Work Product Concerns Premature

In an appeal from the circuit court, the South Dakota Supreme Court reversed the lower court’s resolution of  “the procedural question of how to protect work product and theories of the defense in contested proceedings involving defense requests for scientific testing of physical evidence.” The circuit court had impropery “considered ex parte motions, briefs and affidavits” and improperly conducted ex parte hearings. The case involves two defendants charged with shooting five members of the Outlaw Motorcycle Club.

The court held that “[e]x parte communications are generally prohibited.” The court must first determine if such a proceeding is appropriate and “then conduct an open hearing in which both parties can argue whether a sealed written statement may be submitted and ultimately whether the moving party has made a ‘sufficient showing’ to justify the discovery/testing request.” As to the potential work product implications of such a procedure, defense concerns are “premature and misplaced until the parties’ conflicting claims regarding access to the [car allegedly used in the crime] for testing (and the evidence’s potential use at trial) are resolved in compliance with discovery statutes.” (Mike Frisch)