60-226.General provisions governingdiscovery.(a) Discovery methods. Parties may obtain discovery by one or moreof the following methods: Depositions upon oral examination or writtenquestions; written interrogatories; production ofdocuments or things orpermission 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, forinspection and otherpurposes; physical and mental examinations; and requests for admission.
(b) Scope of discovery. Unless otherwise limited by order of thecourt in accordance with these rules, the scope of discovery is as follows:(1) In general: Parties may obtain discovery regarding any matter,not privileged, which is relevant to the subject matter involved in the pendingaction, whether it relates to the claim or defense of the party seekingdiscovery or to the claim or defense of any other party, including theexistence, description, nature, custody, condition and location of anybooks, documents or other tangible things and the identity and location ofpersons having knowledge of any discoverable matter. It is not ground forobjection that the information sought will be inadmissible at the trial ifthe information sought appears reasonably calculated to lead to thediscovery of admissible evidence. Except as permitted under subsection (b)(4),a party shall not require a deponent to produce, orsubmit for inspection, any writing prepared by, or under the supervisionof, an attorney in preparation for trial.
(2) Limitations. (A) The frequency or extent of use of thediscovery methods otherwise permitted under the rules of civil procedure shallbe limited by the court only if it determines that: (i) Thediscovery sought is unreasonably cumulative or duplicative, or is obtainablefrom some other source that is more convenient, less burdensome or lessexpensive; (ii) the party seeking discovery has had ampleopportunity by discovery in the action to obtain the information sought; or(iii) the burden or expense of the proposed discoveryoutweighs its likely benefit, taking into account the needs of the case, theamount in controversy, the parties' resources, the importance of the issues atstake in the litigation and the importance of the proposed discovery inresolving the issues. The court may act upon its own initiative afterreasonable notice or pursuant to a motion under subsection (c).
(B) A party need not provide discovery of electronically storedinformation from sources that the party identifies as not reasonably accessiblebecause of undue burden or cost. On motion to compel discovery or for aprotective order, the party from whom discovery is sought must show that theinformation is not reasonably accessible because of undue burden or cost. Ifthat showing is made, the court may nonetheless order discovery from suchsources if the requesting party shows good cause, considering the limitationsof subsection (b)(2)(A). The court may specify conditions for thediscovery.
(3) Insurance agreements. A party may obtain discovery of theexistence and contents of any insurance agreement under which any personcarrying on an insurance business may be liable to satisfy part or all of ajudgment which may be entered in the action or to indemnify or reimbursefor payments made to satisfy the judgment. Information concerning theinsurance agreement is not by reason of disclosure admissible in evidenceat trial. For purposes of this paragraph, an application for insuranceshall not be treated as part of an insurance agreement.
(4) Trial preparation: Materials. Subject to the provisionsofsubsection (b)(5), a party may obtain discovery ofdocuments and tangible things otherwise discoverable under subsection (b)(1)and prepared in anticipation of litigation or for trialby or for another party or by or for that other party'srepresentative, including such other party's attorney, consultant, surety,indemnitor, insuror or agent,only upon a showing that the party seeking discovery has substantial needof the materials in the preparation of such party's case andthat such party is unablewithout undue hardship to obtain the substantial equivalent of thematerials by other means. In ordering discovery of such materials when therequired showing has been made, the court shall protect against disclosureof the mental impression, conclusions, opinions or legal theories of anattorney or other representative of a party concerning the litigation.
A party may obtain without the required showing a statement concerningthe action or its subject matter previously made by that party. Uponrequest, a person not a party may obtain without the required showing astatement concerning the action or its subject matter previously made bythat person. If the request is refused, the person may move for a courtorder. The provisions of K.S.A. 60-237, and amendments thereto,apply to the award ofexpenses incurred in relation to the motion. For purposes of thisparagraph, a statement previously made is (A) a written statement signed orotherwise adopted or approved by the person making it, or (B) astenographic, mechanical, electrical, or other recording, or atranscription thereof, which is a substantially verbatim recital of an oralstatement by the person making it and contemporaneously recorded.
(5) Trial preparation: Experts. (A) A party may depose any personwho has been identified as an expertwhose opinions may be presented at trial. If a disclosure from the expert isrequired under subsection (b)(6), the deposition shall not be conducteduntil after the disclosure is provided.
