On August 28, 2019, the Missouri rules on discovery were updated to help streamline the discovery process, expedite speed to justice and to more closely align their rules with the Federal Rules of Civil Procedure. Although these revisions in Missouri in some ways mirror the FRCP, they aren’t exactly the same. Below are a few of the biggest changes that litigators in Missouri should be interested in.
1. The first way relates to the efforts that are put forth during the discovery process: they should be “proportional to the needs of the case considering the totality of the circumstances” (SB224, 2019).
Similar to its Federal counterparts, the Court will review proportionality under six factors:
- (1) the importance of the issues at stake in the action;
- (2) the amount in controversy;
- (3) the parties’ relative access to relevant information;
- (4) the parties’ resources;
- (5) the importance of the discovery in resolving the issues; and
- (6) whether the burden or expense of the proposed discovery outweighs its likely benefit (Id.).
For lawyers practicing in this Court system, judges can impose limitations through motion practice. An initial restriction may stem from the inference that cumulative or duplicative data can be accessed in less obtrusive and inexpensive means. Delays in the requesting of the specific documents or information can be limited as well along with requests that are deemed outside of the scope in relation to the subject matter in the case. These limitations can be applied to electronically stored information, or “ESI”, if the information is difficult to access or again overly costly. The requesting party must show good cause, but it is the burden of the responding party to prove the inability to access the information and the associated cost hardships (Sokol, 2019).
2. Under Missouri’s new rules, the total number of interrogatories and requests for admission will be set at 25, including sub-parts. A further narrowing of the scope of the discovery for a party comes from the number of depositions. Parties will now be allowed up to ten (10) depositions and those “shall be limited to 1 day of 7 hours” (SB224, 2019). The rules also require a stipulation to a party being deposed in advance and a deponent can be provided leave from a deposition for the following:
- The deposition results in more than ten (10) total depositions;
- The deponent has been previously deposed in the instant matter; and
- A plaintiff is seeking to take a deposition inside of 30 days following service of a summons.
3. An additional piece of the legislation involves the mandatory initial disclosures prior to the initiation of discovery. The disclosures, in parallel to FRCP 26, provide for sections on factual basis of claims, listing of important players, description of ESI sources, initial damages categories, expert testimony areas and copies of insurance policies (Id.).
Another important aspect of these disclosures comes from Rule 2.301(A)(1). This section provides that discovery may only be served following the service of these disclosures, or within certain extenuating circumstances, specifically stipulation, court order, etc. (Id.) This early practice includes the exchange of information and documents can be important in analyzing how the opposing side may be gearing up to conduct discovery in many of the ways alluded to previously.
Free CLE on October 23, 2019 at KCMBA
Please note that, along with Jackson County Judge Kyndra Stockdale, we will be providing a free CLE at the KCMBA on October 23, 2019 on this very topic for any interested parties. We will take a deeper dive and focus our presentation on actionable tips and pitfalls to avoid. There is no charge for this CLE so I would encourage you to attend as many of the new rules in Missouri are significant and will change the way Civil Litigation is done in the state. We look forward to seeing you there.