Kansas Motion to Compel

Introduction

Key Things to Know

1. 1

   What you file in Kansas is a motion for an order compelling disclosure or discovery under K.S.A. 60-237(a), and because Kansas's rules of civil procedure are statutory there is no Kansas Rule 37 to cite. The statute names two motions. Under 60-237(a)(3)(B), a party seeking discovery may move for an order compelling an answer, designation, production or inspection where a deponent will not answer under 60-230 or 60-231, an entity will not make a designation, a party will not answer an interrogatory under 60-233, or a party will not produce documents or permit inspection under 60-234. Under 60-237(a)(4), an evasive or incomplete disclosure, answer or response must be treated as a failure to disclose, answer or respond.

2. 2

   The certification is prescribed content, and the second half of it is what Kansas adds. Besides the good faith recital, the motion must describe the steps taken by all attorneys or unrepresented parties to resolve the issues in dispute. Keep a dated record of letters, emails and calls from the start, because that record is the certification. Two consequences follow. A motion without it is defective on its face. And K.S.A. 60-237(a)(5)(A)(i) separately prohibits any expense award where the movant filed the motion before attempting in good faith to obtain the discovery without court action.

3. 3

   Read the verb split in K.S.A. 60-237(a)(5)(A) before deciding what to ask for. If the motion is granted, the court must, and if disclosure occurs before the motion is granted, the court may, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both, to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. So a responding party who produces everything after your motion is filed but before it is ruled on has moved the fee question from mandatory to discretionary. Kansas then drafts the exceptions as a prohibition rather than an unless clause: the court must not order the payment where you filed prematurely, where the nondisclosure, response or objection was substantially justified, or where other circumstances make an award unjust.

4. 4

   Losing exposes you to the same provision, and more. K.S.A. 60-237(a)(5)(B) provides that if the motion is denied the court may issue any protective order authorized under K.S.A. 60-226(c) and must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the opposing party's reasonable expenses of opposing it, including attorney's fees, on two exceptions rather than three. The denied limb keeps the unqualified must, so the asymmetry runs against a moving party in both directions.

5. 5

   The interrogatory cap is not in the statute, which is where readers go wrong. Kansas Supreme Court Rule 135(a)(3) provides that unless the court orders otherwise, the number of interrogatories in a damage action under K.S.A. Chapter 60 is limited to 30, counting subparagraphs. Rule 135 also dictates the physical form of the exchange: an interrogatory must state the question in clear, concise language and leave sufficient space after the question to insert an answer, and if an answer does not fit in the space provided it must be attached as an appendix and clearly identified by number. Rule 135(c) lets interrogatories, requests for production and requests for admission, and the responses to them, be served as a word processing attachment to an email in lieu of service by mail.

6. 6

   Your discovery dates come from a conference you can insist on. K.S.A. 60-216(b) provides that the court must, on the request of any party, conduct a case management conference, must schedule it as soon as possible, and that the conference must be conducted within 45 days after the filing of an answer unless the court extends the time to meet the needs of the case. At it the court must consider and take appropriate action on establishing a plan and schedule for discovery, setting limits on discovery, issues about disclosure, discovery or preservation of electronically stored information, requiring completion of discovery within a definite number of days after the conference, and setting deadlines for filing motions. Under 60-216(d) the resulting order controls the subsequent course of the action unless the court modifies it, and under 60-216(b)(3) a party who cannot finish in time must file its motion for additional time before the original period expires, containing a discovery plan and stating the reason.

7. 7

   Two timing details decide whether your motion is premature. First, each written device may be served on a defendant with or after service of process, and K.S.A. 60-233(b)(2), 60-234(b)(2)(A) and 60-236(a)(3) then each allow that defendant 45 days after being served with process instead of 30 days after being served with the request. It is not a whichever-is-longer rule, so the alternative only helps a defendant served early. Second, under 60-216(b)(2), if a case management conference is held no depositions other than of the parties may be taken until after it, except by agreement, by order of the court, or as provided in K.S.A. 60-230(a)(2)(B), and that restriction lapses if the conference is not held within 45 days after the answer.