(B) A party, through interrogatories or by deposition, maydiscoverfacts known or opinions held by an expert whohas been retained or specially employed by another party in anticipation oflitigation or preparation for trial and who is not expected to be called asa witness at trial, only as provided in K.S.A. 60-235, and amendmentsthereto, or upon a showing of exceptional circumstances under which itis impracticable forthe party seeking discovery to obtain facts or opinions on the same subjectby other means.
(C) Unless manifest injustice would result, (i) the court shall requirethat the party seeking discovery pay the expert a reasonable fee for timespent in responding to discovery under this subsection; and (ii) with respectto discovery obtainedundersubsection (b)(5)(B)the court shall require, the party seeking discovery to pay the other partya fair portion of the fees and expenses reasonably incurred by the latterparty in obtaining facts and opinions from the expert.
(6) Disclosure of expert testimony.
(A) A party shall disclose to other parties the identity of any person whomay be used at trial to present expert testimony.
(B) Except as otherwise stipulated or directed by the court, thisdisclosure, with respect to a witness (i) whose sole connection with the caseisthat the witness is retained or specially employed to provide expert testimonyin the case or (ii) whose duties as an employee of the party regularly involvegiving expert testimony, shall state the subject matter on which the expert isexpected to testify, the substance of the facts and opinions to which theexpert 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 sequencedirected by the court. In the absence of other directions from the court orstipulation by the parties, the disclosures shall be made at least 90 daysbefore the trial date or the date the case is to be ready for trial or, if theevidence is intended solely to contradict or rebut evidence on the same subjectmatter identified by another party under paragraph (b)(6)(B), within 30 daysafter the disclosure made by the other party. The party shall supplement thesedisclosures when required under subsection (e)(1).
(D) Unless otherwise ordered by the court, all disclosures under thissubsection shall be made in writing, signed and served. Such disclosures shallbe filedwith the court in accordance with subsection (d) of K.S.A. 60-205, andamendments thereto.
(7) Claims of Privilege or Protection of Trial-PreparationMaterials.(A) Information Withheld. When a party withholds information otherwisediscoverable under these rules by claiming that it is privileged or subject toprotection as trial preparation material, the party shall make the claimexpressly and shall describe the nature of the documents, communications orthings not produced or disclosed in a manner that, without revealinginformation itself privileged or protected, will enable other parties to assessthe applicability of the privilege or protection.
(B) Information Produced. If information is produced in discovery that issubject to a claim of privilege or of protection as trial-preparation material,the party making the claim may notify any party that received the informationof the claim and the basis for it. After being notified, a party must promptlyreturn, sequester or destroy the specified information and any copies it hasand may not use or disclose the information until the claim is resolved. Areceiving party may promptly present the information to the court under sealfor a determination of the claim. If the receiving party disclosed theinformation before being notified, it must take reasonable steps to retrieveit. The producing party must preserve the information until the claim isresolved.
(c) Protective orders. Upon motion by a party or by the personfrom whom discovery is sought, and for good cause shown, the court in which theaction is pending or alternatively, on matters relating to a deposition,the court in the district where the deposition is to be taken may make anyorder which justice requires to protect a party or person from annoyance,embarrassment, oppression, or undue burden or expense including one ormore of the following:
(1) That the discovery not be had;
(2) that the discovery may be had only on specified terms andconditions, including a designation of the time or place;
(3) that the discovery may be had only by a method of discovery otherthan that selected by the party seeking discovery;
(4) that certain matters not be inquired into, or that the scope of thediscovery be limited to certain matters;
(5) that discovery be conducted with no one present except personsdesignated by the court;
(6) that a deposition after being sealed be opened only by order of thecourt;
(7) that a trade secret or other confidential research, development, orcommercial information not be disclosed or be disclosed only in adesignated way;
(8) that the parties simultaneously file specified documents orinformation enclosed in sealed envelopes to be opened as directed by thecourt.
If the motion for a protective order is denied in whole or in part, thecourt, on such terms and conditions as are just, may order that anypartyor person provide or permit discovery. The provisions of K.S.A.60-237, and amendments thereto, apply to the award of expensesincurred in relation to the motion.
(d) Sequence and timing of discovery. Unless the court uponmotion, for the convenience of parties and witnesses and in the interests ofjustice, orders otherwise, methods of discovery may be used in any sequenceand the fact that a party is conducting discovery, whether by deposition orotherwise, shall not operate to delay any other party's discovery.
