60-237. Compelling discovery; failure to comply; sanctions; failure to preserve electronically stored information. (a) Motion for an order compelling disclosure or discovery. (1) In general. On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action and must describe the steps taken by all attorneys or unrepresented parties to resolve the issues in dispute.
(2) Appropriate court. A motion for an order to a party must be made in the court where the action is pending. A motion for an order to a nonparty must be made in the district where the discovery is or will be taken.
(3) Specific motions. (A) To compel disclosure. If a party fails to make a disclosure required by K.S.A. 60-226(b)(6), and amendments thereto, any other party may move to compel disclosure and for appropriate sanctions.
(B) To compel a discovery response. A party seeking discovery may move for an order compelling an answer, designation, production or inspection. This motion may be made if:
(i) A deponent fails to answer a question asked under K.S.A. 60-230 or 60-231, and amendments thereto;
(ii) a corporation or other entity fails to make a designation under K.S.A. 60-226(b)(6) or 60-231(a)(4), and amendments thereto;
(iii) a party fails to answer an interrogatory submitted under K.S.A. 60-233, and amendments thereto; or
(iv) a party fails to produce documents or fails to respond that inspection will be permitted, or fails to permit inspection, as requested under K.S.A. 60-234, and amendments thereto.
(C) Related to a deposition. When taking an oral deposition the party asking a question may complete or adjourn the examination before moving for an order.
(4) Evasive or incomplete disclosure, answer or response. For purposes of this subsection, an evasive or incomplete disclosure, answer or response must be treated as a failure to disclose, answer or respond.
(5) Payment of expenses; protective orders. (A) If the motion is granted, or disclosure or discovery is provided after filing. If the motion is granted, the court must, and if disclosure occurs before the motion is granted, the court may, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. But the court must not order this payment if:
(i) The movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action;
(ii) the opposing party's nondisclosure, response or objection was substantially justified; or
(iii) other circumstances make an award of expenses unjust.
(B) If the motion is denied. If the motion is denied, the court may issue any protective order authorized under K.S.A. 60-226(c), and amendments thereto, and must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees. But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.
(C) If the motion is granted in part and denied in part. If the motion is granted in part and denied in part, the court may issue any protective order authorized under K.S.A. 60-226(c), and amendments thereto, and may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.
(b) Failure to comply with a court order. (1) Sanctions in the district where the deposition is taken. If the court in the district where the discovery is taken orders a deponent to be sworn or to answer a question and the deponent fails to obey, the failure may be treated as contempt of court.
(2) Sanctions in the district where the action is pending. (A) For not obeying a discovery order. If a party or a party's officer, director or managing agent, or a witness designated under K.S.A. 60-230(b)(6) or 60-231(a)(4), and amendments thereto, fails to obey an order to provide or permit discovery, including an order under subsection (a) or under K.S.A. 60-235, and amendments thereto, the court where the action is pending may issue further just orders. They may include the following:
(i) Directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.
(B) For not producing a person for examination. If a party fails to comply with an order under K.S.A. 60-235(a), and amendments thereto, requiring it to produce another person for examination, the court may issue any of the orders listed in paragraphs (2)(A)(i) through (2)(A)(vi), unless the disobedient party shows that it cannot produce the other person.
(C) Payment of expenses. Instead of, or in addition to, the orders above, the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.
(c) Failure to disclose, to supplement an earlier response or to admit. (1) Failure to disclose or supplement. If a party fails to provide information or identify a witness as required by K.S.A. 60-226(b)(6) or (e), and amendments thereto, the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing or at a trial, unless the failure was substantially justified or is harmless. In addition to, or instead of this sanction, the court, on motion and after giving an opportunity to be heard:
(A) May order payment of the reasonable expenses, including attorney's fees, caused by the failure;
(B) may inform the jury of the party's failure; and
(C) may impose other appropriate sanctions, including any of the orders listed in subsections (b)(2)(A)(i) through (b)(2)(A)(vi).
