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14  AN ACT concerning civil procedure [and civil actions]; amending
15    K.S.A. 60-102, 60-205, 60-206, 60-208, 60-209, 60-211, 60-214, 60-
16    215, 60-216, 60-223, 60-226, 60-228, 60-230, 60-231, 60-232, 60-233,
17    60-234, 60-235, 60-236, 60-237, 60-238, 60-241, 60-243, 60-245, 60-
18    245a, 60-250, 60-252, 60-254, 60-256, 60-262, 60-456, [60-717,] 60-
19    2103, 60-3703, 61-1710, 61-1725[, 61-2005] and 75-3079 and K.S.A.
20    1996 Supp. 60-1608 [and 60-2310] and repealing the existing sec-
21    tions; also repealing K.S.A. 60-2007.
22
23  Be it enacted by the Legislature of the State of Kansas:
24    Section 1.  K.S.A. 60-102 is hereby amended to read as follows: 60-
25  102. The provisions of this act shall be liberally construed and adminis-
26  tered to secure the just, speedy and inexpensive determination of every
27  action or proceeding.
28    Sec. 2.  K.S.A. 60-205 is hereby amended to read as follows: 60-205.
29  The method of service and filing of pleadings and other papers as pro-
30  vided in this section shall constitute sufficient service and filing in all civil
31  actions and special proceedings but they shall be alternative to, and not
32  in restriction of, different methods specifically provided by law.
33    (a)  When required. Except as otherwise provided in this chapter, the
34  following shall be served upon each of the parties: Every order required
35  by its terms to be served; every pleading subsequent to the original pe-
36  tition, unless the court otherwise orders because of numerous defendants;
37  every paper relating to disclosure of expert testimony or discovery re-
38  quired to be served upon a party, unless the court otherwise orders; every
39  written motion other than one which may be heard ex parte; and every
40  written notice, appearance, demand, offer of judgment, designation of
41  record on appeal and similar paper. No service need be made on parties
42  in default for failure to appear except that pleadings asserting new or
43  additional claims for relief against them shall be served upon them in the
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 1  manner provided for service of summons in article 3 of this chapter 60.
 2    (b)  How made. Whenever under this article service is required or
 3  permitted to be made upon a party represented by an attorney the service
 4  shall be made upon the attorney unless service upon the party is ordered
 5  by the court. Service upon the attorney or upon a party shall be made by:
 6    (1) Delivering a copy to the attorney or a party: (2) mailing it to the
 7  attorney or a party at the last known address; (3) if no address is known,
 8  by leaving it with the clerk of the court; or (4) sending or transmitting to
 9  such attorney a copy by telefacsimile communication. For the purposes
10  of this subsection, ``Delivery of a copy'' means: Handing it to the attorney
11  or to the party; leaving it at the attorney's or party's office with the clerk
12  or other person in charge thereof or, if there is no one in charge, leaving
13  it in a conspicuous place therein; or, if the attorney's or party's office is
14  closed or the person to be served has no office, leaving it at the attorney's
15  or party's dwelling house or usual place of abode with some person of
16  suitable age and discretion then residing therein. Service by mail is com-
17  plete upon mailing. Service by telefacsimile communication is complete
18  upon receipt of a confirmation generated by the transmitting machine.
19    (c)  Numerous defendants. In any action in which there are unusually
20  large numbers of defendants, the court, upon motion or of its own initia-
21  tive, may order that services of the pleadings of the defendants and replies
22  thereto need not be made as between the defendants and that any cross-
23  claim, counterclaim or matter constituting an avoidance or affirmative
24  defense contained therein shall be deemed to be denied or avoided by
25  all other parties and that the filing of any such pleading and service
26  thereof upon the plaintiff constitutes due notice of it to the parties. A
27  copy of every such order shall be served upon the parties in such manner
28  and form as the court directs.
29    (d)  Filing. (1) Interrogatories, depositions other than those taken un-
30  der K.S.A. 60-227 and amendments thereto, disclosures of expert testi-
31  mony under K.S.A. 60-226 and amendments thereto and discovery re-
32  quests or responses under K.S.A. 60-234 or 60-236, and amendments
33  thereto, shall not be filed except on order of the court or until used in a
34  trial or hearing, at which time the documents shall be filed.
35    (2)  A party serving discovery requests or responses under K.S.A. 60-
36  233, 60-234 or 60-236, and amendments thereto, or disclosures of expert
37  testimony under K.S.A. 60-226 and amendments thereto, shall file with
38  the court a certificate stating what document was served, when and upon
39  whom.
40    (3)  All other papers filed after the petition and required to be served
41  upon a party, shall be filed with the court either before service or within
42  a reasonable time thereafter.
43    (e)  Filing with the court defined. The filing of pleadings and other
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 1  papers with the court as required by this article shall be made by filing
 2  them with the clerk of the court, except that the. In accordance with
 3  K.S.A. 60-271 and amendments thereto and supreme court rules, plead-
 4  ings and other papers may be filed by telefacsimile communication. The
 5  judge may permit the papers to be filed with the judge, in which event
 6  the judge shall note thereon the filing date and forthwith transmit them
 7  to the office of the clerk.
 8    Sec. 3.  K.S.A. 60-206 is hereby amended to read as follows: 60-206.
 9  The following provisions shall govern the computation and extension of
10  time:
11    (a)  Computation; legal holiday defined. In computing any period of
12  time prescribed or allowed by this chapter, by the local rules of any district
13  court, by order of court, or by any applicable statute, the day of the act,
14  event, or default from which the designated period of time begins to run
15  shall not be included. The last day of the period so computed is to be
16  included, unless it is a Saturday, Sunday or a legal holiday, or, when the
17  act to be done is the filing of a paper in court, a day on which weather
18  or other conditions have made the office of the clerk of the district court
19  inaccessible, in which event the period runs until the end of the next day
20  which is not a Saturday, a Sunday or a legal holiday one of the foremen-
21  tioned days a Saturday, a Sunday or a legal holiday. When the period
22  of time prescribed or allowed is less than 11 days, intermediate Saturdays,
23  Sundays and legal holidays shall be excluded in the computation. A half
24  holiday shall be considered as other days and not as a holiday. ``Legal
25  holiday'' includes any day designated as a holiday by the congress of the
26  United States, or by the legislature of this state. When an act is to be
27  performed within any prescribed time under any law of this state, or any
28  rule or regulation lawfully promulgated thereunder, and the method for
29  computing such time is not otherwise specifically provided, the method
30  prescribed herein shall apply.
31    (b)  Enlargement. When by this chapter or by a notice given there-
32  under or by order of court an act is required or allowed to be done at or
33  within a specified time, the judge for cause shown may at any time in the
34  judge's discretion (1) with or without motion or notice order the period
35  enlarged if request therefor is made before the expiration of the period
36  originally prescribed or as extended by a previous order or (2) upon mo-
37  tion made after the expiration of the specified period permit the act to
38  be done where the failure to act was the result of excusable neglect; but
39  it may not extend the time for taking any action under subsection (c) (b)
40  of K.S.A. 60-250, subsection (b) of K.S.A. 60-252, subsections (b), (e) and
41    (f) of K.S.A. 60-259 and subsection (b) of K.S.A. 60-260, and amendments
42  thereto, except to the extent and under the conditions stated in them.
43    (c)  Unaffected by expiration of term. The period of time provided for
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 1  the doing of any act or the taking of any proceeding is not affected or
 2  limited by the continued existence or expiration of a term of court. The
 3  continued existence or expiration of a term of court in no way affects the
 4  power of a court to do any act or take any proceeding in any civil action
 5  pending before it.
 6    (d)  For motions--affidavits. A written motion, other than one which
 7  may be heard ex parte, and notice of the hearing thereof shall be served
 8  not later than five days before the time specified for the hearing, unless
 9  a different period is fixed by these rules or by order of the judge. Such
10  an order may for cause shown be made on ex parte application. When a
11  motion is supported by affidavit, the affidavit shall be served with the
12  motion; and except as otherwise provided in subsection (d) of K.S.A. 60-
13  259, and amendments thereto, opposing affidavits may be served not later
14  than one day before the hearing, unless the court permits them to be
15  served at the time of hearing.
16    (e)  Additional time after service by mail. Whenever a party has the
17  right or is required to do some act or take some proceedings within a
18  prescribed period after the service of a notice or other paper upon such
19  party and the notice or paper is served upon such party by mail, three
20  days shall be added to the prescribed period.
21    Sec. 4.  K.S.A. 60-208 is hereby amended to read as follows: 60-
22  208. (a) Claims for relief. A pleading which sets forth a claim for
23  relief, whether an original claim, counterclaim, cross-claim, or
24  third-party claim, shall contain: (1) A short and plain statement of
25  the claim showing that the pleader is entitled to relief; and (2) a
26  demand for judgment for the relief to which the pleader deems
27  such pleader's self entitled. Every pleading demanding relief for
28  damages in money in excess of $50,000 $75,000, without demanding
29  any specific amount of money, shall set forth only that the amount
30  sought as damages is in excess of $50,000 $75,000, except in actions
31  sounding in contract. Every pleading demanding relief for dam-
32  ages in money in an amount of $50,000 $75,000 or less shall specify
33  the amount of such damages sought to be recovered. Relief in the
34  alternative or of several different types may be demanded.
35    (b)  Defenses; form of denials. A party shall state in short and plain
36  terms such party's defenses to each claim asserted and shall admit
37  or deny the averments upon which the adverse party relies. If the
38  party is without knowledge or information sufficient to form a be-
39  lief as to the truth of an averment, the party shall so state and this
40  has the effect of a denial. Denials shall fairly meet the substance
41  of the averments denied. When a pleader intends in good faith to
42  deny only a part or a qualification of an averment, the pleader
43  shall specify so much of it as is true and material and shall deny
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 1  only the remainder. Unless the pleader intends in good faith to
 2  controvert all the averments of the preceding pleading, the
 3  pleader may make denials as specific denials of designated aver-
 4  ments or paragraphs, or the pleader may generally deny all the
 5  averments except such designated averments or paragraphs as the
 6  pleader expressly admits; but, when the pleader does so intend to
 7  controvert all averments, the pleader may do so by general denial,
 8  subject to the obligations set forth in K.S.A. 60-211, and amend-
 9  ments thereto.
10    (c)  Affirmative defenses. In pleading to a preceding pleading a
11  party shall set forth affirmatively accord and satisfaction, arbitra-
12  tion and award, assumption of risk, contributory negligence, dis-
13  charge in bankruptcy, duress, estoppel, failure of consideration,
14  fraud, illegality, injury by fellow servant, laches, license, payment,
15  release, res judicata, statute of frauds, statute of limitations, waiver,
16  and any other matter constituting an avoidance or affirmative de-
17  fense. When a party has mistakenly designated a defense as a coun-
18  terclaim or a counterclaim as a defense, the court on terms, if
19  justice so requires, shall treat the pleading as if there had been a
20  proper designation.
21    (d)  Effect of failure to deny. Averments in a pleading to which a
22  responsive pleading is required or permitted, other than those as
23  to the amount of damage, are admitted when not denied in the
24  responsive pleading. Averments in a pleading to which no respon-
25  sive pleading is required or permitted shall be taken as denied or
26  avoided.
27    (e)  Pleading to be concise and direct; consistency. (1) Each aver-
28  ment of a pleading shall be simple, concise, and direct. No tech-
29  nical forms of pleading or motions are required.
30    (2)  A party may set forth two or more statements of a claim or
31  defense alternately or hypothetically, either in one count or de-
32  fense or in separate counts or defenses. When two or more state-
33  ments are made in the alternative and one of them if made inde-
34  pendently would be sufficient, the pleading is not made
35  insufficient by the insufficiency of one or more of the alternative
36  statements. A party may also state as many separate claims or de-
37  fenses as the party has regardless of consistency and whether
38  based on legal or on equitable grounds or on both. All statements
39  shall be made subject to the obligations set forth in K.S.A. 60-211,
40  and amendments thereto.
41    (f)  Construction of pleadings. All pleadings shall be so construed
42  as to do substantial justice. and the bill be passed as amended.
43    Sec. 4 5.  K.S.A. 60-209 is hereby amended to read as follows: 60-
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 1  209. (a) Capacity. It is not necessary to aver the capacity of a party to sue
 2  or be sued or the authority of a party to sue or be sued in a representative
 3  capacity or the legal existence of an organized association of persons that
 4  is made a party. When a party desires to raise an issue as to the legal
 5  existence of any party or the capacity of any party to sue or be sued or
 6  the authority of any party to sue or be sued in a representative capacity,
 7  the party raising the issue shall do so by specific negative averment which
 8  shall include such supporting particulars as are peculiarly within the
 9  pleader's knowledge.
10    (b)  Fraud, mistake, conditions of the mind. In all averments of fraud
11  or mistake, the circumstances constituting fraud or mistake shall be stated
12  with particularity. Malice, intent, knowledge, and other conditions of
13  mind of a person may be averred generally.
14    (c)  Conditions precedent. In pleading the performance or occurrence
15  of conditions precedent, it is sufficient to aver generally that all conditions
16  precedent have been performed or have occurred. A denial of perform-
17  ance or occurrence shall be made specifically and with particularity.
18    (d)  Official document or act. In pleading an official document or of-
19  ficial act it is sufficient to aver that the document was issued or the act
20  done in compliance with law.
21    (e)  Judgment. In pleading a judgment or decision of a domestic or
22  foreign court, judicial or quasi-judicial tribunal, or of a board or officer,
23  it is sufficient to aver the judgment or decision without setting forth mat-
24  ter showing jurisdiction to render it.
25    (f)  Time and place. For the purpose of testing the sufficiency of a
26  pleading, averments of time and place are material and shall be consid-
27  ered like all other averments of material matter.
28    (g)  Special damage. When items of special damage are claimed, their
29  nature shall be specifically stated. In actions where exemplary or punitive
30  damages are recoverable, the amended petition shall not state a dollar
31  amount for damages sought to be recovered but shall state whether the
32  amount of damages sought to be recovered is in excess of or not in excess
33  of $10,000 $50,000 $75,000.
34    (h)  Pleading written instrument. Whenever a claim, defense or coun-
35  terclaim is founded upon a written instrument, the same may be pleaded
36  by reasonably identifying the same and stating the substance thereof or
37  it may be recited at length in the pleading, or a copy may be attached to
38  the pleading as an exhibit.
39    (i)  Tender of money. When a tender of money is made in any plead-
40  ing, it shall not be necessary to deposit the money in court when the
41  pleading is filed, but it shall be sufficient if the money is deposited in the
42  court at the trial, unless otherwise ordered by the court.
43    (j)  Libel and slander. In an action for libel or slander, it shall not be
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 1  necessary to state in the petition any extrinsic facts for the purpose of
 2  showing the application to the plaintiff of the defamatory matter out of
 3  which the claim arose, but it shall be sufficient to state generally that the
 4  same was published or spoken concerning the plaintiff; and if such alle-
 5  gation be not controverted in the answer, it shall not be necessary to prove
 6  it on the trial; in other cases it shall be necessary. The defendant may, in
 7  such defendant's answer, allege both the truth of the matter charged as
 8  defamatory and any mitigating circumstances admissible in evidence to
 9  reduce the amount of damages; and whether the defendant proves the
10  justification or not, the defendant may give in evidence any mitigating
11  circumstances.
12    Sec. 5 6.  K.S.A. 60-211 is hereby amended to read as follows: 60-
13  211. (a) Every pleading, motion and other paper provided for by this
14  article provided for by this article of a party represented by an attorney
15  shall be signed by at least one attorney of record in the attorney's indi-
16  vidual name, and the attorney's address and telephone number shall be
17  stated. A pleading, motion or other paper provided for by this article
18  provided for by this article of a party who is not represented by an
19  attorney shall be signed by the party and shall state the party's address.
20  Except when otherwise specifically provided by rule or statute, pleadings
21  need not be verified or accompanied by an affidavit.
22    (b)  The signature of a person constitutes a certificate by the person
23  that the person has read the pleading;, motion or other paper and that to
24  the best of the person's knowledge, information and belief formed after
25  reasonable an inquiry it is well grounded in fact and is warranted by
26  existing law or a good faith argument for the extension, modification or
27  reversal of existing law; and that it is not imposed for any improper pur-
28  pose, such as to harass or to cause unnecessary delay or needless increase
29  in the cost of litigation reasonable under the circumstances:
30    (1)  It is not being presented for any improper purpose, such as to
31  harass or to cause unnecessary delay or needless increase in the cost of
32  litigation;
33    (2)  the claims, defenses and other legal contentions therein are war-
34  ranted by existing law or by a nonfrivolous argument for the extension,
35  modification or reversal of existing law or the establishment of new law;
36    (3)  the allegations and other factual contentions have evidentiary sup-
37  port or, if specifically so identified, are likely to have evidentiary support
38  after a reasonable opportunity for further investigation or discovery; and
39    (4)  the denials of factual contentions are warranted on the evidence
40  or, if specifically so identified, are reasonably based on a lack of infor-
41  mation or belief.
42    (c)  If a pleading, motion or other paper provided for by this article
43  provided for by this article is not signed it shall be stricken unless it is
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 1  signed promptly after the omission is called to the attention of the pleader
 2  or movant. If a pleading, motion or other paper provided for by this article
 3  provided for by this article is signed in violation of this section, the
 4  court, upon motion or upon its own initiative upon notice and after op-
 5  portunity to be heard, shall impose upon the person who signed it or a
 6  represented party, or both, an appropriate sanction, which may include
 7  an order to pay to the other party or parties the amount of the reasonable
 8  expenses incurred because of the filing of the pleading, motion or other
 9  paper, including reasonable attorney fees. A motion for sanctions under
10  this section may be served and filed at any time during the pendency of
11  the action but not later than 10 days after the entry of judgment.
12    (d)  Subsections (a) through (c) do not apply to disclosures and dis-
13  covery requests, responses, objections and motions that are subject to the
14  provisions of K.S.A. 60-226 through 60-237 and amendments thereto.
15    (e)  The state of Kansas, or any agency thereof, and all political sub-
16  divisions of the state shall be subject to the provisions of this section in
17  the same manner as any other party.
18    (f)  If the court imposes monetary sanctions on an inmate in the cus-
19  tody of the secretary of corrections, the secretary is hereby authorized to
20  disburse any money in the inmate's account to pay such sanctions.
21    Sec. 6 7.  K.S.A. 60-214 is hereby amended to read as follows: 60-
22  214. (a) When defendant may bring in third party. At any time after
23  commencement of the action a defending party, as a third-party plaintiff,
24  may cause a summons and complaint petition to be served upon a person
25  not a party to the action who is or may be liable to him the third-party
26  plaintiff for all or part of the plaintiff's claim against him the third-party
27  plaintiff. The third-party plaintiff need not obtain leave to make the serv-
28  ice if he the third-party plaintiff files the third-party complaint petition
29  not later than 10 days after he serves his serving the original answer.
30  Otherwise he the third-party plaintiff must obtain leave on motion upon
31  notice to all parties to the action. The person served with the summons
32  and third-party complaint petition, hereinafter called the third-party de-
33  fendant, shall make his any defenses to the third-party plaintiff's claim as
34  provided in K.S.A. 60-212 and amendments thereto and his any counter-
35  claims against the third-party plaintiff and cross-claims against other
36  third-party defendants as provided in K.S.A. 60-213 and amendments
37  thereto. The third-party defendant may assert against the plaintiff any
38  defenses which the third-party plaintiff has to the plaintiff's claim. The
39  third-party defendant may also assert any claim against the plaintiff arising
40  out of the transaction or occurrence that is the subject matter of the
41  plaintiff's claim against the third-party plaintiff. The plaintiff may assert
42  any claim against the third-party defendant arising out of the transaction
43  or occurrence that is the subject matter of the plaintiff's claim against the
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 1  third-party plaintiff, and the third-party defendant thereupon shall assert
 2  his any defenses as provided in K.S.A. 60-212 and amendments thereto
 3  and his any counterclaims and cross-claims as provided in K.S.A. 60-213
 4  and amendments thereto. Any party may move to strike the third-party
 5  claim, or for its severance or separate trial. A third-party defendant may
 6  proceed under this section against any person not a party to the action
 7  who is or may be liable to him the third-party defendant for all or part
 8  of the claim made in the action against the third-party defendant.
 9    (b)  When plaintiff may bring in third party. When a counterclaim is
10  asserted against a plaintiff, he the plaintiff may cause a third party to be
11  brought in under circumstances which under this section would entitle a
12  defendant to do so.
13    (c)  Execution by third-party plaintiff -- limitation. Where a third-
14  party defendant is liable to the plaintiff, or to anyone holding a similar
15  position under subsections (a) and (b) of this section, on the claim on
16  which a third-party plaintiff has been sued, execution by said the third-
17  party plaintiff on a judgment against said such third-party defendant shall
18  be permitted only to the extent that the third-party plaintiff has paid any
19  judgment obtained against him the third-party plaintiff by the obligee.
20    Sec. 7 8.  K.S.A. 60-215 is hereby amended to read as follows: 60-
21  215. (a) Amendments. A party may amend his the party's pleading once
22  as a matter of course at any time before a responsive pleading is served
23  or, if the pleading is one to which no responsive pleading is permitted
24  and the action has not been placed upon the trial calendar, he the party
25  may so amend it at any time within twenty (20) 20 days after it is served.
26  Otherwise a party may amend his the party's pleading only by leave of
27  court or by written consent of the adverse party; and leave shall be freely
28  given when justice so requires. A party shall plead in response to an
29  amended pleading within the time remaining for response to the original
30  pleading or within twenty (20) 20 days after service of the amended plead-
31  ing, whichever period may be the longer, unless the court otherwise or-
32  ders.
33    (b)  Amendments to conform to the evidence. When issues not raised
34  by the pleadings are tried by express or implied consent of the parties,
35  they shall be treated in all respects as if they had been raised in the
36  pleadings. Such amendment of the pleadings as may be necessary to cause
37  them to conform to the evidence and to raise these issues may be made
38  at any time, even after judgment; but failure so to amend does not affect
39  the result of the trial of these issues. If evidence is objected to at the trial
40  on the ground that it is not within the issues made by the pleadings, the
41  court may allow the pleadings to be amended and shall do so freely when
42  the presentation of the merits of the action will be subserved thereby and
43  the objecting party fails to satisfy the court that the admission of such
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 1  evidence would prejudice him the party in maintaining his the party's
 2  action or defense upon the merits. The court may grant a continuance to
 3  enable the objecting party to meet such evidence.
 4    (c)  Relation back of amendments. Whenever An amendment of a
 5  pleading relates back to the date of the original pleading when:
 6    (1)  The claim or defense asserted in the amended pleading arose out
 7  of the conduct, transaction, or occurrence set forth or attempted to be
 8  set forth in the original pleading, the amendment relates back to the date
 9  of the original pleading. An; or
10    (2)  the amendment changing changes the party or the naming of the
11  party against whom a claim is asserted relates back if the foregoing pro-
12  vision (1) is satisfied and, within the period provided by law for com-
13  mencing the action against him the party including the period for service
14  of process under K.S.A. 60-203 and amendments thereto, the party to be
15  brought in by amendment (1): (A) Has received such notice of the insti-
16  tution of the action that he the party would not be prejudiced in main-
17  taining his a defense on the merits,; and (2) (B) knew or should have
18  known that, but for a mistake concerning the identity of the proper party,
19  the action would have been brought against him the party.
20    (d)  Supplemental pleadings. Upon motion of a party the court may,
21  upon reasonable notice and upon such terms as are just, permit him the
22  party to serve a supplemental pleading setting forth transactions or oc-
23  currences or events which have happened since the date of the pleading
24  sought to be supplemented. Permission may be granted even though the
25  original pleading is defective in its statement of a claim for relief or de-
26  fense. If the judge deems it advisable that the adverse party plead to the
27  supplemental pleading, he the judge shall so order, specifying the time
28  therefor.
29    Sec. 8 9.  K.S.A. 60-216 is hereby amended to read as follows: 60-
30  216. (a) Pretrial conferences; objectives. In any action, the court shall on
31  the request of either party, or may in its discretion without such request,
32  direct the attorneys for the parties to appear before it for a conference
33  to consider: or conferences before trial to expedite processing and dispo-
34  sition of the litigation, minimize expense and conserve time.
35    (b)  Case management conference. In any action, the court shall on
36  the request of either party, or may in its discretion without such request,
37  conduct a case management conference with counsel and any unrepre-
38  sented parties. The conference shall be scheduled by the court as soon as
39  possible and shall be conducted within 45 days of the filing of an answer.
40  However, in the discretion of the court, the time for the conference may
41  be extended or reduced to meet the needs of the individual case.
42    At any conference under this subsection consideration shall be given,
43  and the court shall take appropriate action, with respect to:
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 1    (1)  Identifying the issues and exploring the possibilities of stipulations
 2  and settlement;
 3    (2)  whether the action is suitable for alternative dispute resolution;
 4    (3)  exchanging information on the issues of the case, including key
 5  documents and witness identification;
 6    (4)  establishing a plan and schedule for discovery, including setting
 7  limitations on discovery, if any, designating the time and place of discov-
 8  ery, restricting discovery to certain designated witnesses or requiring
 9  statements be taken in writing or by use of electronic recording rather
10  than by stenographic transcription;
11    (5)  requiring completion of discovery within a definite number of
12  days after the conference has been conducted;
13    (6)  setting deadlines for filing motions, joining parties and amend-
14  ments to the pleadings;
15    (7)  setting the date or dates for conferences before trial, a final pretrial
16  conference, and trial; and
17    (8)  such other matters as are necessary for the proper management
18  of the action.
19    Except If a case management conference is held, except as pro-
20  vided in subsection (a)(2)(B) of K.S.A. 60-230 and amendments thereto,
21  no depositions, other than of the parties to the action, shall be taken until
22  after the conference is held, except by agreement of the parties or order
23  of the court. If the case management conference is not held within 45 days
24  of the filing of an answer, the restrictions of this paragraph shall no longer
25  apply.
26    If discovery cannot be completed within the period of time originally
27  prescribed by the court, the party not able to complete discovery shall file
28  a motion prior to the expiration of the original period for additional time
29  to complete discovery. Such motion shall contain a discovery plan and
30  shall set forth the reason why discovery cannot be completed within the
31  original period. If additional time is allowed, the court shall grant only
32  that amount of time reasonably necessary to complete discovery.
33    (c)  Subjects for consideration at pretrial conferences. At any pretrial
34  conference consideration may be given, and the court may take appro-
35  priate action, with respect to:
36    (1)  The simplification of the issues;
37    (2)  The trial of issues of law the determination of issues of law which
38  may eliminate or affect the trial of issues of fact;
39    (3)  the necessity or desirability of amendments to the pleadings;
40    (4)  the possibility of obtaining admissions of fact and of documents
41  which will avoid unnecessary proof;
42    (5)  the limitation of the number of expert witnesses;
43    (6)  the advisability of a preliminary reference of issues to a master;
HB 2007--Am. by SCW
                                     

