Supreme Court of Missouri
en banc
June 1, 2021
Effective December 1, 2021
In re:
(1) Repeal of paragraphs [2] and [3] of the Comment of subdivision 4-4.4, entitled "Respect for Rights of Third Persons," of Rule 4, entitled "Rules of Professional Conduct," and in lieu thereof adoption of new paragraphs [2] and [3] of the Comment of subdivision 4-4.4, entitled "Respect for Rights of Third Persons."
(2) Repeal of subdivision (b)(1) of subdivision 54.13, entitled "Personal Service Within the State," of Rule 54, entitled "Issuance and Service of Summons or Other Process," and in lieu thereof adoption of a new subdivision (b)(1) of subdivision 54.13, entitled "Personal Service Within the State."
(3) Repeal of subdivision (a)(1) of subdivision 57.03, entitled "Depositions Upon Oral Examination," of Rule 57, entitled "Interrogatories and Depositions," and in lieu thereof adoption of a new subdivision (a)(1) of subdivision 57.03, entitled "Depositions Upon Oral Examination."
ORDER
1. It is ordered that effective December 1, 2021, paragraphs [2] and [3] of the Comment of subdivision 4-4.4 of Rule 4 be and the same are hereby repealed and new paragraphs [2] and [3] of the Comment of subdivision 4-4.4 are adopted in lieu thereof to read as follows:
4-4.4 RESPECT FOR RIGHTS OF THIRD PERSONS
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COMMENT
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[2] Rule 4-4.4(b) recognizes that lawyers sometimes receive a document or electronically stored information that was mistakenly sent or produced by opposing parties or their lawyers. A document or electronically stored information is inadvertently sent when it is accidentally transmitted, such as when an email or letter is misaddressed or a document or electronically stored information is accidentally included with information that was intentionally transmitted. If a lawyer knows or reasonably should know that such a document or electronically stored information was sent inadvertently, this Rule requires the lawyer to promptly notify the sender in order to permit that person to take protective measures. Whether the privileged status of a document or electronically stored information has been waived is a matter of law beyond the scope of these Rules. Similarly, this Rule does not address the legal duties of a lawyer who receives a document or electronically stored information that the lawyer knows or reasonably should know may have been inappropriately obtained by the sending person. For purposes of this Rule, "document or electronically stored information" includes, in addition to paper documents, email and other forms of electronically stored information, including embedded data (commonly referred to as "metadata"), that is subject to being read or put into readable form. Metadata in electronic documents creates an obligation under this Rule only if the receiving lawyer knows or reasonably should know that the metadata was inadvertently sent to the receiving lawyer. The receiving lawyer has no obligation to look for metadata.
[3] See also Rule 56.01(b)(9)(A)(ii).
2. It is ordered that effective December 1, 2021, subdivision (b)(1) of subdivision 54.13 of Rule 54 be and the same is hereby repealed and a new subdivision (b)(1) of subdivision 54.13 is adopted in lieu thereof to read as follows:
54.13 PERSONAL SERVICE WITHIN THE STATE
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(b) How and on Whom Made. Personal service within the state shall be made as follows:
(1) On Individual. Upon an individual, including an infant or incompetent person not having a legally appointed guardian, by delivering a copy of the summons and petition personally to the individual or by leaving a copy of the summons and petition at the individualꞌs dwelling house or usual place of abode with some person at least 18 years of age residing therein, or by delivering a copy of the summons and petition to an agent authorized by appointment or required by law to receive service of process.
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3. It is ordered that effective December 1, 2021, subdivision (a)(1) of subdivision 57.03 of Rule 57 be and the same is hereby repealed and a new subdivision (a)(1) of subdivision 57.03 is adopted in lieu thereof to read as follows:
57.03 DEPOSITIONS UPON ORAL EXAMINATION
(a) When Depositions May Be Taken.
(1) After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination without leave of court, except as specified in paragraph (2) of this subdivision. The attendance of witnesses may be compelled by subpoena as provided in Rule 57.09. The attendance of a party is compelled by notice as provided in subdivision (b) of this Rule.
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4. It is ordered that notice of this order be published in the Journal of The Missouri Bar.
5. It is ordered that this order be published in the South Western Reporter.
Day – to – Day
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GEORGE W. DRAPER III
Chief Justice