Who Makes the Rules Around Here? The Missouri Legislature Redefines Discovery.

• Author: McMillian, Maddie

1. INTRODUCTION

   In 2019, the Missouri General Assembly passed Senate Bill 224, which made significant changes to the Missouri Supreme Court Rules governing discovery. (1) The bill intended to align state discovery rules more closely with the Federal Rules of Civil Procedure ("the FRCP"), mirroring the majority of other states that have already adopted some form of the federal rules. (2) In advocating for the change, the bill sponsor, Senator Tony Luetkemeyer (R-34), (3) stated, "These reforms will expedite lawsuits, ensure more timely resolution of disputes, and reduce costs for all parties involved." (4) While the ultimate impact of the rule change remains to be seen, the bill presents two interesting questions for Missouri's legal community: (1) whether Missouri should go further and adopt the FRCP to ensure state-federal uniformity in court rules; and, more broadly, (2) whether the Legislature should amend the state's civil procedure rules in the first place. The answers to those questions may determine the future of Missouri's civil court rules.

   This Note evaluates the process and content of recent changes to Missouri's rules of civil procedure with respect to discovery. Part II gives a brief history of the FRCP relating to discovery and then describes the Missouri discovery rules prior to the passage of Senate Bill 224. Part III provides background on how Senate Bill 224 came to pass, discusses separation-of-powers complaints by opponents of the legislation, and then explains the major provisions included in the bill. Finally, Part IV evaluates two central questions introduced by Senate Bill 224 and discusses the implications of the legislation on Missouri civil practice.

2. LEGAL BACKGROUND

   The FRCP govern the procedure in all civil actions in federal courts. (5) Their purpose is "to secure the just, speedy, and inexpensive determination of every action and proceeding." (6) This Part first discusses the history of the FRCP relating to discovery and then examines the Missouri Supreme Court Rules, including reasons for the recent amendments passed by the Missouri General Assembly.

   1. History of the Federal Rules of Civil Procedure Relating to Discovery

      The basic philosophy underpinning the present FRCP is that "mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation." (7) The provisions included in FRCP 26 through 37 provide the means for uncovering and exchanging such relevant information. (8) Depositions, interrogatories, requests for production of documents, and the other formal discovery practices allow parties to bring into focus all of the relevant facts for or against their respective positions in a legal dispute. (9) But the formal discovery process is sometimes left open to exploitation. (10) In fact, the very nature of the discovery process creates a significant potential for abuse. (11) Lawyers have incentives to use repetitive, cumulative, and hostile tactics against their opponents to disrupt discovery procedures, overwhelm opposing parties, and frustrate the exchange of information. (12) Abuses usually include matters of delay and expense, (13) but they may also implicate "privacy interests of litigants and third parties." (14)

      Throughout the years, in response to "costs, delays, and abuses," the federal Advisory Committee on Civil Rules ("the Advisory Committee") (15) has repeatedly amended the federal discovery rules. (16) The amendment process for the FRCP is lengthy. Amendments are reviewed by the Advisory Committee, (17) the Committee on Rules of Practice and Procedure, (18) the Judicial Conference of the United States, (19) the United States Supreme Court, and the United States Congress. (20) Several of the review periods include public hearings and opportunity for public comment and testimony. (21) The legal community has gone to great lengths to ensure that amendments to the rules incorporate, as best as possible, the thinking and expertise of the legal community as a whole by taking input from sources as varied as scholars and legislators to practitioners and judges. (22)

      In 1993, the Supreme Court cut down significantly on the length and cost of litigation by limiting the scope of discovery under the FRCP. (23) The Advisory Committee noted that "[t]he information explosion of recent decades has greatly increased both the potential cost of wide-ranging discovery and the potential for discovery to be used as an instrument for delay or oppression." (24) And the "explosion" was further exacerbated by the arrival of electronic discovery. (25) The Advisory Committee went on to explain that the purpose of the amendment was to encourage "continuing and close judicial involvement" in cases where the parties could not effectively manage the discovery process on their own. (26) The Supreme Court made additional revisions in 2006 to address the ever-growing area of electronically stored discovery, (27) in 2010 to remedy concerns about expert discovery, (28) and then again in 2015 to further amend FRCP 26(b)(1) regarding proportionality. (29) FRCP 26 is one of the most frequently amended Civil Rules. (30)

