dissenting.
By allowing a litigant to assert privilege to suppress contradictory evidence, today’s opinion gives a litigant free rein to make assertions contradicted by the litigant’s own documentary evidence without being branded as untruthful. The district court correctly held that this is an abuse of evidentiary privilege because it permits a party to adhere to what appears to be an unequivocal position when contradictory evidence is available but inadmissible. I find fault with the majority’s legal reasoning and with the policy implications of its opinion. Accordingly, I respectfully dissent.
I. AT-ISSUE WAIVER OF THE ATTORNEY-CLIENT PRIVILEGE
Missouri privilege and waiver law govern because Missouri has a stronger interest in the conduct of the parties in its courts than does Michigan. Under Missouri law it is clear that GM has waived any privilege claim to the documents by putting their subject matter at issue.
*1057A. Choice of Law
In diversity cases, privileges are determined according to state law. See Fed. R.Evid. 501. In determining which state’s substantive law governs, a district court must apply the forum state’s conflict of law rules.8 See Pritchard-Keang Nam Carp, v. Jaworski 751 F.2d 277, 281 n. 4 (8th Cir.1984). In Missouri, admissibility of evidence generally is governed by the law of the forum state, but “[n]o Missouri case law has decided what the specific choice of law rule is regarding privilege.” Id.; see also Restatement (Second) of Conflict of Laws § 138 (1971).
In the past, Missouri has looked to the Restatement to provide guidance on its conflict of law questions. See Farmers Ins. Co. v. McFarland, WD 54948, 1998 WL 548738, at *12, (Mo.Ct.App. Sept. 1, 1998) (stating that Missouri has adopted “significant relationship” test of Restatement § 145 for both tort and contract actions); Atlas Intermodal Trucking Serv., Inc. v. United Fire & Cas. Co., 973 S.W.2d 174, 177 (Mo.Ct.App.1998) (“Missouri has adopted sections 188 and 193 of the Restatement ... in deciding choice of law issues regarding insurance contracts.”); CMT Partners v. Alaiwat, 969 S.W.2d 885, 887 (Mo.Ct.App.1998) (“When determining choice of law issues, Missouri courts apply the ‘most significant relationship’ test set out in Section 188 of the Restatement .... ”). Because Missouri case law provides no clear choice of law rule with regard to privilege, it is appropriate to reference the Restatement:
Evidence that is not privileged under the local law of the state which has the most significant relationship with the communication will be admitted, even though it would be privileged under the local law of the forum, unless the admission of such evidence would be contrary to the strong public policy of the forum.
Restatement (Second) of Conflict of Laws § 139(1) (Supp.1989).
While the actual communications at issue here — the documents — were made in Michigan and involved a Michigan corporation, at-issue waiver of privileged communications is concerned not with the genesis and nature of the communications themselves. Rather, the question is whether a party’s conduct in litigation — here, placing the contents of the documents at issue— has operated as a waiver of attorney-client privilege. It is clear that Missouri, as the forum state, has a greater interest in controlling the litigation tactics used in its court than does Michigan. Accordingly, applying Missouri’s at-issue waiver law is consistent both with the Restatement and with Missouri’s established rule that the forum state controls the admissibility of evidence. See Rosser v. Standard Milling Co., 312 S.W.2d 106, 110 (Mo.1958).
1. Waiver of attorney-client privilege under Missouri law
In Missouri, an attorney may not testify “concerning any communication made to him by his client in that relation, or his advice thereon, without the consent of such client.” Mo.Rev.Stat. § 491.060 (2000). This privilege is not absolute and can be waived by the client. See Sappington v. Miller, 821 S.W.2d 901, 904 (Mo.Ct.App.1992). By placing the subject matter of a privileged communication at issue, the client waives any claim of attorney-client privilege. See Timmons, 956 S.W.2d at 285.
