2009 Kansas Code
Chapter 60 PROCEDURE, CIVIL
Article 2 RULES OF CIVIL PROCEDURE
60-237. Failure to allow discovery; sanctions.

60-237

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

      60-237.   Failure to allow discovery; sanctions. (a) 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.

      (4)   Expenses and sanctions. (A) If the disclosure or requested discovery is provided after the motion is filed but before the court rules on the motion, the court, after affording an opportunity to be heard, may require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney fees. Expenses shall not be awarded under this subparagraph if the court finds that the motion was filed without the movant's first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party's nondisclosure, response or objection was substantially justified, or that other circumstances make an award of expenses unjust.

      (B)   If the motion is granted, the court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party's nondisclosure, response or objection was substantially justified or that other circumstances make an award of expenses unjust.

      (C)   If the motion is denied, the court may enter any protective order authorized under subsection (c) of K.S.A. 60-226, and amendments thereto, and shall, after affording an opportunity to be heard, require the moving party or the attorney filing the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.

      (D)   If the motion is granted in part and denied in part, the court may enter any protective order authorized under subsection (c) of K.S.A. 60-226, and amendments thereto, and, may, after affording an opportunity to be heard, apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.

      (b)   Failure to comply with order. (1) Sanctions by judge in district where deposition is taken. If a deponent fails to be sworn or to answer a question after being directed to do so by the judge in the district in which the deposition is being taken, the failure may be considered a contempt of that court.

      (2)   Sanctions by court in which action is pending. If a party or an officer, director or managing agent of a party or a person designated under subsection (b) of K.S.A. 60-230 or subsection (a) of K.S.A. 60-231, and amendments thereto, to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this section or under K.S.A. 60-235, and amendments thereto, the judge before whom the action is pending may make such orders in regard to the failure as are just, and among others the following:

      (A)   An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

      (B)   An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting such disobedient party from introducing designated matters in evidence;

      (C)   An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;

      (D)   In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;

      (E)   Where a party has failed to comply with an order under subsection (a) of K.S.A. 60-235, and amendments thereto, requiring such party to produce another for examination, such orders as are listed in paragraphs (A), (B) and (C) of this subsection, unless the party failing to comply shows that such party is unable to produce such person for examination.

      In lieu of any of the foregoing orders or in addition thereto, the judge shall require the party failing to obey the order or the attorney advising such party or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the judge finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

      (c)   Failure to disclose; false or misleading disclosure; refusal to admit. (1) A party that without substantial justification fails to disclose information required by subsection (b)(6) or (e)(1) of K.S.A. 60-226, and amendments thereto, shall not, unless such failure is harmless, be permitted to use as evidence at trial, at a hearing, or on a motion any witness or information not so disclosed. In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses, including attorney fees, caused by the failure, these sanctions may include any of the actions authorized under subparagraphs (A), (B) and (C) of subsection (b)(2) and may include informing the jury of the failure to make the disclosure.

      (2)   If a party fails to admit the genuineness of any documents or the truth of any matter, as requested under K.S.A. 60-236, and amendments thereto, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, such party may apply to the judge for an order requiring the other party to pay such party the reasonable expenses incurred in making such proof, including reasonable attorney's fees. The judge shall make the order unless the judge finds that (A) the request was held objectionable to subsection (a) of K.S.A. 60-236, and amendments thereto, or (B) the admission sought was of no substantial importance, or (C) the party failing to admit had reasonable ground to believe that he might prevail on the matter, or (D) there was other good reason for the failure to admit.

      (d)   Failure of party to attend at own deposition or serve answers to interrogatories or respond to request for inspection. If a party or an officer, director, or managing agent of a party or a person designated under subsection (b) of K.S.A. 60-230 or subsection (a) of K.S.A. 60-231, and amendments thereto, to testify on behalf of a party fails (1) to appear before the officer who is to take his deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories submitted under K.S.A. 60-233, and amendments thereto, after proper service of the interrogatories, or (3) to serve a written response to a request for inspection submitted under K.S.A. 60-234, and amendments thereto, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B) and (C) of subsection (b)(2) of this section. Any motion specifying a failure under clause (2) or (3) of this subsection shall include a certification that the movant has in good faith conferred or attempted to confer with the party failing to answer or respond in an effort to obtain such answer or response without court action. In lieu of any order or in addition thereto, the judge shall require the party failing to act or the attorney advising such party or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the judge finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

      The failure to act described in this subsection may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has a pending motion for a protective order as provided by subsection (c) of K.S.A. 60-226, and amendments thereto.

      (e)   Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

      History:   L. 1963, ch. 303, 60-237; amended by Supreme Court order dated July 20, 1972; L. 1997, ch. 173, § 20; L. 2008, ch. 21, § 5; July 1.