State ex rel. Great American Insurance Co. v. Smith

NORWIN D. HOUSER, Special Judge,

concurring.

I concur in the opinion written by Judge Donnelly, which defines the scope of the attorney-client privilege, and specifies what subject matter in letters from the attorney to the client is thereby protected, but which does not denégrate or detract from that well-established principle. It may be useful to point out that the opinion does not presently require revelation of the contents of the three letters to parties litigant, or approve the use of the material as evidence. The opinion simply subjects the three letters to judicial scrutiny for the limited purpose of determining whether their contents, in whole or in part, are of such a nature that they must be revealed and made available during the taking of depositions for use at the trial. The opinion merely holds that the question of privileged communication vel non is one of law for the trial court to determine. Bussen v. Del Commune, 239 Mo.App. 859, 199 S.W.2d 13, 21[12] (1947). I would add that if, upon examination by the trial court, the letters recite factual matter relating to the origin of the fire— developed by relator’s attorney or his staff from outside sources, during their investigation — the attorney-client privilege will not protect such factual matter from discovery. State v. Cloyd, 394 S.W.2d 408, 411[6] (Mo. banc 1965); Merrin Jewelry Co. v. St. Paul Fire and Marine Ins. Co., 49 F.R.D. 54 (S.D.N.Y.1970); Bird v. Penn Central Company, 61 F.R.D. 43 (E.D.Pa.1973); Bourget v. Government Employees Ins. Co., 48 F.R.D. 29 (D.Conn.1969); Chitty v. State Farm Mutual Ins. Co., 36 F.R.D. 37 (E.D.S.C.1964).