November 8, 2019
By Leslie Boe and Brandi Spates
This summer brought noteworthy changes to the Rules of Civil Procedure for Missouri litigators. Effective August 28, 2019, amendments to the Rules limit the scope of discovery, address electronically stored information (ESI) for the first time in Missouri, and quantify written discovery and the number and length of depositions, all of which bring Missouri’s discovery rules closer in line with the Federal Rules of Civil Procedure.
Scope and Proportionality
Rule 56.01(b)(1) now limits the scope of discovery to that which is relevant and “proportional to the needs of the case.” Under the revised Rule, a court may consider “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues and whether the burden or expenses of the proposed discovery outweighs its likely benefit.”
Moreover, under the revised Rules, a court must limit discovery if it believes the discovery is cumulative, duplicative, outside the scope of the Rules, or inconvenient, or can be obtained through less burdensome or expensive means.
Electronically Stored Information
The amended Rules address discovery of ESI for the first time. The amended Rule now states that a party may request ESI be produced in native format. However, a party is not required to produce ESI that is not reasonably accessible because of undue burden or cost, unless the requesting party can show good cause.
Limitations on Interrogatories and Depositions
Revised Rule 57.01(a) limits the number of interrogatories a party can serve to 25, including all discrete subparts. Additionally, Rule 59.01(a) provides that no more than 25 Requests for Admissions from one party to another are permitted. However, an exception to this restriction allows unlimited Requests for Admissions regarding the genuineness of documents. Interrogatories or Requests for Admissions in excess of 25 require permission from the court or agreement by the parties.
Furthermore, revised Rule 57.03(a) requires leave of court for a deposition if the parties have not stipulated to the deposition, if the witness has already been deposed, if the deposition would result in more than 10 depositions taken by one party under Rule 57.03 or Rule 57.04, if the deposition is sought within 30 days after service of summons and petition, or if deponent is confined in prison.
Lastly, revised Rule 57.03(b)(5) limits the duration of the depositions to one day of seven hours. Longer depositions require stipulation of the parties or permission from the court. Under Rule 57.03, the court may impose sanctions, including reasonable expenses and attorney’s fees, if a party “impedes, delays or frustrates the fair examination of the deponent.”
Protection of Privileged Information
The amended Rules add a procedure for clawing back attorney-client privileged or attorney work-product materials that are accidentally sent to the opposing party and address two scenarios: (1) where the producer realizes the inadvertent disclosure and notifies the receiver of the disclosure; and (2) where an attorney receives confidential information and he or she “has reasonable cause to believe the information was wrongfully obtained.” These rules are found in the new Rule 56.01(b)(9).
Where the party claiming privilege notifies the receiving party of the claim of privilege and the basis for it, the recipient must promptly return, sequester or destroy the privileged information; must not use or disclose the information; must take reasonable steps to retrieve the information if disclosed prior to the notification; and may promptly present the information to the court under seal for a determination on the claim of privilege.
These changes should help our clients eliminate costly discovery disputes and time-consuming “fishing expeditions.”