(e) Supplementation of responses. A party who has made adisclosure under subsection (b)(6) or responded to arequest for discovery is under a duty to supplement or correct the party'sdisclosure orresponse to include information thereafteracquired if ordered by the court or in the followingcircumstances:
(1) A party is under a duty to supplement at appropriate intervals itsdisclosures under subsection (b)(6) if the party learns that in some materialrespect the information disclosed is incomplete or incorrect and if theadditional or corrective information has not otherwise been made known to theother parties during the discovery process or in writing. With respect totestimony of an expert under subsection(b)(6)the duty extends both to information contained in the disclosure and toinformationprovided through a deposition of the expert, and any additions or other changesto this information shall be disclosed at least 30 days before trial, unlessotherwise directed by the court.
(2) A party is under a duty seasonably to amend a prior response to aninterrogatory, request for production or request for admission if theparty learns that theresponse is in some material respect incomplete or incorrect and if theadditional or corrective information has not otherwise been made known to theother parties during the discovery process or in writing.
(f) Signing of disclosures, discovery requests, responses andobjections. (1) Every request for discovery or response or objection todiscovery madeby aparty represented by an attorney shall be signed by at least one attorneyof record in such attorney's individual name, whose address shall bestated. A party who is not represented by an attorney shall sign therequest, response or objection and state such party's address. Thesignature of the attorney or party constitutes a certification that theattorney or party has read the request, response or objection andthat to the best of such attorney's or party's knowledge, information andbelief formed after reasonable inquiry it is: (A) Consistent withthe rulesof civil procedure and warranted by existing law or goodfaith argument for the extension, modification or reversal of existing law; (B)not interposed for any improper purpose, such as to harass orto causeunnecessary delay or needless increase in the cost of litigation; and(C)not unreasonable or unduly burdensome or expensive, given the needs of thecase, the discovery already had in the case, the amount in controversy andthe importance of the issues at stake in the litigation. If a request,response or objection is not signed, it shall be stricken unless it issigned promptly after the omission is called to the attention of the partyor person making the request, response or objection and a party shall notbe obligated to take any action with respect to it until it is signed.
(2) Every disclosure made under subsection (b)(6) shall be signed by atleast one attorney of record in the attorney's individual name whose addressshall be stated. An unrepresented party shall sign the disclosure and state theparty's address. The signature of the attorney or party constitutes acertification that to the best of the signer's knowledge, information andbelief, formed after a reasonable inquiry, the disclosure is complete andcorrect as of the time it is made.
(3) If, without substantial justification, a certification is madein violation of this section, the court, uponmotion or upon its own initiative, shall impose upon the person who madethe certification or the party on whose behalf the disclosure, request,response orobjection is made, or both, an appropriate sanction, which may include anorder to pay the amount of reasonable expenses incurred because of theviolation, including reasonable attorney fees.
History: L. 1963, ch. 303, 60-226;amended by Supreme Court order dated July 20, 1972;L. 1986, ch. 215, § 6;L. 1997, ch. 173, § 11;L. 2008, ch. 21, § 2; July 1.
60-226.General provisions governingdiscovery.(a) Discovery methods. Parties may obtain discovery by one or moreof the following methods: Depositions upon oral examination or writtenquestions; written interrogatories; production ofdocuments or things orpermission 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, forinspection and otherpurposes; physical and mental examinations; and requests for admission.
(b) Scope of discovery. Unless otherwise limited by order of thecourt in accordance with these rules, the scope of discovery is as follows:(1) In general: Parties may obtain discovery regarding any matter,not privileged, which is relevant to the subject matter involved in the pendingaction, whether it relates to the claim or defense of the party seekingdiscovery or to the claim or defense of any other party, including theexistence, description, nature, custody, condition and location of anybooks, documents or other tangible things and the identity and location ofpersons having knowledge of any discoverable matter. It is not ground forobjection that the information sought will be inadmissible at the trial ifthe information sought appears reasonably calculated to lead to thediscovery of admissible evidence. Except as permitted under subsection (b)(4),a party shall not require a deponent to produce, orsubmit for inspection, any writing prepared by, or under the supervisionof, an attorney in preparation for trial.
(2) Limitations. (A) The frequency or extent of use of thediscovery methods otherwise permitted under the rules of civil procedure shallbe limited by the court only if it determines that: (i) Thediscovery sought is unreasonably cumulative or duplicative, or is obtainablefrom some other source that is more convenient, less burdensome or lessexpensive; (ii) the party seeking discovery has had ampleopportunity by discovery in the action to obtain the information sought; or(iii) the burden or expense of the proposed discoveryoutweighs its likely benefit, taking into account the needs of the case, theamount in controversy, the parties' resources, the importance of the issues atstake in the litigation and the importance of the proposed discovery inresolving the issues. The court may act upon its own initiative afterreasonable notice or pursuant to a motion under subsection (c).