(2) Failure to admit. If a party fails to admit what is requested under K.S.A. 60-236, and amendments thereto, and if the requesting party later proves the document to be genuine or the matter true, the requesting party may move that the party who failed to admit pay the reasonable expenses, including attorney's fees, incurred in making that proof. The court must so order unless:
(A) The request was held objectionable under K.S.A. 60-236(a), and amendments thereto;
(B) the admission sought was of no substantial importance;
(C) the party failing to admit had a reasonable ground to believe that it might prevail on the matter; or
(D) there was other good reason for the failure to admit.
(d) Party's failure to attend its own deposition, serve answers to interrogatories or respond to a request for inspection. (1) In general. (A) Motion; grounds for sanctions. The court where the action is pending may, on motion, order sanctions if:
(i) A party or a party's officer, director or managing agent, or a person designated under K.S.A. 60-230(b)(6) or 60-231(a)(4), and amendments thereto, fails, after being served with proper notice, to appear for that person's deposition; or
(ii) a party, after being properly served with interrogatories under K.S.A. 60-233, and amendments thereto, or a request for inspection under K.S.A. 60-234, and amendments thereto, fails to serve its answers, objections or written response.
(B) Certification. A motion for sanctions for failing to answer or respond must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action and must describe the steps taken by all attorneys or unrepresented parties to resolve the issues in dispute.
(2) Unacceptable excuse for failing to act. A failure described in paragraph (1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under K.S.A. 60-226(c), and amendments thereto.
(3) Types of sanctions. Sanctions may include any of the orders listed in subsections (b)(2)(A)(i) through (b)(2)(A)(vi). Instead of, or in addition to, these sanctions, the court must require the party failing to act, the attorney advising the party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.
(e) Failure to preserve electronically stored information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:
(1) Upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation, may:
(A) Presume that the lost information was unfavorable for the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
History: L. 1963, ch. 303, 60-237; amended by Supreme Court order dated July 20, 1972; L. 1997, ch. 173, § 20; L. 2008, ch. 21, § 5; L. 2010, ch. 135, § 106; L. 2017, ch. 75, § 8; July 1.
Cross References to Related Sections:
Admission of facts and genuineness of documents, see 60-236.
Depositions of witnesses on written questions, see 60-231.
Depositions and discovery pending action, see 60-226.
Discovery and production of documents, etc., see 60-234.
Failure to attend taking of a deposition or to serve subpoena, payment of expenses, see 60-230(g).
Interrogatories to parties, see 60-233.
Physical and mental examination of person, see 60-235.
Expenses on refusal to admit truth of facts or genuineness of documents in limited actions, see 61-3102.
Law Review and Bar Journal References:
"Discovery and Production of Documents Under the New Code of Civil Procedure," Wayne Coulson, 33 J.B.A.K. 96, 99 (1964).
Paragraph (c) mentioned as providing enforcement for K.S.A. 60-236, Louis E. Striegel, 5 W.L.J. 47, 54 (1965).
Use of depositions and interrogatories, David Prager, 33 J.B.A.K. 25, 74 (1964).
"The Continuing Nature of Discovery," Louis E. Striegel, 34 J.B.A.K. 97, 98, 165 (1965).
"Interrogatories Restrained," Roger D. Stanton, 37 J.B.A.K. 7, 8, 9, 57, 58 (1968).
Discussion of sanctions for obstruction of discovery in "Discovery Techniques in Workmen's Compensation: Largely Undiscovered?" Robert Fowks, 42 J.B.A.K. 83, 84, 87 (1973).
"Recovery of Attorney Fees in Kansas," Mark A. Furney, 18 W.L.J. 535, 540, 561 (1979).
"Contested Estate Matters After Court Unification," Calvin J. Karlin, 48 J.B.A.K. 97, 101 (1979).
"Disclosure of Psychiatric Records," Philip Elwood and Gerald L. Goodell, 49 J.B.A.K. 301, 306 (1980).
"Procedural Pitfalls in Defamation Litigation," Leon B. Graves, 3 J.K.T.L.A. No. 1, 6, 9 (1979).
"More Goo for Our Tort Stew: Implementing the Kansas Collateral Source Rule," James Concannon and Ron Smith, 58 J.K.B.A. No. 2, 19, 23, 28 (1989).
