Discovery Deficiency Meet-and-Confer Letter

Discovery Deficiency Meet-and-Confer Letter — Missouri

[FIRM NAME]
[Street Address]
[City, Missouri ZIP]
Telephone: ([____]) [____]-[________]
Facsimile: ([____]) [____]-[________]
Email: [________________________________]

[__/__/____]

VIA [________________________________]
(Email / Certified Mail / Hand Delivery)

[Opposing Counsel Name]
[Law Firm Name]
[Street Address]
[City, State ZIP]

Re: [Case Name], [Court Name], [County] County, Case No. [________________]
Discovery Deficiency — Good Faith Meet-and-Confer Letter
Mo. Sup. Ct. R. 61.01

Dear [Mr./Ms./Mx.] [________________________________]:

I. Purpose of This Letter

This letter is sent pursuant to Missouri Supreme Court Rule 61.01 and constitutes [Requesting Party]'s formal, good-faith effort to resolve identified discovery deficiencies without judicial intervention. Before filing any motion to compel, Mo. Sup. Ct. R. 61.01 requires the moving party to make a good faith effort to confer with the opposing party in an attempt to resolve the dispute without court action. The motion to compel must include a certification of that good-faith effort.

Note on 2021/2022 Missouri Discovery Amendments: Missouri amended its discovery rules, effective January 1, 2022, to modernize certain provisions including ESI-related discovery rules and proportionality principles. These amendments brought Missouri's rules closer to the Federal Rules of Civil Procedure.

PLEASE RESPOND IN WRITING NO LATER THAN [__/__/____] (10 business days from the date of this letter). Failure to respond or to resolve the deficiencies identified herein will result in the filing of a motion to compel accompanied by a request for attorney's fees and costs under Mo. Sup. Ct. R. 61.01.

II. Factual Background

On [__/__/____], [Requesting Party] served the following discovery upon [Responding Party]:

☐ Interrogatories (Set [____]), consisting of [____] interrogatories
☐ Requests for Production of Documents (Set [____]), consisting of [____] requests
☐ Requests for Admission (Set [____]), consisting of [____] requests
☐ Other: [________________________________]

Responses were due on [__/__/____] (30 days after service per Mo. Sup. Ct. R. 57.01(b), 58.01, 59.01).

On [__/__/____], [Responding Party] served responses. Those responses are deficient in the respects identified below.

☐ No response has been received despite the deadline having passed.
☐ Responses were served but are substantively deficient as described below.
☐ An extension was agreed upon; the extended deadline of [__/__/____] has now passed.

III. Missouri Discovery Rules — Applicable Standards

A. Interrogatories (Mo. Sup. Ct. R. 57.01)

• Responses due within 30 days of service (Mo. Sup. Ct. R. 57.01(b))
• Missouri permits service of 30 interrogatories as of right; additional interrogatories require leave of court or agreement of the parties
• Answers must be verified by the party answering (Mo. Sup. Ct. R. 57.01(b))
• Objections must be signed by the attorney and state the grounds with specificity
• Business records option: responding party may produce business records in lieu of an answer where the burden of deriving the answer is substantially the same for both parties

B. Requests for Production (Mo. Sup. Ct. R. 58.01)

• Responses due within 30 days of service (Mo. Sup. Ct. R. 58.01)
• Documents must be produced as they are kept in the usual course of business or organized and labeled to correspond to each category in the request
• Responding party must respond to each specific request, either permitting inspection or objecting with specific grounds
• For ESI, the producing party should produce in a form ordinarily maintained or in a reasonably usable form per the 2022 amendments

C. Requests for Admission (Mo. Sup. Ct. R. 59.01)

• Responses due within 30 days of service (Mo. Sup. Ct. R. 59.01(a))
• Failure to timely respond results in the matter being deemed admitted (Mo. Sup. Ct. R. 59.01(a))
• Denials must specifically deny the matter or set forth in detail reasons why the party cannot truthfully admit or deny
• "Lack of information" response requires a statement that a reasonable inquiry was made
• Admissions are conclusive in the pending case; may be withdrawn or amended by court order upon motion showing good cause

D. Scope of Discovery (Mo. Sup. Ct. R. 56.01(b))

Missouri discovery is broad: parties may obtain discovery of any matter relevant to the subject matter involved in the pending action. The 2022 amendments added proportionality language: discovery must be proportional to the needs of the case.

E. Duty to Supplement (Mo. Sup. Ct. R. 56.01(e))

Mo. Sup. Ct. R. 56.01(e) imposes a duty to supplement interrogatory responses when a party obtains information indicating that a prior response was incorrect when made or is no longer complete and accurate. Failure to supplement may result in exclusion of evidence.

F. Meet-and-Confer Requirement (Mo. Sup. Ct. R. 61.01)

Before seeking judicial intervention, the aggrieved party must make a good-faith effort to confer with the non-compliant party in an attempt to resolve the dispute. The motion to compel must include a certification that the moving party made reasonable efforts to resolve the discovery dispute informally. Courts will scrutinize this certification.