(B) A party need not provide discovery of electronically storedinformation from sources that the party identifies as not reasonably accessiblebecause of undue burden or cost. On motion to compel discovery or for aprotective order, the party from whom discovery is sought must show that theinformation is not reasonably accessible because of undue burden or cost. Ifthat showing is made, the court may nonetheless order discovery from suchsources if the requesting party shows good cause, considering the limitationsof subsection (b)(2)(A). The court may specify conditions for thediscovery.
(3) Insurance agreements. A party may obtain discovery of theexistence and contents of any insurance agreement under which any personcarrying on an insurance business may be liable to satisfy part or all of ajudgment which may be entered in the action or to indemnify or reimbursefor payments made to satisfy the judgment. Information concerning theinsurance agreement is not by reason of disclosure admissible in evidenceat trial. For purposes of this paragraph, an application for insuranceshall not be treated as part of an insurance agreement.
(4) Trial preparation: Materials. Subject to the provisionsofsubsection (b)(5), a party may obtain discovery ofdocuments and tangible things otherwise discoverable under subsection (b)(1)and prepared in anticipation of litigation or for trialby or for another party or by or for that other party'srepresentative, including such other party's attorney, consultant, surety,indemnitor, insuror or agent,only upon a showing that the party seeking discovery has substantial needof the materials in the preparation of such party's case andthat such party is unablewithout undue hardship to obtain the substantial equivalent of thematerials by other means. In ordering discovery of such materials when therequired showing has been made, the court shall protect against disclosureof the mental impression, conclusions, opinions or legal theories of anattorney or other representative of a party concerning the litigation.
A party may obtain without the required showing a statement concerningthe action or its subject matter previously made by that party. Uponrequest, a person not a party may obtain without the required showing astatement concerning the action or its subject matter previously made bythat person. If the request is refused, the person may move for a courtorder. The provisions of K.S.A. 60-237, and amendments thereto,apply to the award ofexpenses incurred in relation to the motion. For purposes of thisparagraph, a statement previously made is (A) a written statement signed orotherwise adopted or approved by the person making it, or (B) astenographic, mechanical, electrical, or other recording, or atranscription thereof, which is a substantially verbatim recital of an oralstatement by the person making it and contemporaneously recorded.
(5) Trial preparation: Experts. (A) A party may depose any personwho has been identified as an expertwhose opinions may be presented at trial. If a disclosure from the expert isrequired under subsection (b)(6), the deposition shall not be conducteduntil after the disclosure is provided.
(B) A party, through interrogatories or by deposition, maydiscoverfacts known or opinions held by an expert whohas been retained or specially employed by another party in anticipation oflitigation or preparation for trial and who is not expected to be called asa witness at trial, only as provided in K.S.A. 60-235, and amendmentsthereto, or upon a showing of exceptional circumstances under which itis impracticable forthe party seeking discovery to obtain facts or opinions on the same subjectby other means.
(C) Unless manifest injustice would result, (i) the court shall requirethat the party seeking discovery pay the expert a reasonable fee for timespent in responding to discovery under this subsection; and (ii) with respectto discovery obtainedundersubsection (b)(5)(B)the court shall require, the party seeking discovery to pay the other partya fair portion of the fees and expenses reasonably incurred by the latterparty in obtaining facts and opinions from the expert.
(6) Disclosure of expert testimony.
(A) A party shall disclose to other parties the identity of any person whomay be used at trial to present expert testimony.
(B) Except as otherwise stipulated or directed by the court, thisdisclosure, with respect to a witness (i) whose sole connection with the caseisthat the witness is retained or specially employed to provide expert testimonyin the case or (ii) whose duties as an employee of the party regularly involvegiving expert testimony, shall state the subject matter on which the expert isexpected to testify, the substance of the facts and opinions to which theexpert 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 sequencedirected by the court. In the absence of other directions from the court orstipulation by the parties, the disclosures shall be made at least 90 daysbefore the trial date or the date the case is to be ready for trial or, if theevidence is intended solely to contradict or rebut evidence on the same subjectmatter identified by another party under paragraph (b)(6)(B), within 30 daysafter the disclosure made by the other party. The party shall supplement thesedisclosures when required under subsection (e)(1).
