60-237. Failure to allow discovery; sanctions.
60-237
60-237. Failure to allow discovery;sanctions.(a) Motion for order compelling disclosure or discovery. A party,upon reasonablenotice to other parties and all persons affected thereby, may apply for anorder compelling disclosure or discovery as follows:
(1) Appropriate court. An application for an order to a party maybe made to the court in which the action is pending, or, on mattersrelating to a deposition, to the judge in the district where the depositionis being taken. An application for an order to a deponent who is not aparty shall be made to the judge in the district where the deposition isbeing taken.
(2) Motion. (A) If a party fails to make a disclosure required bysubsection (b)(6) of K.S.A. 60-226, and amendments thereto, any otherparty may move to compel disclosure and for appropriate sanctions. The motionshall include a certification that the movant has in good faithconferred or attempted to confer with the party not making the disclosure in aneffort to secure the disclosure without court action and shall describe thesteps taken by all counsel or unrepresented parties to resolve the issues indispute.
(B) If a deponent fails to answer a question propounded orsubmitted under K.S.A. 60-230 or 60-231, and amendments thereto, or acorporation orother entity fails to make a designation under subsection (b) of K.S.A. 60-230or subsection (a) of K.S.A.60-231, and amendments thereto, or a party fails to answer aninterrogatory submitted underK.S.A. 60-233, and amendments thereto, or if a party, in response to arequest forinspection submitted under K.S.A. 60-234, and amendments thereto,fails to respond thatinspection will be permitted as requested or fails to permit inspection asrequested, the discovering party may move for an order compelling ananswer, or a designation, or an order compelling inspection in accordancewith the request. The motion shall include a certification that the movanthas in good faith conferred or attempted to confer with the person or partyfailing to make the discovery in an effort to secure the information ormaterial without court action and shall describe the steps taken by all counselor unrepresented parties to resolve the issues in dispute. When taking adeposition on oral examination, theproponent of the question may complete or adjourn the examination beforeapplying for an order.
(3) Evasive or incomplete disclosure, answer or response. Forpurposesof this subdivisionan evasive or incomplete disclosure, answer or response is to betreated as a failure to disclose, answer or respond.
(4) Expenses and sanctions. (A) Ifthe disclosure or requested discovery is provided after the motion is filed butbefore the court rules on the motion, the court, after affording an opportunityto be heard, may require the party or deponent whose conduct necessitated themotion or the party or attorney advising such conduct or both of them to pay tothe moving party the reasonable expenses incurred in making the motion,including attorney fees. Expenses shall not be awarded under this subparagraphif the court finds that the motion was filed without the movant's first makinga good faith effort to obtain the disclosure or discovery without court action,or that the opposing party's nondisclosure, response or objection wassubstantially justified, or that other circumstances make an award of expensesunjust.
(B) If themotion is granted, the court shall, after affording an opportunityto be heard, require the party or deponentwhose conduct necessitated the motion or the party or attorney advisingsuch conduct or both of them to pay to the moving party the reasonableexpenses incurred in making the motion, including attorney fees, unlessthe court finds that the motion was filedwithout the movant's first making a good faith effort to obtain the disclosureor discovery without court action, or that the opposing party's nondisclosure,response or objection was substantiallyjustified or that other circumstances make an award of expenses unjust.
(C) If the motion is denied, the court may enter anyprotective order authorized under subsection (c) of K.S.A. 60-226, andamendments thereto, and shall, after affording an opportunity to be heard,require the moving party or the attorney filing the motion orboth ofthem to pay to the party or deponent who opposed the motion the reasonableexpenses incurred in opposing the motion, including attorneyfees, unlessthe court finds that the making of the motion was substantiallyjustifiedor that other circumstances make an award of expenses unjust.
(D) If the motion is granted in part and denied in part, thecourt may enter any protective order authorized under subsection (c) ofK.S.A. 60-226, and amendments thereto, and, may, after affording anopportunity to be heard,apportion the reasonable expenses incurred in relation to the motion amongthe parties and persons in a just manner.
(b) Failure to comply with order. (1) Sanctions by judge indistrict where deposition is taken. If a deponent fails to be sworn orto answer a question after being directed to do so by the judge in thedistrict in which the deposition is being taken, the failure may beconsidered a contempt of that court.
