by Veronica Potter
On March 2, 2021, the Missouri Supreme Court released an order (Order) amending the Missouri Rules of Civil Procedure (Rules) to enact new discovery provisions.
The Missouri legislature previously passed a law in 2019 that amended the discovery Rules in order to bring them more in line with the Federal Rules. Senate Bill 224 (SB 224) was signed by Governor Parsons on July 10, 2019 and took effect on August 28, 2019. However, following the enactment of SB 224, the Missouri Supreme Court did not update the Rules to reflect the changes contained in SB 224. Rather, the Court merely noted on each affected Rule that SB 224 “purports to amend this Rule.”
This resulted in some confusion among attorneys about whether SB 224 actually amended the Rules and what Rules would apply in litigation. The Missouri legislature introduced additional legislation in the 2021 session to address this confusion.
However, the Order has brought some much-needed clarity to civil discovery. The Supreme Court’s order adopts all of the changes proposed to civil discovery rules in SB 224, with a few additional changes, as noted in the summary below:
- Rule 56.01(a): Explicit reference to electronic discovery added.
- Rule 56.01(b)(1): Substantial language regarding proportionality added.
- Rule 56.01(b)(1): Language added noting that discoverability does not equate to admissibility.
- Rule 56.01(b)(2): Section regarding limitations on discovery added – including limitations on burdensome electronic discovery.
- Rule 56.01(b)(9): Section containing safe harbor for privileged materials and non-waiver for production of privileged materials added. The Order changed the wording of this provision but kept the substance of the provision.
- Rule 56.01(c): The Order specifically includes a reference to e-discovery as subject matter eligible for inclusion in a protective order.
- Rule 56.01(c)(2): Language added allowing protective order for allocation of expenses. The Order also establishes factors for courts to consider when ruling on objections based on a claim that a request creates an undue burden or expense.
- Rule 56.01(d): Language added allowing parties to stipulate to the timing of discovery.
- Rule 56.01(g): The Order added language requiring all parties to make reasonable efforts to cooperate for the purpose of minimizing the burden and expense of discovery.
- Rule 57.01(a): Language added limiting number of Interrogatories to twenty-five, including subparts. The Order allows for additional interrogatories that are part of “approved” Interrogatories promulgated by a circuit court in its local rules.
- Rule 57.03(a): Language added limiting number of depositions to ten per party, and prohibiting depositions in other circumstances without leave of court.
- Rule 57.03(b): Language added limiting depositions to one day of seven hours and allowing sanctions for party who impedes deposition. The Order adds additional language allowing depositions to be taken remotely by telephone or videoconference upon stipulation of the parties or order of the court.
- Rule 57.04(a): Similar limiting language as Rule 57.03(b) added for written depositions.
- Rule 58.01(a)(1): Language added specifically contemplating electronic discovery; language added requiring production only for items in a party’s possession, custody, or control; language added permitting production of designated tangible things.
- Rule 58.01(b)(1)(A): Language added requiring that responses specify the item or category of items produced.
- Rule 58.01(b)(1)(C): Language added allowing a party to require production of electronic discovery in native format.
- Rule 58.01(c): Language added requiring that partial objections specify to what the party is objecting and to allow inspection or production of the rest.
- Rule 59.01(a): Language added limiting number of Requests for Admission to twenty-five without leave of court or stipulation of parties, but allowing more than twenty-five Requests for Admission regarding genuineness of documents.
These updates bring the Missouri Rules more in line with the Federal Rules and should further parties’ abilities to bring reasonable parameters to the scope of discovery in litigation. Although it remains to be seen how Missouri courts will interpret the updates to the Rules, these Rules provide a stronger basis to argue for limitations on burdensome discovery. The updated Rules go into effect September 2, 2021.
If you have questions about the new discovery rules, do not hesitate to reach out to a Tueth Keeney attorney.
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Commercial Litigation – Tueth Keeney has aggressive and talented litigators with a record of client satisfaction and success. Our litigation attorneys have represented large and small businesses in the prosecution and defense of numerous complex commercial litigation matters in the state and Federal courts of Missouri and Illinois. Our philosophy is to quickly evaluate the facts of each case and develop the most convincing and cost-effective litigation strategy. Tueth Keeney’s construction practice includes all aspects of contract drafting and negotiation, claim preparation, and dispute resolution. We represent owners, developers, and contractors in a variety of public and private projects.
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Veronica E. Potter practices primarily in the areas of higher education, litigation, and labor and employment law. Veronica represents colleges, universities, and private employers in education and employment litigation matters. Veronica started her legal career as a prosecutor, where she gained experience in all stages of litigation, including case investigation, discovery, arguing pre-trial motions, and presenting cases to both judges and juries. Prior to joining the firm, Veronica also practiced civil litigation at a large defense firm in St. Louis.