*1058In Sappington, the defendant, in her answer to a complaint requesting specific performance of a settlement agreement, claimed that she was not a party to the settlement agreement and that her attorney and her adversary’s attorney had “concocted” the agreement. The appellate court held that the defendant’s allegations placed the subject matter of her prior communications with her attorney at issue, such that the attorney was free to disclose these communications. Sappington, 821 S.W.2d at 904-05.
In Timmons, a criminal defendant brought a pro se motion for a continuance before the court, arguing that he needed more time to secure the presence of two witnesses. The trial court then questioned Timmons’ attorney about whether the witnesses were necessary and where the witnesses were. The appellate court held that Timmons’ attorney could answer the questions because, by bringing his motion, Timmons had placed the otherwise privileged information held by his attorney at issue. “Because the information revealed by trial counsel was necessary for the resolution of the motion, Mr. Timmons waived the attorney-client privilege as to those communications.” Timmons, 956 S.W.2d at 285.
In the case before us, it is clear that under Missouri law GM has waived any attorney-client privilege claim to the documents. During the litigation of this suit, GM presented two motions in limine (one for its 1993 trial, and one for the second pending trial). Both motions sought to exclude the Ivey valuation document from this suit. In support of its first motion in limine, GM argued that the Ivey document was irrelevant in large part because GM did not sanction the document’s creation:
[Ivey] apparently prepared the document on his own initiative. No General Motors employee requested that he prepare the document, and he did not disseminate it to anyone at General Motors. General Motors has never adopted its contents or used it for any purpose. .... The document was generated by Mr. Ivey on his own initiative, and he never showed the results reflected in the document to anyone at General Motors. Indeed, Mr. Ivey has testified that he did not disseminate the document to anyone. It was, rather, simply an individual intellectual exercise performed on his own.
Plaintiffs cannot provide any evidence that General Motors ever assigned, approved or adopted this document. The only evidence is that the document was prepared by a near-entry level engineer, on his own initiative, and was not disseminated to anyone at General Motors.
(Def.’s First Mot. In Limine to Exclude “Ivey Document” at 1-2; 4-5).
In its second motion in limine to exclude the Ivey document from the pending trial, GM again distanced itself from the document:
[T]here is no evidence that GM has ever adopted [the document’s contents or used it for any purpose.
... The memo is not addressed to anyone, and bears no indication that it was routed or copied to anyone.... Mr. Ivey has also testified that he does not recall sending the memo to anyone, nor does he recall anyone asking him to do such a memo.
... The document was generated by Mr. Ivey on his own initiative, and he never showed the results reflected in the document to anyone at GM. Indeed, Mr. Ivey has testified that he did not disseminate the document to anyone. It was, rather, simply an individual exercise performed on his own.
Plaintiffs nowhere provide any probative evidence relating to the Ivey document that GM ever assigned, approved or adopted it. The only evidence is that the memo was prepared by a near-entry level engineer on his own, and was not disseminated to anyone at GM. Thus, *1059the document has no relevance in this case, and should be excluded from evidence.
(Def.’s Second Mot. In Limine to Exclude “Ivey Document” at 2-3; 7).
GM’s assertions that it was not involved in the creation of the Ivey document and that the document was never disseminated among GM employees placed the contents of GM’s attorneys’ documents at issue, waiving the privilege. This is so because those documents, otherwise privileged, concern GM’s relationship with the Ivey document, a subject matter GM put at issue by alleging it had no involvement with the Ivey document. As stated by the Timmons court, “once [a privilege-holder] presented the issue to the court, [it] was not able to use the attorney-client privilege as a shield against the introduction of relevant information necessary for the court to consider in ruling on [its] motion.” Timmons, 956 S.W.2d at 285.