(2) Sanctions by court in which action is pending. If a party oranofficer, director or managing agent of a party or a person designated undersubsection (b) of K.S.A. 60-230 orsubsection (a) of K.S.A. 60-231, and amendments thereto, totestify on behalf of a partyfails to obey an order to provide or permit discovery, including an ordermade under subdivision (a) of this section or under K.S.A.60-235, and amendments thereto, the judge before whom the action ispending may make such orders inregard to the failure as are just, and among others the following:
(A) An order that the matters regarding which the order was made or anyother designated facts shall be taken to be established for the purposes ofthe action in accordance with the claim of the party obtaining the order;
(B) An order refusing to allow the disobedient party to support oroppose designated claims or defenses, or prohibiting such disobedientparty from introducingdesignated matters in evidence;
(C) An order striking out pleadings or parts thereof, or staying furtherproceedings until the order is obeyed, or dismissing the action orproceeding or any part thereof, or rendering a judgment by default againstthe disobedient party;
(D) In lieu of any of the foregoing orders or in addition thereto, anorder treating as a contempt of court the failure to obey any orders exceptan order to submit to a physical or mental examination;
(E) Where a party has failed to comply with an order under subsection (a) ofK.S.A. 60-235, and amendments thereto,requiring such party to produce another for examination,suchorders as are listed in paragraphs (A), (B) and (C) of this subsection,unless the party failing to comply shows that such party is unableto produce suchperson for examination.
In lieu of any of the foregoing orders or in addition thereto, the judgeshall require the party failing to obey the order or the attorney advising suchparty or both to pay the reasonable expenses, including attorney fees,caused by the failure, unless the judge finds that the failurewassubstantially justified or that other circumstances make an award ofexpenses unjust.
(c) Failure to disclose; false ormisleading disclosure; refusal to admit. (1) A party that withoutsubstantial justification fails to discloseinformation required by subsection (b)(6) or (e)(1) of K.S.A. 60-226, andamendments thereto, shall not, unless such failure is harmless, be permitted touse as evidence at trial, at a hearing, or on a motion any witness orinformation not so disclosed. In addition to or in lieu of this sanction, thecourt, on motion and after affording an opportunity to be heard, may imposeother appropriate sanctions. In addition to requiring payment of reasonableexpenses, including attorney fees, caused by the failure, these sanctions mayinclude any of the actions authorized under subparagraphs (A), (B) and (C) ofsubsection (b)(2) and may include informing the jury of the failure to make thedisclosure.
(2) If a party fails to admit thegenuineness of any documents or the truth of any matter, as requested underK.S.A. 60-236, and amendments thereto, and if the party requesting theadmissionsthereafter proves the genuineness of the document or the truth of thematter, such party may apply to the judge for an order requiring theother party topay such party the reasonable expenses incurred in making suchproof, includingreasonable attorney's fees. The judge shall make the order unless thejudge findsthat (A) the request was held objectionable to subsection (a)of K.S.A. 60-236, and amendments thereto, or (B) the admission soughtwas of no substantialimportance,or (C)the party failing to admit had reasonable ground to believe that he mightprevail on the matter, or (D) there was other good reason for thefailureto admit.
(d) Failure of party to attend at own deposition or serve answers tointerrogatories or respond to request for inspection. If a party or anofficer, director, or managing agent of a party or a person designatedunder subsection (b) of K.S.A.60-230 or subsection (a) of K.S.A. 60-231, and amendmentsthereto, to testify on behalf of aparty 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 orobjections to interrogatories submitted under K.S.A. 60-233, andamendments thereto,after proper service of the interrogatories, or (3) to serve a writtenresponse to a request for inspection submitted under K.S.A.60-234, and amendments thereto, after proper service of therequest, the court in which the actionis pending on motion may make such orders in regard to the failure as arejust, and among others it may take any action authorized under paragraphs(A), (B) and (C) of subsection (b)(2) of this section. Any motion specifyinga failure under clause (2) or (3) of this subsection shall include acertification that themovant has in good faith conferred or attempted to confer with the partyfailing to answer or respond in an effort to obtain such answer or responsewithout court action.In lieu of anyorder or in addition thereto, the judge shall require the party failing toact or the attorney advising such party or both to pay thereasonable expenses,including attorney fees, caused by the failure, unless thejudge findsthat the failure was substantially justified or that other circumstancesmake an award of expenses unjust.
The failure to act described in this subsection may not be excused onthe ground that the discovery sought is objectionable unless the partyfailing to act has a pending motion for a protective order asprovided by subsection (c) of K.S.A. 60-226, and amendments thereto.
(e) Electronically Stored Information. Absent exceptionalcircumstances,acourt may not impose sanctions on a party for failing to provide electronicallystored information lost as a result of the routine, good-faith operation of anelectronic information system.
History: L. 1963, ch. 303, 60-237; amended by SupremeCourt order dated July 20, 1972;L. 1997, ch. 173, § 20;L. 2008, ch. 21, § 5; July 1.