(D) Unless otherwise ordered by the court, all disclosures under thissubsection shall be made in writing, signed and served. Such disclosures shallbe filedwith the court in accordance with subsection (d) of K.S.A. 60-205, andamendments thereto.
(7) Claims of Privilege or Protection of Trial-PreparationMaterials.(A) Information Withheld. When a party withholds information otherwisediscoverable under these rules by claiming that it is privileged or subject toprotection as trial preparation material, the party shall make the claimexpressly and shall describe the nature of the documents, communications orthings not produced or disclosed in a manner that, without revealinginformation itself privileged or protected, will enable other parties to assessthe applicability of the privilege or protection.
(B) Information Produced. If information is produced in discovery that issubject to a claim of privilege or of protection as trial-preparation material,the party making the claim may notify any party that received the informationof the claim and the basis for it. After being notified, a party must promptlyreturn, sequester or destroy the specified information and any copies it hasand may not use or disclose the information until the claim is resolved. Areceiving party may promptly present the information to the court under sealfor a determination of the claim. If the receiving party disclosed theinformation before being notified, it must take reasonable steps to retrieveit. The producing party must preserve the information until the claim isresolved.
(c) Protective orders. Upon motion by a party or by the personfrom whom discovery is sought, and for good cause shown, the court in which theaction is pending or alternatively, on matters relating to a deposition,the court in the district where the deposition is to be taken may make anyorder which justice requires to protect a party or person from annoyance,embarrassment, oppression, or undue burden or expense including one ormore of the following:
(1) That the discovery not be had;
(2) that the discovery may be had only on specified terms andconditions, including a designation of the time or place;
(3) that the discovery may be had only by a method of discovery otherthan that selected by the party seeking discovery;
(4) that certain matters not be inquired into, or that the scope of thediscovery be limited to certain matters;
(5) that discovery be conducted with no one present except personsdesignated by the court;
(6) that a deposition after being sealed be opened only by order of thecourt;
(7) that a trade secret or other confidential research, development, orcommercial information not be disclosed or be disclosed only in adesignated way;
(8) that the parties simultaneously file specified documents orinformation enclosed in sealed envelopes to be opened as directed by thecourt.
If the motion for a protective order is denied in whole or in part, thecourt, on such terms and conditions as are just, may order that anypartyor person provide or permit discovery. The provisions of K.S.A.60-237, and amendments thereto, apply to the award of expensesincurred in relation to the motion.
(d) Sequence and timing of discovery. Unless the court uponmotion, for the convenience of parties and witnesses and in the interests ofjustice, orders otherwise, methods of discovery may be used in any sequenceand the fact that a party is conducting discovery, whether by deposition orotherwise, shall not operate to delay any other party's discovery.
(e) Supplementation of responses. A party who has made adisclosure under subsection (b)(6) or responded to arequest for discovery is under a duty to supplement or correct the party'sdisclosure orresponse to include information thereafteracquired if ordered by the court or in the followingcircumstances:
(1) A party is under a duty to supplement at appropriate intervals itsdisclosures under subsection (b)(6) if the party learns that in some materialrespect the information disclosed is incomplete or incorrect and if theadditional or corrective information has not otherwise been made known to theother parties during the discovery process or in writing. With respect totestimony of an expert under subsection(b)(6)the duty extends both to information contained in the disclosure and toinformationprovided through a deposition of the expert, and any additions or other changesto this information shall be disclosed at least 30 days before trial, unlessotherwise directed by the court.
(2) A party is under a duty seasonably to amend a prior response to aninterrogatory, request for production or request for admission if theparty learns that theresponse is in some material respect incomplete or incorrect and if theadditional or corrective information has not otherwise been made known to theother parties during the discovery process or in writing.
(f) Signing of disclosures, discovery requests, responses andobjections. (1) Every request for discovery or response or objection todiscovery madeby aparty represented by an attorney shall be signed by at least one attorneyof record in such attorney's individual name, whose address shall bestated. A party who is not represented by an attorney shall sign therequest, response or objection and state such party's address. Thesignature of the attorney or party constitutes a certification that theattorney or party has read the request, response or objection andthat to the best of such attorney's or party's knowledge, information andbelief formed after reasonable inquiry it is: (A) Consistent withthe rulesof civil procedure and warranted by existing law or goodfaith argument for the extension, modification or reversal of existing law; (B)not interposed for any improper purpose, such as to harass orto causeunnecessary delay or needless increase in the cost of litigation; and(C)not unreasonable or unduly burdensome or expensive, given the needs of thecase, the discovery already had in the case, the amount in controversy andthe importance of the issues at stake in the litigation. If a request,response or objection is not signed, it shall be stricken unless it issigned promptly after the omission is called to the attention of the partyor person making the request, response or objection and a party shall notbe obligated to take any action with respect to it until it is signed.