Kansas Requirements for Motion to Compel

• The Certification, Narrating the Steps of Every Attorney and Unrepresented Party

  K.S.A. 60-237(a)(1) requires the motion to include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action, and additionally to describe the steps taken by all attorneys or unrepresented parties to resolve the issues in dispute. Write the second part as a dated account of what each side did and what came of it, because the statute asks for the steps rather than for the conclusion and it reaches every participant. Kansas carries the same two-clause formula at 60-237(d)(1)(B) and 60-226(c)(1), so the party resisting discovery owes the same narration when it moves.

• Which Branch of K.S.A. 60-237(a)(3) You Are Moving Under

  Branch (B), to compel a discovery response, covers a deponent who fails to answer under K.S.A. 60-230 or 60-231, an entity that fails to make a designation, a party that fails to answer an interrogatory under 60-233, and a party that fails to produce documents or to respond that inspection will be permitted under 60-234. Branch (A), to compel disclosure, reaches only a disclosure required by K.S.A. 60-226(b)(6), which is the expert disclosure, so it is narrower than its caption suggests. Where nothing at all was served, K.S.A. 60-237(d) is a separate route that allows sanctions without first obtaining an order and carries its own certification requirement.

• The Court You File In, Which Changes If a Nonparty Is Involved

  K.S.A. 60-237(a)(2) provides that a motion for an order to a party must be made in the court where the action is pending, and that a motion for an order to a nonparty must be made in the district where the discovery is or will be taken. So a deposition taken in another Kansas judicial district is enforced there. The expense provision at 60-237(a)(5) reaches a deponent as well as a party, in both directions, so a nonparty who resists successfully can recover against the movant.

• Proof the Thirty or Forty Five Day Period Had Run

  State the computation and name the event you measured from. K.S.A. 60-233(b)(2), 60-234(b)(2)(A) and 60-236(a)(3) each give 30 days after being served with the request, except that a defendant may respond within 45 days after being served with process. It is not a whichever-is-longer rule, so the alternative only helps a defendant served with discovery at or near the start of the case. Each statute also allows a shorter or longer time to be stipulated to under K.S.A. 60-229 or ordered by the court, so a written agreement genuinely changes the date. A premature motion is costly here, because 60-237(a)(5)(A)(i) prohibits the expense award where the movant filed before attempting in good faith to obtain the discovery.

• Your Interrogatory Count Against the Supreme Court Rule 135 Limit

  The limit is not in the statutes. Kansas Supreme Court Rule 135(a)(3) provides that unless the court orders otherwise, the number of interrogatories in a damage action under K.S.A. Chapter 60 is limited to 30, counting subparagraphs. Count the subparagraphs before the numbered questions. Rule 135(a)(1) also requires each interrogatory to state the question in clear, concise language and to leave sufficient space after the question to insert an answer, and Rule 135(b)(1) requires an answer that does not fit in that space to be attached as an appendix and clearly identified by number.

• The Request and the Response Set Out Item by Item

  Kansas prescribes no separate statement, so the itemization belongs in the motion. For each numbered item give the request as served, the answer or objection as served, and why it does not answer the question. Two statutes do the work for you. K.S.A. 60-237(a)(4) provides that an evasive or incomplete disclosure, answer or response must be treated as a failure to disclose, answer or respond. K.S.A. 60-233(b)(4) provides that the grounds for objecting to an interrogatory must be stated with specificity and that any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.

• Your Case Management Order Under K.S.A. 60-216

  Kansas sets no statewide deadline for bringing the motion, so the order entered after your case management conference is where your real dates come from. K.S.A. 60-216(b) requires the court, on the request of any party, to conduct that conference within 45 days after the filing of an answer unless it extends the time, and requires the court there to consider establishing a plan and schedule for discovery, requiring completion of discovery within a definite number of days after the conference, and setting deadlines for filing motions. Under 60-216(d) the order controls the subsequent course of the action unless the court modifies it, and under 60-216(b)(3) a motion for additional time to complete discovery must be filed before the original period expires, contain a discovery plan and state the reason.

• The Expense Request, and the Verb That Applies to Your Situation

  K.S.A. 60-237(a)(5)(A) provides that if the motion is granted the court must, and if disclosure occurs before the motion is granted the court may, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. The court must not order that payment if the movant filed before attempting in good faith to obtain the discovery without court action, if the opposing party's nondisclosure, response or objection was substantially justified, or if other circumstances make an award unjust. Under (a)(5)(B) a denied motion is mandatory against the movant and the attorney filing it on two exceptions, and lets the court issue a protective order as well.