Missouri Personal Injury Depositions
Depositions in personal injury lawsuits can become extremely heated. Sometimes depositions get so out of hand it is unclear if the attorneys involved understand proper deposition conduct. For instance, there are certain times when an attorney can make an objection to a question asked by opposing counsel. In addition, there are a few times in a personal injury deposition that an attorney can instruct their client not to answer the question. These tactics are often abused and it turns a fact finding mission into an obstructive nightmare.
Instructing A Client Not To Answer In A Missouri Personal Injury Deposition
The Missouri Rules of Civil Procedure and Missouri Courts dictate the procedure to follow when an attorney instructs his client not to answer a question posed during a Missouri personal injury deposition. Similar to the Federal Rules of Civil Procedure, if a person being deposed refuses to answer a question, the Missouri Rules of Civil Procedure allow a party to file a Motion to Compel. A Motion to Compel is a document that asks the trial court to force a witness to answer a discovery inquiry.
Unlike the Federal Rules of Civil Procedure, however, the Missouri Rules do not neatly outline instances where it is acceptable to inform a client not to answer. The Missouri Rules state, "any matter, not privileged," is discoverable. This is obviously extremely broad and is often a point of contention between opposing counsel. The Missouri Rules do contain a caveat for questions designed to embarrass or harass.
Similar to the Federal Rules, the Missouri Rules allow monetary "sanctions" against the non-moving party if the motion to compel is granted or against the moving party if the motion is denied, after a hearing on the motion. The moving party is the party that files the Motion to Compel. The non-moving party is the party the Motion was filed against.
MISSOURI RULES OF CIVIL PROCEDURE
The Missouri Rules of Civil Procedure allow for discovery regarding "any matter, not privileged, which is relevant to the subject matter involved in the pending action…." (Rule 56.01(b)(1)). Both the Missouri Rules and Federal Rules have avenues to compel discovery and to prevent abuse; however, the terms used to protect a party and person from embarrassment differ. While both rules utilize a "Motion to Compel" discovery, Missouri uses a Protective Order and the Federal Rules use a Motion to Terminate, to prevent harassment or embarrassment.
Missouri Rule 61.01 outlines the proper procedure for dealing with a deponent who refuses to answer deposition questions. Entitled "Failure to Make Discovery: Sanctions", this chapter starts out by stating, "Any failure to act described in this Rule may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has filed timely objections to the discovery request or has applied for a protective order…." (Rule 61.01(a)). Additionally, 61.01(a) states, "an evasive or incomplete answer is to be treated as a failure to answer." Id.
When a witness fails or refuses to answer a question during a Missouri personal injury deposition, "the proponent of the question may move for an order compelling an answer." (Rule 61.01(g)). The deposition can be terminated at that time to apply for an order, or the order can be filed after the deposition is completed. Id.
What Happens If The Court Grants A Motion To Compel?
If the court grants the Motion to Compel, the rules allow the court to force the party or deponent whose conduct necessitated the motion, or the attorney who advised such conduct, or both, to pay the moving parties reasonable expenses. These expenses often include attorneys' fees.
What Happens If The Court Denies A Motion To Compel?
If the court denies the motion, the court can assess the same costs to the moving party at the same discretion. If the motion is denied in part and granted in part, the court may apportion the expenses in a just manner. Failure to comply with an order to compel can lead to a list of consequences including, but not limited to, contempt of court. (Rule 61.01(d)).
What Cases Govern Missouri Depositions?
In McClelland v. Ozenberger, M.D., the court was asked for the first time to interpret Missouri Civil Procedure Rule 56.01(b)(4)(b) and "to determine whether a defendant is required to pay for the reasonable fee of a supplemental deposition of plaintiff's expert, which was ordered because plaintiff's counsel instructed the expert not to answer questions which were later deemed proper." McClelland v. Ozenberger, M.D., 805 S.W.2d 264, 270 (Mo.App. W.D. 1991). Rule 56.01(b)(4)(b) states in pertinent part:
(b) A party may discover by deposition the facts and opinions to which the expert is expected to testify. Unless manifest injustice would result, the court shall require that the party seeking discovery pay the expert a reasonable fee for responding to discovery by deposition.
In McClelland, the defendant deposed the plaintiff's expert witness. On advice of plaintiff's counsel, the witness declined to answer "a number" of questions. Defendant then filed a Motion to Compel and the trial judge ordered the expert to answer the questions in a subsequent deposition. Plaintiff then asked the court to order Defendant to pay for the cost of re-deposing the expert, arguing that Defendant would have had to pay for the time had the expert answered the questions in the first deposition. Although McClelland was later overruled on a different issue, the court held that Plaintiff's request is denied and that Plaintiff had to pay for the subsequent deposition.
In McClelland, the party who was instructed not to answer, by counsel, ended up paying the additional costs of having a completely separate deposition. There is minimal case law in this area, but it is reasonable to infer that Missouri courts would utilize the power they have been granted and assess costs to the parties that blatantly chose not to follow the Missouri Rules of Civil Procedure by remaining silent.
Missouri Personal Injury Deposition Conduct Summary
Although there are slight wording differences in the Missouri and Federal Rules of Civil Procedure, the spirit of both rules regarding depositions are similar. Both Rules seek to prevent discovery abuse while ensuring maximum discovery by insisting the parties answer every properly presented question.
Pursuant to Missouri personal injury law, the deponent is required to answer every question asked by opposing counsel unless the information is privileged or the question was posed to harass or embarrass the deponent. If, during a deposition, the deponent does not answer, or is being instructed not to answer questions that do not fall under the two aforementioned categories, the party seeking an answer may file a Motion to Compel with the trial court.
If the Motion is granted, the court will order the deposed to answer the question and has the discretion to "sanction" the non-moving party, after a hearing, with the costs of the subsequent deposition and attorney's fees. The moving party may terminate the deposition immediately to file the Motion. If, however, the motion to compel is denied, the trial court has the discretion to assess the moving party with the reasonable expenses incurred in opposing the motion, including attorneys' fees.
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