60-230. Depositions upon oral examination; when leave required; general requirements; examination.
60-230
60-230. Depositions upon oral examination; when leave required; generalrequirements; examination.(a) When depositions may be taken; when leave required. (1) A party maytake the testimony of any person, including aparty,by deposition upon oral examination without leave of courtexcept as provided in paragraph (2). The attendance ofwitnesses may be compelled by subpoena as provided in K.S.A.60-245 and amendments thereto.
(2) A party must obtain leave of court, which shall be granted to theextent 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 inprison 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 timespecified in subsection (b) of K.S.A. 60-216 and amendments thereto, unless thenotice contains a certification, with supporting facts, that the person to beexamined is expected to leave Kansas and be unavailable for examination inKansas unless deposed before that time; or
(C) the plaintiff seeks to take a deposition of a party, or a deposition ofa nonparty in an action in which a case management conference has not beenscheduled under subsection (b) of K.S.A. 60-216 and amendments thereto, priorto the expiration of 30 days after service of the summons and petition upon anydefendant 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 otherwisesought discovery or (ii) the notice contains a certification, with supportingfacts, that the person to be examined is expected to leave Kansas and beunavailable for examination in Kansas unless deposed before expiration of the30-day period.
(b) Notice of examination; general requirements; nonstenographicrecording; production of documents and things; depositionof organization. (1) A party desiring to take the deposition of anyperson upon oral examination shall give reasonable notice in writing toevery other party to the action.The notice shall state the time and place for taking the deposition and thename and address of each person to be examined, if known, and, ifthe nameis not known, a general description sufficient to identify the person or theparticular class or group to which the person belongs. If a subpoena ducestecum is to be served on the person to be examined, a designation of thematerials to be produced as set forth in the subpoena shall be attached toor included in the notice.
(2) The parties may stipulate in writing or the court may uponmotionorder that the testimony at a depositionbe recorded by other than stenographic means.The stipulation or ordershall designate the person before whom the deposition shall be taken,the manner of recording, preserving and filing thedeposition, and may include other provisions to assure that the recordedtestimony will be accurate and trustworthy. A partymay arrange to have a stenographic transcription made at the party'sown expense. Any objections under subsection (c), any changes made by thewitness, the signature identifying the deposition as the signature of thewitness or the statement of the officer that is required by subsection(e) if the witnessdoes not sign and the certification of theofficer required by subsection (f) shall be set forth in writing to accompanya deposition recorded by nonstenographic means.
(3) Unless otherwise agreed by the parties, a deposition shall beconductedbefore an officer appointed or designated under K.S.A. 60-228 and amendmentsthereto, and shall begin with a statement on the record by the officer thatincludes:(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 recordedother than stenographically, the officer shallrepeat items (A) through (C) at the beginning of each unit of recorded tape orother recording medium. The appearance or demeanor of deponents or attorneysshall not be distorted through camera or sound-recording techniques. At the endof the deposition, the officer shall state on the record that the deposition iscomplete and shall set forth any stipulations made by counsel concerning thecustody of the transcript or recording and the exhibits, or concerning otherpertinent matters. Any deposition which is to be recorded stenographically mayalso be recorded on videotape, or a comparable medium, by any party by givingnotice to the other parties prior to the deposition.
(4) The notice to a party deponent may be accompanied by arequest madein compliance with K.S.A. 60-234 and amendments thereto for the productionof documentsand tangible things at the taking of the deposition. The procedure ofK.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 thedeponent a public or privatecorporation or a partnership, association or governmental agency anddesignate with reasonable particularity the matters on which examination isrequested. The named organization shall designate one or more officers,directors, managing agents or other persons who consent to testify onits behalf and may set forth, for each person designated, the matters onwhich the person will testify. A subpoena shall advise a nonpartyorganization of its duty to make such a designation. The designated personsshall testify as tomatters known or reasonably available to the organization. This subsectiondoes not preclude taking a deposition by any other procedure authorized inthese rules.
(6) The parties may stipulate in writing or the court may uponmotionorder that a deposition be taken by telephone or other remote electronicmeans. For the purposes of thissection 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. 60-237and subsection (a)(2) of K.S.A. 60-245 and amendments thereto,a deposition taken by telephone or other remote electronic meansis taken in the district and at the place where the deponent answers questions.
(c) Examination and cross-examination; record of examination; oath;objections. Examination and cross-examination of witnesses may proceedas permitted at the trial under the provisions of K.S.A. 60-243 and amendmentsthereto.The officer before whom the deposition is to be taken shall put the witnesson oath or affirmation and shall personally, or by some one acting underthe direction andin the presence of the officer, record the testimony of the witness. Thetestimony shallbe taken stenographically or recorded by any other means ordered inaccordance with subsection (b)(2). If requested by one ofthe parties, the testimony shall be transcribed. The judge may order thecost of transcription paid by one or some of, or apportioned among, theparties. All objections made at the time of the examination to thequalifications of the officer taking the deposition, to the manner oftaking it, to the evidence presented, to the conduct of any party or to anyother aspect of the proceedingsshall be noted by the officerupon the record of the deposition;but the examination shall proceed, with the testimony being taken subject totheobjections. In lieu of participating in the oral examination, parties mayserve written questions in a sealed envelope on the party taking thedeposition and the party shall transmit the questions to theofficerwho shall propound such questions to the witness and record the answersverbatim.
