Supreme Court of Missouri
en banc

In re:

(1) Repeal of subdivision 56.01(b)(1), entitled “In General,” of Supreme Court Rule 56, entitled “General Provisions Governing Discovery,” and in lieu thereof adoption of a new subdivision 56.01(b)(1), entitled “In General.”

(2) Repeal of subdivision (1) of subdivision 57.03(b), entitled “Notice of Examination; General Requirements; Special Notice; Production of Documents and Things; Deposition of Organization,” and subdivision 57.09, entitled “Subpoena for Taking Deposition,” and the Committee Note – 1974 thereto, of Supreme Court 57, entitled “Interrogatories and Depositions,” and in lieu thereof adoption of a new subdivision (1) of subdivision 57.03(b), entitled “Notice of Examination: General Requirements; Special Notice; Production of Documents and Things; Deposition of Organization,” and a new subdivision 57.09, entitled “Subpoena for Taking Deposition.”

(3) Repeal of subdivision 69.03, entitled “Juror Note-taking,” of Supreme Court Rule 69, entitled “Trial by Jury,” and in lieu thereof adoption of a new subdivision 69.03, entitled “Juror Note-taking,”

(4) Repeal of subdivision (a)(1) of subdivision 78.07, entitled “After-trial Motion – Allegations of Error Required,” of Supreme Court Rule 78, entitled “New Trials – After-trial Motions – Preservation of Error,” and in lieu thereof adoption of a new subdivision (a)(1) of subdivision 78.07, entitled “After-trial Motion – Allegations of Error Required.”

(5) Correction of the title to subdivision 82.04 of Supreme Court Rule 82.

(6) Correction of subdivision 84.02 of Supreme Court Rule 84.

(7) Correction of subdivision 88.01(b) of Supreme Court Rule 88.01, entitled “Presumed Child Support Amount.”

(8) Correction of Civil Procedure Form No. 4.




1.  It is ordered that effective January 1, 2002, subdivision 56.01(b)(1) of Supreme Court Rule 56 be and the same is hereby repealed and a new subdivision 56.01(b)(1) adopted in lieu thereof to read as follows:

56.01. General Provisions Governing Discovery



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

(1) In General.   Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents or other tangible things and the identity and location of persons having knowledge of any discoverable matter.  
It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
The party seeking discovery shall bear the burden of establishing relevance.



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(2) It is ordered that effective January 1, 2002, subdivision 57.03(b)(1) and subdivision 57.09, and the committee note thereto, of Supreme Court Rule 57 be and the same are hereby repealed and a new subdivision 57.03(b)(1) and a new subdivision 57.09 adopted in lieu thereof to read as follows:

57.03. Depositions Upon Oral Examination



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(b) Notice of Examination: General Requirements; Special Notice; Production of Documents and Things; Deposition of Organization.

(1) A party desiring to take the deposition of any person upon oral examination shall give not less than seven days notice in writing to every other party to the action and to a non-party deponent.  
The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known.  If the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs shall be stated.

If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice.  
A party may attend a deposition by telephone.



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57.09. Subpoena for Taking Deposition

(a) For Attendance of Witnesses; Form; Issuance.   Every subpoena shall:

(1) Be issued by the officer or person before whom depositions may be taken as designated in Rule 57.05 or 57.06 or by the clerk of the court in which the civil action is pending;

(2) State the name of the court and the title of the civil action; and

(3) Command each person to whom it is directed to attend and give testimony at a time and place therein specified.

(b) For Production of Documentary Evidence.  A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein.  
The court may:

(1) Quash or modify the subpoena if it is unreasonable or oppressive, or

(2) Require the party seeking discovery to advance the reasonable cost of producing the books, papers, documents, or tangible things.

(c) Protection of Persons Subject to Subpoenas.  A party shall serve a subpoena for the production of documentary evidence on a non-party not less than seven days before the time specified for compliance.
A party or attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a non-party subject to the subpoena.
A non-party commanded to produce and permit inspection and copying may serve the party seeking discovery with a written objection to inspection and copying of any or all of the designated materials.  The objection shall state specific reasons why the subpoena should be quashed or modified.