 1  and
 2    (7)  such other matters as may aid in the disposition of the action.
 3    At least one of the attorneys for each party participating in any con-
 4  ference before trial shall have authority to enter into stipulations and to
 5  make admissions regarding all matters that the participants may reason-
 6  ably anticipate may be discussed. If appropriate, the court may require
 7  that a party or its representative be present or reasonably available by
 8  telephone in order to consider possible settlement of the dispute.
 9    In the discretion of the court, any pretrial conference may be held by
10  a telephone conference call.
11    (d)  Final pretrial conference. In any action, the court shall on the
12  request of either party, or may in its discretion without such request,
13  conduct a final pretrial conference in accordance with procedures estab-
14  lished by rule of the supreme court.
15    (e)  Pretrial orders. After any conference held under this section, an
16  order shall be entered reciting the action taken. This order shall control
17  the subsequent course of the action unless modified by a subsequent order.
18  The order following a final pretrial conference shall be modified only by
19  agreement of the parties, or by the court to prevent manifest injustice.
20    The court in its discretion may, and shall upon the request of either
21  party make an order which recites the action taken at the conference, the
22  amendments allowed to the pleadings, and the agreements made by the
23  parties as to any of the matters considered, and which limits the issues
24  for trial to those not disposed of by admissions or agreements of counsel;
25  and such order when entered controls the subsequent course of the ac-
26  tion, unless modified at the trial to prevent manifest injustice. The court
27  in its discretion may establish by rule a pretrial calendar on which actions
28  may be placed for consideration as above provided and may either confine
29  the calendar to jury actions or to nonjury actions or extend it to all actions.
30    (b) (f)  If a party or party's attorney fails to obey a pretrial order, if no
31  appearance is made on behalf of a party at a pretrial conference, if a party
32  or party's attorney is substantially unprepared to participate in the con-
33  ference or if a party or party's attorney fails to participate in good faith,
34  the judge, upon motion or the judge's own initiative and after opportunity
35  to be heard, may make such orders with regard thereto as are just, and
36  among others any of the orders provided in subsections (b)(2)(B), (C) and
37  (D) of K.S.A. 60-237 and amendments thereto. In lieu of or in addition
38  to any other sanction, the judge shall require the party or the party's
39  attorney, or both, to pay the reasonable expenses incurred because of any
40  noncompliance with this section, including attorney fees, unless the judge
41  finds that the noncompliance was substantially justified or that other cir-
42  cumstances make an award of expenses unjust.
43    Sec. 9 10.  K.S.A. 60-223 is hereby amended to read as follows: 60-
HB 2007--Am. by SCW
                                     

 1  223. (a) Prerequisites to a class action. One or more members of a class
 2  may sue or be sued as representative parties on behalf of all only if (1)
 3  the class is so numerous that joinder of all members is impracticable, (2)
 4  there are questions of law or fact common to the class, (3) the claims or
 5  defenses of the representative parties are typical of the claims or defenses
 6  of the class, and (4) the representative parties will fairly and adequately
 7  protect the interests of the class.
 8    (b)  Class actions maintainable. An action may be maintained as a class
 9  action if the prerequisites of subdivision (a) are satisfied, and in addition:
10    (1)  The prosecution of separate actions by or against individual mem-
11  bers of the class would create a risk of (A) inconsistent or varying adju-
12  dications with respect to individual members of the class which would
13  establish incompatible standards of conduct for the party opposing the
14  class, or (B) adjudications with respect to individual members of the class
15  which would as a practical matter be dispositive of the interests of the
16  other members not parties to the adjudications or substantially impair or
17  impede their ability to protect their interests; or
18    (2)  the party opposing the class has acted or refused to act on grounds
19  generally applicable to the class, thereby making appropriate final in-
20  junctive relief or corresponding declaratory relief with respect to the class
21  as a whole; or
22    (3)  the court finds that the questions of law or fact common to the
23  members of the class predominate over any questions affecting only in-
24  dividual members, and that a class action is superior to other available
25  methods for the fair and efficient adjudication of the controversy. The
26  matters pertinent to the findings include: (A) The interest of members
27  of the class in prosecuting or defending separate actions; (B) the extent
28  and nature of any litigation concerning the controversy already begun by
29  or against members of the class; (C) the appropriate place for maintaining,
30  and the procedural measures which may be needed in conducting, a class
31  action.
32    (c)  Determination by order whether class action to be maintained;
33  judgment; actions conducted partially as class actions.
34    (1)  As soon as practicable after the commencement and before the
35  decision on the merits of an action brought as a class action, the court
36  shall determine by order whether it is to be maintained as such. Where
37  necessary for the protection of a party or of absent persons, the court,
38  upon motion or on its own initiative at any time before the decision on
39  the merits of an action brought as a nonclass action, may order that it be
40  maintained as a class action. An order under this subdivision may be
41  conditional, and may be altered or amended before the decision on the
42  merits.
43    (2)  The judgment in an action maintained as a class action shall ex-
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 1  tend by its terms to the members of the class, as defined, whether or not
 2  the judgment is favorable to them.
 3    In any class action maintained under subdivision (b)(3), the court shall
 4  exclude those members who, by a date to be specified, request exclusion,
 5  unless the court finds that their inclusion is essential to the fair and ef-
 6  ficient adjudication of the controversy and states its reasons therefor. To
 7  afford members of the class an opportunity to request exclusion, the court
 8  shall direct that reasonable notice be given to the class, including specific
 9  notice to each member known to be engaged in a separate suit on the
10  same subject matter with the party opposed to the class.
11    (3) (2)  In any class action maintained under subsection (b)(3), the
12  court shall direct to the members of the class the best notice practicable
13  under the circumstances, including individual notice to all members who
14  can be identified through reasonable effort. The notice shall advise each
15  member that: (A) The court will exclude the member from the class if the
16  member so requests by a specified date; (B) the judgment, whether fa-
17  vorable or not, will include all members who do not request exclusion;
18  and (C) any member who does not request exclusion, if the member de-
19  sires, may enter an appearance through counsel.
20    (3)  The judgment in an action maintained as a class action under
21  subsection (b)(1)) or (b)(2), whether or not favorable to the class, shall
22  include and describe those whom the court finds to be members of the
23  class. The judgment in an action maintained as a class action under sub-
24  section (b)(3), whether or not favorable to the class, shall include and
25  specify or describe those to whom the notice provided in subsection (c)(2)
26  was directed, and who have not requested exclusion, and whom the court
27  finds to be members of the class.
28    (4)  When appropriate (A) an action may be brought or maintained as
29  a class action with respect to particular issues such as the issue of liability,
30  or (B) a class may be divided into subclasses and each subclass treated as
31  a class, and the provisions of this section shall then be construed and
32  applied accordingly.
33    (d)  Orders in conduct of actions. In the conduct of actions to which
34  this section applies, the court may, without limitation, make appropriate
35  orders: (1) Settling the course of proceedings or prescribing measures to
36  prevent undue repetition or complication in the presentation of evidence
37  or argument; (2) requiring, for the protection of the members of the class
38  or otherwise for the fair conduct of the action, that notice be given in
39  such manner as the court may direct to some or all of the members of
40  any step in the action, or of the proposed extent of the judgment, or of
41  the opportunity of members to signify whether they consider the repre-
42  sentation fair and adequate, to intervene and present claims or defenses,
43  or otherwise to come into the action; (3) imposing conditions on the
HB 2007--Am. by SCW
                                     

 1  representative parties or on intervenors; (4) requiring that the pleadings
 2  be amended to eliminate therefrom allegations as to representation of
 3  absent persons, or to include such allegations, and that the action in either
 4  case proceed accordingly. The orders may be combined with an order
 5  under K.S.A. 60-216 and amendments thereto, and may be altered or
 6  amended as may be desirable from time to time.
 7    (e)  Dismissal or compromise. An action brought as a A class action,
 8  whether or not ordered to be maintained as provided in paragraph (1) of
 9  subsection (c), shall not be dismissed or compromised without the ap-
10  proval of the court, and the court in its discretion may order that notice
11  of a the proposed dismissal or compromise shall be given to the all mem-
12  bers of the class in such manner as the court may direct directs.
13    Sec. 10 11.  K.S.A. 60-226 is hereby amended to read as follows: 60-
14  226. (a) Discovery methods. Parties may obtain discovery by one or more
15  of the following methods: Depositions upon oral examination or written
16  questions; written interrogation interrogatories; production of documents
17  or things or permission to enter upon land or other property under K.S.A.
18  60-234, subsection (a)(1)(C) of K.S.A. 60-245 or 60-245a and amendments
19  thereto, for inspection and other purposes; physical and mental exami-
20  nations; and requests for admission. Unless the court orders otherwise
21  under subsection (c), the frequency of use of these methods is not limited.
22    (b)  Scope of discovery. Unless otherwise limited by order of the court
23  in accordance with these rules, the scope of discovery is as follows:  (1) In
24  general: Parties may obtain discovery regarding any matter, not privi-
25  leged, which is relevant to the subject matter involved in the pending
26  action, whether it relates to the claim or defense of the party seeking
27  discovery or to the claim or defense of any other party, including the
28  existence, description, nature, custody, condition and location of any
29  books, documents or other tangible things and the identity and location
30  of persons having knowledge of any discoverable matter. It is not ground
31  for objection that the information sought will be inadmissible at the trial
32  if the information sought appears reasonably calculated to lead to the
33  discovery of admissible evidence. Except as permitted under subsection
34  (b)(3) (b)(4), a party shall not require a deponent to produce, or submit
35  for inspection, any writing prepared by, or under the supervision of, an
36  attorney in preparation for trial.
37    (2)  The frequency or extent of use of the discovery methods otherwise
38  permitted under the rules of civil procedure shall be limited by the court
39  only if it determines that: (A) The discovery sought is unreasonably cu-
40  mulative or duplicative, or is obtainable from some other source that is
41  more convenient, less burdensome or less expensive; (B) the party seeking
42  discovery has had ample opportunity by discovery in the action to obtain
43  the information sought; or (C) the burden or expense of the proposed
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 1  discovery outweighs its likely benefit, taking into account the needs of the
 2  case, the amount in controversy, the parties' resources, the importance of
 3  the issues at stake in the litigation and the importance of the proposed
 4  discovery in resolving the issues. The court may act upon its own initiative
 5  after reasonable notice or pursuant to a motion under subsection (c).
 6    (2) (3)  Insurance agreements. A party may obtain discovery of the
 7  existence and contents of any insurance agreement under which any per-
 8  son carrying on an insurance business may be liable to satisfy part or all
 9  of a judgment which may be entered in the action or to indemnify or
10  reimburse for payments made to satisfy the judgment. Information con-
11  cerning the insurance agreement is not by reason of disclosure admissible
12  in evidence at trial. For purposes of this paragraph, an application for
13  insurance shall not be treated as part of an insurance agreement.
14    (3) (4)  Trial preparation: Materials. Subject to the provisions of sub-
15  section (b)(4) (b)(5), a party may obtain discovery of documents and tan-
16  gible things otherwise discoverable under subsection (b)(1) and prepared
17  in anticipation of litigation or for trial by or for another party or by or for
18  that other party's representative (,including such other party's attorney,
19  consultant, surety, indemnitor, insuror or agent), only upon a showing
20  that the party seeking discovery has substantial need of the materials in
21  the preparation of such party's case and that such party is unable without
22  undue hardship to obtain the substantial equivalent of the materials by
23  other means. In ordering discovery of such materials when the required
24  showing has been made, the court shall protect against disclosure of the
25  mental impression, conclusions, opinions or legal theories of an attorney
26  or other representative of a party concerning the litigation.
27    A party may obtain without the required showing a statement con-
28  cerning the action or its subject matter previously made by that party.
29  Upon request, a person not a party may obtain without the required
30  showing a statement concerning the action or its subject matter previously
31  made by that person. If the request is refused, the person may move for
32  a court order. The provisions of K.S.A. 60-237 and amendments thereto
33  apply to the award of expenses incurred in relation to the motion. For
34  purposes of this paragraph, a statement previously made is (A) a written
35  statement signed or otherwise adopted or approved by the person making
36  it, or (B) a stenographic, mechanical, electrical, or other recording, or a
37  transcription thereof, which is a substantially verbatim recital of an oral
38  statement by the person making it and contemporaneously recorded.
39    (4) (5)  Trial preparation: Experts. Discovery of facts known and opin-
40  ions held by experts, otherwise discoverable under the provisions of sub-
41  section (b)(1) and acquired or developed in anticipation of litigation or
42  for trial, may be obtained only as follows: 
43    (A) (i)  A party may through interrogatories require any other party
HB 2007--Am. by SCW
                                     

 1  to identify each person whom the other party expects to call as an expert
 2  witness at trial, to state the subject matter on which the expert is expected
 3  to testify and to state the substance of the facts and opinions to which
 4  the expert is expected to testify and a summary of the grounds for each
 5  opinion. (ii) Upon motion the court may order further discovery by other
 6  means, subject to such restrictions as to scope and such provisions, pur-
 7  suant to subsection (b)(4)(C), concerning fees and expenses as the court
 8  may deem appropriate.
 9    (A)  A party may depose any person who has been identified as an
10  expert whose opinions may be presented at trial. If a report disclosure
11  from the expert is required under subsection (b)(6)(B) (b)(6), the depo-
12  sition shall not be conducted until after the report disclosure is provided.
13    (B)  A party may, through interrogatories or by deposition, may dis-
14  cover facts known or opinions held by an expert who has been retained
15  or specially employed by another party in anticipation of litigation or
16  preparation for trial and who is not expected to be called as a witness at
17  trial, only as provided in K.S.A. 60-235 and amendments thereto or upon
18  a showing of exceptional circumstances under which it is impracticable
19  for the party seeking discovery to obtain facts or opinions on the same
20  subject by other means.
21    (C)  Unless manifest injustice would result, (i) the court shall require
22  that the party seeking discovery pay the expert a reasonable fee for time
23  spent in responding to discovery under subsections (b)(4)(A)(ii) and
24    (b)(4)(B) this subsection; and (ii) with respect to discovery obtained under
25  subsection (b)(4)(A)(ii) the court may require, and with respect to dis-
26  covery obtained under subsection (b)(4)(B) (b)(5)(B) the court shall re-
27  quire, the party seeking discovery to pay the other party a fair portion of
28  the fees and expenses reasonably incurred by the latter party in obtaining
29  facts and opinions from the expert.
30    (6)  Disclosure of expert testimony.
31    (A)  A party shall disclose to other parties the identity of any person
32  who may be used at trial to present expert testimony.
33    (B)  Except as otherwise stipulated or directed by the court, this dis-
34  closure, with respect to a witness (i) whose sole connection with the case
35  is that the witness is retained or specially employed to provide expert
36  testimony in the case or (ii) whose duties as an employee of the party
37  regularly involve giving expert testimony, shall state the subject matter
38  on which the expert is expected to testify, the substance of the facts and
39  opinions to which the expert is expected to testify and a summary of the
40  grounds for each opinion.
41    (C)  These disclosures shall be made at the times and in the sequence
42  directed by the court. In the absence of other directions from the court
43  or stipulation by the parties, the disclosures shall be made at least 90 days
HB 2007--Am. by SCW
                                     