(d) Motion to terminate or limit examination. At any time duringthe taking of the deposition, on motion of a party or of the deponent andupon a showing that the examination is being conducted in bad faith or insuch manner as unreasonably to annoy, embarrass or oppress the deponent orparty, the judge in the district where the action is pending or where thedeposition is being taken may order the officer conducting the examinationto cease forthwith from taking the deposition or may limit the scope andmanner of the taking of the deposition as provided in subsection (c) ofK.S.A. 60-226 and amendments thereto. If the order made terminatesthe examination,it shall beresumed only upon the order of the judge where the action ispending. Upon demand of the objecting party or deponent the taking of thedeposition shall be suspended for the time necessary to make a motion foran order. The provisions of subsection (a) of K.S.A.60-237 and amendments theretoapply to the awardof expenses incurred in relation to the motion.
(e) Review by witness; changes; signing. Unless waived by the deponentand by the parties, thedeponent shall have 30 days after being notified by the officer that thetranscript or recording is available in which to review the transcript orrecording and, if there are changes in form or substance, to sign a statementreciting such changes and the reasons given by the deponent for making suchchanges.The officer shall indicate in the certificate prescribed by subsection (f)(1)whether the deposition was reviewed and, if so, shall append any changes madeby the deponent during the period allowed.
(f) Certification and delivery or filing by officer;notice of delivery or filing; copies;exhibits; retention of original. (1) The officer shall certify that thewitnesswas duly sworn by the officer and that the deposition is a true record of thetestimony given by the witness. This certificate shall be in writing andaccompany the record of the deposition. Unless otherwise ordered by thecourt, theofficer shall securely seal the depositionin an envelope or package indorsed with the title of the action and marked"depositionof (here insert name of witness)" and shall promptly deliver thedeposition to theparty taking the deposition, who shall store the deposition under conditionsthat willprotect the deposition against loss, destruction, tampering or deterioration.If soordered by the court, the officer shallpromptly file the deposition with the courtin which the action is pending or send it byfirst-class mail to the clerk for filing. The officer shall serve noticeof the delivery or filing of the deposition on all parties.
Documents and things produced for inspection during the examination ofthe witness, upon the request of a party, shall be marked foridentification and annexed to the deposition and may beinspected and copied by any party, except that if the person producing thematerials desires to retain them the person may (A) offer copies to be markedfor identification and annexed to the deposition and to serve as originals,if the person affords to all parties an opportunity to verify the copiesby comparison with the originals, or (B) offer the originals to be markedfor identification, after giving to each party an opportunity to inspectand copy them, in which eventthe materials may then be used in the same manner as if annexed to andreturned with the deposition. Any party may move for an order that the originalbe annexed to the deposition.
(2) Unless otherwise ordered by the court or agreed by the parties, theofficer shall retain stenographic notes of any deposition takenstenographically or a copy of the recording of any deposition taken by anothermethod. Upon payment of reasonable charges therefore, the officer shall furnisha copy of the transcript or other recording of the deposition to any party orto the deponent.
(3) Exceptwhen filed with the court, the original of a deposition shall be retainedby the party to whom it is delivered and made available for appropriate useby any party.
(g) Failure to attend or to serve subpoena; expenses. (1) If theparty giving the notice of the taking of a deposition fails to attend andproceed therewith and another party attends in person or by attorneypursuant to the notice, the court may order the party giving the notice topay to such other party the reasonable expenses incurred by that party andattorney in so attending, including reasonable attorney fees.
(2) If the party giving the notice of the taking of a deposition of awitness fails to serve a subpoena upon the witness and because of suchfailure the witness does not attend, and if another party attends in person orbyattorney because the party expects the deposition of that witness to be taken,thecourt may order the party giving the notice to pay thereasonable expenses and attorney fees of the party and the party's attorneyin attending the taking of the deposition.
(h) Persons to be present. Unless otherwise ordered by the judge orstipulated by counsel, no person shall be present while a deposition isbeing taken except the officer before whom it is being taken; the reporter,stenographer or person recording the deposition;the parties to the action, theirrespective counsel and paralegals or legal assistants of such counsel;and the deponent.
History: L. 1963, ch. 303, 60-230;L. 1970, ch. 234, § 1;amended by Supreme Court order dated July 20, 1972;L. 1982, ch. 242, § 1;L. 1983, ch. 194, § 1;L. 1987, ch. 219, § 1;L. 1987, ch. 218, § 2;L. 1987, ch. 220, § 1;L. 1997, ch. 173, § 13; July 1.