"Sanctions Against Lawyers," Tim Alvarez, J.K.T.L.A., Vol. XIII, No. 1, 7, 8 (1989).
"Discovery of Insurance Adjustor's Files Under 60-226(b)(3)," L. J. Leatherman, J.K.T.L.A. Vol. XVII, No. 1, 18, 20 (1993).
"Plaintiff's Guide To Court Awarded Attorney Fees," Gerald W. Scott and Mark A. Scott, J.K.T.L.A. Vol. XVII, No. 6, 4 (1994).
"Property Law: The Termite Legacy in Real Estate—Caveat Inspector[Horsch v. Terminix International Co., 865 P.2d 1044 (Kan. Ct. App. 1993)]," Eric S. Heath, 34 W.L.J. 614, 616, 625 (1995).
"The Fork in the Road: A Practitioner's Guide to the 1997 Changes in the Code of Civil Procedure," J. Nick Badgerow, 66 J.K.B.A. No. 5, 32 (1997).
"On the Admissibility of Expert Testimony in Kansas," Mark D. Hinderks and Steve Leben, 66 J.K.B.A. No. 9, 24 (1997).
"An Update to Consumer's Guide to Court-Awarded Attorney Fees," Mark A. Scott, J.K.T.L.A. Vol. XXII, No. 1, 7 (1998).
"The Lawyer's Inferno: A Guide to Navigating Discovery Disputes," Paul W. Rebein and Matthew C. Miller, 69 J.K.B.A. No. 3, 19 (2000).
"Handling Documents and Witnesses: Ethics, Crimes and other Assorted Difficulties," Mark Hinderks, 72 J.K.B.A. No. 1, 33, 36 (2003).
"Cutting the Hedge: Reforming Comparative Fault in Medical Malpractice," John W. Johnson and Edward L. Robinson, J.K.T.L.A. Vol. 30, No. 3, 12 (2007).
"ESI Comes to the K.S.A.: Kansas Adopts Federal Civil Procedure Rules on Electronic Discovery," J. Nick Badgerow, 77 J.K.B.A. No. 7, 30 (2008).
"Waiting for Judgment Day: Negotiating the Interlocutory Appeal in 8 Easy Lessons," Jonathan Paretsky, 78 J.K.B.A. No. 4, 30 (2009).
"Requests For Admission: Another Tool in the Box? (Part 2)," James R. Howell, 34 J.K.A.J., No. 3, 4 (2011).
CASE ANNOTATIONS
1. Involuntary dismissal not imposed as sanction for failure to comply with a judicial order; dismissal set aside on appeal and action reinstated. Abbott Construction, Inc. v. Abilene Motors, Inc., 204 Kan. 335, 337, 461 P.2d 795.
2. Judgment entered pursuant to subsection (b)(2) for failure to produce certain documents. Ronnau v. Caravan International Corporation, 205 Kan. 154, 155, 468 P.2d 118.
3. Consequences of refusal to comply with discovery as prescribed hereunder should not be construed to authorize striking of defendant's pleadings and entering of a default judgment because of noncompliance with a production order when refusal was due to inability to produce, not due to willfulness, bad faith, or any fault of the petitioner. Williams v. Consolidated Investors, Inc., 205 Kan. 728, 729, 732, 733, 735, 472 P.2d 248.
4. Subsection (b) applied; sanction of judgment by default authorized where order granting extension of time not complied with; tests. Lorson v. Falcon Coach, Inc., 214 Kan. 670, 671, 673, 675, 676, 677, 522 P.2d 449.
5. Trial court abused discretion in dismissing damage action under (b)(2); failure to produce documents on court order. Vickers v. City of Kansas City, 216 Kan. 84, 85, 87, 90, 91, 92, 93, 94, 531 P.2d 113.
6. Trial court ruling did not prejudicially restrict plaintiffs' right of discovery. Commercial Union Ins. Co. v. City of Wichita, 217 Kan. 44, 55, 536 P.2d 54.
7. Failure to comply with discovery order; default judgment ordered; no abuse of trial court's discretion. Prather v. Olson, 1 Kan. App. 2d 142, 147, 562 P.2d 142.
