MISSOURI RULE OF CIVIL PROCEDURE 57.01(a) AND THE LIMITATION ON INTERROGATORIES

MISSOURI RULE OF CIVIL PROCEDURE 57.01(a) AND

THE LIMITATION ON INTERROGATORIES

 

By:  Heather Rooney McBride and Wayne Michael Jordan, III

 

Question

Was the proposed amendment to Rule 57.01(a) limiting the number of interrogatories that can be propounded on an opposing party formally adopted, and if so, how should it be interpreted?

Legislative History

The 100^th Assembly proposed changes to Rule 57.01 of the Missouri Rules of Procedure, along with four other rules, to limit interrogatories to thirty (30) in January of 2019 by way of Senate Bill 224.[1] DISCOVERY, 2019 Mo. Legis. Serv. S.B. 224 (VERNON’S) (West’s No. 47). The bill was amended to limit interrogatories to twenty-five (25) and passed the Missouri senate on May 17, 2109 and was signed by the Governor on July 10, 2019. Id.

The relevant part of the Rule reads as follows:

57.01. Interrogatories to Parties

(a) Scope. Unless otherwise stipulated or ordered by the court, any party may serve upon any other party no more than 25 written interrogatories, including all discrete subparts. Interrogatories may relate to any matter that can be inquired into under Rule 56.01. An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pretrial conference or other later time.

 

Mo. R. Civ. Pro. 57.01 (emphasis added).

Despite this amendment to Rule 57.01(a), the changes have not been formally ordered by the Supreme Court, as the last order regarding Rule 57.01(a) is dated December 22, 2009 and took effect July 1, 2010. Sup. Ct. Ord. Eff. September 29, 2020.  The Supreme Court did order a change to subsection (b)(1) of Rule 57.03 (another rule that was purportedly changed by Senate Bill 224) regarding depositions upon oral examinations. The Senate Bill’s changes did not affect subsection (b)(1); however, the Supreme Court clarified the last portion to add guidance as to when depositions by telephone may be allowed. Id.

Accordingly, Rule 57.01(a) (as provided and promulgated by the Supreme Court) still technically reads as:

(a) Scope. Any party may serve upon any other party written interrogatories. Interrogatories may relate to any matter that can be inquired into under Rule 56.01. An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pretrial conference or other later time.

 

Mo. R. Civ. Pro. 57.01(a).

Intrastate Conflicts of Law

In Missouri, the approach to resolving conflicts between the rules of civil procedure and legislature-enacted laws is similar to that of the Erie Doctrine which exists in federal law.^[2] The source of law for this approach derives from the Missouri Constitution, Article V Section 5, RSMo § 506.030 (which codifies the language in the Missouri Constitution regarding the power to regulate the rules of procedure), and Rule 41.02 of the Missouri Rules of Civil Procedure.

Article V Section 5 of the Missouri Constitution reads:

The supreme court may establish rules relating to practice, procedure and pleading for all courts and administrative tribunals, which shall have the force and effect of law. The rules shall not change substantive rights, or the law relating to evidence, the oral examination of witnesses, juries, the right of trial by jury, or the right of appeal. The court shall publish the rules and fix the day on which they take effect, but no rule shall take effect before six months after its publication. Any rule may be annulled or amended in whole or in part by a law limited to the purpose.

Mo. Const. art. V, § 5 (emphasis added).

 

Rule 41.02 of the Missouri Rules of Civil Procedure states that “[r]ules 41 to 101, inclusive, are promulgated pursuant to authority granted this Court by Section 5 of Article V of the Constitution and supersede all statutes and existing court rules inconsistent therewith.” Mo. R. Civ. Proc. 41.02.

“The Constitution grants [the Supreme Court the] power to establish rules relating to practice, procedure and pleading for all courts… which shall have the force and effect of law.” State v. Reese, 920 S.W.2d 94, 95 (Mo. banc 1997) (citing Mo. Const. Art. V, §5) (the court in Reese was to decide whether Rule 52.12(a)(1) –affecting the appeals process – was procedural or substantive law and ultimately held that it was procedural law, which was within the Supreme Court’s right to enact). “Article V prohibits the court from changing substantive rights by rule.” State of Missouri ex. rel. Kinsky v. Pratte, 994 S.W.2d 74 (Mo. App. E.D. 1999).

