Section 2.33 Reasons for Seeking Protective Orders and Relief Available

LibraryDiscovery 2015


It is impossible to describe all circumstances under which a protective order might be sought or justified. Whether a protective order is appropriate is in the discretion of the court, but Missouri courts have said these orders should “‘be used sparingly in accordance with sound judicial discretion.’” See, e.g., State ex rel. Kubatzky v. Holt, 483 S.W.2d 799, 805 (Mo. App. E.D. 1972).



Rule 56.01(c) specifies eight different types of orders that may be made but states that “the court may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Thus, the court may tailor its orders to meet the circumstances of an individual case. The eight protective orders authorized by Rule 56.01 are as follows:



1. “[T]hat the discovery not be had”



The courts are reluctant to grant this relief, especially if the discovery sought is by way of deposition. State ex rel. Houser v. Goodman, 406 S.W.2d 121 (Mo. App. S.D. 1966). One reason for this reluctance is the difficulty in accurately determining the need for protection before the depositions begin. The contrary may be true, however, when substantial inconvenience and expense would result to the deponent. State ex rel. Von Pein v. Clark, 526 S.W.2d 383 (Mo. App. W.D. 1975). The fact that questions may be asked in discovery that might tend to incriminate the witness is not a sufficient basis for such an order. Guy v. Abdulla, 58 F.R.D. 1 (N.D. Ohio 1973). But see State ex rel. Caloia v. Weinstein, 525 S.W.2d 779 (Mo. App. E.D. 1975). This order may be available, however, when documents are sought.



2. “[T]hat the discovery may be had only on specified terms and conditions, including a designation of the time or place”



Numerous situations arise in which this protective order may be applicable. The court has specific authority to delay answers to interrogatories that may involve opinions or contentions that relate to fact or the application of law to fact until some later time. Rule 57.01(b). The court has discretion in determining conditions upon which depositions may be taken. Terry v. Modern Woodmen of Am., 57 F.R.D. 141 (W.D. Mo. 1972). Generally, the plaintiff, who chose the forum, must produce him- or herself at that location for depositions. William F. Jobbins, Inc. v. Am. Export Lines, Inc., 16 F.R.D. 178 (S.D.N.Y. 1954). This may not be true when there are circumstances that would create an undue hardship or make it unreasonable. Hyam v. Am. Export Lines, Inc., 213 F.2d 221 (2nd Cir. 1954); Robinson v. Tracy, 16 F.R.D. 113 (W.D. Mo. 1954). If the plaintiff had no choice of forum, a lesser showing may be required to protect the plaintiff from being required to appear at that location for depositions. Ellis Air Lines v. Bellanca Aircraft Corp., 17 F.R.D. 395 (D. Del. 1955).



A party may not obtain a “protective order” requiring an opponent’s out-of-state expert to travel to the state of that party’s residence for deposition. In Stortz ex rel. Stortz v. Seier, 835 S.W.2d 540 (Mo. App. E.D. 1992), the defendant sought a protective order with those terms because he could not otherwise afford to depose the expert. The court held that the defendant could not seek a protective order relating to his own discovery.



The general rule is that depositions of a corporation, taken through its officers, should be taken at the corporation’s principal place of business. Less v. Taber Instrument Corp., 53 F.R.D. 645 (W.D.N.Y. 1971). The court can consider, however, the financial and other interests of the parties in determining whether the normal rule...

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