Legal Memorandum: Production of Documents and Things for Inspection

Issue: Do the Rules of Civil Procedure provide a framework within which a party may be required to produce exemplars of a product or product component (not the actual product which is the subject of the litigation) upon request of an opposing party?

Rule 58.01(a)(1) provides that “[a]ny party may serve on any other party a request to produce and permit the party making the request . . . to inspect and copy, test, or sample any tangible things that constitute or contain matters within the scope of Rule 56.01(b) and that are in the possession, custody or control of the party upon whom the request is served . . . .”  Mo. R. Civ. P. 58.01(a)(1) (emphasis added). 

The first part of Rule 58.01(a)(1) specifically authorizes a party to request another party to produce “tangible things that constitute or contain matters within the scope of Rule 56.01(b)” and specifically permits a requesting party to “. . . test, or sample” any discoverable “tangible things.”  Mo. R. Civ. P. 58.01(a)(1).  No Missouri case was found involving a request for exemplars—samples—of an allegedly defective product or part.*FN1  Thus, it cannot be said that the plain language of Rule 58.01 forbids a court from requiring exemplars—as opposed to the actual item at issue in the litigation—to be produced and turned over.   

FOOTNOTES

*FN1 No Missouri state cases addressing a motion to compel production of an exemplar or sample, or a motion for a protective order to preclude production, were located.  The case of State v. Stewart, 18 S.W.3d 75 (Mo. App. E.D. 2000), involved a criminal defendant’s request for a blood sample taken from the victim of an assault—injection with blood tainted with HIV—shortly […]