Supreme Court of Missouri
en banc

In re:

(1) Repeal of subdivision (b) of subdivision 17.03, entitled "Referral, Notification and Appointment," of Rule 17, entitled "Alternative Dispute Resolution," and in lieu thereof adoption of a new subdivision (b) of subdivision 17.03, entitled "Referral, Notification and Appointment."

(2) Repeal of subdivision 43.01(b), entitled "Service on Attorney," of Rule 43, entitled "Service of Pleadings and Other Papers," and in lieu thereof adoption of a new subdivision 43.01(b), entitled "Service on Attorney."

(3) Repeal of subdivision 56.01(b)(4), entitled "Trial Preparation: Experts," of Rule 56, entitled "General Provisions Governing Discovery," and in lieu thereof adoption of a new subdivision 56.01(b)(4), entitled "Trial Preparation: Experts."

(4) Repeal of subdivision (a) of subdivision 84.035, entitled "Appeals from Orders Granting or Denying Class Certification," of Rule 84, entitled "Procedure in All Appellate Courts," adoption of a new subdivision (a) and a new subdivision (j) of subdivision 84.035, entitled "Appeals from Orders Granting or Denying Class Certification."

(5) Correction of reference to "The defenses specifically enumerated (1) - (12) in subdivision (a)" contained in subdivision 55.27(c), entitled "Preliminary Hearings," of Rule 55, entitled "Pleadings and Motions."




1.  It is ordered that effective January 1, 2009, subdivision 17.03(b) of Rule 17 be and the same is hereby repealed and a new subdivision 17.03(b) adopted in lieu thereof to read as follows:

17.03  REFERRAL, NOTIFICATION AND APPOINTMENT

(b) If counsel for any party, after conferring with their respective clients, all other attorneys, and unrepresented parties, conclude that referral to alternative dispute resolution has no reasonable chance of being productive, they may opt out by so advising the court, in writing, within thirty days before the deadline to begin the alternative dispute resolution.  The matter shall not thereafter be referred by the court to alternative dispute resolution absent compelling circumstances, which shall be set out by the court in any order referring the matter to alternative dispute resolution.

2.  It is ordered that effective January 1, 2009, subdivision 43.01(b) of Rule 43 be and the same is hereby repealed and a new subdivision 43.01(b) adopted in lieu thereof to read as follows:

43.01 SERVICE OF PLEADINGS AND OTHER PAPERS

(b) Service on Attorney.  Whenever under these rules or any of the statutes of this state service is required or permitted to be made upon a party represented by an attorney of record, the service shall be made upon the attorney unless service upon the party is ordered by the court.  When a party is represented by more than one attorney, service may be made upon any such attorney.  If an attorney has filed a notice of limited appearance for an otherwise self-represented person, service shall be made on the self-represented person and not on the attorney unless the attorney acting within the scope of limited representation serves the other party or the other party's attorney with a copy of the notice of limited appearance setting forth a time period within which service shall be upon the attorney.

3.  It is ordered that effective January 1, 2009, subdivision 56.01(b)(4) of Rule 56 be and the same is hereby repealed and a new subdivision 56.01(b)(4) adopted in lieu thereof to read as follows:

56.01  GENERAL PROVISIONS GOVERNING DISCOVERY

(b) Scope of Discovery.  Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

(4) Trial Preparation: Experts.  Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of Rule 56.01(b)(1) and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

(A) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial by providing:

(i) Such expert’s name, address, occupation, place of employment and qualifications to give an opinion.  If the expert’s curriculum vitae contains this information, the information may be provided by attaching a copy of the expert’s curriculum vitae to the interrogatory answers;

(ii) The general nature of the subject matter on which the expert is expected to testify;

(iii) A list of the expert’s publications with sufficient information to permit the publications to be located, including the title, name of publisher, and date of each publication;

(iv) court name, cause number, parties’ names and the name and address of the retaining law firm for all cases in which the expert has testified in court, testified by deposition or within the past forty-eight months has given a report pursuant to Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure:

(v) the amount the retaining lawyer, the retaining law firm and the retaining party in the aggregate paid the expert and the expert’s consulting firm during the past forty-eight months;

(vi) The terms of the compensation agreement with the expert, including the amount to be paid to the expert; and

(vii) The expert’s hourly deposition fee.

(B) A party may discover through a deposition the facts and opinions to which the expert is expected to testify and information relevant to the expert’s bias and credibility.  All documents prepared, reviewed or received by the expert in the case, shall be produced at the beginning of the expert’s deposition.  Unless manifest injustice would result, the court shall require that the party seeking discovery from an expert pay the expert a reasonable hourly fee for the time such expert is deposed.

(C) The trial court may authorize production of additional material only for good cause shown and specifically set forth in the order authorizing production.

4.  It is ordered that effective January 1, 2009, subdivision 84.035(a) of Rule 84 be and the same is hereby repealed and a new subdivision 84.035(a) and a new subdivision 84.035(j) adopted to read as follows:

84.035  APPEALS FROM ORDERS GRANTING OR DENYING CLASS CERTIFICATION

(a) A party seeking permission to appeal from an order granting or denying class action certification shall file a petition for permission to appeal with the court of appeals within ten days of the entry of the order of which the party complains.

(j) If the petition to appeal is denied, further review, if any, of the trial court’s order granting or denying class action certification shall be by petition for original remedial writ filed directly in this Court.

5.  It is further ordered that effective July 1, 2008, the reference to: "The defenses specifically enumerated (1) - (12) in subdivision (a)" contained in subdivision 55.27(c) of Rule 55 be changed to refer to: "The defenses specifically enumerated (1) - (11) in subdivision (a)".

6.  It is further ordered that notice of this order be published in the Journal of The Missouri Bar.

7.  It is further ordered that this order be published in the South Western Reporter.

Day – to – Day

_____________________________
MARY R. RUSSELL
Acting Chief Justice