Legal Memorandum: Production of Documents and Things for Inspection

Issue: Do the Missouri Rules of Civil Procedure require the transfer of possession of the item in controversy in a lawsuit or do the rules contemplate it is sufficient to provide an opportunity to inspect?

Older Missouri cases have interpreted Mo. R. Civ. P. 58.01 to prohibit a transfer of possession when the item requested was the actual tangible object at issue in the litigation.  For example, in State ex rel. Emge v. Corcoran, 468 S.W.2d 724 (Mo. Ct. App. 1971), the trial court ordered a party to deliver its original books and records to the opposing party.  In vacating the order, the court of appeals held that the word “produce” as used in Rule 58.01 is not another way of saying “turn over” or “give.”  Id. at 725-26.  “The rule contemplates that the possession, custody and control shall remain in the party producing, and the moving party shall have the opportunity to inspect. . . .  The rule does not contemplate that the moving party shall receive the possession, custody or control of the thing produced.”  Id.  Two other cases also hold that the actual object at issue in the litigation cannot be transferred to the opposing party under Rule 58.01.  See State ex rel. State Farm Mut. Auto. Ins. Co. v. Rickhoff, 509 S.W.2d 485 (Mo. Ct. App. 1974) (manufacturer of allegedly defective carburetor, was not entitled to have carburetor from plaintiffs’ car sent to Michigan for examination by manufacturer’s engineers); State ex rel. Crawford v. Moody, 477 S.W.2d 438 (Mo. Ct. App. 1972) (writ granted to prohibit trial judge from ordering defendants to deliver to plaintiffs who were injured in explosion allegedly caused by leaky gas pipe,  when pipe ran through […]