 1  before the trial date or the date the case is to be ready for trial or, if the
 2  evidence is intended solely to contradict or rebut evidence on the same
 3  subject matter identified by another party under paragraph (b)(6)(B),
 4  within 30 days after the disclosure made by the other party. The party
 5  shall supplement these disclosures when required under subsection (e)(1).
 6    (D)  Unless otherwise ordered by the court, all disclosures under this
 7  subsection shall be made in writing, signed and served. Such disclosures
 8  shall be filed with the court in accordance with subsection (d) of K.S.A.
 9  60-205 and amendments thereto.
10    (c)  Protective orders. Upon motion by a party or by the person from
11  whom discovery is sought, and for good cause shown, the court in which
12  the action is pending or alternatively, on matters relating to a deposition,
13  the court in the district where the deposition is to be taken may make
14  any order which justice requires to protect a party or person from an-
15  noyance, embarrassment, oppression, or undue burden or expense in-
16  cluding one or more of the following:
17    (1)  That the discovery not be had;
18    (2)  that the discovery may be had only on specified terms and con-
19  ditions, including a designation of the time or place;
20    (3)  that the discovery may be had only by a method of discovery other
21  than that selected by the party seeking discovery;
22    (4)  that certain matters not be inquired into, or that the scope of the
23  discovery be limited to certain matters;
24    (5)  that discovery be conducted with no one present except persons
25  designated by the court;
26    (6)  that a deposition after being sealed be opened only by order of
27  the court;
28    (7)  that a trade secret or other confidential research, development,
29  or commercial information not be disclosed or be disclosed only in a
30  designated way;
31    (8)  that the parties simultaneously file specified documents or infor-
32  mation enclosed in sealed envelopes to be opened as directed by the
33  court.
34    If the motion for a protective order is denied in whole or in part, the
35  court may, on such terms and conditions as are just, may order that any
36  party or person provide or permit discovery. The provisions of K.S.A. 60-
37  237 and amendments thereto apply to the award of expenses incurred in
38  relation to the motion.
39    (d)  Sequence and timing of discovery. Unless the court upon motion,
40  for the convenience of parties and witnesses and in the interests of justice,
41  orders otherwise, methods of discovery may be used in any sequence and
42  the fact that a party is conducting discovery, whether by deposition or
43  otherwise, shall not operate to delay any other party's discovery.
HB 2007--Am. by SCW
                                     

 1    (e)  Supplementation of responses. A party who has made a disclosure
 2  under subsection (b)(6) or responded to a request for discovery with a
 3  response that was complete when made is under no a duty to supplement
 4  or correct the party's disclosure or response to include information there-
 5  after acquired, except as follows if ordered by the court or in the following
 6  circumstances:
 7    (1)  A party is under a duty seasonably to supplement the party's re-
 8  sponse with respect to any question directly addressed to (A) the identity
 9  and location of persons having knowledge of discoverable matters, and
10  (B) the identity of each person expected to be called as an expert witness
11  at trial, the subject matter on which the party is expected to testify and
12  the substance of the party's testimony at appropriate intervals its disclo-
13  sures under subsection (b)(6) if the party learns that in some material
14  respect the information disclosed is incomplete or incorrect and if the
15  additional or corrective information has not otherwise been made known
16  to the other parties during the discovery process or in writing. With re-
17  spect to testimony of an expert from whom a report is required under
18  subsection (b)(6)(B) (b)(6) the duty extends both to information contained
19  in the report disclosure and to information provided through a deposi-
20  tion of the expert, and any additions or other changes to this information
21  shall be disclosed at least 30 days before trial, unless otherwise directed
22  by the court.
23    (2)  A party is under a duty seasonably to amend a prior response to
24  an interrogatory, request for production or request for admission if the
25  party obtains information upon the basis of which (A) the party knows
26  that the response was incorrect when made, or (B) the party knows that
27  the response though correct when made is no longer true and the cir-
28  cumstances are such that a failure to amend the response is in substance
29  a knowing concealment learns that the response is in some material re-
30  spect incomplete or incorrect and if the additional or corrective infor-
31  mation has not otherwise been made known to the other parties during
32  the discovery process or in writing.
33    (3)  A duty to supplement responses may be imposed by order of the
34  court, agreement of the parties, or at any time prior to trial through new
35  requests for supplementation of prior responses.
36    (f)  Signing of disclosures, discovery requests, responses and objec-
37  tions. (1) Every request for discovery or response or objection to discovery
38  made by a party represented by an attorney shall be signed by at least
39  one attorney of record in such attorney's individual name, whose address
40  shall be stated. A party who is not represented by an attorney shall sign
41  the request, response or objection and state such party's address. The
42  signature of the attorney or party constitutes a certification that the at-
43  torney or party has read the request, response or objection and that to
HB 2007--Am. by SCW
                                     

 1  the best of such attorney's or party's knowledge, information and belief
 2  formed after reasonable inquiry it is: (1) (A) Consistent with the rules of
 3  civil procedure and warranted by existing law or good faith argument for
 4  the extension, modification or reversal of existing law; (2) (B) not inter-
 5  posed for any improper purpose, such as to harass or to cause unnecessary
 6  delay or needless increase in the cost of litigation; and (3) (C) not unrea-
 7  sonable or unduly burdensome or expensive, given the needs of the case,
 8  the discovery already had in the case, the amount in controversy and the
 9  importance of the issues at stake in the litigation. If a request, response
10  or objection is not signed, it shall be stricken unless it is signed promptly
11  after the omission is called to the attention of the party or person making
12  the request, response or objection and a party shall not be obligated to
13  take any action with respect to it until it is signed.
14    (2)  Every disclosure made under subsection (b)(6) shall be signed by
15  at least one attorney of record in the attorney's individual name whose
16  address shall be stated. An unrepresented party shall sign the disclosure
17  and state the party's address. The signature of the attorney or party con-
18  stitutes a certification that to the best of the signer's knowledge, infor-
19  mation and belief, formed after a reasonable inquiry, the disclosure is
20  complete and correct as of the time it is made.
21    (3)  If, without substantial justification, a certification is made in vi-
22  olation of this section, the court, upon motion or upon its own initiative,
23  shall impose upon the person who made the certification or the party on
24  whose behalf the disclosure, request, response or objection is made, or
25  both, an appropriate sanction, which may include an order to pay the
26  amount of reasonable expenses incurred because of the violation, includ-
27  ing reasonable attorney fees.
28    Sec. 11 12.  K.S.A. 60-228 is hereby amended to read as follows: 60-
29  228. (a) Within the United States. (1) Depositions may be taken in this
30  state before any officer or person authorized to administer oaths by the
31  laws of this state.
32    (2)  Without the state but within the United States, or within a terri-
33  tory or insular possession subject to the dominion of the United States,
34  depositions shall be taken before an officer authorized to administer oaths
35  by the laws of the place where the examination is held, or before a person
36  appointed by the court in which the action is pending. A person so ap-
37  pointed has power to administer oaths and take testimony.
38    (3)  Any court of record of this state, or any judge thereof, before
39  whom an action or proceeding is pending, is authorized to grant a com-
40  mission to take depositions within or without the state. The commission
41  may be issued by the clerk to a person or persons therein named, under
42  the seal of the court granting the same.
43    (b)  In foreign countries. In a foreign country, Depositions may be
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 1  taken in a foreign country:
 2    (1)  Pursuant to any applicable treaty or convention;
 3    (2)  pursuant to a letter of request, whether or not captioned a letter
 4  rogatory;
 5    (3)  on notice before a person authorized to administer oaths in the
 6  place where the examination is held, either by the law of the United States
 7  or the law of that place, or (2);
 8    (4)  before a person appointed by commission, or (3) under letters
 9  rogatory. A person appointed by commission has power by virtue of his
10  or her the appointment to administer oaths and take testimony. A com-
11  mission or letters rogatory letter of request shall be issued on application
12  and notice, and on terms and directions that are just and appropriate. It
13  is not requisite to the issuance of letters rogatory a commission or a letter
14  of request that the taking of the deposition by commission or on notice
15  in any other matter is impracticable or inconvenient; and both a com-
16  mission and letters rogatory letter of request may be issued in proper
17  cases. A notice or commission may designate the person before whom
18  the deposition is to be taken either by name or descriptive title. Letters
19  rogatory A letter of request may be addressed ``To the Appropriate Judicial
20  Authority in (here name the country).'' When a letter of request or any
21  other device is used pursuant to an applicable treaty or convention, it
22  shall be captioned in the form prescribed by that treaty or convention.
23  Evidence obtained under letters rogatory in response to a letter of request
24  shall not be excluded on the ground that it is not in the form of questions
25  and answers or is not a verbatim transcript of the testimony.
26    (c)  Disqualification for interest. No deposition shall be taken before
27  a person who is a relative or employee or attorney or counsel of any of
28  the parties, or is a relative or employee of such attorney or counsel, or is
29  financially interested in the action.
30    (d)  Depositions for use in foreign jurisdictions. Whenever the depo-
31  sition of any person is to be taken in this state pursuant to the laws of
32  another state or of the United States or of another country for use in
33  proceedings there, the district court in the county where the deponent
34  resides or is employed or transacts his or her business in person may,
35  upon ex parte petition, make an order directing issuance of subpoena as
36  provided in K.S.A. 60-245, in aid of the taking of the deposition, and may
37  make any order in accordance with K.S.A. 60-230 (d) subsection (d) of
38  K.S.A. 60-230, subsection (a) of K.S.A. 60-237 (a) or subsection (b)(1) of
39  K.S.A. 60-237 (b) (1) and amendments thereto.
40    Sec. 12 13.  K.S.A. 60-230 is hereby amended to read as follows: 60-
41  230. (a) When depositions may be taken; when leave required. After com-
42  mencement of the action, any (1) A party may take the testimony of any
43  person, including a party, by deposition upon oral examination. Leave of
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 1  court, granted with or without notice, shall be obtained only if the plaintiff
 2  seeks to take a deposition prior to the expiration of 30 days after service
 3  of the summons and petition upon any defendant or service made under
 4  K.S.A. 60-301 et seq., and amendments thereto, except that leave is not
 5  required if (1) a defendant has served a notice of taking deposition or
 6  otherwise sought discovery or (2) special notice is given as provided in
 7  this section without leave of court except as provided in paragraph (2).
 8  The attendance of witnesses may be compelled by subpoena as provided
 9  in K.S.A. 60-245 and amendments thereto. The deposition of a person
10  confined in prison may be taken only by leave of court on such terms as
11  the court prescribes.
12    (2)  A party must obtain leave of court, which shall be granted to the
13  extent consistent with the principles stated in subsection (b)(2) of K.S.A.
14  60-226 and amendments thereto, if the person to be examined is confined
15  in prison or if, without written stipulation of the parties:
16    (A)  The person to be examined already has been deposed in the case;
17    (B)  a party seeks to take a deposition of a nonparty before the time
18  specified in subsection (b) of K.S.A. 60-216 and amendments thereto, un-
19  less the notice contains a certification, with supporting facts, that the
20  person to be examined is expected to leave Kansas and be unavailable for
21  examination in Kansas unless deposed before that time; or
22    (C)  the plaintiff seeks to take a deposition of a party, or a deposition
23  of a nonparty in an action in which a case management conference has
24  not been scheduled under subsection (b) of K.S.A. 60-216 and amend-
25  ments thereto, prior to the expiration of 30 days after service of the sum-
26  mons and petition upon any defendant or service made under K.S.A. 60-
27  301 et seq., and amendments thereto, unless (i) a defendant has served a
28  notice of taking deposition or otherwise sought discovery or (ii) the notice
29  contains a certification, with supporting facts, that the person to be ex-
30  amined is expected to leave Kansas and be unavailable for examination in
31  Kansas unless deposed before expiration of the 30-day period.
32    (b)  Notice of examination; general requirements; special notice; non-
33  stenographic recording; production of documents and things; deposition
34  of organization. (1) A party desiring to take the deposition of any person
35  upon oral examination shall give reasonable notice in writing to every
36  other party to the action. The attendance of witnesses may be compelled
37  by subpoena as provided in K.S.A. 60-245 and amendments thereto. The
38  notice shall state the time and place for taking the deposition and the
39  name and address of each person to be examined, if known. If, and, if
40  the name is not known, a general description sufficient to identify the
41  person or the particular class or group to which the person belongs. If a
42  subpoena duces tecum is to be served on the person to be examined, a
43  designation of the materials to be produced as set forth in the subpoena
HB 2007--Am. by SCW
                                     

 1  shall be attached to or included in the notice.
 2    (2)  Leave of court is not required for the taking of a deposition by
 3  plaintiff if the notice (A) states that the person to be examined is about
 4  to go out of the district where the action is pending and more than 100
 5  miles from the place of trial or is about to leave the United States, or is
 6  bound on a voyage to sea and will be unavailable for examination unless
 7  the deposition is taken before expiration of the 30-day period, and (B)
 8  sets forth facts to support the statement. The plaintiff's attorney shall sign
 9  the notice and the attorney's signature constitutes a certification by the
10  attorney that to the best of the attorney's knowledge, information and
11  belief the statement and supporting facts are true. The sanctions provided
12  by K.S.A. 60-211 and amendments thereto are applicable to the certifi-
13  cation.
14    If a party shows that when the party was served with notice under this
15  section the party was unable through the exercise of diligence to obtain
16  counsel to represent the party at the taking of the deposition, the depo-
17  sition may not be used against the party.
18    (3)  The judge may for cause shown enlarge or shorten the time for
19  taking the deposition.
20    (4) (2)  The parties may stipulate in writing or the court may upon
21  motion order that the testimony at a deposition be recorded by other than
22  stenographic means. The stipulation or order shall designate the person
23  before whom the deposition shall be taken, the manner of recording,
24  preserving and filing the deposition, and may include other provisions to
25  assure that the recorded testimony will be accurate and trustworthy. A
26  party may arrange to have a stenographic transcription made at the party's
27  own expense. Any objections under subsection (c), any changes made by
28  the witness, the signature identifying the deposition as the signature of
29  the witness or the statement of the officer that is required by subsection
30    (e) if the witness does not sign and the certification of the officer required
31  by subsection (f) shall be set forth in writing to accompany a deposition
32  recorded by nonstenographic means.
33    (3)  Unless otherwise agreed by the parties, a deposition shall be con-
34  ducted before an officer appointed or designated under K.S.A. 60-228 and
35  amendments thereto, and shall begin with a statement on the record by
36  the officer that includes: (A)  The officer's name and business address;
37  (B)  the date, time and place of the deposition; (C)  the name of the
38  deponent; (D)  the administration of the oath or affirmation to the de-
39  ponent; and (E)  an identification of all persons present. If the deposition
40  is recorded other than stenographically, the officer shall repeat items (A)
41  through (C) at the beginning of each unit of recorded tape or other re-
42  cording medium. The appearance or demeanor of deponents or attorneys
43  shall not be distorted through camera or sound-recording techniques. At
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 1  the end of the deposition, the officer shall state on the record that the
 2  deposition is complete and shall set forth any stipulations made by counsel
 3  concerning the custody of the transcript or recording and the exhibits, or
 4  concerning other pertinent matters. Any deposition which is to be re-
 5  corded stenographically may also be recorded on videotape, or a com-
 6  parable medium, by any party by giving notice to the other parties prior
 7  to the deposition.
 8    (5) (4)  The notice to a party deponent may be accompanied by a
 9  request made in compliance with K.S.A. 60-234 and amendments thereto
10  for the production of documents and tangible things at the taking of the
11  deposition. The procedure of K.S.A. 60-234 and amendments thereto
12  shall apply to the request.
13    (6) (5)  A party may in the notice and in a subpoena name as the
14  deponent a public or private corporation or a partnership, association or
15  governmental agency and designate with reasonable particularity the mat-
16  ters on which examination is requested. The named organization shall
17  designate one or more officers, directors, managing agents or other per-
18  sons who consent to testify on its behalf and may set forth, for each person
19  designated, the matters on which the person will testify. A subpoena shall
20  advise a nonparty organization of its duty to make such a designation.
21  The designated persons shall testify as to matters known or reasonably
22  available to the organization. This subsection does not preclude taking a
23  deposition by any other procedure authorized in these rules.
24    (7) (6)  The parties may stipulate in writing or the court may upon
25  motion order that a deposition be taken by telephone or other remote
26  electronic means. For the purposes of this section and K.S.A. 60-228(a),
27  60-237(a)(1), 60-237(b)(1) and 60-245(e), subsection (c) of K.S.A. 60-226,
28  subsection (a) of K.S.A. 60-228, subsection (a)(1) of K.S.A. 60-237, sub-
29  section (b)(1) of K.S.A. 60-237 and subsection (a)(2) of K.S.A. 60-245 and
30  amendments thereto, a deposition taken by telephone shall be or other
31  remote electronic means is taken in the district agreed upon by the parties
32  and at the place where the deponent answers questions. If a deposition
33  is taken by telephone, a stenographic record of the deposition shall be
34  made while the deposition is being taken.
35    (8)  The parties may stipulate in writing or the court, upon motion
36  and a finding that it is necessary, may order that a deposition be video-
37  taped. If a deposition is videotaped, a stenographic record of the depo-
38  sition shall be made while the deposition is being taken, at the place where
39  the deponent answers questions.
40    (c)  Examination and cross-examination; record of examination; oath;
41  objections. Examination and cross-examination of witnesses may proceed
42  as permitted at the trial under the provisions of K.S.A. 60-243 and amend-
43  ments thereto. The officer before whom the deposition is to be taken
HB 2007--Am. by SCW
                                     

 1  shall put the witness on oath or affirmation and shall personally, or by
 2  some one acting under the direction and in the presence of the officer,
 3  record the testimony of the witness. The testimony shall be taken sten-
 4  ographically or recorded by any other means ordered in accordance with
 5  subsection (b)(4) (b)(2). If requested by one of the parties, the testimony
 6  shall be transcribed. The judge may order the cost of transcription paid
 7  by one or some of, or apportioned among, the parties. All objections made
 8  at the time of the examination to the qualifications of the officer taking
 9  the deposition, to the manner of taking it, to the evidence presented, to
10  the conduct of any party and any other objection to or to any other aspect
11  of the proceedings shall be noted by the officer upon the record of the
12  deposition. Evidence objected to shall be; but the examination shall pro-
13  ceed, with the testimony being taken subject to the objections. In lieu of
14  participating in the oral examination, parties may serve written questions
15  in a sealed envelope on the party taking the deposition and the party shall
16  transmit them the questions to the officer who shall propound them such
17  questions to the witness and record the answers verbatim.
18    (d)  Motion to terminate or limit examination. At any time during the
19  taking of the deposition, on motion of a party or of the deponent and
20  upon a showing that the examination is being conducted in bad faith or
21  in such manner as unreasonably to annoy, embarrass or oppress the de-
22  ponent or party, the judge in the district where the action is pending or
23  where the deposition is being taken may order the officer conducting the
24  examination to cease forthwith from taking the deposition or may limit
25  the scope and manner of the taking of the deposition as provided in
26  subsection (c) of K.S.A. 60-226(c) 60-226 and amendments thereto. If the
27  order made terminates the examination, it shall be resumed only upon
28  the order of the judge where the action is pending. Upon demand of the
29  objecting party or deponent the taking of the deposition shall be sus-
30  pended for the time necessary to make a motion for an order. The pro-
31  visions of subsection (a) of K.S.A. 60-237(a) 60-237 and amendments
32  thereto apply to the award of expenses incurred in relation to the motion.
33    (e)  Submission to Review by witness; changes; signing. When the tes-
34  timony is fully transcribed, the deposition shall be submitted to the wit-
35  ness for examination and shall be read to or by the witness, unless the
36  examination and reading are waived by the witness and by the parties.
37  The officer shall enter, on a form prescribed by rule of the supreme court,
38  any changes which the witness desires to make in the form or substance
39  of the deposition, together with a statement of the reasons given by the
40  witness for making the changes. The deposition shall then be signed by
41  the witness, unless the parties by stipulation waive the signing or the
42  witness is ill, cannot be found or refuses to sign. The officer before whom
43  the deposition is taken shall submit the deposition by sending it by first-
HB 2007--Am. by SCW
                                     

 1  class mail or by hand delivering it, either to the witness or to the attorney
 2  for the witness if the witness is a party to the lawsuit.
 3    If the deposition is not signed by the witness or not returned within
 4  the time limitation provided in this subsection, the officer shall sign it or
 5  a copy of it and state on the record the waiver, the illness or absence of
 6  the witness or the refusal to sign together with the reason given, if any,
 7  or the failure to return the deposition within 30 days after having been
 8  submitted. The deposition may be used as though signed, unless on a
 9  motion to suppress under K.S.A. 60-232(d)(4) and amendments thereto,
10  the judge holds that the reasons given for the refusal to sign require
11  rejection of the deposition in whole or in part Unless waived by the de-
12  ponent and by the parties, the deponent shall have 30 days after being
13  notified by the officer that the transcript or recording is available in which
14  to review the transcript or recording and, if there are changes in form or
15  substance, to sign a statement reciting such changes and the reasons given
16  by the deponent for making such changes. The officer shall indicate in the
17  certificate prescribed by subsection (f)(1) whether the deposition was re-
18  viewed and, if so, shall append any changes made by the deponent during
19  the period allowed.
20    (f)  Certification and delivery or filing by officer; notice of delivery or
21  filing; copies; exhibits; retention of original. (1) The officer shall certify
22  on the deposition that the witness was duly sworn by the officer and that
23  the deposition is a true record of the testimony given by the witness. This
24  certificate shall be in writing and accompany the record of the deposition.
25  Unless otherwise ordered by the court, the officer shall securely seal the
26  deposition in an envelope or package indorsed with the title of the action
27  and marked ``deposition of (here insert name of witness)'' and shall
28  promptly deliver it the deposition to the party taking the deposition, who
29  shall store the deposition under conditions that will protect the deposition
30  against loss, destruction, tampering or deterioration. If so ordered by the
31  court, the officer shall promptly file the deposition with the court in which
32  the action is pending or send it by first-class mail to the clerk for filing.
33  The officer shall serve notice of the delivery or filing of the deposition on
34  all parties. Upon payment of reasonable charges therefor, the officer shall
35  furnish a copy of the deposition to any party or to the deponent.
36    Documents and things produced for inspection during the examination
37  of the witness shall, upon the request of a party, shall be marked for
38  identification and annexed to the deposition and may be inspected and
39  copied by any party, except that if the person producing the materials
40  desires to retain them the person may (A) offer copies to be marked for
41  identification and annexed to the deposition and to serve as originals, if
42  the person affords to all parties an opportunity to verify the copies by
43  comparison with the originals, or (B) offer the originals to be marked for
HB 2007--Am. by SCW
                                     

