Legal Memorandum: Access to Exemplars for Destructive Testing

Issue: Under Missouri law, what are the restrictions on a party’s access to the item that is the subject of its lawsuit when access is being sought for destructive testing?

Mo. R. Civ. P. 58.01(a) is modeled on Rule 34(a) of the Federal Rules of Civil Procedure, but differs in syntax and format.  The current substance of the two rules is largely the same.  Compare Mo. R. Civ. P. 58.01(a) with Fed. R. Civ. P. 34(a).  Thus, cases interpreting federal Rule 34(a) provide guidance for interpreting Missouri Rule 58.01(a).  See Stortz ex rel. Stortz v. Seier, 835 S.W.2d 540, 541 (Mo. App. E.D. 1992) (because Rule 56.01 is modeled on Fed. R. Civ. P. 26(c), “federal precedent . . . is a persuasive guide for the construction of Rule 56.01(c)”).  Cf. State ex rel. State Farm Mut. Auto. Ins. Co. v. Rickhoff, 509 S.W.2d at 488 n.2 (noting that federal Rule 34, as amended in 1970, “is in some respects different” from 1974 version of Missouri Rule 58.01, now repealed, but opinion does not identify how rules differ).

Requesting exemplars for testing is a recognized application of federal Rule 34(a).  “Rule 34(a) has long specified that, in addition to an inspection, a party may request a sample or testing of a tangible thing.”  7 Moore’s Federal Practice § 34.14[6], at 34-94 (3d ed. 2007 as updated) (emphasis added).  For example, in Ostrander ex rel. Ostrander v. Cone Mills, Inc., 119 F.R.D. 417 (D. Minn. 1988), the magistrate judge ordered production of fabric samples, identical to the fabric involved in the lawsuit, in their original condition.  In that case, a toddler was burned by sleepwear that allegedly did not conform […]