Missouri Senate

Senate Substitute

REQUIREMENT OF PROPORTIONALITY

The act requires that parties may discover any relevant matter, not privileged, as described in the act, provided that the matter is proportional to the needs of the case considering several factors described within the act.

LIMITS ON FREQUENCY OR EXTENT OF DISCOVERY AND ELECTRONICALLY STORED INFORMATION

The act requires that court limit the frequency or extent of discovery if it determines that certain factors exist.

Absent a court order demonstrating a substantial need for discovery, a party is not required to preserve certain categories of electronically stored information. Additionally, absent a showing of substantial need and good cause, a party is not required to provide discovery of certain categories of electronically stored information.

REQUIREMENT OF REPORTS OF EXPERT WITNESSES

The act requires any interrogatory identifying a witness as an expert to be accompanied by a report, prepared and signed by such expert. Any drafts of the reports are protected from disclosure under the rules.

LIMITS ON PRIVILEGED INFORMATION AND TRIAL PREPARATION MATERIALS

When a party withholds information on the basis of privilege or protection of trial preparation materials, the party must expressly make the claim and describe the nature of the documents, electronically stored information, communications, or tangible things in such a way as to enable other parties to assess the claim. If information produced in discovery is subject to privilege or protection, a party is required to return, sequester, or destroy the specified information after being notified of the privilege or protection. Additionally, the party shall take steps to retrieve any information disclosed prior to notification, shall preserve the information until the claim is resolved, and shall not use or disclose the information until the claim is resolved.

An attorney who receives privileged information involving an adverse or third party and who has reasonable cause to believe that the information was wrongfully obtained shall not read the information, shall promptly notify the attorney to return the information, and shall delete and take reasonable measures to assure that the information is inaccessible.

The production of privileged or protected trial preparation materials is not a waiver of the privilege or protection from discovery in the proceeding.

REQUIREMENT OF SIGNATURES

This act requires a signature and contact information of one attorney or, if unrepresented, the party for every disclosure and discovery request, response, or objection. By signing, the attorney or party certifies that the disclosure is complete and correct and that the discovery request, response, or objection is consistent with the rules, is interposed for a proper purpose, and is neither unreasonable nor unduly burdensome. There is no duty to act on an unsigned disclosure, request, response, or objection. The court shall impose sanctions that may include reasonable expenses including attorney's fees on the signer or the party for improper certification.

LIMITS ON INTERROGATORIES AND DEPOSITIONS

The act limits the number of written interrogatories that may be served upon a party to 25, including all discrete subparts.

For oral or written depositions, leave of court is required if the deponent is confined in prison or the parties have not stipulated to a deposition and:

• The deposition would result in more than 10 depositions being taken by the plaintiffs, or by the defendants, or by the third-party defendants;

• The deponent has already been deposed in the case; or

• The plaintiff seeks a deposition prior to the expiration of 30 days after the service of the summons and petition upon any defendant, except leave is not required if a defendant has served a notice of taking deposition or otherwise sought discovery.

The act additionally limits the length of any oral deposition to one day of seven hours, provided that the court may order additional time for any deposition under certain circumstances. The court is permitted to impose sanctions on persons who impede, delay, or otherwise frustrate the fair examination of a deponent.

LIMITS ON REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS

Under this act, a party may serve a request to produce and permit the requesting party or its representative to inspect, copy, test, or sample designated documents, electronically stored information, or any designated tangible things.

A request is limited to a reasonable time period, not to exceed five years prior to the accrual of the cause of action. This limitation does not apply to requests for patient health records, vocational records, educational records, or other similar records.

Requests shall specify the form in which electronically stored information is to be produced.

Responses to requests must state that either the inspection and related activities will be permitted as requested or specifically state the grounds for objecting to the request. Instead of permitting inspection, the responding party may state that it will produce copies of documents or electronically stored information. Objections to part of a request shall specify the part and permit inspection of the rest.

LIMITS ON REQUESTS FOR ADMISSIONS

The act limits the number of written requests for admission that may be served upon a party to 25 without leave of the court. However, this limitation shall not apply to requests regarding the genuineness of documents.

FAILURE TO PRESERVE ELECTRONICALLY STORED INFORMATION

Upon a finding of prejudice to another party, this act allows a court to order measures to cure prejudice that has resulted if electronically stored information has not been preserved because of a party's failure to take reasonable steps to preserve it and it cannot be restored or replaced through additional discovery. Additionally, upon a finding that a party acted with the intent to deprive another party of the use of the information in litigation, the court may presume that the lost information was unfavorable to the party, instruct the jury that it may presume such, or dismiss the action or enter a default judgment.

KATIE O'BRIEN