 1  identification, after giving to each party an opportunity to inspect and
 2  copy them, in which event the materials may then be used in the same
 3  manner as if annexed to and returned with the deposition. Any party may
 4  move for an order that the original be annexed to the deposition.
 5    (2)  Unless otherwise ordered by the court or agreed by the parties,
 6  the officer shall retain stenographic notes of any deposition taken steno-
 7  graphically or a copy of the recording of any deposition taken by another
 8  method. Upon payment of reasonable charges therefore, the officer shall
 9  furnish a copy of the transcript or other recording of the deposition to
10  any party or to the deponent.
11    (2) (3)  Except when filed with the court, the original of a deposition
12  shall be retained by the party to whom it is delivered and made available
13  for appropriate use by any party.
14    (g)  Failure to attend or to serve subpoena; expenses. (1) If the party
15  giving the notice of the taking of a deposition fails to attend and proceed
16  therewith and another party attends in person or by attorney pursuant to
17  the notice, the court may order the party giving the notice to pay to such
18  other party the reasonable expenses incurred by that party and attorney
19  in so attending, including reasonable attorney fees.
20    (2)  If the party giving the notice of the taking of a deposition of a
21  witness fails to serve a subpoena upon the witness and because of such
22  failure the witness does not attend, and if another party attends in person
23  or by attorney because the party expects the deposition of that witness to
24  be taken, the court may order the party giving the notice to pay the
25  reasonable expenses and attorney fees of the party and the party's attorney
26  in attending the taking of the deposition.
27    (h)  Persons to be present. Unless otherwise ordered by the judge or
28  stipulated by counsel, no person shall be present while a deposition is
29  being taken except the officer before whom it is being taken; the reporter,
30  stenographer or person recording the deposition; the parties to the action,
31  their respective counsel and paralegals or legal assistants of such counsel;
32  and the deponent.
33    Sec. 13 14.  K.S.A. 60-231 is hereby amended to read as follows: 60-
34  231. (a) Serving questions; notice. After commencement of the action,
35  any (1) A party may take the testimony of any person, including a party,
36  by deposition upon written questions without leave of court except as
37  provided in paragraph (2). The attendance of witnesses may be com-
38  pelled by the use of subpoena as provided in K.S.A. 60-245 and amend-
39  ments thereto. The deposition of a person confined in prison may be
40  taken only by leave of court on such terms as the judge prescribes.
41    (2)  A party must obtain leave of court, which shall be granted to the
42  extent consistent with the principles stated in subsection (b)(2) of K.S.A.
43  60-226 and amendments thereto, if the person to be examined is confined
HB 2007--Am. by SCW
                                     

 1  in prison or if, without the written stipulation of the parties:
 2    (A)  The person to be examined has already been deposed in the case;
 3  or
 4    (B)  a party seeks to take a deposition of a nonparty before the time
 5  specified in subsection (b) of K.S.A. 60-216 and amendments thereto.
 6    (3)  A party desiring to take a deposition upon written questions shall
 7  serve them upon every other party with a notice stating (1) (A) the name
 8  and address of the person who is to answer them, if known, and, if the
 9  name is not known, a general description sufficient to identify the person
10  or the particular class or group to which the person belongs and (2) (B)
11  the name or descriptive title and address of the officer before whom the
12  deposition is to be taken. A deposition upon written questions may be
13  taken of a public or private corporation or a partnership, association or
14  governmental agency in accordance with the provisions of subsection (b)
15  of K.S.A. 60-230 (b) and amendments thereto.
16    (4)  Within 30 14 days after the notice and written questions are
17  served, a party may serve cross-questions upon all other parties. Within
18  10 14 days after being served with cross-questions, a party may serve
19  redirect questions upon all other parties. Within 10 14 days after being
20  served with redirect questions, a party may serve recross-questions upon
21  all other parties. The court may for cause shown enlarge or shorten the
22  time.
23    (b)  Officer to take responses and prepare record. A copy of the notice
24  and copies of all questions served shall be delivered by the party taking
25  the depositions to the officer designated in the notice, who shall proceed
26  promptly, in the manner provided by subsections (c), (e) and (f) of K.S.A.
27  60-230 (c), (e) and (f), and amendments thereto, to take the testimony of
28  the witness in response to the questions and to prepare, certify and either
29  deliver or file or mail the deposition, attaching thereto the copy of the
30  notice and the questions received by the officer.
31    Sec. 14 15.  K.S.A. 60-232 is hereby amended to read as follows: 60-
32  232. (a) Use of deposition. At the trial or upon the hearing of a motion or
33  an interlocutory proceeding, any part or all of a deposition, so far as
34  admissible under the rules of evidence applied as though the witness were
35  then present and testifying, may be used against any party who was pres-
36  ent or represented at the taking of the deposition or who had reasonable
37  notice thereof, in accordance with any of the following provisions:
38    (1)  Any deposition may be used by any party for the purpose of con-
39  tradicting or impeaching the testimony of deponent as a witness.
40    (2)  The deposition of a party or of any one who at the time of taking
41  the deposition was an officer, director, or managing agent, or a person
42  designated under K.S.A. 60-230 or 60-231, and amendments thereto, to
43  testify on behalf of a public or private corporation, partnership or asso-
HB 2007--Am. by SCW
                                     

 1  ciation or governmental agency which is a party may be used by an adverse
 2  party for any purpose.
 3    (3)  The deposition of a witness, whether or not a party, may be used
 4  by any party for any purpose if the court finds that:
 5    (A)  The witness is dead;
 6    (B)  the witness is at a greater distance than 100 miles from the place
 7  of trial or hearing, or is out of the state of Kansas, unless it appears that
 8  the absence of the witness was procured by the party offering the depo-
 9  sition;
10    (C)  the witness is unable to attend or testify because of age, illness,
11  infirmity, or imprisonment;
12    (D)  the party offering the deposition has been unable to procure the
13  attendance of the witness by subpoena; or
14    (E)  upon application and notice, such exceptional circumstances exist
15  as to make it desirable, in the interest of justice and with due regard to
16  the importance of presenting the testimony of witnesses orally in open
17  court, to allow the deposition to be used.
18    A deposition taken without leave of court pursuant to a notice under
19  subsection (a)(2)(B) or (a)(2)(C)(ii) of K.S.A. 60-230 and amendments
20  thereto, shall not be used against a party who demonstrates that, when
21  served with the notice, the party was unable through the exercise of dil-
22  igence to obtain counsel to represent such party at the taking of the dep-
23  osition.
24    (4)  If only part of a deposition is offered in evidence by a party, an
25  adverse party may require him the party to introduce any other part which
26  ought in fairness to be considered with the part introduced, and any party
27  may introduce any other parts. Substitution of parties pursuant to K.S.A.
28  60-225 and amendments thereto does not affect the right to use deposi-
29  tions previously taken; and, when an action has been brought in any court
30  of the United States or of any state has been dismissed and another action
31  involving the same subject matter is afterward brought between the same
32  parties or their representatives or successors in interest, all depositions
33  lawfully taken in the former action may be used in the latter as if originally
34  taken therefor.
35    (b)  Objections to admissibility. Subject to the provisions of K.S.A. 60-
36  228(b) subsection (b) of K.S.A. 60-228 and amendments thereto and sub-
37  section (d)(3) (e)(3), objection may be made at the trial or hearing to
38  receiving in evidence any deposition or part thereof for any reason which
39  would require the exclusion of the evidence if the witness were then
40  present and testifying.
41    (c)  Form of presentation. Except as otherwise directed by the court,
42  a party offering deposition testimony under this section may offer it in
43  stenographic or nonstenographic form, but, if in nonstenographic form,
HB 2007--Am. by SCW
                                     

 1  the party shall also provide the court and opposing parties with a tran-
 2  script of the entire deposition from which the portions offered were taken.
 3  On request of any party in a case tried before a jury, deposition testimony
 4  offered other than for impeachment purposes shall be presented in non-
 5  stenographic form, if available, unless the court for good cause orders
 6  otherwise.
 7    (d)  Effect of taking or using depositions. A party does not make a
 8  person the party's own witness for any purpose by taking the person's
 9  deposition. The introduction in evidence of the deposition or any part
10  thereof for any purpose other than that of contradicting or impeaching
11  the deponent makes the deponent the witness of the party introducing
12  the deposition but this shall not apply to the use by an adverse party of
13  a deposition under subsection (a)(2). At the trial or hearing any party may
14  rebut any relevant evidence contained in a deposition whether introduced
15  by the party or by any other party.
16    (d) (e)  Effect of errors and irregularities in depositions. (1) As to no-
17  tice. All errors and irregularities in the notice for taking a deposition are
18  waived unless written objection is promptly served upon the party giving
19  the notice.
20    (2)  As to disqualification of officer. Objection to taking a deposition
21  because of disqualification of the officer before whom it is to be taken is
22  waived unless made before the taking of the deposition begins or as soon
23  thereafter as the disqualification becomes known or could be discovered
24  with reasonable diligence.
25    (3)  As to taking of deposition. (A) Objections to the competency of a
26  witness or to the competency, relevancy or materiality of testimony are
27  not waived by failure to make them before or during the taking of the
28  deposition, unless the ground of the objection is one which might have
29  been obviated or removed if presented at that time.
30    (B)  Errors and irregularities occurring at the oral examination in the
31  manner of taking the deposition, in the form of the questions or answers,
32  in the oath or affirmation or in the conduct of parties, and errors of any
33  kind which might be obviated, removed or cured if promptly presented,
34  are waived unless seasonable objection thereto is made at the taking of
35  the deposition.
36    (C)  Objections to the form of written questions submitted under
37  K.S.A. 60-231 and amendments thereto are waived unless served in writ-
38  ing upon the party propounding them within the time allowed for serving
39  the succeeding cross or other questions and within five days after service
40  of the last questions authorized.
41    (4)  As to completion and return of deposition. Errors and irregulari-
42  ties in the manner in which the testimony is transcribed or the deposition
43  is prepared, signed, certified, sealed, indorsed, transmitted, filed, deliv-
HB 2007--Am. by SCW
                                     

 1  ered or otherwise dealt with by the officer under K.S.A. 60-230 or 60-
 2  231, and amendments thereto, are waived unless a motion to suppress
 3  the deposition or some part thereof is made with reasonable promptness
 4  after such defect is, or with due diligence might have been, ascertained.
 5    Sec. 15 16.  K.S.A. 60-233 is hereby amended to read as follows: 60-
 6  233. (a) Availability; procedures for use. Any party may serve upon any
 7  other party written interrogatories to be answered by the party served or,
 8  if the party served is a public or private corporation or a partnership,
 9  association or governmental agency, by any officer or agent, who shall
10  furnish such information as is available to the party. Interrogatories may,
11  without leave of court, may be served upon the plaintiff after commence-
12  ment of the action and upon any other party with or after service of
13  process upon that party.
14    (b)  Answers and objections. (1) Each interrogatory shall be answered
15  separately and fully in writing under oath, unless it is objected to, in which
16  event the objecting party shall state the reasons for objection shall be
17  stated in lieu of an answer and shall answer to the extent the interrogatory
18  is not objectionable.
19    (2)  The answers are to be signed by the person making them the
20  answers, and the objections signed by the attorney making them the ob-
21  jections.
22    (3)  The party upon whom the interrogatories have been served shall
23  serve a copy of the answers, and objections if any, within 30 days after
24  the service of the interrogatories, except that a defendant may serve an-
25  swers or objections within 45 days after service of process upon that de-
26  fendant. The court may allow a shorter or longer time period upon a
27  motion requesting such shorter or longer period made prior to the expi-
28  ration of the stated time period.
29    (4)  All grounds for an objection to an interrogatory shall be stated
30  with specificity. Any ground not stated in a timely objection is waived
31  unless the party's failure to object is excused by the court for good cause
32  shown.
33    (5)  The party submitting the interrogatories may move for an order
34  under subsection (a) of K.S.A. 60-237 and amendments thereto with re-
35  spect to any objection to or other failure to answer an interrogatory.
36    (b) (c)  Scope; use at trial. Interrogatories may relate to any matters
37  which can be inquired into under subsection (b) of K.S.A. 60-226 and
38  amendments thereto and the answers may be used to the extent permit-
39  ted by the rules of evidence.
40    An interrogatory otherwise proper is not necessarily objectionable
41  merely because an answer to the interrogatory involves an opinion or
42  contention that relates to fact or the application of law to fact, but the
43  court may order that such an interrogatory need not be answered until
HB 2007--Am. by SCW
                                     

 1  after designated discovery has been completed or until a pretrial confer-
 2  ence or other later time.
 3    (c) (d)  Option to produce business records. Where the answer to an
 4  interrogatory may be derived or ascertained from the business records of
 5  the party upon whom the interrogatory has been served or from an ex-
 6  amination, audit or inspection of such business records, or from a com-
 7  pilation, abstract or summary based thereon, and the burden of deriving
 8  or ascertaining the answer is substantially the same for the party serving
 9  the interrogatory as for the party served, it is a sufficient answer to such
10  interrogatory to specify the records from which the answer may be de-
11  rived or ascertained and to afford to the party serving the interrogatory
12  reasonable opportunity to examine, audit or inspect such records and to
13  make copies, compilations, abstracts or summaries. A specification shall
14  be in sufficient detail to permit the interrogating party to locate and to
15  identify, as readily as can the party served, the records from which the
16  answer may be ascertained.
17    Sec. 16 17.  K.S.A. 60-234 is hereby amended to read as follows: 60-
18  234. (a) Scope. Any party may serve on any other party a request (1) to
19  produce and permit the party making the request, or someone acting on
20  the party's behalf, to inspect and copy any designated documents (in-
21  cluding writings, drawings, graphs, charts, photographs, phono-records
22  and other data compilations from which information can be obtained,
23  translated, if necessary, by the respondent through detection devices into
24  reasonable reasonably usable form), or to inspect and copy, test or sample
25  any tangible things which constitute or contain matters within the scope
26  of subsection (b) of K.S.A. 60-226 and amendments thereto and which
27  are in the possession, custody or control of the party upon whom the
28  request is served; or (2) to permit entry upon designated land or other
29  property in the possession or control of the party upon whom the request
30  is served for the purpose of inspection and measuring, surveying, pho-
31  tographing, testing or sampling the property or any designated object or
32  operation thereon, within the scope of subsection (b) of K.S.A. 60-226
33  and amendments thereto.
34    (b)  Procedure. The request may, without leave of court, may be
35  served upon the plaintiff after commencement of the action and upon
36  any other party with or after service of process upon that party. The
37  request shall set forth the items to be inspected either by individual item
38  or by category, and describe each item and category with reasonable par-
39  ticularity. The request shall specify a reasonable time, place and manner
40  of making the inspection and performing the related acts.
41    The party upon whom the request is served shall serve a written re-
42  sponse within 30 days after the service of the request, except that a de-
43  fendant may serve a response within 45 days after service of process upon
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 1  that defendant. The court may allow a shorter or longer time period upon
 2  a motion requesting such shorter or longer period made prior to the ex-
 3  piration of the stated time period. The response shall state, with respect
 4  to each item or category, that inspection and related activities will be
 5  permitted as requested unless the request is objected to, in which event
 6  the reasons for objection shall be stated. If objection is made to part of
 7  an item or category, the part shall be specified and inspection permitted
 8  of the remaining parts. The party submitting the request may move for
 9  an order under subsection (a) of K.S.A. 60-237 and amendments thereto
10  with respect to any objection to or other failure to respond to the request
11  or any part thereof, or any failure to permit inspection as requested. A
12  party who produces documents for inspection shall produce them as they
13  are kept in the usual course of business or shall organize and label them
14  to correspond to the categories in the request.
15    (c)  Persons not parties. This rule does not preclude an independent
16  action against a person not a party for production of documents and things
17  and permission to enter upon land A person not a party to the action may
18  be compelled to produce documents and things or to submit to an inspec-
19  tion as provided in K.S.A. 60-245 and 60-245a and amendments thereto.
20    Sec. 17 18.  K.S.A. 60-235 is hereby amended to read as follows: 60-
21  235. (a) Order for examination. When the mental or physical condition
22  (,including the blood group), of a party, or of a person in the custody or
23  under the legal control of a party, is in controversy, the court in which
24  the action is pending may order the party to submit to a physical or mental
25  examination by a physician suitably licensed or certified examiner or to
26  produce for examination the person in the party's custody or legal control.
27  The order may be made only on motion for good cause shown and upon
28  notice to the person to be examined and to all parties and shall specify
29  the time, place, manner, conditions and scope of the examination and the
30  person or persons by whom it is to be made. The moving party shall
31  advance the expenses which will necessarily be incurred by the party to
32  be examined.
33    (b)  Report of examining physician examiner. (1) If requested by the
34  party against whom an order is made under subsection (a) or by the
35  person examined, the party causing the examination to be made shall
36  deliver to the party or person making the request a copy of a detailed
37  written report of the examining physician examiner, setting out the phys-
38  ician's examiner's findings, including results of all tests made, diagnoses
39  and conclusions, together with like reports of all earlier examinations of
40  the same condition.
41    (2)  This subsection applies to examinations made by agreement of
42  the parties, unless the agreement expressly provides otherwise. This sub-
43  section does not preclude discovery of a report of an examining physician
HB 2007--Am. by SCW
                                     

 1  examiner or the taking of a deposition of the physician examiner in ac-
 2  cordance with the provisions of any other rule.
 3    (c)  Reports of other examinations. Any party shall be entitled upon
 4  request to receive from a party a report of any examination, previously or
 5  thereafter made, of the condition in controversy, except that the party
 6  shall not be required to provide such a report if the examination is of a
 7  person not a party and the party is unable to obtain a report thereof.
 8  Reports required to be provided under this subsection shall contain the
 9  same information as specified for reports under subsection (b).
10    (d)  Order requiring delivery of report. The court on motion may
11  make an order against a party requiring delivery of a report under sub-
12  section (b) or (c) on such terms as are just. If a physician an examiner
13  fails or refuses to make or deliver such a report, the court may exclude
14  the physician's examiner's testimony if offered at the trial.
15    Sec. 18 19.  K.S.A. 60-236 is hereby amended to read as follows: 60-
16  236. (a) Request for admission. A party may serve upon any other party
17  a written request for the admission, for purposes of the pending action
18  only, of the truth of any matters within the scope of K.S.A. 60-226, and
19  amendments thereto, set forth in the request that relate to statements or
20  opinions of fact or of the application of law to fact, including the genu-
21  ineness of any documents described in the request. Copies of documents
22  shall be served with the request unless they have been or are otherwise
23  furnished or made available for inspection and copying. The request may,
24  without leave of the judge, may be served upon the plaintiff after com-
25  mencement of the action and upon any other party with or after service
26  of process upon that party. Each matter of which an admission is re-
27  quested shall be separately set forth. The A matter is admitted unless,
28  within thirty (30) 30 days after service of the request, or within such
29  shorter or longer time as the court may allow, or within such shorter
30  or longer time as the court may allow, the party to whom the request
31  is directed serves upon the party requesting the admission a written an-
32  swer or objection addressed to the matter, signed by the party or by his
33  such party's attorney, but, unless the court shortens the time,, unless
34  the court shortens the time, a defendant shall not be required to serve
35  answers or objections before the expiration of forty-five (45) 45 days after
36  service of process upon him the defendant. The court may allow a shorter
37  or longer period of time upon a motion requesting such shorter or longer
38  period made prior to the expiration of the stated period of time. If objec-
39  tion is made, the reasons therefor shall be stated. The answer shall spe-
40  cifically deny the matter or set forth in detail the reasons why the an-
41  swering party cannot truthfully admit or deny the matter. A denial shall
42  fairly meet the substance of the requested admission, and when good
43  faith requires that a party qualify his such party's answer or deny only a
HB 2007--Am. by SCW
                                     