8. Failure of plaintiff to produce statements taken before trial; no error. State, ex rel., v. Cahill, 222 Kan. 570, 578, 567 P.2d 1329.
9. Writ of mandamus to set aside trial court's order to produce on motion hereunder denied. Henry Enterprises, Inc. v. Smith, 225 Kan. 615, 616, 592 P.2d 915.
10. Trial court did not abuse its discretion in dismissing action with prejudice where plaintiff refused to answer court-ordered interrogatories. Fields v. Stauffer Publications, Inc., 2 Kan. App. 2d 323, 328, 578 P.2d 1138.
11. Judgment rendered hereunder for failure to comply with discovery orders. Mansfield Painting and Decorating, Inc. v. Budlaw Services, Inc., 3 Kan. App. 2d 77, 589 P.2d 643.
12. Trial court did not abuse discretion in refusing deposition of out-of-state physician in action for overdue personal injury protection benefits, attorney fees and interest. Wilson v. American Fidelity Ins. Co., 229 Kan. 416, 421, 625 P.2d 1117.
13. Judge may dismiss action if party fails to permit discovery after court orders it. Independent Mfg. Co. v. McGraw-Edison Co., 6 Kan. App. 2d 982, 986, 988, 637 P.2d 431 (1981).
14. The trial court did not abuse discretion by entering default judgment for refusal to make discovery; punitive damages were not excessive. Binyon v. Nesseth, 7 Kan. App. 2d 110, 116, 117, 638 P.2d 946 (1982).
15. Sanction of default imposed under subsection (b)(2)(B), (C) upheld since no abuse of discretion by trial court. Binyon v. Nesseth, 231 Kan. 381, 382, 384, 646 P.2d 1043 (1982).
16. Appeal from monetary sanctions imposed hereunder interlocutory in nature; appealable as provided by K.S.A. 60-2102(b). Skahan v. Powell, 8 Kan. App. 2d 204, 206, 653 P.2d 1192 (1982).
17. Dismissal of action hereunder not proper sanction if failure to permit discovery due to inability rather than willfulness or bad faith. Locke v. Kansas Fire & Cas. Co., 8 Kan. App. 2d 678, 680, 682, 665 P.2d 776 (1983).
18. Cited in holding "taking" by inverse condemnation through plotting and planning must be coupled with legal restriction on use. Lone Star Industries, Inc. v. Secretary, Dept. of Transp., 234 Kan. 121, 131, 671 P.2d 511 (1983).
19. Denial of requests for admissions, done in good faith, not grounds for award of attorney fees. Divine v. Groshong, 235 Kan. 127, 142, 679 P.2d 700 (1984).
20. Trial court's limiting expert witness' testimony to prior deposition after extracurricular visit to defendant's hospital not sanction but thoughtful compromise. Hagedorn v. Stormont-Vail Regional Med. Center, 238 Kan. 691, 696, 715 P.2d 2 (1986).
21. Sanctions imposed are not appealable as interlocutory orders; they are immaterial to ultimate resolution of litigation. Reed v. Hess, 239 Kan. 46, 48, 53, 716 P.2d 555 (1986).
22. Sanction of default should be applied only in extreme cases; prerequisites for imposition examined. Wenger v. Wenger, 239 Kan. 56, 60, 716 P.2d 550 (1986).
23. Record discloses no bad faith; trial court without authority to set contribution rate under K.S.A. 44-701 et seq. Centro Management, Inc. v. Kansas Dept. of Human Resources, 237 Kan. 369, 372, 379, 699 P.2d 524 (1985).
24. Dismissal of suit with prejudice should only be used as last resort when lesser sanctions are clearly insufficient. Burkhart v. Philsco Products Co., 241 Kan. 562, 576, 577, 738 P.2d 433 (1987).
25. Cited; attorney fees assessed against plaintiff's counsel for pursuing punitive damages unreasonable and in bad faith (K.S.A. 60-2007) examined. Rood v. Kansas City Power & Light Co., 243 Kan. 14, 22 755 P.2d 502 (1988).
