concurring.
I coneur with the majority's opinion quashing our preliminary writ in prohibition, but I write in the hope that my rationale, although not that of the majority, might be of some assistance to those judges and lawyers that struggle with these discovery issues on a daily basis. In re N.D.C., 229 S.W.3d 602, 604 (Mo. banc 2007) (writ of prohibition is appropriate where an issue would otherwise escape review). Given that the issue of whether or not the plaintiff in this case must execute a medical authorization form is a matter involving informal discovery, Judge Marco Roldan appropriately refused to compel the plaintiff to execute the medical authorization form. Judge Roldan did not have the authority to compel the plaintiff to sign a medical authorization form and thus embroil himself in what is essentially an informal discovery process.
"Parties involved in litigation have the right to perform discovery. Parties may freely conduct their discovery, as long as both parties follow the rules of discovery, as explicitly enacted by the Missouri Supreme Court." State ex rel. Norman v. Dalton, 872 S.W.2d 888, 890 (Mo.App.1994) (citing State ex rel. Woytus v. Ryan, 776 S.W.2d 389, 392 (Mo. banc 1989)). When the parties dispute the legal parameters of the discovery rules, it is within the circuit court's discretion to rule on such a dispute. Id. The circuit court's discretion, however, is limited by the parameters of the rules. Id.
"Determination of the limits of authorized discovery in the State of Missouri commences with Rule 56." Woytus, 776 S.W.2d at 391. Rule 56.01(a) says:
Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission.
Regarding the seope of discovery, Rule 56.01(b) provides:
Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
(1) In General. Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents or other tangible things and the identity and location of persons having knowledge of any discoverable matter.
It is not ground for objection that the information sought will be inadmissible at the trial if the information sought *786appears reasonably calculated to lead to the discovery of admissible evidence.
The party seeking discovery shall bear the burden of establishing relevance.
In regard to experts, Rule 56.01(b)(4) says:
Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of Rule 56.01(b)(1) and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
(a) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial by providing such expert's name, address, occupation, place of employment and qualifications to give an opinion, or if such information is available on the expert's curriculum vitae, such curriculum vitae may be attached to the interrogatory answers as a full response to such interrogatory, and to state the general nature of the subject matter on which the expert is expected to testify, and the expert's hourly deposition fee.
(b) A party may discover by deposition the facts and opinions to which the expert is expected to testify. Unless manifest injustice would result, the court shall require that the party seeking discovery from an expert pay the expert a reasonable hourly fee for the time such expert is deposed.
Further, Rule 56.01(b)(5) says in regard to non-retained experts:
A party, through interrogatories, may require any other party to identify each non-retained expert witness, including a party, whom the other party expects to call at trial who may provide expert witness opinion testimony by providing the expert's name, address, and field of expertise. For the purpose of this Rule 56.01(b)(5), an expert witness is a witness qualified as an expert by knowledge, experience, training, or education giving testimony relative to scientific, technical or other specialized knowledge that will assist the trier of fact to understand the evidence. Discovery of the facts known and opinions held by such an expert shall be discoverable in the same manner as for lay witnesses.
These provisions of Rule 56.01 provide the parameters of formal discovery in a case. However, Rule 56.01(f)(2) also recognizes that the parties may agree and consent to modify these formal procedures and use what is often termed as "informal discovery." Woytus, 776 S.W.2d at 391; Norman, 872 S.W.2d at 891. Rule says: "Unless the court orders otherwise, the parties may by written stipulation ... modify the procedures provided by these Rules for other methods of discovery."
I find nothing in the formal discovery rules regarding the use of medical authorizations. The most that can be said is that in State ex rel. McNutt v. Keet, 432 S.W.2d 597 (Mo. banc 1968), the Missouri Supreme Court recognized that when a cireuit court compels production of medical and hospital records pursuant to the formal rules of discovery that:
[I)f authority from the plaintiffs is required by the records custodian, then the plaintiffs, who have control of this aspect of the situation, should be required by order of [the circuit court], if necessary, to execute the necessary authority to the records custodian to make said records available to [the defendants].
Id. at 602. McNutt, therefore, involved the necessity of medical authorizations for production of document cases in formal discovery.1
*787Although case law is plentiful about the scope of medical authorizations in discovery, see State ex rel. Jones v. Syler, 936 S.W.2d 805 (Mo. banc 1997); State ex rel. Stecher v. Dowd, 912 S.W.2d 462 (Mo. banc 1995); State ex rel. Pierson v. Griffin, 838 S.W.2d 490 (Mo.App.1992); State ex rel. DeGraffenreid v. Keet, 619 S.W.2d 873 (Mo.App.1981); little is found about whether the issuance of medical authorizations between a defendant and a plaintiff's physician is a matter of formal or informal discovery. A case that approaches that issue is State ex rel. Woytus v. Ryan, 776 S.W.2d 389 (Mo. banc 1989).
