide latitude to inquire into violations of criminal law, and yet noting that this latitude must have limits. The Court reaffirms previous precedent in holding that intangible work product is per se undiscoverable, emphasizing the value and need to protect attorneys’ thought processes. Furthermore, the Court explicitly finds that the general rules governing disclosure of work product also apply to the grand jury setting and notes that despite the province of the grand jury, the protection of work product is an important judicial interest. [28] Balancing the grand jury’s interest in obtaining all relevant information in a criminal investigation with the need to protect attorney work product requires a delicate and careful analysis, one which the Court successfully reaches here.

- Joseph E. Bredehoft

[1]No. SC 88778 (Mo. Aug. 26, 2008) (en banc). The West reporter citation is State ex rel. Rogers v. Cohen, 262 S.W.3d 648 (Mo. 2008) (en banc).
[2] Id. at *3.
[3] At the time of the writing of this case summary, the fate of the younger son was still unknown.
[4] Id. at *3.
[5] Id.
[6] Id. at *4. See In re Grand Jury Proceedings (Duffy), 473 F.2d 840, 842-43 (8th Cir. 1973) (applying the Hickman work-product privilege to grand jury proceedings).
[7] Hickman v. Taylor, 329 U.S. 495, 510 (1947).
[8] Id. at 511.
[9] Id.
[10] Rogers, 2008 WL 3906367, at *3.
[11] Hickman, 329 U.S. at 511-12.
[12] See State ex rel. Atchison, Topeka & Santa Fe Ry. Co. v. O’Malley, 898 S.W.2d 550, 552 (Mo. 1995) (en banc).
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] See id. at 553.
[18] 668 S.W.2d 76 (Mo. 1984) (en banc).
[19] Id. at 77-78.
[20] Id. at 78, 80.
[21] Id. at 80 (citing Hickman, 329 U.S. at 505)
[22] Id.
[23] Rogers, 2008 WL 3906367, at *6.
[24] Id.
[25] Id.
[26] Id.
[27] Id.
[28] Id. at **2-3.