(2) Every disclosure made under subsection (b)(6) shall be signed by atleast one attorney of record in the attorney's individual name whose addressshall be stated. An unrepresented party shall sign the disclosure and state theparty's address. The signature of the attorney or party constitutes acertification that to the best of the signer's knowledge, information andbelief, formed after a reasonable inquiry, the disclosure is complete andcorrect as of the time it is made.
(3) If, without substantial justification, a certification is madein violation of this section, the court, uponmotion or upon its own initiative, shall impose upon the person who madethe certification or the party on whose behalf the disclosure, request,response orobjection is made, or both, an appropriate sanction, which may include anorder to pay the amount of reasonable expenses incurred because of theviolation, including reasonable attorney fees.
History: L. 1963, ch. 303, 60-226;amended by Supreme Court order dated July 20, 1972;L. 1986, ch. 215, § 6;L. 1997, ch. 173, § 11;L. 2008, ch. 21, § 2; July 1.
60-226.General provisions governingdiscovery.(a) Discovery methods. Parties may obtain discovery by one or moreof the following methods: Depositions upon oral examination or writtenquestions; written interrogatories; production ofdocuments or things orpermission 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, forinspection and otherpurposes; physical and mental examinations; and requests for admission.
(b) Scope of discovery. Unless otherwise limited by order of thecourt in accordance with these rules, the scope of discovery is as follows:(1) In general: Parties may obtain discovery regarding any matter,not privileged, which is relevant to the subject matter involved in the pendingaction, whether it relates to the claim or defense of the party seekingdiscovery or to the claim or defense of any other party, including theexistence, description, nature, custody, condition and location of anybooks, documents or other tangible things and the identity and location ofpersons having knowledge of any discoverable matter. It is not ground forobjection that the information sought will be inadmissible at the trial ifthe information sought appears reasonably calculated to lead to thediscovery of admissible evidence. Except as permitted under subsection (b)(4),a party shall not require a deponent to produce, orsubmit for inspection, any writing prepared by, or under the supervisionof, an attorney in preparation for trial.
(2) Limitations. (A) The frequency or extent of use of thediscovery methods otherwise permitted under the rules of civil procedure shallbe limited by the court only if it determines that: (i) Thediscovery sought is unreasonably cumulative or duplicative, or is obtainablefrom some other source that is more convenient, less burdensome or lessexpensive; (ii) the party seeking discovery has had ampleopportunity by discovery in the action to obtain the information sought; or(iii) the burden or expense of the proposed discoveryoutweighs its likely benefit, taking into account the needs of the case, theamount in controversy, the parties' resources, the importance of the issues atstake in the litigation and the importance of the proposed discovery inresolving the issues. The court may act upon its own initiative afterreasonable notice or pursuant to a motion under subsection (c).
(B) A party need not provide discovery of electronically storedinformation from sources that the party identifies as not reasonably accessiblebecause of undue burden or cost. On motion to compel discovery or for aprotective order, the party from whom discovery is sought must show that theinformation is not reasonably accessible because of undue burden or cost. Ifthat showing is made, the court may nonetheless order discovery from suchsources if the requesting party shows good cause, considering the limitationsof subsection (b)(2)(A). The court may specify conditions for thediscovery.
(3) Insurance agreements. A party may obtain discovery of theexistence and contents of any insurance agreement under which any personcarrying on an insurance business may be liable to satisfy part or all of ajudgment which may be entered in the action or to indemnify or reimbursefor payments made to satisfy the judgment. Information concerning theinsurance agreement is not by reason of disclosure admissible in evidenceat trial. For purposes of this paragraph, an application for insuranceshall not be treated as part of an insurance agreement.
