From – St. Louis Daily Record

May, 14 1999

A St. Louis City local court rule requiring a party in a family law case who propounds interrogatories and requests documents to attach its own responses does not conflict with Missouri Supreme Court rules, the state’s high court said Tuesday in a per curiam opinion.

“The rules of this Court do not address whether the procedure required by the local court rules is permitted or prohibited. The local court rules in this case are not inconsistent with this Court’s rules,” the high court held, explaining its decision to allow the local rules to stand.

The Supreme Court also concluded that the local rules are not unreasonable under the circumstances or unnecessarily burdensome.  “[T]he local court rules in this case do not restrict the discovery authorized by this Court’s rules but merely add reasonable additional requirements that may facilitate the use of the discovery procedure,” the court said. “If a party believes it is not appropriate to require it to provide an answer to proposed interrogatories or produce requested documents, relief may be sought under Rule 56.01 (c).”

The state of Missouri, on behalf of Kathryn Bay and her son, Samuel Bay, argued it should not have to comply with St. Louis local court rules 68.9 and 68:15 when it served interrogatories and requests for production on Samuel Bay’s alleged father in a paternity suit.

The alleged father filed an objection with the trial court because the state’s interrogatories and requests for production did not contain the required reciprocal answers and documents. After considering the matter, St. Louis City Circuit Judge John J. Riley ordered the state to comply with the local rules.

On Tuesday, the Supreme Court’s quashed its preliminary order in prohibition against him.

“If this decision stands, I think it is a dramatic change in the law with regard to discovery in the state of Missouri,” commented St. Louis City Assistant Circuit Attorney Lawrence Pratt, who represented the state in the case. “I think it will substantially change the role of the trial court, mak[ing] it much more active than has traditionally been the case in the state.  I think it will result in the individual parties losing a certain degree of control over the litigation and their ability to plan strategy in the litigation.”

Pratt said he plans to file a motion for reconsideration, relying partly on an 1896 Missouri Supreme court decision that he says he discovered after briefs were submitted to the high court but cited during oral arguments. The Supreme Court did not mention the case, State ex rei. Hoffman vs. Withrow, in its opinion.

“This local rule stops what had been the harassing type of incredibly detailed discovery requests that yielded nothing more than making the other side produce every conceivable paper and answer every conceivable question that is in any way tangentially related to the controversy, countered Michael Stern, who represented the alleged father in the paternity suit.  “It streamlines the process. It says, ‘If it isn’t relevant, then don’t ask it’”.

Stern said he believes the Supreme Court’s decision does not break new ground but “is consistent with a whole line of cases which holds that the local courts are able to establish their own rules for administration purposes as long as they do not conflict with the Supreme Court rules.”

He suggested that the circuit courts that have adopted this procedure — in addition to St. Louis City, where the policy only goes into effect if the parties do not use pattern interrogatories, St. Louis County and Jefferson County prescribe such provisions for family law cases — do so to expedite family law cases, which are supposed to be litigated quickly, and to get both sides to divulge the same information, which usually is appropriate to such cases.

However, Pratt said he does not see a savings of time or expense when parties are forced to object to their own interrogatories or even resort to depositions when they don’t want to answer the questions they pose to the other side.

“People don’t use interrogatories anymore since this local rule came down,” he said. “All the way back to a 1945 case, the court has upheld parties’ right to use interrogatories, and the right is significant because they’re less expensive than depositions and other testimony, and that’s why they exist. And now for all intents and purposes, they can’t be used, or at least many parties feel they can’t be used.”

Local family law attorneys confirmed that the local rules, which were instituted in the last four or five years in the areas where they are in effect, sometimes discourage them from propounding interrogatories.

“I believe it is in some cases more cost-effective to have depositions taken instead of expecting the client to gather all of the documents in interrogatories and production of documents. So we find that we are using depositions more often than we did 10 years ago,” Margo Green, a family law attorney in St. Louis County, remarked on the effect the rules had on her practice.

Marta Papa, another St. Louis County attorney, said “she sees fewer frivolous interrogatory requests since the rules went into effect, but she also sometimes feels forced to present “sloppy lawyers” information on a silver platter. “Sometimes I feel like I’m having to do the other lawyer’s job just so that I can get my job done,” she said.

For disorganized clients and for those who may not want to answer reciprocal cases — for instance, in a divorce proceeding precipitated by an affair — she sometimes uses depositions where she formerly she would have used interrogatories.

Other lawyers see the benefits of the rules. “It’s made me focus,” commented Leigh Joy Carson. In most cases, she said, she would have had to answer her own questions anyway since the other attorney would send her an identical list right back.

Unless the Supreme Court reconsiders its decision, however, such discussions of the rules’ pros and cons will remain theoretical.

The Supreme Court concluded its opinion on such a note, offering a sort of primer on the theory behind modem discovery practices: “Missouri has, for all practical purposes, adopted the federal rules and the modern concept of pre-trial discovery almost verbatim. We have come a long way since the days of the ‘sporting theory of justice.’ Pretrial discovery performs important and legitimate functions. The benefits are numerous: liberal discovery aids in the ascertainment of truth, early disclosure promotes early settlement, surprise is eliminated, issues are narrowed, trial preparation is facilitated, and ‘relevant’ information is obtained. The local rules also serve valuable purposes: they may streamline the discovery process, accommodate local custom, or meet the needs of particular categories of cases.”