2009 Kansas Code
Chapter 60 PROCEDURE, CIVIL
Article 2 RULES OF CIVIL PROCEDURE
60-232. Use of depositions in court proceedings.

60-232

Chapter 60.--PROCEDURE, CIVIL Article 2.--RULES OF CIVIL PROCEDURE

      60-232.   Use of depositions in court proceedings. (a) Use of deposition. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:

      (1)   Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.

      (2)   The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under K.S.A. 60-230 or 60-231, and amendments thereto, to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party may be used by an adverse party for any purpose.

      (3)   The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds that:

      (A)   The witness is dead;

      (B)   the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the state of Kansas, unless it appears that the absence of the witness was procured by the party offering the deposition;

      (C)   the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment;

      (D)   the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or

      (E)   upon application and notice, such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.

      A deposition taken without leave of court pursuant to a notice under subsection (a)(2)(B) or (a)(2)(C)(ii) of K.S.A. 60-230 and amendments thereto, shall not be used against a party who demonstrates that, when served with the notice, the party was unable through the exercise of diligence to obtain counsel to represent such party at the taking of the deposition.

      (4)   If only part of a deposition is offered in evidence by a party, an adverse party may require the party to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts. Substitution of parties pursuant to K.S.A. 60-225 and amendments thereto does not affect the right to use depositions previously taken; and, when an action has been brought in any court of the United States or of any state and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken in the former action may be used in the latter as if originally taken therefor.

      (b)   Objections to admissibility. Subject to the provisions of subsection (b) of K.S.A. 60-228 and amendments thereto and subsection (e)(3), objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.

      (c)   Form of presentation. Except as otherwise directed by the court, a party offering deposition testimony under this section may offer it in stenographic or nonstenographic form, but, if in nonstenographic form, the party shall also provide the court and opposing parties with a transcript of the entire deposition from which the portions offered were taken. On request of any party in a case tried before a jury, deposition testimony offered other than for impeachment purposes shall be presented in nonstenographic form, if available, unless the court for good cause orders otherwise.

      (d)   Effect of taking or using depositions. A party does not make a person the party's own witness for any purpose by taking the person's deposition. The introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition but this shall not apply to the use by an adverse party of a deposition under subsection (a)(2). At the trial or hearing any party may rebut any relevant evidence contained in a deposition whether introduced by the party or by any other party.

      (e)   Effect of errors and irregularities in depositions. (1) As to notice. All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice.

      (2)   As to disqualification of officer. Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.

      (3)   As to taking of deposition. (A) Objections to the competency of a witness or to the competency, relevancy or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.

      (B)   Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation or in the conduct of parties, and errors of any kind which might be obviated, removed or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition.

      (C)   Objections to the form of written questions submitted under K.S.A. 60-231 and amendments thereto are waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or other questions and within five days after service of the last questions authorized.

      (4)   As to completion and return of deposition. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, delivered or otherwise dealt with by the officer under K.S.A. 60-230 or 60-231, and amendments thereto, are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.

      History:   L. 1963, ch. 303, 60-232; amended by Supreme Court order dated July 20, 1972; L. 1987, ch. 218, § 4; L. 1997, ch. 173, § 15; July 1.