KS
Kansas House Bill HB2510

Kansas 2023-2024 Regular Session

Kansas House Bill HB2510 Compare Versions

The same version is selected twice. Please select two different versions to compare.
OldNewDifferences
11 Session of 2024
22 HOUSE BILL No. 2510
33 By Committee on Judiciary
44 Requested by Eric Stafford on behalf of the Kansas Chamber of Commerce
55 1-16
66 AN ACT concerning the code of civil procedure; relating to litigation
77 funding by third parties; authorizing discovery of an agreement thereof;
88 amending K.S.A. 2023 Supp. 60-226 and repealing the existing section.
99 Be it enacted by the Legislature of the State of Kansas:
1010 Section 1. K.S.A. 2023 Supp. 60-226 is hereby amended to read as
1111 follows: 60-226. (a) Discovery methods. Parties may obtain discovery by
1212 one or more of the following methods: Depositions on oral examination or
1313 written questions; written interrogatories; production of documents or
1414 things or permission to enter onto land or other property under K.S.A. 60-
1515 234, K.S.A. 60-245(a)(1)(A)(iii) or K.S.A. 60-245a, and amendments
1616 thereto; physical and mental examinations; and requests for admission.
1717 (b) Discovery scope and limits. (1) Scope in general. Unless
1818 otherwise limited by court order, the scope of discovery is as follows:
1919 Parties may obtain discovery regarding any nonprivileged matter that is
2020 relevant to any party's claim or defense and proportional to the needs of
2121 the case, considering the importance of the issues at stake in the action, the
2222 amount in controversy, the parties' relative access to relevant information,
2323 the parties' resources, the importance of the discovery in resolving the
2424 issues and whether the burden or expense of the proposed discovery
2525 outweighs its likely benefit. Information within this scope of discovery
2626 need not be admissible in evidence to be discoverable.
2727 (2) Limitations on frequency and extent. (A) On motion, or on its
2828 own, the court may limit the frequency or extent of discovery methods
2929 otherwise allowed by the rules of civil procedure and must do so if it
3030 determines that:
3131 (i) The discovery sought is unreasonably cumulative or duplicative,
3232 or can be obtained from some other source that is more convenient, less
3333 burdensome or less expensive;
3434 (ii) the party seeking discovery has had ample opportunity to obtain
3535 the information by discovery in the action; or
3636 (iii) the proposed discovery is outside the scope permitted by
3737 subsection (b)(1).
3838 (B) A party need not provide discovery of electronically stored
3939 information from sources that the party identifies as not reasonably
4040 1
4141 2
4242 3
4343 4
4444 5
4545 6
4646 7
4747 8
4848 9
4949 10
5050 11
5151 12
5252 13
5353 14
5454 15
5555 16
5656 17
5757 18
5858 19
5959 20
6060 21
6161 22
6262 23
6363 24
6464 25
6565 26
6666 27
6767 28
6868 29
6969 30
7070 31
7171 32
7272 33
7373 34
7474 35 HB 2510 2
7575 accessible because of undue burden or cost. On motion to compel
7676 discovery or for a protective order, the party from whom discovery is
7777 sought must show that the information is not reasonably accessible
7878 because of undue burden or cost. If that showing is made, the court may
7979 nonetheless order discovery from such sources if the requesting party
8080 shows good cause, considering the limitations of subsection (b)(2)(A). The
8181 court may specify conditions for the discovery.
8282 (3) Agreements. (A) Insurance agreements. A party may obtain
8383 discovery of the existence and contents of any insurance agreement under
8484 which an insurance business may be liable to satisfy part or all of a
8585 possible judgment in the action or to indemnify or reimburse for payments
8686 made to satisfy the judgment. Information concerning the insurance
8787 agreement is not by reason of disclosure admissible in evidence at trial.
8888 For purposes of this paragraph, an application for insurance is not a part of
8989 an insurance agreement.
9090 (B) Third-party agreements. A party may obtain discovery of the
9191 existence and content of any third-party agreement under which any
9292 person, other than an attorney representing a party, has agreed to pay
9393 expenses directly related to prosecuting the legal claim and has a
9494 contractual right to receive compensation that is contingent on and
9595 sourced from any proceeds. Information concerning the third-party
9696 agreement is not, by reason of disclosure, admissible as evidence at trial.
9797 (4) Trial preparation; materials. (A) Documents and tangible things.
9898 Ordinarily, a party may not discover documents and tangible things that
9999 are prepared in anticipation of litigation or for trial by or for another party
100100 or its representative, including the other party's attorney, consultant, surety,
101101 indemnitor, insurer or agent. But, subject to subsection (b)(5), those
102102 materials may be discovered if:
103103 (i) They are otherwise discoverable under paragraph (1); and
104104 (ii) the party shows that it has substantial need for the materials to
105105 prepare its case and cannot, without undue hardship, obtain their
106106 substantial equivalent by other means.