 1  part of the matter of which an admission is requested, he such party shall
 2  specify so much of it as is true and qualify or deny the remainder. An
 3  answering party may not give lack of information or knowledge as a reason
 4  for failure to admit or deny unless he such party states that he such party
 5  has made reasonable inquiry and that the information known or readily
 6  obtainable by him such party is insufficient to enable him such party to
 7  admit or deny. A party who considers that a matter of which an admission
 8  has been requested presents a genuine issue for trial may not, on that
 9  ground alone, object to the request; he may such party, subject to the
10  provisions of subsection (c) of K.S.A. 60-237(c), and amendments thereto,
11  may deny the matter or set forth reasons why he such party cannot admit
12  or deny it.
13    The party who has requested the admissions may move to determine
14  the sufficiency of the answers or objections. Unless the judge determines
15  that an objection is justified, he the judge shall order that an answer be
16  served. If the judge determines that an answer does not comply with the
17  requirements of this rule, he the judge may order either that the matter
18  is admitted or that an amended answer be served. The judge may, in lieu
19  of these orders, may determine that final disposition of the request be
20  made at a pretrial conference or at a designated time prior to trial. The
21  provisions of subsection (a) of K.S.A. 60-237(a), and amendments thereto,
22  apply to the award of expenses incurred in relation to the motion.
23    (b)  Effect of admission. Any Except for matters admitted by failure
24  to respond, Any matter admitted under this rule is conclusively estab-
25  lished unless the judge on motion permits withdrawal or amendment of
26  the admission. Subject to the provisions of K.S.A. 60-216, and amend-
27  ments thereto, governing amendment of a pretrial order, the judge may
28  permit withdrawal or amendment when the presentation of the merits of
29  the action will be subserved thereby and the party who obtained the
30  admission fails to satisfy the judge that withdrawal or amendment will
31  prejudice him such party in maintaining his such party's action or defense
32  on the merits. Any admission made by a party under this rule is for the
33  purpose of the pending action only and is not an admission by him such
34  party for any other purpose nor may it be used against him such party
35  in any other proceeding.
36    Sec. 19 20.  K.S.A. 60-237 is hereby amended to read as follows: 60-
37  237. (a) Motion for order compelling disclosure or discovery. A party,
38  upon reasonable notice to other parties and all persons affected thereby,
39  may apply for an order compelling disclosure or discovery as follows:
40    (1)  Appropriate court. An application for an order to a party may be
41  made to the court in which the action is pending, or, on matters relating
42  to a deposition, to the judge in the district where the deposition is being
43  taken. An application for an order to a deponent who is not a party shall
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 1  be made to the judge in the district where the deposition is being taken.
 2    (2)  Motion. (A) If a party fails to make a disclosure required by sub-
 3  section (b)(6) of K.S.A. 60-226 and amendments thereto, any other party
 4  may move to compel disclosure and for appropriate sanctions. The motion
 5  shall include a certification that the movant has in good faith conferred
 6  or attempted to confer with the party not making the disclosure in an
 7  effort to secure the disclosure without court action and shall describe the
 8  steps taken by all counsel or unrepresented parties to resolve the issues
 9  in dispute.
10    (B)  If a deponent fails to answer a question propounded or submitted
11  under K.S.A. 60-230 or 60-231 and amendments thereto, or a corporation
12  or other entity fails to make a designation under K.S.A 60-230 (b) or 60-
13  231 (a) subsection (b) of K.S.A. 60-230 or subsection (a) of K.S.A. 60-231
14  and amendments thereto, or a party fails to answer an interrogatory sub-
15  mitted under K.S.A. 60-233 and amendments thereto, or if a party, in
16  response to a request for inspection submitted under K.S.A. 60-234 and
17  amendments thereto fails to respond that inspection will be permitted as
18  requested or fails to permit inspection as requested, the discovering party
19  may move for an order compelling an answer, or a designation, or an
20  order compelling inspection in accordance with the request. The motion
21  shall include a certification that the movant has in good faith conferred
22  or attempted to confer with the person or party failing to make the dis-
23  covery in an effort to secure the information or material without court
24  action and shall describe the steps taken by all counsel or unrepresented
25  parties to resolve the issues in dispute. When taking a deposition on oral
26  examination, the proponent of the question may complete or adjourn the
27  examination before he applies applying for an order.
28    If the judge denies the motion in whole or in part, he may make such
29  protective order as he would have been empowered to make on a motion
30  made pursuant to K.S.A. 60-226 (c).
31    (3)  Evasive or incomplete disclosure, answer or response. For pur-
32  poses of this subdivision an evasive or incomplete disclosure, answer or
33  response is to be treated as a failure to disclose, answer or respond.
34    (4)  Award of expenses of motion. Expenses and sanctions. (A) If the
35  disclosure or requested discovery is provided after the motion is filed but
36  before the court rules on the motion, the court, after affording an oppor-
37  tunity to be heard, may require the party or deponent whose conduct
38  necessitated the motion or the party or attorney advising such conduct or
39  both of them to pay to the moving party the reasonable expenses incurred
40  in making the motion, including attorney fees. Expenses shall not be
41  awarded under this subparagraph if the court finds that the motion was
42  filed without the movant's first making a good faith effort to obtain the
43  disclosure or discovery without court action, or that the opposing party's
HB 2007--Am. by SCW
                                     

 1  nondisclosure, response or objection was substantially justified, or that
 2  other circumstances make an award of expenses unjust.
 3    (B)  If the motion is granted, the judge court shall, after affording an
 4  opportunity for hearing to be heard, require the party or deponent whose
 5  conduct necessitated the motion or the party or attorney advising such
 6  conduct or both of them to pay to the moving party the reasonable ex-
 7  penses incurred in obtaining the order making the motion, including at-
 8  torney's attorney fees, unless the judge court finds that the opposition to
 9  the motion was filed without the movant's first making a good faith effort
10  to obtain the disclosure or discovery without court action, or that the
11  opposing party's nondisclosure, response or objection was substantially
12  justified or that other circumstances make an award of expenses unjust.
13    (C)  If the motion is denied, the judge court may enter any protective
14  order authorized under subsection (c) of K.S.A. 60-226 and amendments
15  thereto, and shall, after affording an opportunity for hearing to be heard,
16  require the moving party or the attorney advising filing the motion or
17  both of them to pay to the party or deponent who opposed the motion
18  the reasonable expenses incurred in opposing the motion, including at-
19  torney's attorney fees, unless the judge court finds that the making of the
20  motion was substantially justified or that other circumstances make an
21  award of expenses unjust.
22    (D)  If the motion is granted in part and denied in part, the judge
23  court may enter any protective order authorized under subsection (c) of
24  K.S.A. 60-226 and amendments thereto, and, may, after affording an op-
25  portunity to be heard, apportion the reasonable expenses incurred in re-
26  lation to the motion among the parties and persons in a just manner.
27    (b)  Failure to comply with order. (1) Sanctions by judge in district
28  where deposition is taken. If a deponent fails to be sworn or to answer a
29  question after being directed to do so by the judge in the district in which
30  the deposition is being taken, the failure may be considered a contempt
31  of that court.
32    (2)  Sanctions by court in which action is pending. If a party or an
33  officer, director or managing agent of a party or a person designated
34  under K.S.A. 60-230 (b) or 60-231 (a) subsection (b) of K.S.A. 60-230 or
35  subsection (a) of K.S.A. 60-231 and amendments thereto to testify on
36  behalf of a party fails to obey an order to provide or permit discovery,
37  including an order made under subdivision (a) of this section or under
38  K.S.A. 60-235 and amendments thereto, the judge before whom the action
39  is pending may make such orders in regard to the failure as are just, and
40  among others the following:
41    (A)  An order that the matters regarding which the order was made
42  or any other designated facts shall be taken to be established for the
43  purposes of the action in accordance with the claim of the party obtaining
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 1  the order;
 2    (B)  An order refusing to allow the disobedient party to support or
 3  oppose designated claims or defenses, or prohibiting him such disobedient
 4  party from introducing designated matters in evidence;
 5    (C)  An order striking out pleadings or parts thereof, or staying further
 6  proceedings until the order is obeyed, or dismissing the action or pro-
 7  ceeding or any part thereof, or rendering a judgment by default against
 8  the disobedient party;
 9    (D)  In lieu of any of the foregoing orders or in addition thereto, an
10  order treating as a contempt of court the failure to obey any orders except
11  an order to submit to a physical or mental examination;
12    (E)  Where a party has failed to comply with an order under K.S.A.
13  60-235 (a) subsection (a) of K.S.A. 60-235 and amendments thereto re-
14  quiring him such party to produce another for examination, such orders
15  as are listed in paragraphs (A), (B) and (C) of this subsection, unless the
16  party failing to comply shows that he such party is unable to produce
17  such person for examination.
18    In lieu of any of the foregoing orders or in addition thereto, the judge
19  shall require the party failing to obey the order or the attorney advising
20  him such party or both to pay the reasonable expenses, including attor-
21  ney's attorney fees, caused by the failure, unless the judge finds that the
22  failure was substantially justified or that other circumstances make an
23  award of expenses unjust.
24    (c)  Expenses on failure to admit. Failure to disclose; false or mislead-
25  ing disclosure; refusal to admit. (1) A party that without substantial jus-
26  tification fails to disclose information required by subsection (b)(6) or
27    (e)(1) of K.S.A. 60-226, and amendments thereto, shall not, unless such
28  failure is harmless, be permitted to use as evidence at trial, at a hearing,
29  or on a motion any witness or information not so disclosed. In addition
30  to or in lieu of this sanction, the court, on motion and after affording an
31  opportunity to be heard, may impose other appropriate sanctions. In ad-
32  dition to requiring payment of reasonable expenses, including attorney
33  fees, caused by the failure, these sanctions may include any of the actions
34  authorized under subparagraphs (A), (B) and (C) of subsection (b)(2) and
35  may include informing the jury of the failure to make the disclosure.
36    (2)  If a party fails to admit the genuineness of any documents or the
37  truth of any matter, as requested under K.S.A. 60-236 and amendments
38  thereto, and if the party requesting the admissions thereafter proves the
39  genuineness of the document or the truth of the matter, he such party
40  may apply to the judge for an order requiring the other party to pay him
41  such party the reasonable expenses incurred in making such proof, in-
42  cluding reasonable attorney's fees. The judge shall make the order unless
43  he the judge finds that (1) (A) the request was held objectionable to
HB 2007--Am. by SCW
                                     

 1  subsection (a) of K.S.A. 60-236 (a) 60-236, or (2) (B) the admission sought
 2  was of no substantial importance, or (3) (C) the party failing to admit had
 3  reasonable ground to believe that he might prevail on the matter, or (4)
 4  (D) there was other good reason for the failure to admit.
 5    (d)  Failure of party to attend at own deposition or serve answers to
 6  interrogatories or respond to request for inspection. If a party or an of-
 7  ficer, director, or managing agent of a party or a person designated under
 8  K.S.A. 60-230 (b) or 60-231 (a) under subsection (b) of K.S.A. 60-230 or
 9  subsection (a) of K.S.A. 60-231 and amendments thereto to testify on
10  behalf of a party fails (1) to appear before the officer who is to take his
11  deposition, after being served with a proper notice, or (2) to serve answers
12  or objections to interrogatories submitted under K.S.A. 60-233 and
13  amendments thereto, after proper service of the interrogatories, or (3) to
14  serve a written response to a request for inspection submitted under
15  K.S.A. 60-234 and amendments thereto after proper service of the re-
16  quest, the court in which the action is pending on motion may make such
17  orders in regard to the failure as are just, and among others it may take
18  any action authorized under paragraphs (A), (B) and (C) of subsection
19    (b) (2) of this section. Any motion specifying a failure under clause (2) or
20    (3) of this subsection shall include a certification that the movant has in
21  good faith conferred or attempted to confer with the party failing to an-
22  swer or respond in an effort to obtain such answer or response without
23  court action. In lieu of any order or in addition thereto, the judge shall
24  require the party failing to act or the attorney advising him such party or
25  both to pay the reasonable expenses, including attorney's attorney fees,
26  caused by the failure, unless the judge finds that the failure was substan-
27  tially justified or that other circumstances make an award of expenses
28  unjust.
29    The failure to act described in this subsection may not be excused on
30  the ground that the discovery sought is objectionable unless the party
31  failing to act has applied a pending motion for a protective order as pro-
32  vided by K.S.A. 60-226 (c) subsection (c) of K.S.A. 60-226 and amend-
33  ments thereto.
34    Sec. 20 21.  K.S.A. 60-238 is hereby amended to read as follows: 60-
35  238. (a) Right preserved. The right of trial by jury as declared by section
36  5 of the bill of rights in the Kansas constitution, and as given by a statute
37  of the state shall be preserved to the parties inviolate.
38    (b)  Demand. Any party may demand a trial by jury of any issue triable
39  of right by a jury by: (1) Serving upon the other parties a demand therefor
40  in writing at any time after the commencement of the action and not later
41  than ten (10) 10 days after the service of the last pleading directed to
42  such issue; and (2) filing the demand as required by K.S.A. 60-205 and
43  amendments thereto. Such demand may be indorsed upon a pleading of
HB 2007--Am. by SCW
                                     

 1  the party.
 2    (c)  Same; specification of issues. In his or her the demand a party may
 3  specify the issues which he or she the party wishes so tried; otherwise he
 4  or she the party shall be deemed to have demanded trial by jury for all
 5  the issues so triable. If the party has demanded trial by jury for only some
 6  of the issues, any other party within ten (10) 10 days after service of the
 7  demand or such lesser time as the court may order, may serve a demand
 8  for trial by jury of any other or all of the issues of fact in the action.
 9    (d)  Waiver. The failure of a party to serve and file a demand as re-
10  quired by this rule and to file it as required by K.S.A. 60-205 section
11  constitutes a waiver by him or her the party of trial by jury but waiver of
12  a jury trial may be set aside by the judge in the interest of justice or when
13  the waiver inadvertently results without serious negligence of the party.
14  A demand for trial by jury made as herein provided may not be withdrawn
15  without the consent of the parties.
16    Sec. 21 22.  K.S.A. 60-241 is hereby amended to read as follows: 60-
17  241. (a) Voluntary dismissal; effect thereof. (1) By plaintiff; by stipulation.
18  Subject to the provisions of subsection (e) of K.S.A. 60-223 and amend-
19  ments thereto and of any statute of the state, an action may be dismissed
20  by the plaintiff without order of court (i) by filing a notice of dismissal at
21  any time before service by the adverse party of an answer or of a motion
22  for summary judgment, whichever first occurs, or (ii) by filing a stipulation
23  of dismissal signed by all parties who have appeared in the action. Where
24  the dismissal is by stipulation the clerk of the court shall enter an order
25  of dismissal as a matter of course. Unless otherwise stated in the notice
26  of dismissal or stipulation, the dismissal is without prejudice, except that
27  a notice of dismissal operates as an adjudication upon the merits when
28  filed by a plaintiff who has once dismissed in any court of the United
29  States or of any state an action based on or including the same claim.
30    (2)  By order of court. Except as provided in paragraph (1) of this
31  subsection, an action shall not be dismissed at the plaintiff's instance save
32  upon order of the judge and upon such terms and conditions as the judge
33  deems proper. If a counterclaim has been pleaded by a defendant prior
34  to the service upon the defendant of the plaintiff's motion to dismiss, the
35  action shall not be dismissed against the defendant's objection unless the
36  counterclaim can remain pending for independent adjudication by the
37  court. Unless otherwise specified in the order, a dismissal under this par-
38  agraph is without prejudice. The judge may on the judge's own motion
39  cause a case to be dismissed without prejudice for lack of prosecution,
40  but only after directing the clerk to notify counsel of record not less than
41  ten (10) days in advance of such intended dismissal, that an order of
42  dismissal will be entered unless cause be shown for not doing so.
43    (b)  Involuntary dismissal; effect thereof. (1) For failure of the plaintiff
HB 2007--Am. by SCW
                                     

 1  to prosecute or to comply with these sections or any order of court, a
 2  defendant may move for dismissal of an action or of any claim against the
 3  defendant. After the plaintiff, in an action tried by the court without a
 4  jury, has completed the presentation of the plaintiff's evidence, the de-
 5  fendant, without waiving the defendant's right to offer evidence in the
 6  event the motion is not granted, may move for a dismissal on the ground
 7  that upon the facts and the law the plaintiff has shown no right to relief.
 8  The court as trier of the facts may then determine them and render
 9  judgment against the plaintiff or may decline to render any judgment
10  until the close of all evidence. If the court renders judgment on the merits
11  against the plaintiff, the court shall make findings as provided in subsec-
12  tion (a) of K.S.A. 60-252. Unless the court in its order for dismissal oth-
13  erwise specifies, a dismissal under this subsection paragraph and any
14  dismissal not provided for in this section, other than a dismissal for lack
15  of jurisdiction, for improper venue, or for failure to join a party under
16  K.S.A. 60-219 and amendments thereto, operates as an adjudication upon
17  the merits.
18    (2)  The judge may on the judge's own motion cause a case to be dis-
19  missed without prejudice for lack of prosecution, but only after directing
20  the clerk to notify counsel of record not less than 10 days in advance of
21  such intended dismissal, that an order of dismissal will be entered unless
22  cause be shown for not doing so.
23    (c)  Dismissal of counterclaim, cross-claim, or third-party claim. The
24  provisions of this section apply to the dismissal of any counterclaim, cross-
25  claim, or third-party claim. A voluntary dismissal by the claimant alone
26  pursuant to paragraph (1) of subsection (a) shall be made before a re-
27  sponsive pleading is served or, if there is none, before the introduction
28  of evidence at the trial or hearing.
29    (d)  Costs of previously dismissed action. If a plaintiff who has once
30  dismissed an action in any court commences an action based upon or
31  including the same claim against the same defendant, the court may make
32  such order for the payment of costs of the action previously dismissed as
33  it may deem deems proper and may stay the proceedings in the action
34  until the plaintiff has complied with the order.
35    Sec. 22 23.  K.S.A. 60-243 is hereby amended to read as follows: 60-
36  243. (a) Form and admissibility. In all trials the testimony of witnesses
37  shall be taken orally in open court, unless otherwise provided by this
38  article. All evidence shall be admitted which is admissible under specific
39  statutes or article 4 of this chapter. The competency of a witness to testify
40  shall be determined in like manner.
41    (b)  Scope of examination and cross-examination. A party may inter-
42  rogate any unwilling or hostile witness by leading questions. A party may
43  call an adverse party or an officer, director, or managing agent of a public
HB 2007--Am. by SCW
                                     

 1  or private corporation or of a partnership or association which is an ad-
 2  verse party, and interrogate him such witness by leading questions and
 3  contradict him such witness and impeach him such witness in all respects
 4  as if he such witness had been called by the adverse party, and the witness
 5  thus called may be contradicted and impeached by or on behalf of the
 6  adverse party also, and may be cross-examined by the adverse party only
 7  upon the subject matter of his such witness' examination in chief.
 8    (c)  Record of excluded evidence. In an action tried by a jury, if an
 9  objection to a question propounded to a witness is sustained by the court,
10  the examining attorney may make a specific offer of what he the exam-
11  ining attorney expects to prove by the answer of the witness. The offer
12  shall be made out of the hearing of the jury. The court may add such
13  other or further statement as clearly shows the character of the evidence,
14  the form in which it was offered, the objection made, and the ruling
15  thereon. In actions tried without a jury the same procedure may be fol-
16  lowed, except that the court upon request shall take and report the evi-
17  dence in full, unless it clearly appears that the evidence is not admissible
18  on any ground or that the witness is privileged.
19    (d)  Evidence on motions. When a motion is based on facts not ap-
20  pearing of record the court may hear the matter on affidavits presented
21  by the respective parties, but the court may direct that the matter be
22  heard wholly or partly on oral testimony or depositions.
23    (e)  Interpreters. In accordance with K.S.A. 75-4351 through 75-
24  4355d and amendments thereto, the court may appoint an interpreter of
25  its own selection and may determine the reasonable compensation of such
26  interpreter, and direct its payment out of such funds as may be provided
27  by law fix the interpreter's reasonable compensation. The compensation
28  shall be paid out of funds provided by law or, subject to the limitations
29  in K.S.A. 75-4352 and 75-4355b and amendments thereto, by one or more
30  of the parties as the court may direct, and may be taxed ultimately as
31  costs, in the discretion of the court.
32    Sec. 23 24.  K.S.A. 60-245 is hereby amended to read as follows: 60-
33  245. (a) For attendance of witnesses; Form; issuance. (1) Every subpoena
34  for attendance of a witness shall be issued by the clerk under the seal of
35  the court or by a judge, shall:
36    (A)  State the name of the court and from which it is issued;
37    (B)  state the title of the action, and shall the name of the court in
38  which it is pending and the file number of the action;
39    (C)  command each person to whom it is directed to attend and give
40  testimony or to produce and permit inspection and copying of designated
41  books, documents or tangible things in the possession, custody or control
42  of that person, or to permit inspection of premises, at a time and place
43  specified in the subpoena; and
HB 2007--Am. by SCW
                                     

