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MISSOURIKara Trouslot StubbsBAKER STERCHI COWDEN & RICE, LLC2400 Pershing Road, Suite 500Kansas City, MO 64108-2533Phone (816) 471-2121www.bscr-law.comstubbs@bscr-law.com1. Does your state recognize an exemption from discovery (or a privilege) forpre-suit investigation materials? Is there a key to preserving thisexemption/privilege (i.e. involvement of counsel)?Missouri courts recognize a privilege from discovery for pre-litigation investigationmaterials by virtue of Missouri’s work product discovery rule. See State ex rel. Day v.Patterson, 773 S.W.2d 224, 228 (Mo. Ct. App. 1989); Mo. Sup. Ct. R. 56.01(b)(3).Such materials are not discoverable except upon a showing that the party seekingdiscovery has substantial need of the materials in the preparation of his case and thathe is unable without undue hardship to obtain the substantial equivalent of the materialsby other means. The materials must be prepared “in anticipation of litigation” to qualifyfor the work product privilege - specifically distinguishing from acts done to “facilitate theordinary and usual business” of an enterprise. May Dep't Stores Co. v. Ryan, 699S.W.2d 134, 138 (Mo. Ct. App. 1985). Missouri courts also recognize the sameprotection for employee-prepared incident reports. See State ex rel. St. Louis LittleRock Hospital v. Gaertner, 682 S.W.2d 146, 149 (Mo. App. 1984); Lindberg v. SafewayStores, Inc., 525 S.W.2d 571, 572 (Mo. App. 1975).2. What is your state’s rule with regard to the discoverability of written orrecorded statements taken during investigation of an incident?A party may obtain a statement concerning the action or its subject matter previouslymade by that party. See Mo. Sup. Ct. R. 56.01(b)(3). The statements – which includebut are not limited to written statements, recorded statements, and videotape footage –may be discovered without a showing that the party seeking the statement hassubstantial need for it and is unable to obtain the substantial equivalent without unduehardship. See Mo. Sup. Ct. R. 56.01(b)(3)(a)-(b); State ex rel. McConaha v. Allen, 979S.W.2d 188, 189-90 (Mo. 1998).3. Does this state recognize a “self-critical analysis” privilege?Generally, Missouri courts have declined to adopt the self-critical analysis privilege.See Cupp v. AMTRACK, 138 S.W.3d 766, 776 (Mo. App. E.D. 2004); West v. MarionLab., Inc., 1991 U.S. Dist. LEXIS 18457, *7 (W.D. Mo. 1991). However, R.S.Mo. §537.035.4 (2014) specifically protects health care services peer review committee workfrom discovery.