107107 (B) Protection against disclosure. If the court orders discovery of
108108 those materials, it must protect against disclosure of the mental
109109 impressions, conclusions, opinions or legal theories of a party's attorney or
110110 other representative concerning the litigation.
111111 (C) Previous statement. Any party or other person may, on request
112112 and without the required showing, obtain the person's own previous
113113 statement about the action or its subject matter. If the request is refused,
114114 the person may move for a court order, and K.S.A. 60-237, and
115115 amendments thereto, applies to the award of expenses. A previous
116116 statement is either:
117117 (i) A written statement that the person has signed or otherwise
118118 1
119119 2
120120 3
121121 4
122122 5
123123 6
124124 7
125125 8
126126 9
127127 10
128128 11
129129 12
130130 13
131131 14
132132 15
133133 16
134134 17
135135 18
136136 19
137137 20
138138 21
139139 22
140140 23
141141 24
142142 25
143143 26
144144 27
145145 28
146146 29
147147 30
148148 31
149149 32
150150 33
151151 34
152152 35
153153 36
154154 37
155155 38
156156 39
157157 40
158158 41
159159 42
160160 43 HB 2510 3
161161 adopted or approved; or
162162 (ii) a contemporaneous stenographic, mechanical, electrical or other
163163 recording, or a transcription of it, that recites substantially verbatim the
164164 person's oral statement.
165165 (5) Trial preparation; experts. (A) Deposition of an expert who may
166166 testify. A party may depose any person who has been identified as an
167167 expert whose opinions may be presented at trial. If a disclosure is required
168168 under subsection (b)(6), the deposition may be conducted only after the
169169 disclosure is provided.
170170 (B) Trial-preparation protection for draft disclosures. Subsections (b)
171171 (4)(A) and (b)(4)(B) protect drafts of any disclosure required under
172172 subsection (b)(6), and drafts of a disclosure by an expert witness provided
173173 in lieu of the disclosure required by subsection (b)(6), regardless of the
174174 form in which the draft is recorded.
175175 (C) Trial-preparation protection for communications between a
176176 party's attorney and expert witnesses. Subsections (b)(4)(A) and (b)(4)(B)
177177 protect communications between the party's attorney and any witness
178178 about whom disclosure is required under subsection (b)(6), regardless of
179179 the form of the communications, except to the extent that the
180180 communications:
181181 (i) Relate to compensation for the expert's study or testimony;
182182 (ii) identify facts or data that the party's attorney provided and that
183183 the expert considered in forming the opinions to be expressed; or
184184 (iii) identify assumptions that the party's attorney provided and that
185185 the expert relied on in forming the opinions to be expressed.
186186 (D) Expert employed only for trial preparation. Ordinarily, a party
187187 may not, by interrogatories or deposition, discover facts known or
188188 opinions held by an expert who has been retained or specially employed
189189 by another party in anticipation of litigation or to prepare for trial and who
190190 is not expected to be called as a witness at trial. But a party may do so
191191 only:
192192 (i) As provided in K.S.A. 60-235(b), and amendments thereto; or
193193 (ii) on showing exceptional circumstances under which it is
194194 impracticable for the party to obtain facts or opinions on the same subject
195195 by other means.
196196 (E) Payment. Unless manifest injustice would result, the court must
197197 require that the party seeking discovery:
198198 (i) Pay the expert a reasonable fee for time spent in responding to
199199 discovery under subsection (b)(5)(A) or (b)(5)(D); and
200200 (ii) for discovery under subsection (b)(5)(D), also pay the other party
201201 a fair portion of the fees and expenses it reasonably incurred in obtaining
202202 the expert's facts and opinions.
203203 (6) Disclosure of expert testimony. (A) Required disclosures. A party
204204 1
205205 2
206206 3
207207 4
208208 5
209209 6
210210 7
211211 8
212212 9
213213 10
214214 11
215215 12
216216 13
217217 14
218218 15
219219 16
220220 17
221221 18
222222 19
223223 20
224224 21
225225 22
226226 23
227227 24
228228 25
229229 26
230230 27
231231 28
232232 29
233233 30
234234 31
235235 32
236236 33
237237 34
238238 35
239239 36
240240 37
241241 38
242242 39
243243 40
244244 41
245245 42
246246 43 HB 2510 4
247247 must disclose to other parties the identity of any witness it may use at trial
248248 to present expert testimony. The disclosure must state:
249249 (i) The subject matter on which the expert is expected to testify; and
250250 (ii) the substance of the facts and opinions to which the expert is
251251 expected to testify.