The objection shall be served on all parties to the action within ten days after service of the subpoena or before the time specified for compliance, whichever is earlier.
If a timely and specific objection is made, the party seeking discovery shall not be entitled to inspect and copy the materials except pursuant to an order of the court.
Upon notice to the non-party commanded to produce, the party seeking discovery may move at any time for an order to compel production.

(d) Service.  A subpoena may be served by:

(1) The sheriff or a sheriff's deputy, or

(2) Any other person who is not a party and is not less than eighteen years of age.
 
Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and by tendering to that person the fees and mileage the witness would have been entitled to receive for attending court pursuant to subpoena.

(e) Authorization to Issue Subpoena.  Proof of service of a notice to take a deposition as provided in Rules 57.03 and 57.04 is sufficient to authorize the issuance of a subpoena for taking a deposition.

(f) Contempt.  Any person who without adequate excuse fails to obey a subpoena served upon the person may be held in contempt of the court in which the civil action is pending.

3.  It is ordered that effective January 1, 2002, subdivision 69.03 of Supreme Court Rule 69 be and the same is hereby repealed and a new subdivision 69.03 adopted in lieu thereof to read as follows:

69.03. Juror Note-taking

Upon the court's own motion or upon the request of any party or juror, the court shall permit jurors to take notes.  If jurors are permitted to take notes, the court shall supply each juror with suitable materials.  
Jurors shall not take their notes out of the courtroom except to use their notes during deliberations.  
The court shall collect all juror notes immediately before discharge of the jury.  
After the jury is discharged, the court shall destroy the notes promptly without permitting their review by the court or any other person.  
Juror notes shall not be used to impeach a verdict.

4.  It is ordered that effective January 1, 2002, subdivision 78.07(a)(1) of Supreme Court Rule 78 be and the same is hereby repealed and a new subdivision 78.07(a)(1) adopted in lieu thereof to read as follows:

78.07. After-trial Motion – Allegations of Error Required

(a) In jury tried cases, other than cases tried with an advisory jury:

(1) Except as otherwise provided in this Rule 78.07(a)(1), allegations of error must be included in a motion for a new trial in order to be preserved for appellate review.  
The following matters need not be included in such motion to preserve the allegations of error:


(A) Error relating to the form or language of the judgment;

(B) Questions of jurisdiction over the subject matter;

(C) Questions as to the sufficiency of the pleadings to state a claim or defense;

(D) Questions presented in motions for judgment under Rule 72.01(b); and

(E) Questions relating to motions for directed verdict that are granted at trial.

Where definite objections or requests were made during the trial in accordance with Rule 78.09, including specific objections to instructions, a general statement in the motion of any allegations of error based thereon is sufficient.
Allegations of error based on matters occurring or becoming known after final submission to the court or jury shall be stated specifically.



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5.  It is ordered that effective January 1, 2002, the title to subdivision 82.04 of Supreme Court Rule 82 be and the same is hereby corrected so that as corrected said title shall read:

82.04 Compliance With Requests of State Courts
Administrator for Information.

6.  It is ordered that effective January 1, 2002, subdivision 84.02 of Supreme Court Rule 84 be and the same is hereby corrected so that as corrected the number “188.028.2(6)” shall be deleted and the number “188.028.2(5)” shall be inserted in lieu thereof.

7.  It is ordered that effective January 1, 2002, subdivision 88.01(b) of Supreme Court Rule 88 be and the same is hereby corrected so that as corrected the number “73.01(a)(3)” shall be deleted and the number “73.01(c)” shall be inserted in lieu thereof.

8.  It is ordered that effective January 1, 2002, Civil Procedure Form No. 4 be and the same is hereby corrected so that as corrected the number “54.16” shall be deleted and the number “54.12” shall be inserted in lieu thereof.

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

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

Day - to - Day

_______________________
WILLIAM RAY PRICE, JR.
Chief Justice