26. Cited; finding that witness "unable or unwilling to abide" by oath as not permissible basis for excluding expert testimony examined. Jones v. Bordman, 243 Kan. 444, 459, 759 P.2d 953 (1988).
27. Acts providing court sufficient authority to impose sanctions of dismissal with prejudice examined. Beal v. Rent-A-Center of America, Inc., 13 Kan. App. 2d 375, 379, 771 P.2d 553 (1989).
28. Court's striking affirmative defenses within court's authority; order not challenged at trial and propriety thereof not appealable issue. Diversified Financial Planners, Inc. v. Maderak, 248 Kan. 946, 948, 811 P.2d 1236 (1991).
29. Discovery exception regarding attorney-client privilege (K.S.A. 60-426(b)(1)), sanctions imposed for refusal to comply with discovery order examined. Wallace, Saunders, Austin, Brown & Enochs, Chtd. v. Louisburg Grain Co., 16 Kan. App. 2d 30, 38, 818 P.2d 805 (1991).
30. Cited; discovery sanctions upheld even though incorrect cite. New Dimensions Products, Inc. v. Flambeau Corp., 17 Kan. App. 2d 852, 860, 844 P.2d 768 (1993).
31. Where party fails to produce documents in party's possession and within scope of discovery, court may, upon motion, dismiss action. Sanders v. City of Kansas City, 18 Kan. App. 2d 688, 693, 858 P.2d 833 (1993).
32. Cited; whether trial court abused discretion in awarding attorney fees examined. State v. Kendig, 19 Kan. App. 2d 128, 143, 865 P.2d 218 (1994).
33. Whether trial court abused discretion in awarding fees examined. City of Arkansas City v. Anderson, 19 Kan. App. 2d 344, 349, 869 P.2d 244 (1994).
34. Whether court may impose sanctions without allowing litigant opportunity for hearing on opponent's motion to compel discovery examined. Richards v. Bryan, 19 Kan. App. 2d 950, 967, 879 P.2d 638 (1994).
35. Trial court did not abuse discretion in imposing sanction of default judgment for discovery noncompliance. Hawkins v. Dennis, 258 Kan. 329, 338, 905 P.2d 678 (1995).
36. BOTA order granting taxpayer's costs in bringing motion to compel due to appellant's improper assertion of CPA-client privilege upheld. In re Tax Appeal of American Restaurant Operations, 264 Kan. 518, 537, 957 P.2d 473 (1998).
37. Trial court abused discretion by dismissing civil action for party's failure to comply with discovery order. Shay v. Kansas Dept. of Transportation, 266 Kan. 191, 195, 959 P.2d 849 (1998).
38. Sanctions should be imposed to accomplish objects of discovery rather than for purpose of punishment. Canaan v. Bartee, 276 Kan. 116, 72 P.3d 911 (2003).
39. Section cited in objection to sequential order of parties in eminent domain proceeding. Miller v. Glacier Development Co., 284 Kan. 476, 500, 161 P.3d 730 (2007).
40. Cited; court imposes sanctions on former attorney general relating to records taken from attorney general's office. Comprehensive Health of Planned Parenthood v. Kline, 287 Kan. 372, 420, 197 P.3d 370 (2008).
41. Discovery rules of K.S.A. 60-226(b)(6) not applicable in context of K.S.A. 60-1507 proceeding. Moll v. State, 41 Kan. App. 2d 677, 204 P.3d 659 (2009).
42. K.S.A. 60-237(c)(1) applies where there has been a failure to disclose expert testimony. Foster v. Klaumann, 42 Kan. App. 2d 634, 216 P.3d 671 (2009).
43. Dismissal of mortgagor's counterclaims was appropriate discovery sanction in mortgagee's foreclosure action. Deutsche Bank Nat'l Trust Co. v. Sumner, 44 Kan. App. 2d 851, 245 P.3d 1057 (2010).
44. Statute does not permit postconviction discovery in a criminal case. State v. Robinson, 309 Kan. 159, 432 P.3d 75 (2019).
45. District court is authorized under subsection (a) to require payment of expenses related to a motion to enforce a protective order. Hernandez v. Pistotnik, 60 Kan. App. 2d 393, 421, 494 P.3d 203 (2021).
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