 1    (D)  set forth the text of subsections (c) and (d) of this section.
 2    A command to produce evidence or to permit inspection may be joined
 3  with a command to appear at trial or hearing or at deposition, or may be
 4  issued separately. Subpoena and production of records of a business
 5  which is not a party shall be in accordance with K.S.A. 60-245a and
 6  amendments thereto.
 7    (2)  A subpoena commanding attendance at a trial or hearing shall
 8  issue from the district court in which the hearing or trial is to be held. A
 9  subpoena for attendance at a deposition shall issue from the district court
10  in which the action is pending or the officer before whom the deposition
11  is to be taken or, if the deposition is to be taken outside the state, from
12  an officer authorized by the law of the other state to issue the subpoena.
13  If separate from a subpoena commanding the attendance of a person, a
14  subpoena for production or inspection shall issue from the district court
15  in which the action is pending or, if the production or inspection is to be
16  made outside the state, an officer authorized by the law of the other state
17  to issue the subpoena.
18    (3)  Every subpoena issued by the court shall be issued by the clerk
19  under the seal of the court or by a judge. Upon request of a party, the
20  clerk shall issue a blank subpoena. The blank subpoena shall bear the seal
21  of the court, the title and file number of the action and the clerk's signature
22  or a facsimile of the clerk's signature. The party to whom a blank subpoena
23  is issued shall fill it in before service.
24    (b)  For production of documentary evidence. A subpoena may also
25  command the person to whom it is directed to produce the books, papers,
26  documents or tangible things designated in the subpoena, but the court,
27  upon motion made promptly and at or before the time specified in the
28  subpoena for compliance therewith, may (1) quash or modify the sub-
29  poena if it is unreasonable or oppressive or (2) condition denial of the
30  motion upon the advancement by the person in whose behalf the sub-
31  poena is issued of the reasonable cost of producing the books, papers,
32  documents or tangible things.
33    Subpoena and production of records of a business which is not a party
34  shall be in accordance with K.S.A. 60-245a, and amendments thereto.
35    (c)  Blank subpoenas. Upon request of a party, the clerk shall issue a
36  blank subpoena for the attendance of a witness or the production of doc-
37  umentary evidence. The blank subpoena shall bear the seal of the court,
38  the title and file number of the action and the clerk's signature or a
39  facsimile of the clerk's signature. The party to whom a blank subpoena is
40  issued shall fill it in before service.
41    (d)  Service. Service of a subpoena upon a person named therein may
42  be made anywhere within the state, shall be made in accordance with
43  K.S.A. 60-303, and amendments thereto, and shall, if the person's atten-
HB 2007--Am. by SCW
                                     

 1  dance is commanded, be accompanied by the fees for one day's atten-
 2  dance and the mileage allowed by law. When sought independently of a
 3  deposition, prior notice of any commanded production of documents or
 4  inspection of premises before trial shall be served on each party in the
 5  manner prescribed by subsection (b) of K.S.A. 60-205 and amendments
 6  thereto.
 7    (e)  Subpoena or notice for taking depositions; place of examination.
 8  (1) Proof of service of a notice to take a deposition as provided in sub-
 9  section (b) of K.S.A. 60-230 and subsection (a) of K.S.A. 60-231, and
10  amendments thereto, constitutes sufficient authorization for the issuance
11  of subpoenas for the person named or described in the notice. In addition
12  to those mentioned in subsection (a), a subpoena for taking depositions
13  may be issued by the officer before whom the deposition is to be taken,
14  by the clerk of the district court where the deposition is to be taken or,
15  if the deposition is to be taken outside the state, by an officer authorized
16  by the law of the other state to issue the subpoena. The subpoena may
17  command the person to whom it is directed to produce and permit in-
18  spection and copying of designated books, papers, documents or tangible
19  things which constitute or contain matters within the scope of the ex-
20  amination permitted by subsection (b) of K.S.A. 60-226 and amendments
21  thereto, but in that event the subpoena will be subject to the provisions
22  of subsection (c) of K.S.A. 60-226 and amendments thereto and subsec-
23  tion (c). In lieu of the procedure outlined in K.S.A. 60-234 and amend-
24  ments thereto, when a party gives notice of the taking of the deposition
25  of another party, the notice of taking the deposition and the contents of
26  the notice will be as compelling upon the party as a subpoena.
27    Within 10 days after the service of a subpoena or at or before the time
28  specified in the subpoena for compliance, if the time is less than 10 days
29  after service, a party or person to whom the subpoena is directed may
30  serve upon the attorney designated in the subpoena written objection to
31  inspection or copying of any or all of the designated materials. If objection
32  is made, the party serving the subpoena shall not be entitled to inspect
33  and copy the materials except pursuant to an order of the court from
34  which the subpoena was issued. If objection has been made, the party
35  serving the subpoena may move upon notice to the deponent for an order
36  at any time before or during the taking of the deposition.
37    (2)  A resident of this state shall not be required to attend an exami-
38  nation at a place which is not within 50 miles of the place of the resident's
39  residence, the place of the resident's employment or the place of the
40  resident's principal business. A nonresident shall not be required to at-
41  tend an examination at a place which is more than 50 miles from the place
42  where the nonresident is served with the subpoena. A party or employee
43  of a party, whether a resident or nonresident of the state, may be required
HB 2007--Am. by SCW
                                     

 1  by order of the court to attend an examination at any place designated by
 2  the court.
 3    (c)  Protection of persons subject to subpoenas.
 4    (1)  A party or an attorney responsible for the issuance and service of
 5  a subpoena shall take reasonable steps to avoid imposing undue burden
 6  or expense on a person subject to that subpoena. The court on behalf of
 7  which the subpoena was issued shall enforce this duty and impose upon
 8  the party or attorney in breach of this duty an appropriate sanction,
 9  which may include, but is not limited to, a reasonable attorney fee.
10    (2) (A)  A person commanded to produce and permit inspection and
11  copying of designated books, papers, documents or tangible things or in-
12  spection of premises need not appear in person at the place of production
13  or inspection unless commanded to appear for deposition, hearing or trial.
14    (B)  Subject to subsection (d)(2), a person commanded to produce and
15  permit inspection and copying may, within 14 days after service of the
16  subpoena or before the time specified for compliance if such time is less
17  than 14 days after service, serve upon the party or attorney designated
18  in the subpoena written objection to inspection or copying of any or all
19  of the designated materials or of the premises. If objection is made, the
20  party serving the subpoena shall not be entitled to inspect and copy the
21  materials or inspect the premises except pursuant to an order of the court
22  by which the subpoena was issued. If objection has been made, the party
23  serving the subpoena may, upon notice to the person commanded to pro-
24  duce, move at any time for an order to compel the production. Such an
25  order to compel production shall protect any person who is not a party
26  or an officer of a party from significant expense resulting from the in-
27  spection and copying commanded.
28    (3) (A)  On timely motion, the court by which a subpoena was issued
29  shall quash or modify the subpoena if it:
30    (i)  Fails to allow reasonable time for compliance;
31    (ii)  requires a resident of this state who is not a party or an officer of
32  a party to travel to a place more than 100 miles from the place where that
33  person resides, is employed or regularly transacts business in person or
34  requires a nonresident who is not a party or an officer of a party to travel
35  to a place more than 100 miles from the place where the nonresident was
36  served with the subpoena, is employed or regularly transacts business,
37  except that, subject to the provisions of subsection (c)(3)(B)(iii), such a
38  nonparty may in order to attend trial be commanded to travel to the place
39  of trial;
40    (iii)  requires disclosure of privileged or other protected matter and
41  no exception or waiver applies; or
42    (iv)  subjects a person to undue burden.
43    (B)  If a subpoena:
HB 2007--Am. by SCW
                                     

 1    (i)  Requires disclosure of a trade secret or other confidential research,
 2  development or commercial information; or
 3    (ii)  requires disclosure of an unretained expert's opinion or informa-
 4  tion not describing specific events or occurrences in dispute and resulting
 5  from the expert's study made not at the request of any party; or
 6    (iii)  requires a person who is not a party or an officer of a party to
 7  incur substantial expense to travel more than 100 miles to attend trial,
 8  the court may, to protect a person subject to or affected by the subpoena,
 9  quash or modify the subpoena or, if the party in whose behalf the sub-
10  poena is issued shows a substantial need for the testimony or material
11  that cannot be otherwise met without undue hardship and assures that
12  the person to whom the subpoena is addressed will be reasonably com-
13  pensated, the court may order appearance or production only upon spec-
14  ified conditions.
15    (3) (4)  A person confined in prison may be required to appear for
16  examination by deposition only in the county where the person is im-
17  prisoned.
18    (f)  Subpoena for a hearing or trial. Subpoenas for attendance at a
19  hearing or trial shall be issued at the request of any party. A subpoena
20  requiring the attendance of a witness at a hearing or trial may be served
21  at any place within the state.
22    (d)  Duties in responding to subpoena. (1) A person responding to a
23  subpoena to produce documents shall produce them as they are kept in
24  the usual course of business or shall organize and label them to correspond
25  with the categories in the demand.
26    (2)  When information subject to a subpoena is withheld on a claim
27  that such information is privileged or subject to protection as trial prep-
28  aration materials, the claim shall be made expressly and shall be supported
29  by a description of the nature of the documents, communications or things
30  not produced that is sufficient to enable the demanding party to contest
31  the claim.
32    (g) (e)  Contempt. Failure by any person without adequate excuse to
33  obey a subpoena served upon the person may be considered a contempt
34  of the court in which the action is pending or the court of the county in
35  which the deposition is to be taken. Punishment for contempt shall be in
36  accordance with K.S.A. 20-1204 and amendments thereto. An adequate
37  cause for failure to obey exists when a subpoena purports to require a
38  nonparty to attend or produce at a place not within the limits provided
39  by subsection (c)(3)(A)(iii).
40    Sec. 24 25.  K.S.A. 60-245a is hereby amended to read as follows: 60-
41  245a. (a) As used in this section:
42    (1)  ``Business'' means any kind of business, profession, occupation,
43  calling or operation of institutions, whether carried on for profit or not.
HB 2007--Am. by SCW
                                     

 1    (2)  ``Business records'' means writings made by personnel or staff of
 2  a business, or persons acting under their control, which are memoranda
 3  or records of acts, conditions or events made in the regular course of
 4  business at or about the time of the act, condition or event recorded.
 5    (b)  A subpoena duces tecum which commands the production of
 6  business records in an action in which the business is not a party shall
 7  inform the person to whom it is directed that the person may serve upon
 8  the attorney designated in the subpoena written objection to production
 9  of any or all of the business records designated in the subpoena within
10  10 14 days after the service of the subpoena or at or before the time for
11  compliance, if the time is less than 10 14 days after service. If such ob-
12  jection is made, the business records need not be produced except pur-
13  suant to an order of the court upon motion with notice to the person to
14  whom the subpoena was directed.
15    Unless the personal attendance of a custodian of the business records
16  and the production of original business records are required under sub-
17  section (d), it is sufficient compliance with a subpoena of business records
18  if a custodian of the business records delivers to the clerk of the court by
19  mail or otherwise a true and correct copy of all the records described in
20  the subpoena and mails a copy of the affidavit accompanying the records
21  to the party or attorney requesting them within 10 14 days after receipt
22  of the subpoena.
23    The records described in the subpoena shall be accompanied by the
24  affidavit of a custodian of the records, stating in substance each of the
25  following: (1) The affiant is a duly authorized custodian of the records
26  and has authority to certify records; (2) the copy is a true copy of all the
27  records described in the subpoena; and (3) the records were prepared by
28  the personnel or staff of the business, or persons acting under their con-
29  trol, in the regular course of the business at or about the time of the act,
30  condition or event recorded.
31    If the business has none of the records described in the subpoena, or
32  only part thereof, the affiant shall so state in the affidavit and shall send
33  only those records of which the affiant has custody. When more than one
34  person has knowledge of the facts required to be stated in the affidavit,
35  more than one affidavit may be made.
36    The copy of the records shall be separately enclosed in a sealed en-
37  velope or wrapper on which the title and number of the action, name and
38  address of the witness and the date of the subpoena are clearly inscribed.
39  If return of the copy is desired, the words ``return requested'' must be
40  inscribed clearly on the sealed envelope or wrapper. The sealed envelope
41  or wrapper shall be delivered to the clerk of the court.
42    The reasonable costs of copying the records may be demanded of the
43  party causing the subpoena to be issued. If the costs are demanded, the
HB 2007--Am. by SCW
                                     

 1  records need not be produced until the costs of copying are advanced.
 2    (c)  The subpoena shall be accompanied by an affidavit to be used by
 3  the records custodian. The subpoena and affidavit shall be in substantially
 4  the following form:
 5                                                Subpoena of Business Records
 6  State of Kansas
 7  County of ____________
 8    (1)  You are commanded to produce the records listed below before
 9  __________________________________________________________________________________________________________________
10  (Officer at Deposition)..............................................................(Judge of the District Court)
11  at _______________________________________________________________________________________________________________
12                                                         (Address)
13  in the City of ____________, County of ____________, on the ______ day of
     _______________________________________________________________________________,
14  19___, at ______ o'clock ___ m., and to testify on behalf of the ____________ in an
15  action now pending between ____________, plaintiff, and ____________, defendant. Fail-
16  ure to comply with this subpoena may be deemed a contempt of the court.
17    (2)  Records to be produced: _________________________________________________________________________________
18  __________________________________________________________________________________________________________________
19  __________________________________________________________________________________________________________________
20  __________________________________________________________________________________________________________________
21    (3)  You may make written objection to the production of any or all of the records listed
22  above by serving such written objection upon
23  __________________________________________________________________________________________  at
     __________________________________________________________________________________________
24  (Attorney)                                                  (Attorney's Address)
25  (within 10 14 days after service of this subpoena) (on or before ____________, 19___). If
26  such objection is made, the records need not be produced except upon order of the court.
27    (4)  Instead of appearing at the time and place listed above, it is sufficient compliance
28  with this subpoena if a custodian of the business records delivers to the clerk of the court
29  by mail or otherwise a true and correct copy of all the records described above and mails a
30  copy of the affidavit below to
31  __________________________________________________________________________________________  at
     __________________________________________________________________________________________
32  (Requesting Party or Attorney)                              (Address of Party or Attorney)
33  within 10 14 days after receipt of this subpoena.
34    (5)  The copy of the records shall be separately enclosed in a sealed envelope or wrapper
35  on which the title and number of the action, name and address of the witness and the date
36  of this subpoena are clearly inscribed. If return of the copy is desired, the words ``return
37  requested'' must be inscribed clearly on the sealed envelope or wrapper. The sealed enve-
38  lope or wrapper shall be delivered to the clerk of the court.
39    (6)  The records described in this subpoena shall be accompanied by the affidavit of a
40  custodian of the records, a form for which is attached to this subpoena.
41    (7)  If the business has none of the records described in this subpoena, or only part
42  thereof, the affidavit shall so state, and the custodian shall send only those records of which
43  the custodian has custody. When more than one person has knowledge of the facts required
HB 2007--Am. by SCW
                                     

 1  to be stated in the affidavit, more than one affidavit may be made.
 2    (8)  The reasonable costs of copying the records may be demanded of the party causing
 3  this subpoena to be issued. If the costs are demanded, the records need not be produced
 4  until the costs of copying are advanced.
 5    (9)  The copy of the records will not be returned unless requested by the witness.
 6
     ______________________________
 7                                                Clerk of the District Court
 8  [Seal of the District Court]
 9  Dated ____________, 19___.
10                                         Affidavit of Custodian of Business Records
11  State of ____________
12  County of ____________
13    I, ____________, being first duly sworn, on oath, depose and say that:
14    (1)  I am a duly authorized custodian of the business records of ____________ and have
15  the authority to certify those records.
16    (2)  The copy of the records attached to this affidavit is a true copy of the records
17  described in the subpoena.
18    (3)  The records were prepared by the personnel or staff of the business, or persons
19  acting under their control, in the regular course of the business at or about the time of the
20  act, condition or event recorded.
21
     ______________________________
22                                                   Signature of Custodian
23    Subscribed and sworn to before the undersigned on ____________.
24
     ______________________________
25                                                       Notary Public
26  My Appointment Expires:
27  ______________________________
28                                                   Certificate of Mailing
29    I hereby certify that on ____________, 19___, I mailed a copy of the above affidavit to
30  __________________________________________________________________________________________  at
     __________________________________________________________________________________________
31  (Requesting Party or Attorney)                              (Address of Party or Attorney)
32  by depositing it with the United States Postal Service for delivery with postage prepaid.
33
     ______________________________
34                                                   Signature of Custodian
35  Subscribed and sworn to before the undersigned on ____________.
36
     ______________________________
37                                                       Notary Public
38  My Appointment Expires:
39  ______________________________
40    (d)  Any party may require the personal attendance of a custodian of
41  business records and the production of original business records by caus-
42  ing a subpoena duces tecum to be issued which contains the following
43  statements in lieu of paragraphs (4), (5), (6), (7) and (8) of the subpoena
HB 2007--Am. by SCW
                                     

 1  form described in subsection (c):
 2    The personal attendance of a custodian of business records and the
 3  production of original records is required by this subpoena. The proce-
 4  dure for delivering copies of the records to the clerk of the court shall
 5  not be deemed sufficient compliance with this subpoena and should be
 6  disregarded. A custodian of the records must personally appear with the
 7  original records.
 8    (e)  Notice of the issuance of a subpoena pursuant to this section
 9  where the attendance of the custodian of the business records is
10  not required shall be given to all parties to the action at least 10
11  days prior to the issuance thereof. A copy of the proposed sub-
12  poena shall also be served upon all parties along with such notice.
13  In the event any party objects to the production of the documents
14  sought by such subpoena prior to its issuance, the subpoena shall
15  not be issued until further order of the court in which the action
16  is pending.
17    (f)  Upon receipt of business records the clerk of the court shall so
18  notify the party who caused the subpoena for the business records to be
19  issued. If receipt of the records makes the taking of a deposition unnec-
20  essary, the party shall cancel the deposition and shall notify the other
21  parties to the action in writing of the receipt of the records and the can-
22  cellation of the deposition.
23    After the copy of the record is filed, a party desiring to inspect or copy
24  it shall give reasonable notice to every other party to the action. The notice
25  shall state the time and place of inspection. Records which are not intro-
26  duced in evidence or required as part of the record shall be destroyed or
27  returned to the custodian of the records who submitted them if return
28  has been requested.
29    Sec. 25 26.  K.S.A. 60-250 is hereby amended to read as follows: 60-
30  250. (a) When made; effect. A party who moves for a directed verdict at
31  the close of the evidence offered by an opponent may offer evidence in
32  the event that the motion is not granted without having reserved the right
33  so to do and to the same extent as if the motion had not been made. A
34  motion for a directed verdict which is not granted is not a waiver of trial
35  by jury even though all parties to the action have moved for directed
36  verdicts. A motion for a directed verdict shall state the specific grounds
37  therefor. When a motion for a directed verdict is sustained the judge shall
38  cause the appropriate judgment to be entered. (a) Judgment as a matter
39  of law. (1) If during a trial by jury a party has been fully heard on an
40  issue and there is no legally sufficient evidentiary basis for a reasonable
41  jury to find for that party on that issue, the court may determine the issue
42  against that party and may grant a motion for judgment as a matter of
43  law against that party with respect to a claim or defense that cannot under
HB 2007--Am. by SCW
                                     

 1  the controlling law be maintained or defeated without a favorable finding
 2  on that issue.
 3    (2)  Motions for judgment as a matter of law may be made at any time
 4  before submission of the case to the jury. Such a motion shall specify the
 5  judgment sought and the law and the facts on which the moving party is
 6  entitled to the judgment.
 7    (b)  Reservation of decision on motion. (3) Decisions on motions for
 8  directed verdict judgment as a matter of law by parties joined pursuant
 9  to subsection (c) of K.S.A. 60-258a and amendments thereto, shall be
10  reserved by the court until all evidence has been presented by any party
11  alleging the movant's fault.
12    (c)  Motion for judgment notwithstanding the verdict. (b) Renewal of
13  motion for judgment after trial; alternative motion for new trial. When-
14  ever a motion for a directed verdict judgment as a matter of law made at
15  the close of all the evidence is denied or for any reason is not granted,
16  the court is deemed to have submitted the action to the jury subject to a
17  later determination of the legal questions raised by the motion. A party
18  who has moved for a directed verdict may move to have the verdict and
19  any judgment entered thereon set aside and to have judgment entered in
20  accordance with the party's motion for a directed verdict; or, if a verdict
21  was not returned, such party, within 10 days after the jury has been dis-
22  charged, may move for judgment in accordance with the motion for a
23  directed verdict. Such a motion may be renewed by service and filing not
24  later than 10 days after entry of judgment or the date the jury was dis-
25  charged for failing to return a verdict. A motion for a new trial under
26  K.S.A. 60-259 and amendments thereto may be joined with this a renewal
27  of the motion for judgment as a matter of law, or a new trial may be
28  prayed for requested in the alternative. If a verdict was returned the court,
29  in disposing of the renewed motion, may allow the judgment to stand or
30  may reopen the judgment and either order a new trial or direct the entry
31  of judgment as if the requested verdict had been directed a matter of
32  law. If no verdict was returned, the court, in disposing of the renewed
33  motion, may direct the entry of judgment as if the requested verdict had
34  been directed a matter of law or may order a new trial.
35    Sec. 26 27.  K.S.A. 60-252 is hereby amended to read as follows: 60-
36  252. (a) Effect. In all actions tried upon the facts without a jury or with
37  an advisory jury or upon entering summary judgment or involuntary dis-
38  missal, the judge shall find, and either orally or in writing state, the con-
39  trolling facts and the judge's conclusions of law thereon. Judgment shall
40  be entered pursuant to section K.S.A. 60-258 and amendments thereto.
41  In granting or refusing interlocutory injunctions, except in divorce cases,
42  the judge shall set forth the findings and conclusions of law. Requests for
43  findings are not necessary. Findings of fact shall not be set aside unless
HB 2007--Am. by SCW
                                     