The Missouri Supreme Court’s power to govern procedural matters ceases when the General Assembly specifically annuls or amends rules in bills limited to that purpose. Reese, 920 S.W.2d at 95; see also Mo. Const. Art. V §5. In Reese, the court gives a clear distinction of procedural law versus substantive law, as follows:

Procedural law prescribes a method of enforcing rights or obtaining redress for their invasion; substantive law creates, defines and regulates rights; the distinction between substantive law and procedural law is that substantive law relates to the rights and duties giving rise to the cause of action, while procedural law is the machinery used for carrying on the suit.

 

Id. (quoting Wilkes v. Missouri Highway and Transportation Commission, 762 S.W.2d 27, 28 (Mo. banc 1988) to determine that Rule 52.12(a)(1) was indeed procedural as it didn’t affect the right to appeal but only the method to carry out the process).

 

Resolution of Intrastate Conflicts

To be in accordance with Missouri Constitution, Article V, Section 5, the interpretation of the Supreme Court’s rule (1) must be procedural law and not a limitation on a substantial right, and (2) must not be subsequently amended or annulled by any other law that is passed by the legislature.

The first step is determining whether Rule 57.01 is procedural or substantive. See State v. Reese, 920 S.W.2d at 95.  As with Rule 52.12(a)(1), which was determined to be procedural because it only affected how someone exercised his or her right to appeal, Rule 57.01(a) is very likely a procedural law and not substantive as it does not affect a party’s right to propound interrogatories, but only regulates the process for propounding interrogatories.  See Reese.

The last step is to analyze whether Rule 57.01 was expressly amended or annulled by the legislature and to interpret those changes.  Senate Bill 224 expressly amends Rule 57.01 to include the language that limits interrogatories to 25 unless there is a stipulation between parties or a court order. Because the Missouri Constitution expressly gives the legislature the right to amend Supreme Court rules, this law is presently in effect.

However, the legislature has given no indication of the intended meaning of “no more than 25 written interrogatories, including all discrete subparts” in the form of editorial notes, nor is this discussed in a committee meeting record. As this amendment to the rule is still new and has yet to be litigated, there is no Missouri case law to advise on this issue.

That said, Texas has a similar rule regarding interrogatories, which states “Any party may serve on any other party no more than 25 written interrogatories, excluding interrogatories asking a party only to identify or authenticate specific documents. Each discrete subpart of an interrogatory is considered a separate interrogatory.” Tex. R. Civ. P. 190.3.[3]

Texas courts interprets this language to mean that

Rule 190.3 limits the parties in this case to no more than twenty-five interrogatories. TEX.R. CIV. P. 190.3(b)(3). Although each discrete subpart of an interrogatory is counted as a separate question, “not every separate factual inquiry is a discrete subpart.” TEX.R. CIV. P. 190, cmt. 3; see also Braden v. Downey, 811 S.W.2d 922, 927–28 (Tex.1991). A “discrete subpart” is one that calls for information that is not logically or factually related to the primary interrogatory. TEX.R. CIV. P. 190, cmt. 3.

In re SWEPI L.P., 103 S.W.3d 578, 589 (Tex. App. 2003) (holding that the trial court did not abuse its discretion in finding there were only nineteen interrogatories because the subparts under the interrogatories were related to the main question that was being asked).

Conclusion

Although the Supreme Court has yet to issue an order on the amendments to Rule 57.01, the Senate Bill was properly passed and signed into law by the Governor. The Supreme Court generally governs the rules of civil procedure; however, the legislature retains final authority to annul or amend those rules. Thus, Rule 57.01(a) does effectively and currently limit interrogatories to 25. While the Missouri legislature is silent on its interpretation of “discrete subparts”, Texas’ approach will likely be highly persuasive in allowing related subpart questions that identify facts or documents to be excluded from the limit and not counted as “discrete subparts”.

[1] Rules 56.01, 57.03, 57.04, and 59.01 were also included in this bill.

[2] The Erie Doctrine is a result of Erie Railroad Co. v. Tompkins case, 304 U.S. 64 (1938), which is used to determine whether a rule of civil procedure trumps a statutory rule when they are in conflict.

[3] A Westlaw review of Rule 190 will show a red flag when Shepardizing. The flag shows that a portion of this rule is being amended effective January 1, 2021. Rule 190.3 (the rule which limits interrogatories) is unaffected by the changes that will go into effect.