When you are suing a Defendant business or corporation who has obtained statements from employees in response to your
client’s accident or injury, it is important to know the laws of discoverability in both Illinois and
Missouri.

In Illinois, Defendant must produce statements made by low level employees. Because low level employees give statements
which are usually taken by a supervisor, they are not considered “top management” as required for work product
protection in Illinois. Illinois uses the control group test. The Illinois Supreme Court describes this test as:

[T]he only communications that are ordinarily held privileged under this test are those made by top management who have
the ability to make a final decision, rather than those made by employees whose positions are merely advisory. We
believe that an employee whose advisory role to top management in a particular area is such that a decision would not
normally be made without his advice or opinion, and whose opinion in fact forms the basis of any final decision by those
with actual authority, is properly within the control group. However, the individuals upon whom he may rely for
supplying information are not members of the control group. Consolidation Coal
Co. v. Bucyrus-Erie Co., 432 N.E.2d 250, 257-258 (Ill., 1982).

In Missouri, statements of witnesses are typically included within the protections of work product and are usually not
discoverable. See State ex rel. Atchison, Topeka & Santa Fe Ry. Co. v. O’Malley, 898 S.W.2d 600, 554
(Mo. banc 1995). In order to protect the crewmember statements from discovery in Missouri, the Defendant must
“establish, through competent evidence, that the materials sought to be protected are documents or tangible things
prepared in anticipation of litigation or for trial, and were prepared by or for a party or a representative of that
party.” Diehl v. Fred
Weber, Inc., 309 S.W.3d 309, 323-324.