In Woytus, the Missouri Supreme Court was faced with the issue of whether or not the cireuit court possessed the authority to compel a patient to authorize ex parte discussions with the patient's treating physician. Id. at 891. The Woytus court held that the circuit court lacked the authority under the discovery rules to order a patient to execute a medical authorization form which would expressly authorize ex parte discussions with his or her treating physician. Id. at 395. In so holding, the Woytus court also acknowledged that nothing within the rules for formal discovery gave the circuit courts the authority to order a patient to execute a medical authorization form. The Woytus court said:
In balancing the interests involved, however, this Court will not require that a non-enumerated discovery method be added to those already available under the Rules. Information or evidence that can be obtained legitimately through ex parte discussion can also be obtained through the methods of discovery listed in the Rules Any burdens caused defendants by being restricted to the specially enumerated discovery procedures are outweighed by the potential risks to the physician-patient relationship in deviating from those procedures.
1d.2
Collins asserts that Woytus is no longer good law because the Missouri Supreme Court abrogated Woytus in Brandt v. Pelican, 856 S.W.2d 658 (Mo. banc 1998) (Brandt I ) and Brandt v. Medical Defense Associates, 856 S.W.2d 667 (Mo. banc 1993) (Brandt II ). In Brandt I, the Court was faced with the issue of whether ex parte communications with a plaintiff's treating physician are prohibited during *788discovery. 856 S.W.2d at 661. The Brandt I court acknowledged the holding in Woytus and said:
In Woytus, this Court held that we would not require the plaintiff to execute medical authorizations allowing defendants to have ex parte discussions with the plaintiff's treating physicians. In Woytus, we were not asked to rule, and we did not rule, on the issue of whether the medical privilege contained in seetion 491.060(5) prohibits such ex parte discussions....
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We reaffirm our holding in Woytus that we will not require the plaintiff to execute medical authorizations authorizing his treating physician to engage in ex parte discussions. It should be noted that the physician cannot be forced over the physician's own objection to engage in informal ex parte discussions with the defense attorney. The contention of the defense in the present case that they were entitled to talk to Dr. Kodner and Dr. Myers acknowledged that such a right is subject to the consent of the doctors and, in fact, in the present situation both doctors willingly consented to talk to defendant's attorneys. This limitation embodies the proposition that no witness is forced to participate in discovery except through the formal discovery procedures. If a witness refuses to be interviewed or to give a statement, the attorney's only practical recourse is to take the witness' deposition.
Id. at 661-68.
In Brandt I, the Court was merely focusing on that portion of the Woytus opinion in which the Woytus court found that the courts will not require plaintiffs to execute medical authorizations expressly authorizing treating physicians to engage in ex partie discussions. Nothing in Brandt I changes the Woytus court's holding that it would "not require that a non-enumerated discovery method be added to those already available under the Rules." Woytus, 776 S.W.2d at 395.
Nor do I find anything in Brandt II which overrules or abrogates this principle established in Woybus. In Brandt II, the Court held that "the waiver of the medical privilege ... which occurs in a personal injury or medical malpractice case once there is an issue joined concerning the plaintiff's medical condition, is a waiver of both the testimonial privilege and the physician's fiduciary duty of confidentiality." 856 S.W.2d at 674. According to the Brandt II court, "these waivers cover any information bearing on those medical issues," and "[the fiduciary duty that the physician owes the patient to maintain in confidence medical information concerning the patient's mental or physical condition does not apply to an ex parte conference that is within the seope of the waivers." Id. As was the case in Brandt I, nothing in Brandt II changes the Woytus court's holding that it would "not require that a non-enumerated discovery method be added to those already available under the Rules." Woytus, 776 S.W.2d at 395.
