Section 4.1 General and Tactical Considerations

• Library: Discovery 2015

As a general rule, taking the deposition of a witness or party is considered a “right.” State ex rel. Chaney v. Franklin, 941 S.W.2d 790 (Mo. App. S.D. 1997); Norkunas v. Norkunas, 480 S.W.2d 92 (Mo. App. E.D. 1972). But that right is subject to the power of the court to issue protective orders, “including an order that discovery not be had,” for good cause shown, to shield a party or witness from “annoyance, embarrassment, oppression, or undue burden or expense.” Chaney, 941 S.W.2d at 793. Thus, the court can require that discovery be accomplished by other means if the right of taking a deposition would be outweighed by adverse consequences or hardships on the party to be deposed. Kingsley v. Kingsley, 601 S.W.2d 677 (Mo. App. E.D. 1980). In some cases, the taking of the deposition may be prevented if it would be so oppressive, burdensome, and intrusive as to outweigh the benefits to be gained. For instance, in State ex rel. Whitacre v. Ladd, 701 S.W.2d 796 (Mo. App. E.D. 1985), a party was not permitted to depose a doctor’s record custodian and require production of numerous records covering a two-and-one-half year period for the purpose of showing bias.

“[A] trial court may impose requirements in addition to those imposed by the Rules of Civil Procedure, provided the additional requirements imposed are not unreasonable under the circumstances, not unnecessarily burdensome or not inconsistent with the Rules.” State ex rel. State v. Riley, 992 S.W.2d 195, 196 (Mo. banc 1999)...