On July 10th, Governor Mike Parson signed into law Senate Bill 224, which passed the Senate on a final 23-9 vote shortly before the end of the 2019 legislative session. Senate Bill 224 changes various Missouri Supreme Court Rules relating to the discovery process in cases that reach litigation. These amended rules, which limit the scope of discovery and address electronically stored information (ESI) for the first time, will impact the way attorneys and clients think about trial strategy.
The amended rules went into effect on August 28th. Under Missouri Supreme Court Rule 41.06, the changes likely apply not only to actions filed after August 28th but also to civil actions pending as of August 28th, unless a court finds that applying the revised rules to a pending action “would not be feasible or would work injustice.” Missouri courts rarely depart from retroactive application of procedural rules, so parties involved in Missouri litigation would be wise to familiarize themselves with the changes.
Senate Bill 224’s changes attempt to bring Missouri’s discovery rules closer to the Federal Rules of Civil Procedure. While the Missouri Supreme Court can override SB224’s changes by amending the Rules, the changes under SB224 will impact Missouri trial practice for the near future in the following ways.
The scope of discovery under former Missouri Rule 56.01 was more broad than that permitted under its federal counterpart, Federal Rule of Civil Procedure (FRCP) 26(b)(1). Missouri’s amended Rule 56.01(b)(1) will now limit the scope of discovery to information that is not only relevant but “proportional to the needs of the case.” This language mirrors the language of FRCP 26.
Rule 56.01(b)(2) will require a court to limit the frequency or extent of discovery in particular circumstances. If a court determines that the discovery sought is duplicative, outside the scope of the Rules, or can be obtained through less burdensome means, then the court must limit the discovery.
For the first time, Missouri’s discovery rules expressly address electronically stored information (ESI), bringing Missouri’s Rules closer to the FCRP. Rules 56.01(b)(3) and 58.01 now expressly permit discovery of ESI and permit a party to request that ESI be produced in native format. However, a responding party is not required to produce ESI that is not reasonably accessible because of undue burden or cost. A court may nonetheless order the ESI produced if the requesting party shows good cause.
The amended Rules add new protections for inadvertent production of privileged or work-product protected information. Rule 56.01(b)(9) provides a procedure for clawing back information produced in discovery that is subject to a claim of attorney-client privilege or work-product protection. If the producing party gives notice, the receiving party must promptly return, sequester, or destroy the specified information. An attorney receiving what he or she reasonably believes to be privileged or protected information must stop reading the document, promptly notify the involved attorney, return the document, and delete it. Production of privileged or work-product protected information, whether inadvertent or otherwise, will not be a waiver of the privilege.
Missouri’s revised Rule 57.01 limits the number of interrogatories a party can serve to 25, including all subparts. Interrogatories in excess of 25 require permission from the court or agreement by the parties.
Likewise, Rule 59.01 limits how many requests for admissions a party can serve on another party. Like interrogatories, a party is also limited to 25 requests for admissions, unless the party gets permission from the court or agreement from the other side to exceed 25. However, there is no limit to requests for admission regarding the genuineness of documents.
Rules 57.03 and 57.04 now impose certain limits on the number and length of depositions, whether by oral or written examination. The amended Rules set forth specific circumstances where a litigant must seek court approval for a deposition. Leave of court is required if the deposition would result in more than 10 depositions taken by one party, if the witness has already been deposed in the case, or if the plaintiff wants to take the deposition within a certain window after service of the summons and petition but before the defendant has sought discovery. Leave of court is also required if the witness is confined in prison. Leave of court is not required, however, if the parties agree to the deposition.
Rule 57.03 also limits live depositions to 7 hours on one day. Longer depositions require permission from the court or agreement of the parties.
Finally, under the changes to Rule 57.03, a court will be able to impose sanctions, including expenses and attorney’s fees, if a party “impedes, delays, or frustrates” a deposition.
Rachel Harris is an associate in Thompson Coburn’s Business Litigation practice.
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