   2. State Adoption of the Federal Rules of Civil Procedure

      Some argue the lengthy and thorough process for altering the FRCP produces high quality amendments that states should adopt. (31) Indeed, this argument goes, because civil discovery rules have been developed and refined over the years by the greatest minds of legal society, states would be acting inefficiently by starting from square one and attempting to replicate them without some borrowing. (32) In addition, replication by the states would provide uniformity and efficiency, making it easier for judges, lawyers, law professors, and law students to master civil procedure in various jurisdictions by studying and utilizing one set of procedural rules instead of fifty. (33)

      Others argue that states should not replicate the FRCP. (34) Since 1993, at least thirty-two of the fifty states have adopted versions of the FRCP in their state court systems. (35) One opponent of states adopting federal rules, Stephen Subrin, argues that even where states have replicated the FRCP in part, most states have not "kept pace" with all of the amendments. (36) Subrin argues that because states seldom update their own rulebooks with the pace of the federal rule changes, there is a lack of both intrastate and interstate uniformity. (37) Therefore, states should not aim to replicate the FRCP because absolute replication is "beyond the control of (textual) rulemakers." (38) He further argues that states should not replicate the FRCP because (1) there are significant differences between state and federal civil caseloads, (2) the federal level has adopted "ineffective and unwise" amendments, (39) (3) the changes in federal civil procedure require judicial resources that are unavailable in state courts, and (4) the states are in a better position to experiment with better rules and methods for civil litigation. (40) This argument seems to be based on a general dissatisfaction with recent amendments to and interpretations of the FRCP, rather than a preference of working toward uniform (or very similar) state and federal procedural rules. (41)

   3. Missouri Discovery Rules Prior to Senate Bill 224

      Until Missouri enacted new legislation, the state's civil procedure rules did not place any meaningful limits on the use of various discovery tools. (42) Practically, this meant that in Missouri state court, a litigant could serve a limitless number of interrogatories, requests for production, and requests for admission on a party-opponent, then proceed to take multiple days-long depositions in the case. Only the judge's discretion could rein in such broad and expensive discovery. (43) And, unlike in federal court, there was no requirement in Missouri state courts that the scope of discovery requests or the burden of responding to electronic discovery demands be proportional to the needs and value of the case. (44) As a result, some lawsuits dragged on for years, languishing in the discovery phase, before a case was finally resolved. (45) Most attorneys know that the single most time-consuming aspect of a civil action is discovery. (46) Pleadings, motion practice, damages calculations, expert testimony, and the ever-elusive civil jury trial--which receives the majority of the attention and energy in headlines--actually account for the minority of the time, expense, and value proposition of an average civil lawsuit. (47)

      Not only were cases time-consuming because of the lack of limits on discovery, they were also costly. (48) The United States Chamber Institute for Legal Reform's recent study on the costs and compensation of the U.S. tort system examined the overall cost of litigation, including compensation actually paid to plaintiffs. (49) In 2016, the costs and compensation paid in the tort system amounted to $429 billion or 2.3% of the U.S. gross domestic product ("GDP"). (50) Further, the study estimated that 57% of tort system costs were paid in compensation to plaintiffs and the remaining 43% covered the cost of litigation, insurance expenses, and risk transfer costs. (51) In Missouri specifically, the tort cost per household was $3099, or 2.5% of the state's GDP, which is only slightly below the national average of $3329 per household. (52) The study presents clear evidence of the high cost of litigation. (53) Proponents of streamlining discovery rules to bring them more in line with the FRCP contend that these changes are one way to bring more efficiency to litigation and ultimately bring down the costs for everyone involved. (54)

      Further, at a congressional hearing in 2011 to discuss proposed amendments to further limit the scope of discovery, Thomas Hill, counsel for General Electric ("GE"), argued that companies waste millions of dollars to preserve and produce information for claims that may never...