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Following the Leader—S.B. 224 Models Rule 56.01 after Federal Rules

| Oct 11, 2019 | Firm News, Hamilton Weber, News |

On August 28, 2019, Senate Bill 224, which modifies various Missouri Supreme Court Rules relating to the discovery process, became effective. Although it typically would fall on the Missouri Supreme Court to make these kinds of substantive rule changes, Article 5, Section 5 of the Missouri Constitution provides that any of the rules “may be annulled or amended in whole or in part by a law limited to that purpose.”

Rule 56.01 was revised to limit the scope of discovery to the “proportional to the needs of the case,” which is a standard similar to that contained in the current Rules of Federal Civil Procedure. Essentially, this “proportionality” test creates a new opportunity for parties subject to litigation to object to the scope of discovery requests. Pursuant to the Rule 56.01, the Court is directed upon motion of any party, or on its own initiative, to impose limits on the frequency or extent of discovery if the Court determines: (a) the discovery sought is cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (b) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (c) the proposed discovery is outside the scope permitted by the Rules.

As revised, Rule 56.01 adopts the federal standard with respect to electronic data discovery. A party is not required to provide electronically stored information (ESI) from a source if the information requested is not reasonably accessible because of undue burden or excessive cost. Perhaps more importantly, Senate Bill 224 adopted the federal limitations on written discovery and depositions. The Rule now provides that:

  • No more than 25 written interrogatories, including subparts, may be served upon another party;
  • No more than 25 Requests for Admissions from one party to another, although this limit does not apply to Requests for Admission seeking only the genuineness of documents;
  • No more than 10 depositions are allowed per party, as a default rule; and
    • Counsel can seek leave of court to take depositions that have not been stipulated to by the parties to the suit, to re-depose a witness, or if a deposition is sought within 30 days after receiving service of a summons and petition.
    • A single deposition cannot go more than 1 day and is limited to 7 hours absent leave of court or stipulation.
  • The Rule now contains a “claw-back” provision.
    • This “claw-back” provision sets out a new default rule providing that in the event privileged or work-product documents, electronically stored information or other information is inadvertently disclosed or accidentally sent over to the opposing party, such a disclosure is not a waiver of the privilege or protection from discovery.
    • Perhaps more importantly, the Rule imposes an affirmative duty on an attorney, who receives information that contains privileged communications involving an averse or third party, to not read the information, to inform the other side that he/she have received the privileged information, to return the information to the other side, and to delete it from their records and take all reasonable measure to assure that the information is inaccessible.

Clearly, this change in Missouri’s Rules of Civil Procedure will significantly impact the discovery process in Missouri. While the apparent purpose of this change is to bring Missouri’s Rules more in line with the Federal Rules of Civil Procedure, the actual impact of the changes to the Missouri Rules remains to be determined.