Important: Any failure to act described in Rule 61.01 may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has served timely objections to the discovery request or has applied for a protective order as provided by Mo. Sup. Ct. R. 56.01(c).

IV. Identified Deficiencies — Interrogatories

The following interrogatory responses are deficient:

Specific deficiency types identified (check all that apply):

☐ No Verification — Mo. Sup. Ct. R. 57.01(b) requires interrogatory answers to be verified by the party answering. No verified answers accompany the responses to Interrogatory Nos. [____].

☐ Incomplete Answer — Interrogatory No. [____] asks for [________________________________] but the response provides only [________________________________], omitting [________________________________].

☐ Boilerplate / General Objections — The block of general objections is impermissible. Each objection must be specifically tied to the individual interrogatory and state grounds with specificity.

☐ Improper Overbreadth Objection Without Substantive Response — The objection to Interrogatory No. [____] is not accompanied by any substantive answer. Under Missouri practice, the party must answer to the extent the interrogatory is not objectionable.

☐ Improper Burden Objection Without Factual Support — No factual basis supports the claimed undue burden for Interrogatory No. [____].

☐ Proportionality Objection Unsupported — A bare proportionality objection under Mo. Sup. Ct. R. 56.01(b)(1) without factual support is insufficient for Interrogatory No. [____].

☐ Objection Waived — The objection to Interrogatory No. [____] was not timely served. Under Mo. Sup. Ct. R. 61.01, a failure to act described in Rule 61 may not be excused on grounds of objectionability unless the party failing to act has served timely objections.

☐ Business Records Response Deficient — If using a business records response, the party must specify the records with sufficient detail and confirm the burden is substantially the same for both parties.

☐ Failure to Supplement — Information material to Interrogatory No. [____] has been acquired since the initial response, and [Responding Party] has not supplemented as required by Mo. Sup. Ct. R. 56.01(e).

☐ Other: [________________________________]

V. Identified Deficiencies — Requests for Production

The following requests for production responses are deficient:

Specific deficiency types identified (check all that apply):

☐ Blanket Objections Without Substantive Response — RFP Nos. [____] received only objections with no indication of whether any responsive documents exist or will be produced.

☐ No Privilege Log — Documents are being withheld on privilege grounds for RFP Nos. [____] but no privilege log has been provided. [Responding Party] must identify each withheld document by date, author, recipients, subject matter, and privilege claimed.

☐ Incomplete Production — RFP No. [____] seeks [________________________________], but the production is incomplete because [________________________________].

☐ No Date Certain for Production — The response to RFP No. [____] states that documents are "forthcoming" without specifying a production date. Please confirm a date certain.

☐ Documents Not Organized — Produced documents are not organized as kept in the ordinary course of business and are not labeled to correspond to each specific request, as required by Mo. Sup. Ct. R. 58.01.

☐ ESI Issues — ESI responsive to RFP No. [____] has not been produced or was not produced in a reasonably usable format per the 2022 Missouri discovery amendments. Please propose an ESI production protocol.

☐ Objections Untimely / Waived — The objections to RFP Nos. [____] were not timely served. Under Mo. Sup. Ct. R. 61.01, objectionability does not excuse a failure to act unless timely objections were served.

☐ Other: [________________________________]

VI. Identified Deficiencies — Requests for Admission

The following requests for admission responses are deficient:

Specific deficiency types identified (check all that apply):

☐ Evasive Denial — RFA No. [____] was denied in a manner that does not specifically deny the matter or explain why it cannot be truthfully admitted or denied, as required by Mo. Sup. Ct. R. 59.01(b).

☐ Improper "Lack of Information" Response — RFA No. [____] claims insufficient information without stating that a reasonable inquiry was made, as required by Mo. Sup. Ct. R. 59.01(b).

☐ Improper Objection — The objection to RFA No. [____] is not well-founded.

☐ Deemed Admitted — No response to RFA Nos. [____] was timely served. Those matters are now deemed admitted under Mo. Sup. Ct. R. 59.01(a). Please advise whether [Responding Party] intends to move to withdraw or amend the admissions.

☐ Cost of Proof — Notice Pursuant to Mo. Sup. Ct. R. 59.02 — Should [Responding Party] deny RFA Nos. [____] and [Requesting Party] prove the truth of those matters at trial, [Requesting Party] intends to seek the reasonable expenses of making that proof, including attorney's fees, as permitted by Mo. Sup. Ct. R. 59.02.

