Legal Question in Business Law in Missouri

Response to motions

As the plaintiff, is it lawful/permissible for our counsel to request a deposition prior to responding to a defendant's motion for partial summary judgment? It is my wish that before my counsel responds to said motion that we depose/discovery.

Secondly, if the answer to initial question is yes, and should defendant's counsel contend that they cannot produce defendant for deposition prior to the deadline for our response, is it permissible and recommended that my counsel request, from the court, an extension until defendant can be deposed?

Thank you.


Asked on 3/17/05, 12:04 pm

1 Answer from Attorneys
Anthony DeWitt Bartimus, Frickleton Robertson & Gorny, PC

Re: Response to motions

Rule 74.04 (f) provides:

(f) When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that for reasons stated in the affidavits facts essential to justify opposition to the motion cannot be presented in the affidavits, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

In other words, you can file an affidavit that requests additional time for discovery. The affidavit needs to set forth the reasons why summary judgment is inappropriate.

The text of rule 74.04 can be found at:

http://www.courts.mo.gov/courts/ClerkHandbooksP2RulesOnly.nsf/c0c6ffa99df4993f86256ba50057dcb8/a7a3f4b8cda201e986256ca600521571?OpenDocument

Good luck.

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Answered on 3/18/05, 9:16 am


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