(4) Trial preparation: Materials. Subject to the provisionsofsubsection (b)(5), a party may obtain discovery ofdocuments and tangible things otherwise discoverable under subsection (b)(1)and prepared in anticipation of litigation or for trialby or for another party or by or for that other party'srepresentative, including such other party's attorney, consultant, surety,indemnitor, insuror or agent,only upon a showing that the party seeking discovery has substantial needof the materials in the preparation of such party's case andthat such party is unablewithout undue hardship to obtain the substantial equivalent of thematerials by other means. In ordering discovery of such materials when therequired showing has been made, the court shall protect against disclosureof the mental impression, conclusions, opinions or legal theories of anattorney or other representative of a party concerning the litigation.
A party may obtain without the required showing a statement concerningthe action or its subject matter previously made by that party. Uponrequest, a person not a party may obtain without the required showing astatement concerning the action or its subject matter previously made bythat person. If the request is refused, the person may move for a courtorder. The provisions of K.S.A. 60-237, and amendments thereto,apply to the award ofexpenses incurred in relation to the motion. For purposes of thisparagraph, a statement previously made is (A) a written statement signed orotherwise adopted or approved by the person making it, or (B) astenographic, mechanical, electrical, or other recording, or atranscription thereof, which is a substantially verbatim recital of an oralstatement by the person making it and contemporaneously recorded.
(5) Trial preparation: Experts. (A) A party may depose any personwho has been identified as an expertwhose opinions may be presented at trial. If a disclosure from the expert isrequired under subsection (b)(6), the deposition shall not be conducteduntil after the disclosure is provided.
(B) A party, through interrogatories or by deposition, maydiscoverfacts known or opinions held by an expert whohas been retained or specially employed by another party in anticipation oflitigation or preparation for trial and who is not expected to be called asa witness at trial, only as provided in K.S.A. 60-235, and amendmentsthereto, or upon a showing of exceptional circumstances under which itis impracticable forthe party seeking discovery to obtain facts or opinions on the same subjectby other means.
(C) Unless manifest injustice would result, (i) the court shall requirethat the party seeking discovery pay the expert a reasonable fee for timespent in responding to discovery under this subsection; and (ii) with respectto discovery obtainedundersubsection (b)(5)(B)the court shall require, the party seeking discovery to pay the other partya fair portion of the fees and expenses reasonably incurred by the latterparty in obtaining facts and opinions from the expert.
(6) Disclosure of expert testimony.
(A) A party shall disclose to other parties the identity of any person whomay be used at trial to present expert testimony.
(B) Except as otherwise stipulated or directed by the court, thisdisclosure, with respect to a witness (i) whose sole connection with the caseisthat the witness is retained or specially employed to provide expert testimonyin the case or (ii) whose duties as an employee of the party regularly involvegiving expert testimony, shall state the subject matter on which the expert isexpected to testify, the substance of the facts and opinions to which theexpert 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 sequencedirected by the court. In the absence of other directions from the court orstipulation by the parties, the disclosures shall be made at least 90 daysbefore the trial date or the date the case is to be ready for trial or, if theevidence is intended solely to contradict or rebut evidence on the same subjectmatter identified by another party under paragraph (b)(6)(B), within 30 daysafter the disclosure made by the other party. The party shall supplement thesedisclosures when required under subsection (e)(1).
(D) Unless otherwise ordered by the court, all disclosures under thissubsection shall be made in writing, signed and served. Such disclosures shallbe filedwith the court in accordance with subsection (d) of K.S.A. 60-205, andamendments thereto.
(7) Claims of Privilege or Protection of Trial-PreparationMaterials.(A) Information Withheld. When a party withholds information otherwisediscoverable under these rules by claiming that it is privileged or subject toprotection as trial preparation material, the party shall make the claimexpressly and shall describe the nature of the documents, communications orthings not produced or disclosed in a manner that, without revealinginformation itself privileged or protected, will enable other parties to assessthe applicability of the privilege or protection.
(B) Information Produced. If information is produced in discovery that issubject to a claim of privilege or of protection as trial-preparation material,the party making the claim may notify any party that received the informationof the claim and the basis for it. After being notified, a party must promptlyreturn, sequester or destroy the specified information and any copies it hasand may not use or disclose the information until the claim is resolved. Areceiving party may promptly present the information to the court under sealfor a determination of the claim. If the receiving party disclosed theinformation before being notified, it must take reasonable steps to retrieveit. The producing party must preserve the information until the claim isresolved.