☐ Other: [________________________________]

VII. Privilege Log Deficiencies

A complete Missouri privilege log must identify each withheld document:

• Date of the document
• Author(s) and all recipient(s)
• General subject matter (without revealing privileged content)
• Privilege or protection claimed (attorney-client privilege, work-product doctrine, etc.)
• Whether the document is withheld in full or produced in redacted form

☐ No privilege log has been provided despite documents being withheld on privilege grounds.
☐ The privilege log provided is deficient because: [________________________________]
☐ Please provide a complete privilege log by [__/__/____].

VIII. Missouri 2022 ESI Rules

The 2022 Missouri discovery amendments include provisions addressing ESI discovery. Issues identified:

☐ ESI has not been produced in the form in which it is ordinarily maintained.
☐ ESI has not been produced in a reasonably usable form.
☐ No ESI production protocol has been agreed upon for this matter.
☐ The parties should confer regarding ESI sources, formats, and search terms/custodians.

Please confirm the forms in which relevant ESI is maintained and propose an ESI production protocol by [__/__/____].

IX. Demand for Supplementation

[Requesting Party] demands that [Responding Party] serve complete and verified supplemental responses to all deficiencies identified above no later than:

[__/__/____] (the "Supplementation Deadline")

This deadline is [____] business days from the date of this letter.

X. Meet-and-Confer Availability

[Requesting Party] is available to confer by telephone or in person at the following times (all Central Time):

• [__/__/____] at [____:____] [AM/PM]
• [__/__/____] at [____:____] [AM/PM]
• [__/__/____] at [____:____] [AM/PM]

Please contact the undersigned to schedule a conference or to propose alternative times. [Requesting Party] will document the good-faith conference efforts for purposes of the certification required by Mo. Sup. Ct. R. 61.01.

XI. Warning — Motion to Compel and Sanctions

If [Responding Party] fails to serve substantially complete supplemental responses by the Supplementation Deadline, or the parties cannot resolve disputes through the meet-and-confer process, [Requesting Party] will file a Motion to Compel pursuant to Mo. Sup. Ct. R. 61.01.

The motion will include:

1. This letter as evidence of good-faith efforts
2. A certification describing [Requesting Party]'s reasonable efforts to resolve the dispute
3. A request for reasonable attorney's fees and costs under Mo. Sup. Ct. R. 61.01

Sanctions available under Mo. Sup. Ct. R. 61.01:

Under Mo. Sup. Ct. R. 61.01(a)(4), if the motion to compel is granted, the court shall require the party whose conduct necessitated the motion (or the attorney advising the motion) to pay the movant's reasonable expenses including attorney fees, unless the failure was substantially justified or other circumstances make an award unjust. If the motion is granted in part and denied in part, the court may apportion expenses.

Under Mo. Sup. Ct. R. 61.01(b), for failure to comply with a court order:

• Directing that designated facts be taken as established
• Prohibiting [Responding Party] from supporting or opposing designated claims or defenses
• Striking pleadings in whole or in part
• Staying proceedings pending compliance
• Entering a judgment by default against [Responding Party]
• Dismissing the action or any part thereof

Under Mo. Sup. Ct. R. 61.01(d), for failure to appear for deposition or serve interrogatory answers:

• Award of expenses and attorney's fees
• Additional sanctions authorized by Mo. Sup. Ct. R. 61.01(b)(2)(a)-(c)

Important Note on Objectionability: Under Mo. Sup. Ct. R. 61.01, a failure to act in discovery cannot be excused on the ground that the discovery is objectionable unless [Responding Party] has timely served objections to the discovery request or has applied for a protective order under Mo. Sup. Ct. R. 56.01(c). Untimely objections may be deemed waived.

XII. Preservation Reminder

Please confirm that litigation holds remain in place for all potentially relevant documents and ESI, including:

☐ Email and electronic communications
☐ Text messages and instant messages
☐ Documents on shared drives, servers, and cloud storage
☐ Social media communications
☐ Physical documents in [Responding Party]'s possession, custody, or control
☐ Documents held by agents or employees of [Responding Party]

XIII. Certification of Good Faith

This letter constitutes [Requesting Party]'s written record of initiating good-faith efforts to resolve the above-described discovery disputes in accordance with Mo. Sup. Ct. R. 61.01. This letter, along with a description of any subsequent meet-and-confer conference, will be attached to any motion to compel filed in this matter as part of the required good-faith certification.

We look forward to your prompt written response.

Sincerely,

______________________________
[Attorney Name], Missouri Bar No. [____]
[Law Firm Name]
[Address]
[City, Missouri ZIP]
([____]) [____]-[________]
[Email Address]
Counsel for [Party Name]

CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], a true and correct copy of the foregoing Discovery Deficiency Meet-and-Confer Letter was served upon:

[Opposing Counsel Name], [Law Firm], [Address]

☐ Electronic Mail: [________________________________]
☐ U.S. Mail, First Class, Postage Prepaid
☐ Certified Mail, Return Receipt Requested
☐ Hand Delivery
☐ Missouri eService (Missouri eFiling System)

______________________________
[Attorney Name]