In Brandt I and Brandt II, the Missouri Supreme Court definitely recognized a defendant's right to engage in ex parte communication with a plaintiff's physician. Moreover, I recognize that a party may use "informal discovery" to have these ex parte communications with a physician. Indeed, "[ilnformal discovery through ex parte discussions can serve as a valuable resource for parties to a suit." Norman, 872 S.W.2d at 891. Moreover, the Brandt I court made it clear that a plaintiff's authorization is not even necessary before a defendant can engage in ex parte communications with a plaintiff's physician. But, I find nothing in Brandt I, Brandt II, or in the discovery rules which gives the *789circuit court the authority to compel a party to sign a medical authorization form during informal3
In regard to medical authorizations, the case law is clear:; (1) a circuit court cannot compel a plaintiff to expressly authorize ex parte discussions with her physician, Woytus, 776 S.W.2d at 395; (2) a physician cannot be forced over his own objection to engage in informal ex parte discussions with a defense attorney during discovery, Brandt I, 856 S.W.2d at 662; and (8) a cireuit court cannot preclude a defense attorney from ex parte discussions with a physician by granting the patient the power to prohibit those discussions, Norman, 872 S.W.2d at 891. In this case, Judge Roldan did none of these. He merely denied Collins's motion to compel Carli Smith to execute the medical authorization as submitted by Collins.
The cireuit court's discretion is limited by the parameters of the discovery rules. Id. at 890. I find nothing in the discovery rules which gives the cireuit court the authority to compel a party to sign a medical authorization form when informal discovery is involved. Of course, a party may consent to signing a medical authorization form during informal discovery, but the cireuit court cannot force a party to do so.
Further, my analysis is consistent with Privacy Rules under HIPPA. HIPPA permits disclosure of protected health information if the patient executes a HIPPA compliant authorization. 45 C.FER. § 164.508. If a patient does not execute an authorization or expressly consent to the disclosure of protected health information, HIPPA permits disclosure of protected health information in the course of a judicial proceeding under two cireumstances: (1) if the provider is ordered to do so by a court, or (2) if the provider discloses in response to traditional methods of formal discovery, i.e. "subpoena, discovery request or other lawful process," as long as certain conditions are met. 45 C.FER. § 164.512(e)(1)(i)-(if). The conditions are: (1) the health care provider must be assured that the requesting entity or its representative has provided the patient with written notice and opportunity to object, or (2) that in relation to the information contemplated by the discovery request or subpoena, the requesting entity has moved the court for a "qualified protective order." 45 C.FR. § 164.512(e)(1)(Gi)(A)-(B). In ruling that the cireuit court has no authority to compel a party to sign a medical authorization form when informal discovery is involved, my analysis does nothing to disturb the requirements of HIPPA.
I, therefore, would quash our preliminary writ and deny Collins's request for a permanent writ of prohibition because the issue of whether or not the plaintiff in this case must execute a medical authorization form is a matter involving informal discovery and the cireuit court does not have the authority to compel a party to sign a medical authorization form when informal discovery is involved.
. Collins asserts that McNutt stands for the proposition that, "if a medical authorization *787is required, in order for a personal-injury defendant to obtain medical information ..., the personal-injury plaintiff should be required by the trial court to execute the necessary medical authorization to make such information available to the defendant." Collins, however, fails to appreciate the fact that the medical authorization which the plaintiff was required to produce in McNutt was in a formal discovery seiting. The McNutt court was merely acknowledging that, before a records custodian produces a plaintiff's medical records, the records custodian may require a medical authorization from the plaintiff, and the circuit court had the authority to order the plaintiff to execute such authorization, if necessary. McNutt, 432 S.W.2d at 602.
. In State ex rel. Norman v. Dalton, 872 S.W.2d 888, 891 (Mo.App.1994), this court's Eastern District recognized that the issuance of medical authorizations in regard to ex parte communications between a defendant and a plaintiff's physician is a matter informal discovery. The court said: "Informal discovery provides parties engaged in a lawsuit with another viable avenue during the pretrial discovery process. Informal discovery through ex parte discussions can serve as a valuable resource for parties to the suit. Informal discovery can facilitate the discovery process and at points be helpful both to the parties and to witnesses." Id. (citation omitted). Moreover, in Brandt v. Medical Defense Associates, 856 S.W.2d 667, 674 (Mo. banc 1993), the Missouri Supreme Court also seemingly recognized the value of informal discovery through ex parte discussions, although the Court did not speak to the need of obtaining medical authorizations from the plaintiff.
. Judge Ann Covington seemingly recognized that a problem existed with ex parte communications in matters of informal discovery. She stated in her concurring opinion in Brandt I: "As Woytus emphasized, our rules of discovery say nothing about informal discovery by ex parte communications between attorneys for the defendant and fact witnesses, including the plaintiff's treating physician." 856 S.W.2d at 666. Indeed, the Missouri Rules of Civil Procedure say nothing about medical authorizations at all.