(c) Protective orders. Upon motion by a party or by the personfrom whom discovery is sought, and for good cause shown, the court in which theaction is pending or alternatively, on matters relating to a deposition,the court in the district where the deposition is to be taken may make anyorder which justice requires to protect a party or person from annoyance,embarrassment, oppression, or undue burden or expense including one ormore of the following:
(1) That the discovery not be had;
(2) that the discovery may be had only on specified terms andconditions, including a designation of the time or place;
(3) that the discovery may be had only by a method of discovery otherthan that selected by the party seeking discovery;
(4) that certain matters not be inquired into, or that the scope of thediscovery be limited to certain matters;
(5) that discovery be conducted with no one present except personsdesignated by the court;
(6) that a deposition after being sealed be opened only by order of thecourt;
(7) that a trade secret or other confidential research, development, orcommercial information not be disclosed or be disclosed only in adesignated way;
(8) that the parties simultaneously file specified documents orinformation enclosed in sealed envelopes to be opened as directed by thecourt.
If the motion for a protective order is denied in whole or in part, thecourt, on such terms and conditions as are just, may order that anypartyor person provide or permit discovery. The provisions of K.S.A.60-237, and amendments thereto, apply to the award of expensesincurred in relation to the motion.
(d) Sequence and timing of discovery. Unless the court uponmotion, for the convenience of parties and witnesses and in the interests ofjustice, orders otherwise, methods of discovery may be used in any sequenceand the fact that a party is conducting discovery, whether by deposition orotherwise, shall not operate to delay any other party's discovery.
(e) Supplementation of responses. A party who has made adisclosure under subsection (b)(6) or responded to arequest for discovery is under a duty to supplement or correct the party'sdisclosure orresponse to include information thereafteracquired if ordered by the court or in the followingcircumstances:
(1) A party is under a duty to supplement at appropriate intervals itsdisclosures under subsection (b)(6) if the party learns that in some materialrespect the information disclosed is incomplete or incorrect and if theadditional or corrective information has not otherwise been made known to theother parties during the discovery process or in writing. With respect totestimony of an expert under subsection(b)(6)the duty extends both to information contained in the disclosure and toinformationprovided through a deposition of the expert, and any additions or other changesto this information shall be disclosed at least 30 days before trial, unlessotherwise directed by the court.
(2) A party is under a duty seasonably to amend a prior response to aninterrogatory, request for production or request for admission if theparty learns that theresponse is in some material respect incomplete or incorrect and if theadditional or corrective information has not otherwise been made known to theother parties during the discovery process or in writing.
(f) Signing of disclosures, discovery requests, responses andobjections. (1) Every request for discovery or response or objection todiscovery madeby aparty represented by an attorney shall be signed by at least one attorneyof record in such attorney's individual name, whose address shall bestated. A party who is not represented by an attorney shall sign therequest, response or objection and state such party's address. Thesignature of the attorney or party constitutes a certification that theattorney or party has read the request, response or objection andthat to the best of such attorney's or party's knowledge, information andbelief formed after reasonable inquiry it is: (A) Consistent withthe rulesof civil procedure and warranted by existing law or goodfaith argument for the extension, modification or reversal of existing law; (B)not interposed for any improper purpose, such as to harass orto causeunnecessary delay or needless increase in the cost of litigation; and(C)not unreasonable or unduly burdensome or expensive, given the needs of thecase, the discovery already had in the case, the amount in controversy andthe importance of the issues at stake in the litigation. If a request,response or objection is not signed, it shall be stricken unless it issigned promptly after the omission is called to the attention of the partyor person making the request, response or objection and a party shall notbe obligated to take any action with respect to it until it is signed.
(2) Every disclosure made under subsection (b)(6) shall be signed by atleast one attorney of record in the attorney's individual name whose addressshall be stated. An unrepresented party shall sign the disclosure and state theparty's address. The signature of the attorney or party constitutes acertification that to the best of the signer's knowledge, information andbelief, formed after a reasonable inquiry, the disclosure is complete andcorrect as of the time it is made.
(3) If, without substantial justification, a certification is madein violation of this section, the court, uponmotion or upon its own initiative, shall impose upon the person who madethe certification or the party on whose behalf the disclosure, request,response orobjection is made, or both, an appropriate sanction, which may include anorder to pay the amount of reasonable expenses incurred because of theviolation, including reasonable attorney fees.
History: L. 1963, ch. 303, 60-226;amended by Supreme Court order dated July 20, 1972;L. 1986, ch. 215, § 6;L. 1997, ch. 173, § 11;L. 2008, ch. 21, § 2; July 1.
