Evidence – Discovery – Kansas

Note: This summary is not intended to be an all inclusive summary of discovery law in Kansas, but does include basic and other information.

Definitions

Discovery: A procedure designed to allow disclosure of information between Plaintiffs and Defendants. Written questions, oral questioning, document production and admissions requests are generally allowed. Discovery was designed to to prevent trial by ambush.

Interrogatories: Written questions from Plaintiff to Defendant, or from Defendant to Plaintiff. The questions are mailed to the Plaintiff, Defendant or the attorney for response in writing. The answers or responses are usually due between 20-30 days.

Deposition: A procedure where verbal questions are asked a Plaintiff or Defendant for immediate response. Depositions are usually recorded by a court reporter, who swears the person to tell the truth before questioning begins.

Production of Documents: The method of obtaining documents from the other party relevant to the case such as all documents a party intends to introduce at trial.

Requests for Admissions: Written questions where you request the other party to admit or deny some relevant fact.

Objections: Objections may be made to all discovery questions if the questions are not relevant, or likely to lead to the discovery of relevant evidence.

Civil Procedure Rules: Virtually all states have adopted a version of civil procedure rules which include rules dealing with discovery.

Kansas Rules of Civil Procedure

The Kansas Rules of Civil Procedure are contained in Article 2 of the Kansas Statutes. The discovery rules are specifically found in Chapter 60-226 through Chapter 60-237. The discovery rules also apply in divorce actions.

Discovery Methods: Parties may obtain discovery by one or more of the following methods: Depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property under K.S.A. 60-234, subsection (a)(1)(C) of K.S.A. 60-245 or 60-245a and amendments thereto, for inspection and other purposes; physical and mental examinations; and requests for admission. Rule 60-226(a)

Scope: Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

In general: Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Except as permitted under subsection (b)(4), a party shall not require a deponent to produce, or submit for inspection, any writing prepared by, or under the supervision of, an attorney in preparation for trial.

The frequency or extent of use of the discovery methods otherwise permitted under the rules of civil procedure shall be limited by the court only if it determines that:

(A) The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome or less expensive;

(B) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or

(C) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation and the importance of the proposed discovery in resolving the issues. The court may act upon its own initiative after reasonable notice or pursuant to a motion nder subsection (c). Rule 60-226(b).

Experts:
(A) A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If a disclosure from the expert is required under subsection (b)(6), the deposition shall not be conducted until after the disclosure is provided.

(B)A party, through interrogatories or by deposition, may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in K.S.A. 60-235 and amendments thereto or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

(C) Unless manifest injustice would result,

(i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under this subsection; and

(ii) with respect to discovery obtained under subsection (b)(5)(B) the court shall require, the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.

Disclosure of expert testimony.

(A)A party shall disclose to other parties the identity of any person who may be used at trial to present expert testimony.

(B)Except as otherwise stipulated or directed by the court, this disclosure, with respect to a witness (i) whose sole connection with the case is that the witness is retained or specially employed to provide expert testimony in the case or (ii) whose duties as an employee of the party regularly involve giving expert testimony, shall state the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

(C) These disclosures shall be made at the times and in the sequence directed by the court. In the absence of other directions from the court or stipulation by the parties, the disclosures shall be made at least 90 days before the trial date or the date the case is to be ready for trial or, if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under paragraph (b)(6)(B), within 30 days after the disclosure made by the other party. The party shall supplement these disclosures when required under subsection (e)(1).

(D)Unless otherwise ordered by the court, all disclosures under this subsection shall be made in writing, signed and served. Such disclosures shall be filed with the court in accordance with subsection (d) of K.S.A. 60-205 and amendments thereto.

Rule 60-226(b)(4)

Sequence and timing of discovery: Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party’s discovery. Rule 60-226(d)

Supplementation of responses: A party who has made a disclosure under subsection (b)(6) or responded to a request for discovery is under a duty to supplement or correct the party’s disclosure or response to include information thereafter acquired if ordered by the court or in the following circumstances:

(1)A party is under a duty to supplement at appropriate intervals its disclosures under subsection (b)(6) if the party learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. With respect to testimony of an expert under subsection (b)(6) the duty extends both to information contained in the disclosure and to information provided through a deposition of the expert, and any additions or other changes to this information shall be disclosed at least 30 days before trial, unless otherwise directed by the court.

(2)A party is under a duty seasonably to amend a prior response to an interrogatory, request for production or request for admission if the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. Rule 60-226(e)

Depositions

Before Whom Depositions May Be Taken: Depositions may be taken in this state before any officer or person authorized to administer oaths by the laws of this state.

Without the state but within the United States, or within a territory or insular possession subject to the dominion of the United States, depositions shall be taken before an officer authorized to administer oaths by the laws of the place where the examination is held, or before a person appointed by the court in which the action is pending. A person so appointed has power to administer oaths and take testimony.

Rule 60-228

Stipulations: Unless the court orders otherwise, the parties may by written stipulation (1) provide that depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions, and (2) modify the procedures provided by these rules for other methods of discovery, except that stipulations extending the time provided in K.S.A. 60-233, 60-234 and 60-236 for responses to discovery may be made only with the approval of the court. Rule 60-229

A party may take the testimony of any person, including a party, by deposition upon oral examination without leave of court except as provided in paragraph (2). The attendance of witnesses may be compelled by subpoena as provided in K.S.A. 60-245 and amendments thereto.

A party must obtain leave of court, which shall be granted to the extent consistent with the principles stated in subsection (b)(2) of K.S.A. 60-226 and amendments thereto, if the person to be examined is confined in prison or if, without written stipulation of the parties:

(A)The person to be examined already has been deposed in the case;

(B)a party seeks to take a deposition of a nonparty before the time specified in subsection (b) of K.S.A. 60-216 and amendments thereto, unless the notice contains a certification, with supporting facts, that the person to be examined is expected to leave Kansas and be unavailable for examination in Kansas unless deposed before that time; or

(C)the plaintiff seeks to take a deposition of a party, or a deposition of a nonparty in an action in which a case management conference has not been scheduled under subsection (b) of K.S.A. 60-216 and amendments thereto, prior to the expiration of 30 days after service of the summons and petition upon any defendant or service made under k.S.A. 60-301 et seq., and amendments thereto, unless (i) a defendant has served a notice of taking deposition or otherwise sought discovery or (ii) the notice contains a certification, with supporting facts, that the person to be examined is expected to leave Kansas and be unavailable for examination in Kansas unless deposed before expiration of the 30-day period. 60-230(a)

(1) A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs. If a subpoena duces tecum is to be served on the person to be examined, a designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice.

(2) The parties may stipulate in writing or the court may upon motion order that the testimony at a deposition be recorded by other than stenographic means. The stipulation or order shall designate the person before whom the deposition shall be taken, the manner of recording, preserving and filing the deposition, and may include other provisions to assure that the recorded testimony will be accurate and trustworthy. A party may arrange to have a stenographic transcription made at the party’s own expense. Any objections under subsection (c), any changes made by the witness, the signature identifying the deposition as the signature of the witness or the statement of the officer that is required by subsection (e) if the witness does not sign and the certification of the officer required by subsection (f) shall be set forth in writing to accompany a deposition recorded by nonstenographic means.

(3)Unless otherwise agreed by the parties, a deposition shall be conducted before an officer appointed or designated under K.S.A. 60-228 and amendments thereto, and shall begin with a statement on the record by the officer that includes: (A) The officer’s name and business address; (B) the date, time and place of the deposition; (C) the name of the deponent; (D) the administration of the oath or affirmation to the deponent; and (E) an identification of all persons present. If the deposition is recorded other than stenographically, the officer shall repeat items (A) through (C) at the beginning of each unit of recorded tape or other recording medium. The appearance or demeanor of deponents or attorneys shall not be distorted through camera or sound-recording techniques. At the end of the deposition, the officer shall state on the record that the deposition is complete and shall set forth any stipulations made by counsel concerning the custody of the transcript or recording and the exhibits, or concerning other pertinent matters. Any deposition which is to be recorded tenographically may also be recorded on videotape, or a comparable medium, by any party by giving notice to the other parties prior to the deposition.

(4)The notice to a party deponent may be accompanied by a request made in compliance with K.S.A. 60-234 and amendments thereto for the production of documents and tangible things at the taking of the deposition. The procedure of K.S.A. 60-234 and amendments thereto shall apply to the request.

(5)A party may in the notice and in a subpoena name as the deponent a public or private corporation or a partnership, association or governmental agency and designate with reasonable particularity the matters on which examination is requested. The named organization shall designate one or more officers, directors, managing agents or other persons who consent to testify on its behalf and may set forth, for each person designated, the matters on which the person will testify. A subpoena shall advise a nonparty organization of its duty to make such a designation. The designated persons shall testify as to matters known or reasonably available to the organization. This subsection does not preclude taking a deposition by any other procedure authorized in these rules.

(6)The parties may stipulate in writing or the court may upon motion order that a deposition be taken by telephone or other remote electronic means. For the purposes of this section and subsection (c) of K.S.A. 60-226, subsection (a) of K.S.A. 60-228, subsection (a)(1) of K.S.A. 60-237, subsection (b)(1) of K.S.A. 60-237 and subsection (a)(2) of K.S.A. 60-245 and amendments thereto, a deposition taken by telephone or other remote electronic means is taken in the district and at the place where the deponent answers questions. Rule 60-230(b)

Interrogatories

(a) Any party may serve upon any other party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership, association or governmental agency, by any officer or agent, who shall furnish such information as is available to the party. Interrogatories, without leave of court, may be served upon the plaintiff after commencement of the action and upon any other party with or after service of process upon that party.

(b)

(1) Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the objecting party shall state the reasons for objection and shall answer to the extent the interrogatory is not objectionable.

(2) The answers are to be signed by the person making the answers, and the objections signed by the attorney making the objections.

(3) The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections if any, within 30 days after the service of the interrogatories, except that a defendant may serve answers or objections within 45 days after service of process upon that defendant. The court may allow a shorter or longer time.

(4) All grounds for an objection to an interrogatory shall be stated with specificity. Any ground not stated in a timely objection is waived unless the party’s failure to object is excused by the court for good cause shown.