 1  clearly erroneous, and due regard shall be given to the opportunity of the
 2  trial court to judge the credibility of the witnesses. The findings of a
 3  master, to the extent that the judge adopts them, shall be considered as
 4  the findings of the court. If an opinion or memorandum of decision is
 5  filed, it will be sufficient if the findings of fact and reasons for the decision
 6  conclusions of law appear therein.
 7    (b)  Amendment. Upon motion of a party made not later than ten (10)
 8  10 days after entry of judgment the court may amend its findings or make
 9  additional findings and may amend the judgment accordingly. The motion
10  may be made with a motion for a new trial pursuant to section K.S.A. 60-
11  259 and amendments thereto. When findings of fact are made in actions
12  tried by the court without a jury, the question of the sufficiency of the
13  evidence to support the findings may thereafter be raised whether or not
14  the party raising the question has made in the district court an objection
15  to such findings or has made a motion to amend them or a motion for
16  judgment.
17    (c)  Judgment on partial findings. If during a trial without a jury a
18  party has been fully heard on an issue and the court finds against the
19  party on that issue, the court may enter judgment as a matter of law
20  against that party with respect to a claim or defense that cannot under
21  the controlling law be maintained or defeated without a favorable finding
22  on that issue, or the court may decline to render any judgment until the
23  close of all the evidence. Such a judgment shall be supported by findings
24  of fact and conclusions of law as required by subsection (a).
25section    Sec. 28.  K.S.A. 60-254 is hereby amended to read as follows:
26  60-254. (a) Definition. A judgment is the final determination of the
27  rights of the parties in an action.
28    (b)  Judgment upon multiple claims. When more than one claim
29  for relief is presented in an action, whether as a claim, counter-
30  claim, cross-claim or third-party claim or, when multiple parties
31  are involved, the court may direct the entry of a final judgment as
32  to one or more but fewer than all of the claims or parties only upon
33  an express determination that there is no just reason for delay and
34  upon an express direction for the entry of judgment. In the ab-
35  sence of such determination and direction, any order or other form
36  of decision, however designated, which adjudicates fewer than all
37  the claims or the rights and liabilities of fewer than all the parties
38  shall not terminate the action as to any of the claims or parties,
39  and the order or other form of decision is subject to revision at
40  any time before the entry of judgment adjudicating all the claims
41  and the rights and liabilities of all the parties.
42    (c)  Demand for judgment. A judgment by default shall not be
43  different in kind from or exceed in amount that prayed for in the
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 1  demand for judgment. Before any default judgment is taken in any
 2  action in which a pleading contains a demand for money damages
 3  in excess of $50,000 $75,000 as provided in subsection (a) of K.S.A.
 4  60-208 and amendments thereto, the party seeking relief must no-
 5  tify the party against whom relief is sought of the amount of money
 6  for which judgment will be taken. Notice shall be given by certified
 7  mail, return receipt requested, or as the court may order, at least
 8  10 days prior to the date judgment is sought. Proof of service shall
 9  be filed and submitted to the court. Except as to a party against
10  whom a judgment is entered by default, every final judgment shall
11  grant the relief to which the party in whose favor it is rendered is
12  entitled, even if the party has not demanded such relief in such
13  party's pleadings.
14    Sec. 27 29.  K.S.A. 60-256 is hereby amended to read as follows: 60-
15  256. (a) For claimant. A party seeking to recover upon a claim, counter-
16  claim or cross-claim or to obtain a declaratory judgment may, at any time
17  after the expiration of 20 days from the commencement of the action or
18  after service of a motion for summary judgment by the adverse party,
19  move with or without supporting affidavits for a summary judgment in
20  the party's favor as to all or any part thereof.
21    (b)  For defending party. A party against whom a claim, counterclaim
22  or cross-claim is asserted or a declaratory judgment is sought may, at any
23  time, move with or without supporting affidavits for a summary judgment
24  in the party's favor as to all or any part thereof.
25    (c)  Motion and proceeding thereon. The motion shall be served at
26  least 10 days before the time fixed for the hearing. The adverse party
27  prior to the day of hearing may serve opposing affidavits. The judgment
28  sought shall be rendered forthwith if the pleadings, depositions, answers
29  to interrogatories and admissions on file, together with the affidavits, if
30  any, show that there is no genuine issue as to any material fact and that
31  the moving party is entitled to a judgment as a matter of law. A summary
32  judgment, interlocutory in character, may be rendered on the issue of
33  liability alone although there is a genuine issue as to the amount of dam-
34  ages.
35    (d)  Case not fully adjudicated on motion. If on motion under this
36  section judgment is not rendered upon the whole case or for all the relief
37  asked and a trial is necessary, the court at the hearing of the motion, by
38  examining the pleadings and the evidence before it and by interrogating
39  counsel, shall if practicable ascertain what material facts exist without
40  substantial controversy and what material facts are actually and in good
41  faith controverted. It shall thereupon make an order specifying the facts
42  that appear without substantial controversy, including the extent to which
43  the amount of damages or other relief is not in controversy, and directing
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 1  such further proceedings in the actions as are just. Upon the trial of the
 2  action the facts so specified shall be deemed established, and the trial
 3  shall be conducted accordingly.
 4    (e)  Form of affidavits; further testimony; defense required. Support-
 5  ing and opposing affidavits shall be made on personal knowledge, shall
 6  set forth such facts as would be admissible in evidence and shall show
 7  affirmatively that the affiant is competent to testify to the matters stated
 8  therein. Sworn or certified copies of all papers or parts thereof referred
 9  to in an affidavit shall be attached thereto or served therewith. The court
10  may permit affidavits to be supplemented or opposed by depositions,
11  answers to interrogatories or by further affidavits. When a motion for
12  summary judgment is made and supported as provided in this section, an
13  adverse party may not rest upon the mere allegations or denials of the
14  adverse party's pleading, but the adverse party's response, by affidavits
15  or as otherwise provided in this section, must set forth specific facts show-
16  ing that there is a genuine issue for trial. If the adverse party does not so
17  respond, summary judgment, if appropriate, shall be entered against the
18  adverse party.
19    (f)  When affidavits are unavailable. Should it appear from the affi-
20  davits of a party opposing the motion that the party cannot for reasons
21  stated present by affidavit facts essential to justify such party's opposition,
22  the court may refuse the application for judgment or may order a contin-
23  uance to permit affidavits to be obtained or depositions to be taken or
24  discovery to be had or may make such other order as is just.
25    (g)  Affidavits made in bad faith. Should it appear to the satisfaction
26  of the court at any time that any of the affidavits presented pursuant to
27  this section are presented in bad faith or solely for the purpose of delay,
28  the court shall forthwith order the party employing them to pay to the
29  other party the amount of the reasonable expenses which the filing of the
30  affidavits caused the party to incur, including reasonable attorney fees,
31  and any offending party or attorney may be adjudged guilty of contempt.
32    Sec. 28 30.  K.S.A. 60-262 is hereby amended to read as follows: 60-
33  262. (a) Automatic stay; exceptions -- injunctions and receiverships. Ex-
34  cept as stated herein, no execution shall issue upon a judgment nor shall
35  proceedings be taken for its enforcement until the expiration of ten (10)
36  10 days after its entry. Unless otherwise ordered by the court, an inter-
37  locutory or final judgment in an action for an injunction or in a receiv-
38  ership action, shall not be stayed during the period after its entry and
39  until an appeal is taken or during the pendency of an appeal. The pro-
40  visions of subsection (c) of this section govern the suspending, modifying,
41  restoring, or granting of an injunction during the pendency of an appeal.
42    (b)  Stay on motion for new trial or for judgment. In its discretion and
43  on such conditions for the security of the adverse party as are proper, the
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 1  court may stay the execution of or any proceedings to enforce a judgment
 2  pending the disposition of a motion for a new trial or to alter or amend
 3  a judgment made pursuant to K.S.A. 60-259, and amendments thereto,
 4  or of a motion for relief from a judgment or order made pursuant to
 5  K.S.A. 60-260, and amendments thereto, or of a motion for judgment in
 6  accordance with a motion for a directed verdict as a matter of law made
 7  pursuant to K.S.A. 60-250, and amendments thereto, or of a motion for
 8  amendment to the findings or for additional findings made pursuant to
 9  subsection (b) of K.S.A. 60-252(b) 60-252.
10    (c)  Injunction pending appeal. When an appeal is taken from an in-
11  terlocutory or final judgment granting, dissolving, or denying an injunc-
12  tion, the judge in said such judge's discretion may suspend, modify,
13  restore, or grant an injunction during the pendency of the appeal upon
14  such terms as to bond or otherwise as it considers proper for the security
15  of the rights of the adverse party.
16    (d)  Stay upon appeal. When an appeal is taken the appellant by giving
17  a supersedeas bond may obtain a stay subject to the exceptions contained
18  in subsection (a) of this section. The bond may be given at or after the
19  time of filing the notice of appeal. The stay is effective when the super-
20  sedeas bond is approved by the court.
21    (e)  Stay in favor of the state or agency thereof. When an appeal is
22  taken by the state or an officer or agency thereof or by direction of any
23  department of the state and the operation or enforcement of the judg-
24  ment is stayed, no bond, obligation, or other security shall be required
25  from the appellant.
26    (f)  Power of appellate court not limited. The provisions in this section
27  do not limit any power of the appellate court or of a judge or justice
28  thereof to stay proceedings during the pendency of an appeal or to sus-
29  pend, modify, restore, or grant an injunction during the pendency of an
30  appeal or to make any order appropriate to preserve the status quo or the
31  effectiveness of the judgment subsequently to be entered.
32    (g)  Stay of judgment upon multiple claims. When a court has ordered
33  a final judgment on some but not all of the claims presented in the action
34  under the conditions stated in subsection (b) of K.S.A. 60-254 (b) 60-254,
35  and amendments thereto, the court may stay enforcement of that judg-
36  ment until the entering of a subsequent judgment or judgments and may
37  prescribe such conditions as are necessary to secure the benefit thereof
38  to the party in whose favor the judgment is entered.
39    Sec. 29 31.  K.S.A. 60-456 is hereby amended to read as follows: 60-
40  456. (a) If the witness is not testifying as an expert his or her, such witness'
41  testimony in the form of opinions or inferences is limited to such opinions
42  or inferences as the judge finds (a): (1) May be rationally based on the
43  perception of the witness; and (b) (2) are helpful to a clearer understand-
HB 2007--Am. by SCW
                                     

 1  ing of his or her such witness' testimony.
 2    (b)  If the witness is testifying as an expert, testimony of the witness
 3  in the form of opinions or inferences is limited to such opinions as the
 4  judge finds are:
 5    (1)  Based on facts or data perceived by or personally known or made
 6  known to the witness at the hearing and;
 7    (2)  based on reasoning or methodology which is scientifically valid
 8  which can be properly applied to the facts in issue;
 9    (3)  likely to assist the trier of fact to understand the evidence or to
10  determine a fact in issue; and
11    (2)  generally accepted as reliable within the expert's particular
12  scientific field; and
13    (4) (3)  within the scope of the special knowledge, skill, experience or
14  training possessed by the witness.
15    (c)  Unless the judge excludes the testimony he or she, the judge shall
16  be deemed to have made the finding requisite to its admission.
17    (d)  Testimony in the form of opinions or inferences otherwise ad-
18  missible under this article is not objectionable because it embraces the
19  ultimate issue or issues to be decided by the trier of the fact.
20    Sec. 30 32 [31].  K.S.A. 1996 Supp. 60-1608 is hereby amended to
21  read as follows: 60-1608. (a) Time. An action for divorce shall not be heard
22  until 60 days after the filing of the petition unless the judge enters an
23  order declaring the existence of an emergency, stating the precise nature
24  of the emergency, the substance of the evidence material to the emer-
25  gency and the names of the witnesses who gave the evidence. A request
26  for an order declaring the existence of an emergency may be contained
27  in a pleading or made by motion. Unless otherwise agreed by the parties,
28  a request for the declaration of an emergency shall not be heard prior to
29  the expiration of the time permitted for the filing of an answer. Unless
30  waived, notice of the hearing requesting the declaration of an emergency
31  shall be given to all parties not in default not less than seven days prior
32  to the date of the hearing. Upon a finding that an emergency exists, the
33  divorce and all issues pertaining thereto may be heard immediately.
34    (b)  Pretrial conference conferences. Upon the request of either party,
35  the court shall set a pretrial conference to explore the possibilities of
36  settlement of the case and to expedite the trial. The court shall conduct
37  a pretrial conference or conferences in accordance with K.S.A. 60-216,
38  and amendments thereto, upon request of either party or on the court's
39  own motion. Any pretrial conference shall be set on a date other than the
40  date of trial and the parties shall be present or available within the court-
41  house.
42    (c)  Marriage counseling. After the filing of the answer or other re-
43  sponsive pleading by the respondent, the court, on its own motion or
HB 2007--Am. by SCW
                                     

 1  upon motion of either of the parties, may require both parties to the
 2  action to seek marriage counseling if marriage counseling services are
 3  available within the judicial district of venue of the action. Neither party
 4  shall be required to submit to marriage counseling provided by any relig-
 5  ious organization of any particular denomination.
 6    (d)  Cost of counseling. The cost of any counseling authorized by this
 7  section may be assessed as costs in the case.
 8    Sec. 31 33 [32].  K.S.A. 60-2103 is hereby amended to read as fol-
 9  lows: 60-2103. (a) When and how taken. When an appeal is permitted by
10  law from a district court to an appellate court, the time within which an
11  appeal may be taken shall be 30 days from the entry of the judgment, as
12  provided by K.S.A. 60-258, and amendments thereto, except that upon a
13  showing of excusable neglect based on a failure of a party to learn of the
14  entry of judgment the district court in any action may extend the time
15  for appeal not exceeding 30 days from the expiration of the original time
16  herein prescribed. The running of the time for appeal is terminated by a
17  timely motion made pursuant to any of the rules hereinafter enumerated,
18  and the full time for appeal fixed in this subsection commences to run
19  and is to be computed from the entry of any of the following orders made
20  upon a timely motion under such rules: Granting or denying a motion for
21  judgment under subsection (c) (b) of K.S.A. 60-250, and amendments
22  thereto; or granting or denying a motion under subsection (b) of K.S.A.
23  60-252, and amendments thereto, to amend or make additional findings
24  of fact, whether or not an alteration of the judgment would be required
25  if the motion is granted; or granting or denying a motion under K.S.A.
26  60-259, and amendments thereto, to alter or amend the judgment; or
27  denying a motion for new trial under K.S.A. 60-259, and amendments
28  thereto.
29    A party may appeal from a judgment by filing with the clerk of the
30  district court a notice of appeal. Failure of the appellant to take any of
31  the further steps to secure the review of the judgment appealed from
32  does not affect the validity of the appeal, but is ground only for such
33  remedies as are specified in this chapter, or when no remedy is specified,
34  for such action as the appellate court having jurisdiction over the appeal
35  deems appropriate, which may include dismissal of the appeal. If the
36  record on appeal has not been filed with the appellate court, the parties,
37  with the approval of the district court, may dismiss the appeal by stipu-
38  lation filed in the district court, or that court may dismiss the appeal upon
39  motion and notice by the appellant.
40    (b)  Notice of appeal. The notice of appeal shall specify the parties
41  taking the appeal; shall designate the judgment or part thereof appealed
42  from, and shall name the appellate court to which the appeal is taken.
43  The appealing party shall cause notice of the appeal to be served upon
HB 2007--Am. by SCW
                                     

 1  all other parties to the judgment as provided in K.S.A. 60-205, and
 2  amendments thereto, but such party's failure so to do does not affect the
 3  validity of the appeal.
 4    (c)  Security for costs. Security for the costs on appeal shall be given
 5  in such sum and manner as shall be prescribed by a general rule of the
 6  supreme court unless the appellate court shall make a different order
 7  applicable to a particular case.
 8    (d)  Supersedeas bond. Whenever an appellant entitled thereto desires
 9  a stay on appeal, such appellant may present to the district court for its
10  approval a supersedeas bond which shall have such surety or sureties as
11  the court requires. The bond shall be conditioned for the satisfaction of
12  the judgment in full together with costs, interest, and damages for delay,
13  if for any reason the appeal is dismissed, or if the judgment is affirmed,
14  and to satisfy in full such modification of the judgment such costs, inter-
15  est, and damages as the appellate court may adjudge and award. When
16  the judgment is for the recovery of money not otherwise secured, the
17  amount of the bond shall be fixed at such sum as will cover the whole
18  amount of the judgment remaining unsatisfied, costs on the appeal, in-
19  terest, and damages for delay, unless the court after notice and hearing
20  and for good cause shown fixes a different amount or orders security other
21  than the bond. When the judgment determines the disposition of the
22  property in controversy as in real actions, replevin, and actions to fore-
23  close mortgages or when such property is in the custody of the sheriff or
24  when the proceeds of such property or a bond for its value is in the
25  custody or control of the court, the amount of the supersedeas bond shall
26  be fixed after notice and hearing at such sum only as will secure the
27  amount recovered for the use and detention of the property, the costs of
28  the action, costs on appeal, interest, and damages for delay. When an
29  order is made discharging, vacating, or modifying a provisional remedy,
30  or modifying or dissolving an injunction, a party aggrieved thereby shall
31  be entitled, upon application to the judge, to have the operation of such
32  order suspended for a period of not to exceed 10 days on condition that,
33  within such period of 10 days such party shall file a notice of appeal and
34  obtain the approval of such supersedeas bond as is required under this
35  section.
36    (e)  Failure to file or insufficiency of bond. If a supersedeas bond is
37  not filed within the time specified, or if the bond filed is found insuffi-
38  cient, and if the action is not yet docketed with the appellate court, a
39  bond may be filed at such time before the action is so docketed as may
40  be fixed by the district court. After the action is so docketed, application
41  for leave to file a bond may be made only in the appellate court.
42    (f)  Judgment against surety. By entering into a supersedeas bond
43  given pursuant to subsections (c) and (d) of this section, the surety sub-
HB 2007--Am. by SCW
                                     

 1  mits such surety's self to the jurisdiction of the court and irrevocably
 2  appoints the clerk of the court as such surety's agent upon whom any
 3  papers affecting such surety's liability on the bond may be served. Such
 4  surety's liability may be enforced on motion without the necessity of an
 5  independent action. The motion and such notice of the motion as the
 6  judge prescribes may be served on the clerk of the court who shall forth-
 7  with mail copies to the surety if such surety's address is known.
 8    (g)  Docketing record on appeal. The record on appeal shall be filed
 9  and docketed with the appellate court at such time as the supreme court
10  may prescribe by rule.
11    (h)  Cross-appeal. When notice of appeal has been served in a case
12  and the appellee desires to have a review of rulings and decisions of which
13  such appellee complains, the appellee shall, within 20 days after the notice
14  of appeal has been served upon such appellee and filed with the clerk of
15  the trial court, give notice of such appellee's cross-appeal.
16    (i)  Intermediate rulings. When an appeal or cross-appeal has been
17  timely perfected, the fact that some ruling of which the appealing or cross-
18  appealing party complains was made more than 30 days before filing of
19  the notice of appeal shall not prevent a review of the ruling.
20    Sec. 32 34 [33].  K.S.A. 60-3703 is hereby amended to read as fol-
21  lows: 60-3703. No tort claim or reference to a tort claim for punitive
22  damages shall be included in a petition or other pleading unless the court
23  enters an order allowing an amended pleading that includes a claim for
24  punitive damages to be filed. The court may allow the filing of an
25  amended pleading claiming punitive damages on a motion by the party
26  seeking the amended pleading and on the basis of the supporting and
27  opposing affidavits presented that the plaintiff has established that there
28  is a probability that the plaintiff will prevail on the claim pursuant to
29  K.S.A. 60-209, and amendments thereto. The court shall not grant a mo-
30  tion allowing the filing of an amended pleading that includes a claim for
31  punitive damages if the motion for such an order is not filed on or before
32  the date of the final pretrial conference held in the matter.
33    Sec. 33 35 [34].  K.S.A. 61-1710 is hereby amended to read as fol-
34  lows: 61-1710. Any party to an action pursuant to this chapter may take
35  the testimony of any person, including a party, either within or without
36  the state, by deposition upon oral examination or written questions but
37  only for use as evidence in the action. Unless the court orders otherwise,
38  the parties may by written stipulation provide that depositions may be
39  taken before any person, at any time or place, upon any notice, and in
40  any manner and when so taken may be used like other depositions. The
41  taking of such depositions shall be governed by the provisions of K.S.A.
42  60-228, subsections (b) through (h), inclusive, of K.S.A. 60-230, K.S.A.
43  60-231 and subsection (d) (e) of K.S.A. 60-232, and amendments thereto,
HB 2007--Am. by SCW
                                     