GM argues that it did not waive its attorney-client privilege under Missouri law, citing Charles Woods Television Corp. v. Capital Cities/ABC, Inc., 869 F.2d 1155 (8th Cir.1989). However, Charles Woods is factually distinguishable. In that case, our court, applying Missouri law, held that where witnesses talk generally about the effects of a merger but never mention a particular communication, any privilege that attached to that communication is not waived. See id. at 1162. Here, GM was doing much more than musing generally about its costs or its products; it was specifically asserting that Ivey’s valuation report was not its brainchild. These pointed assertions put the contents of GM’s attorneys’ documents relating to the Ivey report at issue, waiving any attorney-client privilege as to those documents.
II. WORK PRODUCT DOCTRINE
GM also disagrees with the district court’s holding that the documents in question are not protected as work product. In my view, the district court’s decision was not erroneous. The parties agree that work product doctrine is not a substantive privilege under Federal Rule of Evidence 501, and therefore is governed by federal law. Under Civil Rule of Procedure 26(b)(3), a party may not obtain discovery of any items prepared by another party in anticipation of litigation unless it is shown that the party seeking discovery has a substantial need for the material and the party could not obtain the substantial equivalent information without undue hardship.
The plaintiffs clearly satisfied these requirements. First, the documents were needed both for plaintiffs’ motion for sanctions against GM and for impeachment at trial, and second, the plaintiffs could not obtain the substantial equivalent of the information because Ivey and GM have consistently made assertions directly contrary to the documents.9
The court allowed GM to submit proposed redactions to the documents to protect any of its attorneys’ mental impressions or opinions, but ordered the release of any facts contained within the documents. A memorandum written by an attorney during an interview is protected by work product. See Upjohn Co. v. United States, 449 U.S. 383, 399, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). Our cases suggest that so-called opinion work-product — the attorney’s mental impressions — will be the subject of greater protection. See In re Grand Jury Proceedings, 473 F.2d 840, 848 (8th Cir.1973) (Duffy). This heightened security should not protect the entire document, but only portions of the document that are attorney opinions and mental impressions.
The district court in this case took the right approach. In Duffy, our court applied near absolute protection against disclosure to an attorney’s written notes about a meeting with a client. See id. In *1060Upjohn, the Supreme Court took the same view, but with a less rigid approach. The Upjohn Court merely held that a heightened scrutiny attaches to requests for an attorney to produce his or her memoranda of a witness interview, as opposed to a signed witness statement, because “[forcing an attorney to disclose notes and mem-oranda of witnesses’ oral statements ... tends to reveal the attorney’s mental processes.” Upjohn, 449 U.S. at 399, 101 S.Ct. 677 (citations omitted). By allowing GM to suggest redactions, the district court astutely recognized that GM’s attorneys’ mental impressions were to remain protected in spite of the release of any factual information contained in the documents.
CONCLUSION
Missouri law should govern the attorney-client privilege and waiver issue, and the privilege was clearly waived under Missouri law. Further, the documents are not protected by the work product doctrine. Although courts have been reluctant to order the release of documents that are written completely by the attorney for fear of revealing the attorney’s mental processes, the district court in this case was well within its discretion in releasing the documents after permitting GM to suggest redactions. Accordingly, I would affirm the district court.
. Although the majority suggests that a lengthy choice of law discussion may be little more than an intellectual exercise because the Bakers’ claims fail under either Missouri or Michigan law, I disagree. Missouri law and Michigan law appear to differ on what would constitute a waiver of attorney-client privilege. Compare Kubiak v. Hurr, 143 Mich.App. 465, 372 N.W.2d 341, 345-46 (Mich.Ct.App.1985) (per curiam) (holding that disclosing subject matter of communication with attorney does not waive privilege as to actual communication with the attorney), with State v. Timmons, 956 S.W.2d 277, 285 (Mo.Ct.App.1997) (holding waiver of privilege as to communication with attorney occurs where client "placfes] the subject matter of the privileged communication in issue in the litigation”).
. Although the majority suggests that the Bakers could get substantially similar evidence from the testimony of Ron Elwell, Elwell’s testimony is not comprehensive enough to render the documents sought in this case merely corroborative.