252252 (B) Witness who is retained or specially employed. Unless otherwise
253253 stipulated or ordered by the court, if the witness is retained or specially
254254 employed to provide expert testimony in the case, or is one whose duties
255255 as the party's employee regularly involve giving expert testimony, the
256256 disclosure under subsection (b)(6)(A) must also state a summary of the
257257 grounds for each opinion.
258258 (C) Time to disclose expert testimony. A party must make these
259259 disclosures at the times and in the sequence that the court orders. Absent a
260260 stipulation or court order, the disclosures must be made:
261261 (i) At least 90 days before the date set for trial or for the case to be
262262 ready for trial; or
263263 (ii) if the evidence is intended solely to contradict or rebut evidence
264264 on the same subject matter identified by another party under subsection (b)
265265 (6)(B), within 30 days after the other party's disclosure.
266266 (D) Supplementing the disclosure. The parties must supplement these
267267 disclosures when required under subsection (e).
268268 (E) Form of disclosures. Unless otherwise ordered by the court, all
269269 disclosures under this subsection must be:
270270 (i) In writing, signed and served; and
271271 (ii) filed with the court in accordance with K.S.A. 60-205(d), and
272272 amendments thereto.
273273 (7) Claiming privilege or protecting trial preparation materials. (A)
274274 Information withheld. When a party withholds information otherwise
275275 discoverable by claiming that the information is privileged or subject to
276276 protection as trial preparation material, the party must:
277277 (i) Expressly make the claim; and
278278 (ii) describe the nature of the documents, communications or things
279279 not produced or disclosed, and do so in a manner that, without revealing
280280 information itself privileged or protected, will enable other parties to
281281 assess the claim.
282282 (B) Information produced. If information produced in discovery is
283283 subject to a claim of privilege or of protection as trial preparation material,
284284 the party making the claim may notify any party that received the
285285 information of the claim and the basis for it. After being notified, a party
286286 must promptly return, sequester or destroy the specified information and
287287 any copies it has; must not use or disclose the information until the claim
288288 is resolved; must take reasonable steps to retrieve the information if the
289289 party disclosed it before being notified; and may promptly present the
290290 1
291291 2
292292 3
293293 4
294294 5
295295 6
296296 7
297297 8
298298 9
299299 10
300300 11
301301 12
302302 13
303303 14
304304 15
305305 16
306306 17
307307 18
308308 19
309309 20
310310 21
311311 22
312312 23
313313 24
314314 25
315315 26
316316 27
317317 28
318318 29
319319 30
320320 31
321321 32
322322 33
323323 34
324324 35
325325 36
326326 37
327327 38
328328 39
329329 40
330330 41
331331 42
332332 43 HB 2510 5
333333 information to the court under seal for a determination of the claim. The
334334 producing party must preserve the information until the claim is resolved.
335335 (c) Protective orders. (1) In general. A party or any person from
336336 whom discovery is sought may move for a protective order in the court
337337 where the action is pending, as an alternative on matters relating to a
338338 deposition, in the district court where the deposition will be taken. The
339339 motion must include a certification that the movant has in good faith
340340 conferred or attempted to confer with other affected parties in an effort to
341341 resolve the dispute without court action and must describe the steps taken
342342 by all attorneys or unrepresented parties to resolve the issues in dispute.
343343 The court may, for good cause, issue an order to protect a party or person
344344 from annoyance, embarrassment, oppression or undue burden or expense,
345345 including one or more of the following:
346346 (A) Forbidding the disclosure or discovery;
347347 (B) specifying terms, including time and place or the allocation of
348348 expenses, for the disclosure or discovery;
349349 (C) prescribing a discovery method other than the one selected by the
350350 party seeking discovery;
351351 (D) forbidding inquiry into certain matters, or limiting the scope of
352352 disclosure or discovery to certain matters;
353353 (E) designating the persons who may be present while the discovery
354354 is conducted;
355355 (F) requiring that a deposition be sealed and opened only on court
356356 order;
357357 (G) requiring that a trade secret or other confidential research,
358358 development or commercial information not be revealed or be revealed
359359 only in a specified way; and
360360 (H) requiring that the parties simultaneously file specified documents
361361 or information in sealed envelopes, to be opened as the court orders.
362362 (2) Ordering discovery. If a motion for a protective order is wholly or
363363 partly denied the court may, on just terms, order that any party or person
364364 provide or permit discovery.
365365 (3) Awarding expenses. The provisions of K.S.A. 60-237, and
366366 amendments thereto, apply to the award of expenses.
367367 (d) Sequence of discovery. Unless the parties stipulate or the court
368368 orders otherwise for the parties' and witnesses' convenience and in the
369369 interests of justice:
370370 (1) Methods of discovery may be used in any sequence; and
371371 (2) discovery by one party does not require any other party to delay
372372 its discovery.
373373 (e) