Evidence – Discovery – Kentucky

Note: This summary is not intended to be an all inclusive summary of discovery law in Kentucky, 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.

Kentucky Rules of Civil Procedure

Kentucky has adopted the Kentucky Rules of Civil Procedure which contain rules governing discovery. 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, for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise under Rule 26.03, the frequency of use of these methods is not limited.

Rule 26.01

Scope: 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. Rule 26.02

Experts: Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of paragraph (1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

(a) (i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (ii) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to paragraph (4)(c) of this rule, concerning fees and expenses as the court may deem appropriate.

(b) A party 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 Rule 35.02 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 paragraphs (4)(a)(ii) and (4)(b) of this rule; and (ii) with respect to discovery obtained under paragraph (4)(a)(ii) of this rule the court may require, and with respect to discovery obtained under paragraph (4)(b) of this rule 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. Rule 26.02(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 26.04

Supplementation of Responses: A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows:

(a) A party is under a duty seasonably to supplement his response with respect to any question directly addressed to (i) the identity and location of persons having knowledge of discoverable matters, and (ii) the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony.

(b) A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which (i) he knows that the response was incorrect when made, or (ii) he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.

(c) A duty to supplement responses may be imposed by order of the court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses. Rule 26.05

Depositions

Before Whom Depositions May Be Taken: Depositions taken in this state, to be used in its courts, shall be taken before an examiner; a judge, clerk, commissioner or official reporter of a court; a notary public; or before such other persons and under such other circumstances as shall be authorized by law. Rule 28.01

Depositions may be taken out of this state before a commissioner appointed by the governor of the state where taken; or before any person empowered by a commission directed to him by consent of the parties or by order of the court; or before a judge of a court, a justice of the peace, mayor of a city, or notary public; or before such persons and under such other circumstances as shall be authorized by the law of this state or the place where the deposition is taken. Rule 28.02

A party desiring to take depositions in this state to be used in proceedings outside this state, may produce to a judge of the district court of the district in which the witness resides a commission authorizing the taking of such depositions or proof of notice duly served; whereupon it shall be the duty of the judge to issue, pursuant to Rule 45, the necessary subpoenas. Orders of the character provided in Rule 45.02 may be made upon proper application therefor by the person to whom such a subpoena is directed. Failure by any person without adequate excuse to obey a subpoena served upon him pursuant to this rule may be deemed a contempt of the court from which the subpoena issued. Rule 28.03

Stipulations: Unless the court orders otherwise, the parties may by written stipulation (a) 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 (b) modify the procedures provided by these Rules for other methods of discovery, except that stipulations extending the time provided in Rules 33.01, 34.02 and 36.01 for responses to discovery may be made only with the approval of the court. Rule 29

After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of court, granted with or without notice, must be obtained only if the plaintiff seeks to take a deposition prior to the expiration of 30 days after service of the summons upon any defendant, except that leave is not required (a) if a defendant has served a notice of taking deposition or otherwise sought discovery, or (b) if special notice is given as provided in Rule 30.02(2). The attendance of witnesses may be compelled by subpoena as provided in Rule 45. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. Rule 30.01

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 him or the particular class or group to which he belongs. If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice.

(2)

(a) Leave of court is not required for the taking of a deposition by plaintiff if the notice (i) states that the person to be examined is about to go out of the state and will be unavailable for examination unless his deposition is taken before expiration of the 30-day period, and (ii) sets forth facts to support the statement. The plaintiff’s attorney shall sign the notice, and his signature constitutes a certification by him that to the best of his knowledge, information, and belief the statement and supporting facts are true. The sanctions provided by Rule 11 are applicable to the certification.

(b) If a party shows that when he was served with notice under subparagraph (a) of this paragraph (2) he was unable through the exercise of diligence to obtain counsel to represent him at the taking of the deposition, the deposition may not be used against him.

(3) The court may for cause shown enlarge or shorten the time for taking the deposition.

(4) Videotaped depositions may be taken in pending actions and shall be taxed as costs. Notice to take depositions shall be in accordance with the Rules of Civil Procedure. At the deposition the videotape recorder shall be operated by a person qualified to operate such recording equipment, who is to mark the recording with the style and number of the action and the name of the witness and to file a certificate which identifies the said recording.

Video depositions shall be taken under the following conditions:

(a) The party noticing the deposition shall provide the operator with a copy of this rule. At the beginning of the taping of the deposition, the operator of the video camera will focus on each attorney, party and witness present at the taking of the deposition, and such person shall be identified; or the operator may read a statement introducing by name parties to the litigation and the attorneys present without focusing on each person, at the election of the noticing party.

(b) The camera will remain stationary at all times during the deposition and will not “zoom” in or out on the witness excepting those times during the deposition when the witness is displaying, for the jury’s viewing, exhibits or other pieces of demonstrative proof that can only be fairly and reasonably seen on the videotape by use of the camera “zooming” in on said evidence. The purpose of this clause is so that the camera will not “zoom” in on a witness solely to give unfair or undue influence upon the words of the witness, and does not apply to the “zooming” in for other purposes described above.

(c) A stenographic transcript, in addition to the videotape recording, will not be necessary. Any party desiring same may obtain it at that party’s cost.

(d) The videotape itself will be kept in the possession of the attorney taking the deposition and will be available for the Court and any and all counsel to compare the stenographic transcript, if any, with the videotape transcript to view or to copy said videotape. If discrepancies appear between the stenographic transcript, if any, and the videotape recording, the discrepancies will be resolved by agreement of counsel or ruling of the Court if counsel cannot agree. The decision on the manner in which to handle the discrepancies, insofar as the videotape is concerned, will be included in the agreement of counsel or ruling of the Court.

(e) All objections will be reserved and shall not be stated on the videotape except for objections relating to the form of the question. Objections to testimony on the videotape and the ruling thereof will be resolved by agreement of counsel or ruling of the Court if counsel cannot agree. All objections relating to said depositions must be made at least 10 days before trial. An edited version shall be presented at trial.

(f) Admissibility of the tape may be objected to by any counsel if a review of the finished tape reveals any technical errors giving undue influence to the testimony of the witness which would unfairly prejudice the side objecting; or if the general technical quality of the tape is so poor that its being viewed by the jury would be unfairly prejudicial to the side so objecting.

(5) The notice to a party deponent may be accompanied by a request made in compliance with Rule 34 for the production of documents and tangible things at the taking of the deposition. The procedure of Rule 34.02 shall apply to the request.

(6) A party may in his notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which he will testify. A subpoena shall advise a non-party organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This paragraph (6) does not preclude taking a deposition by any other procedure authorized in these rules. Rule 30.02

Interrogatories

(1) 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 or association or governmental agency, by any officer or agent, who shall furnish such information as is available to the party. Interrogatories may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons upon that party.

(2) Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections signed by the attorney making them. 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 the summons upon that defendant. The court may allow a shorter or longer time. The party submitting the interrogatories may move for an order under Rule 37.01 with respect to any objection to or other failure to answer an interrogatory.

(3) Each party may propound a maximum of thirty (30) interrogatories and thirty (30) requests for admission to each other party; for purposes of this Rule, each subpart of an interrogatory or request shall be counted as a separate interrogatory or request. The following shall not be included in the maximum allowed: interrogatories requesting (a) the name and address of the person answering; (b) the names and addresses of the witnesses; and (c) whether the person answering is willing to supplement his answers if information subsequently becomes available. Any party may move the court for permission to propound either interrogatories or requests for admission in excess of the limit of thirty (30). Rule 33.01

Production

Any party may serve on any other party a request

(a) to produce and permit the party making the request, or someone acting on his 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 Rule 26.02 and which are in the possession, custody or control of the party upon whom the request is served; or

(b) 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 Rule 26.02. Rule 34.01

(1) The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons 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.

(2) 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 the summons 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. The party submitting the request may move for an order under Rule 37.01 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. Rule 34.02

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 physician, dentist or appropriate health care expert, or to produce for examination the person in his 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. Rule 35.01

(1) If requested by the party against whom an order is made under Rule 35.01 or the person examined, the party causing the examination to be made shall deliver to that person or party a copy of a detailed written report of the examining health care expert setting out all findings, including results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition. After delivery, the party causing the examination shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition, unless, in the case of a report of examination of a person not a party, the party shows an inability to obtain it. The court on motion may make an order against a party requiring delivery of a report on such terms as are just, and if a physician or examining health care expert fails or refuses to make a report the court may exclude such testimony if offered at the trial.

(2) This rule applies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise. This rule does not preclude discovery of a report of an examining physician or health care expert or the taking of a deposition of the physician or health care expert in accordance with the provisions of any other rule. Rule 35.02

Requests for Admissions

(1) 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 Rule 26.02 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 may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons upon that party.

(2) Each matter of which an admission is requested shall be separately set forth. The 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 his 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 the summons upon him. 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 his answer or deny only a part of the matter of which an admission is requested, he 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 he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him 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; he may, subject to the provisions of Rule 37.03, deny the matter or set forth reasons why he cannot admit or deny it.

(3) The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this Rule, it may order either that the matter is admitted or that an amended answer be served. The court may, in lieu of these orders, determine that final disposition of the request be made at a pretrial conference or at a designated time prior to trial. Rule 36.01

Compel Discovery

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

(a) 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 court of equivalent jurisdiction in the county where the deposition is being taken.

(b) Motion.

(i) If a deponent fails to answer a question propounded or submitted under Rule 30 or 31, or a corporation or other entity fails to make a designation under Rule 30.02(6) or 31.01(2), or a party fails to answer an interrogatory submitted under Rule 33, or if a party, in response to a request for inspection submitted under Rule 34, 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. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before he applies for an order.

(ii) If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to Rule 26.03.

(c) Evasive or incomplete answer.

For the purposes of this rule an evasive or incomplete answer is to be treated as a failure to answer. Rule 37.01

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.