Is This by Consent? Changes to Missouri Supreme Court Rule Affect Use of Non-party Subpoenas

David R. Bohm

By David R. Bohm

Part of a series on issues related to Manufacturers, Distributors and International Trade

Co-authored by David R. Bohm and David A. Zobel

A major change involving subpoenas to non-parties has hit the business world in the state of Missouri.

A new amendment to the Missouri Supreme Court Rules now requires non-party record custodians to physically appear at deposition to produce subpoenaed items, unless all parties to the litigation have agreed that the subpoenaed party may produce the items without appearing.

The amendment changes the prevailing practice where parties send out subpoenas to third parties with a letter explaining that they will be excused from appearing at deposition if they produce the requested items along with what is known as a business records affidavit.

Rule 57.09, as amended, now requires parties to first obtain consent from all other parties to the litigation before a subpoenaed witness may produce documents without attending the deposition. This agreement must be communicated to the witness in writing. Absent this agreement, a witness must appear to produce subpoenaed items at deposition.

What does this mean to you? If you receive a subpoena, you may only produce the documents to the party serving the subpoena without appearing at deposition if that party represents to you in writing (e.g., in a letter) that all other parties have consented to production of the documents without need for you to appear at the deposition. Such a letter should protect you from allegations that you improperly produced records by mail, instead of bringing the documents to the deposition. You do not need to see the actual agreement. If you have any questions as to whether you can simply mail the documents, instead of appearing at deposition, you should either call your attorney for advice or simply wait and bring the documents at the time and place designated in the subpoena.

Additionally, the amendment provides the non-party 10 days to object to the subpoena’s request(s) and a minimum of 10 days to produce the subpoenaed items. If additional time is necessary to produce the subpoenaed documents, you should call the attorney who served the subpoena immediately and ask that the deposition be postponed. Most attorneys will accommodate such a request.

Click here to read Missouri Supreme Court Rule 57.09, as amended.

Please note that this new rule only applies to subpoenas issued in Missouri state court. In federal court, a party can issue a subpoena for production of documents, and unless the subpoena specifically demands that the subpoenaed party appear for the deposition, no appearance is required. See F.R.Civ.P. 45.

Posted by Attorneys David R. Bohm and David A. ZobelBohm is an experienced litigator working with health care, government, and business clients on employment, intellectual property, and complex contract issues. He is also skilled in alternative dispute resolution as a means to solve disagreements without litigation. Zobel primarily represents individuals and corporations in the defense of civil litigation, including contract, negligence, and real estate matters.  In addition to his court room work, Zobel assists in advising clients on contract and employment issues and regarding issues arising under the Sunshine Law.


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