Recently, the Missouri legislature passed Senate Bill 224 outlining a brand new set of discovery rules for Missouri state-court cases. These new rules represent a comprehensive revision to the existing rules and make the Missouri rules align significantly with those of the Federal Rules of Civil Procedure. Under the Missouri constitution, the statute took effect on August 28, 2019 overriding the existing rules. However, the Missouri Supreme Court cannot promulgate a new rule with less than six months’ notice, which means that the new rule would not formally be in effect before March or April of 2020. Furthermore, the Supreme Court’s Rules Committee was recently advised that the Supreme Court has not updated its website to reflect the changes made in SB 224.
For toxic tort litigators, the result is a large amount of uncertainty regarding which set of rules applies: the old ones on the Missouri Supreme Court website or the ones now statutorily in effect. There will likely be some writ practice in the near future which may create some clarity, especially since a prime sponsor of the bill is Senate Judiciary Chairman. In the meantime, it would be prudent to stipulate with your opponent regarding which set of Missouri discovery rules apply.
SB 224 requires that all discovery must be “proportional to the needs of the case, considering the totality of the circumstances.” This is likely not a tremendous change, as judges already are engaging in a balancing act when an undue burden objection is raised. The Bill spells out specific factors for the courts to analyze, and the “importance of discovery” factor will likely be the most important. The old rules contain a provision stating that all parties “shall make reasonable efforts to cooperate for the purpose of minimizing the burden or expense of discovery.” Notably, this provision is absent from SB 224.
The most comprehensive revision of the new rules is the first ever reference to electronically stored information (ESI). A significant limitation in the rules is that a party “need not provide discovery of [ESI] from sources that the party identifies as not reasonably accessible because of undue burden or cost.” This creates an additional point of resistance, on top of proportionality, for a party resisting discovery as the provision relates to the source of the information and not on the scope of discovery. For example, sources such as back up tapes, deleted files, or fragmented files could now be excluded as they are not “reasonably accessible because of undue burden or cost.” Upon the proper showing, the court can still order discovery from other sources and in doing so the court could specify certain conditions. In federal courts, for example, the requesting party can be forced to bear some portion of the cost.
Another significant revision relates to privileges. The language in SB 224 is, perhaps, the most stringent protection ever of privileged work and work product that is inadvertently produced. If a party is notified that information produced in discovery is subject to the protection of a privilege or is work product, the receiving party: (i) “must promptly return, sequester or destroy the specified information and any copies;” (ii) “must not use or disclose the information until the claim is resolved;” (iii) “must take reasonable steps to retrieve the information, if the party disclosed it;” and (iv) “may promptly present the information to the court under seal for determination of the claim.” The attorney who is notified about such information containing privileged communications “has the obligation to preserve the information.”
Furthermore, an attorney receiving such information “who has reasonable cause to believe the information was wrongfully obtained shall not read the information, or, if he or she has begun to do so, shall stop reading it.” Such attorney “shall promptly notify” adverse counsel “to return the information to the other lawyer and, if in electronic form, delete it and take reasonable measures to assure that the information is inaccessible.”
The next set of changes relate to interrogatories, depositions, and requests for admission. Unless stipulated to, parties are limited to 25 interrogatories “including discrete subparts,” 10 depositions limited to one day of 7 hours, and 25 requests for admission except for those seeking to admit the authenticity of a document. The rules will likely be applied to each class of parties. In other words, if there are two plaintiffs in a case, there is a total of 10 depositions that the plaintiffs can take between the two of them, and not 10 per plaintiff. Finally, if a party objects to part of a request, it must produce documents for the non-objected to portions.
Similar to the “proportionality amendments” to Federal Rule of Civil Procedure of 2015, the new Missouri Discovery Rules have been revised to streamline the discovery process. While the new Rules may result in some uncertainty as the implementation gets underway, it is important for toxic tort attorneys in Missouri to quickly evaluate the changes and anticipate how it will impact discovery in their pending and future cases.