Posted by Gary Burger on October 11, 2016 in Law
When you are suing a Defendant who has photographs in his or her possession, it is important to know the laws of discoverability in both Illinois and Missouri.
According to longstanding Illinois Law, relevant photographs of the scene must be produced by the defendant. “[T]he obligation to produce photographs and statements does not depend on how the photographs are used. In fact, Supreme Court Rule 201(b)(1) requires full disclosure of any matter relevant whether it relates to a claim or defense.” Scales v. Benne, 355 Ill.Dec. 350, 354 (Ill. App., 2011) (citing trial court opinion). It is important to note that there are two types of “work product” in Illinois: “work product” which includes things such as statements, photographs, and memoranda which has been obtained in anticipation of trial, and “opinion work product” which includes mental impressions, conclusions, opinions, and strategies of the attorney. See Fischel & Kahn, Ltd. v. van Straaten Gallery, Inc., 189 Ill.2d 579 (2000), Mlynarski v. Rush Presbyterian-St. Luke’s Medical Center, 213 Ill.App.3d 427 (1st Dist. 1991). As discussed above in Mlynarski, opinion work-product is the only type which is protected.
Under Missouri law, photographs which constitute trial preparation materials under the law are not absolutely privileged as work product. Instead, the photographs are subject to discovery if a sufficient showing is made. See Porter ex rel. Aylward v. Gottschall, 615 S.W.2d 63, 64-65 (Mo. Banc 1981). In Gottschall, the Court held that an inability to obtain a substantial equivalent equates to a sufficient showing per Supreme Court Rule 56.01(b)(1), and these types of photographs have to be produced. Id. For example, if the defendant has the only photos showing the scene then those are typically ordered to be produced. However, if the defendant takes photos of the scene after the incident, then these will usually not be ordered to be produced unless they are to be used at trial.