(5) The party submitting the interrogatories may move for an order under subsection (a) of K.S.A. 60-237 and amendments thereto with respect to any objection to or other failure to answer an interrogatory.

(c) Interrogatories may relate to any matters which can be inquired into under subsection (b) of K.S.A. 60-226 and amendments thereto and the answers may be used to the extent permitted by the rules of evidence.

An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pretrial conference or other later time. Rule 60-233

Production

Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on the party’s behalf, to inspect and copy any designated documents (including writings, drawings, graphs, charts, photographs, phono-records and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form), or to inspect and copy, test or sample any tangible things which constitute or contain matters within the scope of subsection (b) of K.S.A. 60-226 and amendments thereto and which are in the possession, custody or control of the party upon whom the request is served; or (2) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing or sampling the property or any designated object or operation thereon, within the scope of subsection (b) of K.S.A. 60-226 and amendments thereto. Rule 60-234(a)

The request, without leave of court, may be served upon the plaintiff after commencement of the action and upon any other party with or after service of process upon that party. The request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place and manner of making the inspection and performing the related acts.

The party upon whom the request is served shall serve a written response within 30 days after the service of the request, except that a defendant may serve a response within 45 days after service of process upon that defendant. The court may allow a shorter or longer time. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested unless the request is

objected to, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified and inspection permitted of the remaining parts. The party submitting the request may move for an order under subsection (a) of K.S.A. 60-237 and amendments thereto with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested. A party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond to the categories in the request. Rule 60-234(b)

Physical and Mental Examinations of Persons

When the mental or physical condition, including the blood group, of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in the party’s custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made. The moving party shall advance the expenses which will necessarily be incurred by the party to be examined.

Rule 60-235(a)

If requested by the party against whom an order is made under subsection (a) or by the person examined, the party causing the examination to be made shall deliver to the party or person making the request a copy of a detailed written report of the examiner, setting out the examiner’s findings, including results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition.

(2)This subsection applies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise. This subsection does not preclude discovery of a report of an examiner or the taking of a deposition of the examiner in accordance with the provisions of any other rule. Rule 60-235(b)

Requests for Admissions

A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of K.S.A. 60-226, and amendments thereto, set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. The request, without

leave of the judge, may be served upon the plaintiff after commencement of the action and upon any other party with or after service of process upon that party. Each matter of which an admission is requested shall be separately set forth. A matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by such party’s attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 45 days after service of process upon the defendant. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify such party’s answer or deny only a part of the matter of which an admission is requested, such party shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless such party states that such party has made reasonable inquiry and that the information known or readily obtainable by such party is insufficient to enable such party to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; such party, subject to the provisions of subsection (c) of K.S.A. 60-237, and amendments thereto, may deny the matter or set forth reasons why such party cannot admit or deny it.

The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the judge determines that an objection is justified, the judge shall order that an answer be served. If the judge determines that an answer does not comply with the requirements of this rule, the judge may order either that the matter is admitted or that an amended answer be served. The judge, in lieu of these orders, may determine that final disposition of the request be made at a pretrial conference or at a designated time prior to trial. The provisions of subsection (a) of K.S.A. 60-237, and amendments thereto, apply to the award of expenses incurred in relation to the motion. Rule 60-236

Compel Discovery

Motion for order compelling disclosure or discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling disclosure or discovery as follows:

(1) Appropriate court. An application for an order to a party may be made to the court in which the action is pending, or, on matters relating to a deposition, to the judge in the district where the deposition is being taken. An application for an order to a deponent who is not a party shall be made to the judge in the district where the deposition is being taken.

(2)Motion.

(A) If a party fails to make a disclosure required by subsection (b)(6) of K.S.A. 60-226 and amendments thereto, any other party may move to compel disclosure and for appropriate sanctions. The motion shall include a certification that the movant has in good faith conferred or attempted to confer with the party not making the disclosure in an effort to secure the disclosure without court action and shall describe the steps taken by all counsel or unrepresented parties to resolve the issues in dispute.

(B)If a deponent fails to answer a question propounded or submitted under K.S.A.60-230 or 60-231 and amendments thereto, or a corporation or other entity fails to make a designation under subsection (b) of K.S.A. 60-230 or subsection (a) of K.S.A. 60-231 and amendments thereto, or a party fails to answer an interrogatory submitted under K.S.A. 60-233 and amendments thereto, or if a party, in response to a request for inspection submitted under K.S.A. 60-234 and amendments thereto fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. The motion shall include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action and shall describe the steps taken by all counsel or unrepresented parties to resolve the issues in dispute. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order.

(3) Evasive or incomplete disclosure, answer or response. For purposes of this subdivision an evasive or incomplete disclosure, answer or response is to be treated as a failure to disclose, answer or respond. Rule 60-237

Domestic Actions Discovery Notes

If you require extra time to respond to discovery, you should ask the other side for an extension in writing. It may also be necessary to enter an order granting the extension to protect your rights. Discovery questions are limited in number so select the most important questions to ask the other side. Don’t waste your requests writing questions that you already know the answer to.