 1  except that any party desiring to take a deposition shall first file with the
 2  court, and serve on all other parties to the action, a motion that the taking
 3  of such deposition be allowed due to the existence of at least one (1) of
 4  the conditions prescribed in K.S.A. 61-1711, and amendments thereto,
 5  for the use of depositions as evidence. Within five (5) days after any such
 6  motion has been made, any other party to the action may file an objection
 7  to such motion, and in such event, the court shall hold a hearing within
 8  five (5) days thereof to determine the issue. No deposition shall be taken
 9  unless and until the court shall have granted the motion requesting per-
10  mission therefor.
11    Sec. 34 36 [35].  K.S.A. 61-1725 is hereby amended to read as fol-
12  lows: 61-1725. The following provisions of article 2 of chapter 60 of the
13  Kansas Statutes Annotated are hereby adopted by reference and made a
14  part of this act as if fully set forth herein, insofar as such provisions are
15  not inconsistent or in conflict with the provisions of this act:
16    (a)  K.S.A. 60-211 and amendments thereto, relating to signing of
17  pleadings, motions and other papers and liability for frivolous filings;
18    (b)  K.S.A. 60-215 and amendments thereto, relating to amended and
19  supplemental pleadings, except that the time for filing amended pleadings
20  and for responding thereto shall be ten (10) 10 instead of twenty (20) 20
21  days;
22    (b) (c)  K.S.A. 60-217 and amendments thereto, relating to capacity of
23  parties;
24    (c) (d)  K.S.A. 60-218 and amendments thereto, providing for joinder
25  of claims and remedies, K.S.A. 60-219 and 60-220 and amendments
26  thereto, providing for joinder of parties, and K.S.A. 60-221 and amend-
27  ments thereto, relating to misjoinder of parties and claims;
28    (d) (e)  K.S.A. 60-224 and amendments thereto, relating to interven-
29  tion, and K.S.A. 60-225 and amendments thereto, providing for substi-
30  tution of parties;
31    (e) (f)  K.S.A. 60-234 and amendments thereto, relating to production
32  of documents and things for inspection;
33    (f) (g)  K.S.A. 60-241 and amendments thereto, providing for dismissal
34  of actions;
35    (g) (h)  K.S.A. 60-244 and amendments thereto, providing for proof of
36  records;
37    (h) (i)  K.S.A. 60-256 and amendments thereto, relating to summary
38  judgment;
39    (i) (j)  K.S.A. 60-259 and 60-260 and amendments thereto, concerning
40  new trial and relief from judgment or order, respectively;
41    (j) (k)  K.S.A. 60-261 and 60-263 and amendments thereto, relating
42  respectively to harmless error and disability of a judge; and
43    (k) (l)  K.S.A. 60-264 and amendments thereto, relating to process in
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 1  behalf of and against persons not parties.
 2    Sec. 35 37 [36].  K.S.A. 75-3079 is hereby amended to read as fol-
 3  lows: 75-3079. (a) If costs are assessed against the state or any agency of
 4  the state pursuant to K.S.A. 60-2007 60-211, and amendments thereto,
 5  the head of the state agency which conducted the litigation shall report
 6  the assessment, its amount and the reason for it to the speaker and the
 7  minority leader of the Kansas house of representatives and to the presi-
 8  dent and the minority leader of the Kansas senate within 30 days after
 9  entry of the order assessing the costs against the state or state agency.
10    (b)  Payment of costs assessed against the state or a state agency pur-
11  suant to K.S.A. 60-2007 60-211, and amendments thereto shall be made
12  from the operating budget of the state agency which conducted the liti-
13  gation.
14    [Sec. 37.  K.S.A. 60-717 is hereby amended to read as follows:
15  60-717. (a) Form. (1) An order of garnishment, issued independently
16  of an attachment, either prior to judgment or as an aid for the en-
17  forcement of a judgment, for the purpose of attaching any property,
18  funds, credits or indebtedness belonging to or owing the defendant,
19  other than earnings, is declared to be sufficient if substantially in
20  the following form:
21    [``In the District Court of ____________ County, Kansas, A.B., Plaintiff, vs. C.D.,
22  Defendant, and E.F., Garnishee. The State of Kansas to the Garnishee: You are
23  hereby ordered as a garnishee to file with the clerk of the above named court, within
24  10 days after service of this order upon you, your answer under oath stating whether
25  you are at the time of the service of this order upon you, and also whether at any
26  time thereafter but before you sign your answer, indebted to the defendant, or have
27  in your possession or control any property belonging to the defendant, excluding
28  earnings (compensation for personal services, whether denominated as wages, salary,
29  commission, bonus or otherwise) due and owing the defendant and stating the amount
30  of any such indebtedness and description of any such property. For the purpose of
31  this order, if you are, at the time this order is served upon you, an executor or
32  administrator of an estate containing property or funds to which defendant is or may
33  become entitled as a legatee or distributee of the estate upon its distribution, you
34  are deemed to be indebted to the defendant to the extent of such property or funds.
35  You are further ordered to withhold the payment of any such indebtedness, or the
36  delivery away from yourself of any such property, until the further order of the court.
37  Your answer on the form served herewith shall constitute substantial compliance
38  with this order.
39    [``Failure to file your answer may entitle the plaintiff to judgment against you for
40  the full amount of the claim and costs.
41    [``Witness my hand and seal of the court at _________ in this county, this ____________________________________
42  day of ____________, 19___, _______________________________________________________________________________, Clerk
     of the court, ____________ County.''
43    [(2)  An order of garnishment, issued independently of an at-
HB 2007--Am. by SCW
                                     

 1  tachment as an aid for the enforcement of a judgment and for the
 2  purpose of attaching earnings of the defendant shall include the
 3  defendant's address and social security number, if known, the ad-
 4  dress of the plaintiff's attorney and, except as otherwise provided
 5  the amount of the plaintiff's claim against the defendant. If the exact
 6  amount of the plaintiff's claim is not known, the order of garnish-
 7  ment shall include an approximate amount of the plaintiff's claim
 8  against the defendant. It is declared to be sufficient if substantially
 9  in the following form:
10    [``In the District Court of ____________ County, Kansas, A.B., Plaintiff, vs. C.D.,
11  Defendant, and E.F., Garnishee. The State of Kansas to the Garnishee: You are
12  hereby ordered as a garnishee to file with the clerk of the above named court, within
13  40 days after service of this order upon you, your answer under oath stating whether
14  you are indebted to the defendant by reason of earnings (compensation for personal
15  services, whether denominated as wages, salary, commission, bonus or otherwise)
16  due and owing the defendant and stating the amount of any such indebtedness. Com-
17  putation of the amount of your indebtedness shall be made as prescribed by the
18  answer form served herewith and shall be based upon defendant's earnings for any
19  pay period or periods which end during the 30-day period beginning the day this
20  order is served upon you. You are further ordered to withhold from each payment
21  for earnings due the defendant for any pay period or periods ending during such 30-
22  day period the payment of that portion of defendant's earnings required to be with-
23  held pursuant to the directions accompanying the answer form until the further order
24  of the court. If you do not receive an order of the court to dispose of earnings withheld
25  from the defendant within 60 days from the date your answer is filed, and your
26  answer is not contested by the plaintiff, you may petition the court for an order
27  allowing you to return withheld funds to the defendant. Your answer on the form
28  shall constitute substantial compliance with this order.
29  [Defendant __________________________________________________________________  Plaintiff's attorney
     __________________________________________________________________
30  [Address _________________________________________________________________________________  Address
     _________________________________________________________________________________
31  [________________________________________________________________________________________________ 
     ________________________________________________________________________________________________
32  [Social Security #, if known _____________________
33                                                                                                 Amount of claim
     _________
34    [``Failure to file your answer may entitle the plaintiff to judgment against you for
35  the full amount of the claim and costs.
36    [``Witness my hand and seal of the court at _________ in this county, this ____________________________________
37  day of ____________, 19___, _______________________________________________________________________________, Clerk
     of the court, ____________ County.''
38    [If such order of garnishment is issued at the written direction of
39  the party entitled to enforce the judgment, pursuant to K.S.A. 60-
40  716, and amendments thereto, to enforce (1) an order of any court
41  for the support of any person, (2) an order of any court of bank-
42  ruptcy under chapter XIII of the federal bankruptcy act or (3) a
43  debt due for any state or federal tax, the clerk of the district court
44  shall cause such purpose to be clearly stated on the order of gar-
HB 2007--Am. by SCW
                                     

 1  nishment and the accompanying garnishee's answer form immedi-
 2  ately below the caption. If the garnishment is to enforce a court
 3  order for the support of any person, the garnishment shall not ex-
 4  ceed 50% of an individual's disposable earnings unless the person
 5  seeking the garnishment specifies to the garnishee a greater percent
 6  to be withheld, as authorized by subsection (g) (f) of K.S.A. 60-2310
 7  and amendments thereto.
 8    [From earnings due to defendant, the garnishee may withhold and
 9  retain to defray the garnishee's expenses an administrative fee of
10  $10 for each pay period in which earnings are withheld, not to ex-
11  ceed $20 for each month in which earnings are withheld. If addition
12  of this fee causes the total amount withheld to exceed the restric-
13  tions imposed by subsection (b) K.S.A. 60-2310, and amendments
14  thereto, the fee shall be deducted from the amount withheld.
15    [(b)  Service and return. The order of garnishment shall be served
16  on the garnishee, together with two copies of the form for the gar-
17  nishee's answer prescribed in K.S.A. 60-718 and amendments
18  thereto and returned by the officer making service in the same man-
19  ner as an order of attachment. If the order is served prior to a judg-
20  ment on the plaintiff's claim, the order shall also be served on the
21  defendant, if the defendant can be found, but failure to serve the
22  defendant shall not relieve the garnishee from liability under the
23  order.
24    [(c)  Effect. An order of garnishment issued to attach any prop-
25  erty, funds, credits or other indebtedness belonging to or owing the
26  defendant, other than earnings, shall attach (1) all such property
27  of the defendant which is in the possession or under the control of
28  the garnishee, and all such credits and indebtedness due from the
29  garnishee to the defendant at the time of service of the order and
30    (2) all such property coming into the possession or control of the
31  garnishee and belonging to the defendant, and all such credits and
32  indebtedness becoming due to the defendant between the time of the
33  serving of the order of garnishment and the time of the signing of
34  the answer of the garnishee, but if the garnishee is an executor or
35  administrator of an estate and the defendant is or may become a
36  legatee or distributee thereof, the order of garnishment shall attach
37  and create a first and prior lien upon any property or funds of such
38  estate to which the defendant is entitled upon distribution of the
39  estate and the garnishee shall be prohibited from paying to the de-
40  fendant any of such property or funds until so ordered by the court
41  from which the order of garnishment was issued.
42    [An order of garnishment issued for the purpose of attaching
43  earnings of the defendant shall have the effect of attaching the no-
HB 2007--Am. by SCW
                                     

 1  nexempt portion of the defendant's earnings for any pay period or
 2  periods which end during the 30-day period beginning the date the
 3  order is served. Nonexempt earnings are earnings which are not
 4  exempt from wage garnishment pursuant to K.S.A. 60-2310 and
 5  amendments thereto, and computation thereof for any pay period
 6  or periods which end during the 30-day period beginning the date
 7  the order is served shall be made in accordance with the directions
 8  accompanying the garnishee's answer form served with the order of
 9  garnishment.
10    [Sec. 38.  K.S.A. 1996 Supp. 60-2310 is hereby amended to read
11  as follows: 60-2310. (a) Definitions. As used in this act and the acts
12  of which this act is amendatory, unless the context otherwise re-
13  quires, the following words and phrases shall have the meanings
14  respectively ascribed to them:
15    [(1)  ``Earnings'' means compensation paid or payable for per-
16  sonal services, whether denominated as wages, salary, commission,
17  bonus or otherwise;
18    [(2)  ``disposable earnings'' means that part of the earnings of
19  any individual remaining after the deduction from such earnings of
20  any amounts required by law to be withheld;
21    [(3)  ``wage garnishment'' means any legal or equitable proce-
22  dure through which the earnings of any individual are required to
23  be withheld for payment of any debt; and
24    [(4)  ``federal minimum hourly wage'' means that wage pre-
25  scribed by subsection (a)(1) of section 6 of the federal fair labor
26  standards act of 1938, and any amendments thereto.
27    [(b)  Restriction on wage garnishment. Subject to the provisions of
28  subsection (e) (d), only the aggregate disposable earnings of an in-
29  dividual may be subjected to wage garnishment. The maximum part
30  of such earnings of any wage earning individual which may be sub-
31  jected to wage garnishment for any workweek or multiple thereof
32  may not exceed the lesser of: (1) Twenty-five percent of the indivi-
33  dual's aggregate disposable earnings for that workweek or multiple
34  thereof; (2) the amount by which the individual's aggregate dispos-
35  able earnings for that workweek or multiple thereof exceed an
36  amount equal to 30 times the federal minimum hourly wage, or
37  equivalent multiple thereof for such longer period; or (3) the
38  amount of the plaintiff's claim as found in the order for garnish-
39  ment. No one creditor may issue more than one garnishment against
40  the earnings of the same judgment debtor during any one 30-day
41  period, but the court shall allow the creditor to file amendments or
42  corrections of names or addresses of any party to the order of gar-
43  nishment at any time. In answering such order the garnishee-em-
HB 2007--Am. by SCW
                                     

 1  ployer shall withhold from all earnings of the judgment-debtor for
 2  any pay period or periods ending during such 30-day period an
 3  amount or amounts as are allowed and required by law. Nothing in
 4  this act shall be construed as charging the plaintiff in any garnish-
 5  ment action with the knowledge of the amount of any defendant's
 6  earnings prior to the commencement of such garnishment action.
 7    [(c)  Sickness preventing work. If any debtor is prevented from
 8  working at the debtor's regular trade, profession or calling for any
 9  period greater than two weeks because of illness of the debtor or
10  any member of the family of the debtor, and this fact is shown by
11  the affidavit of the debtor, the provisions of this section shall not
12  be invoked against any such debtor until after the expiration of two
13  months after recovery from such illness.
14    [(d)  Assignment of account. If any person, firm or corporation sells
15  or assigns an account to any person or collecting agency, that person, firm
16  or corporation or their assignees shall not have or be entitled to the ben-
17  efits of wage garnishment. The provision of this subsection shall not apply
18  to the following:
19    [(1)  Assignments of support rights to the secretary of social and re-
20  habilitation services pursuant to K.S.A. 39-709 and 39-756, and amend-
21  ments thereto;
22    [(2)  support rights which have been assigned to any other state pur-
23  suant to title IV-D of the federal social security act (42 U.S.C. (section) 651 et
24  seq.);
25    [(3)  assignments of accounts receivable or taxes receivable to the di-
26  rector of accounts and reports made under K.S.A. 75-3728b and amend-
27  ments thereto; or
28    [(4)  collections pursuant to contracts entered into in accordance with
29  K.S.A. 1996 Supp. 75-719 and amendments thereto involving the collec-
30  tion of restitution or debts to district courts.
31    [(e) (d)  Exceptions to restrictions on wage garnishment. The restric-
32  tions on the amount of disposable earnings subject to wage garnish-
33  ment as provided in subsection (b) shall not apply in the following
34  instances:
35    [(1)  Any order of any court for the support of any person, in-
36  cluding any order for support in the form of alimony, but the fore-
37  going shall be subject to the restriction provided for in subsection
38  (g) (f);
39    [(2)  any order of any court of bankruptcy under chapter XIII
40  of the federal bankruptcy act; and
41    [(3)  any debt due for any state or federal tax.
42    [(f) (e)  Prohibition on courts. No court of this state may make,
43  execute or enforce any order or process in violation of this section.
HB 2007--Am. by SCW
                                     

 1    [(g) (f)  The maximum part of the aggregate disposable earnings
 2  of an individual for any workweek which is subject to garnishment
 3  to enforce any order for the support of any person shall not exceed:
 4    [(1)  If the individual is supporting a spouse or dependent child
 5  (other than a spouse or child with respect to whose support such
 6  order is used), 50% of the individual's disposable earnings for that
 7  week;
 8    [(2)  if the individual is not supporting a spouse or dependent
 9  child described in clause (1), 60% of such individual's disposable
10  earnings for that week; and
11    [(3)  with respect to the disposable earnings of any individual
12  for any workweek, the 50% specified in clause (1) shall be 55% and
13  the 60% specified in clause (2) shall be 65%, if such earnings are
14  subject to garnishment to enforce a support order for a period which
15  is prior to the twelve-week period which ends with the beginning of
16  such workweek.
17    [Sec. 39.  K.S.A. 61-2005 is hereby amended to read as follows:
18  61-2005. (a) Form of garnishment order. An order of garnishment,
19  issued independently of an attachment for the purpose of attaching
20  earnings or for the purpose of attaching other property of the de-
21  fendant, and the answer of the garnishee are declared to be suffi-
22  cient if substantially in compliance with the appropriate form pre-
23  scribed in the appendix to this act. If an order of garnishment is
24  issued at the written direction of the party entitled to enforce the
25  judgment, pursuant to K.S.A. 61-2004 and amendments thereto, for
26  the purpose of enforcing (1) an order of any court for the support
27  of any person, (2) an order of any court of bankruptcy under chap-
28  ter XIII of the federal bankruptcy act or (3) a debt due for any state
29  or federal tax, the clerk of the court shall cause such purpose to be
30  clearly stated on the order of garnishment and the accompanying
31  garnishee's answer form immediately below the caption thereof. If
32  the garnishment is to enforce a court order for the support of any
33  person, the garnishment shall not exceed 50% of an individual's
34  disposable earnings unless the person seeking the garnishment spec-
35  ifies to the garnishee a greater percent to be withheld, as authorized
36  by subsection (g) (f) of K.S.A. 60-2310 and amendments thereto.
37    [(b)  Service and return. The order of garnishment shall be served
38  on the garnishee, together with two copies of the appropriate form
39  for the garnishee's answer prescribed in the appendix to this act,
40  and returned by the officer making service in the same manner as
41  an order of attachment. If the order is served prior to a judgment
42  on the plaintiff's claim, the order shall also be served on the defen-
43  dant, if the defendant can be found, except that the order shall not
HB 2007--Am. by SCW
                                     

 1  be served on the defendant until after service has been made on the
 2  garnishee. Failure to serve the defendant shall not relieve the gar-
 3  nishee from liability under the order.
 4    [(c)  Effect. An order of garnishment issued for the purpose of
 5  attaching any property, funds, credits or other indebtedness be-
 6  longing to or owing the judgment debtor, other than earnings, shall
 7  have the effect of attaching (1) all such personal property of the
 8  defendant which is in the possession or under the control of the
 9  garnishee, and all such credits and indebtedness due from the gar-
10  nishee to the defendant at the time of service of the order and (2)
11  all such personal property coming into the possession or control of
12  the garnishee and belonging to the defendant, and all such credits
13  and indebtedness becoming due to the defendant between the time
14  of the serving of the order of garnishment and the time of the signing
15  of the answer of the garnishee, except that where the garnishee is
16  an executor or administrator of an estate where the defendant is or
17  may become a legatee or distributee thereof, the order of garnish-
18  ment shall have the effect of attaching and creating a first and prior
19  lien upon any property or funds of such estate to which the defen-
20  dant is entitled upon distribution of the estate, and such garnishee
21  shall be prohibited from paying over to the defendant any of such
22  property or funds until so ordered by the court from which the order
23  of garnishment was issued.
24    [An order of garnishment issued for the purpose of attaching
25  earnings of the defendant shall have the effect of attaching the no-
26  nexempt portion of the defendant's earnings for any pay period or
27  periods which end during the 30-day period beginning the day in
28  which the order is served. Nonexempt earnings are earnings which
29  are not exempt from wage garnishment pursuant to K.S.A. 60-2310
30  and amendments thereto, and computation thereof for any pay pe-
31  riod or periods shall be made in accordance with the directions
32  accompanying the garnishee's answer form served with the order of
33  garnishment.
34    [(d)  Administrative fee. From income due the defendant, the gar-
35  nishee may withhold and retain to defray the garnishee's costs an
36  administrative fee of $10 for each pay period for which income is
37  withheld, not to exceed $20 for each month for which income is
38  withheld, whichever is less. Such administrative fee shall be in ad-
39  dition to the amount required to be withheld under the order for
40  garnishment. If the addition of this fee causes the total amount with-
41  held to exceed the restrictions imposed by subsection (b) of K.S.A.
42  60-2310, and amendments thereto, the fee shall be deducted from
43  the amount withheld.]
HB 2007--Am. by SCW
                                     

 1    Sec. 36 38 [37] [40].  K.S.A. 60-102, 60-205, 60-206, 60-208, 60-
 2  209, 60-211, 60-214, 60-215, 60-216, 60-223, 60-226, 60-228, 60-
 3  230, 60-231, 60-232, 60-233, 60-234, 60-235, 60-236, 60-237, 60-
 4  238, 60-241, 60-243, 60-245, 60-245a, 60-250, 60-252, 60-254,
 5  60-256, 60-262, 60-456, [60-717], 60-2007, 60-2103, 60-3703, 61-1710,
 6  61-1725[, 61-2005] and 75-3079 and K.S.A. [1996] Supp. 60-1608 [and
 7  60-2310] are hereby repealed.
 8    Sec. 37 39 [38] [41].  This act shall take effect and be in force from
 9  and after its publication in the statute book.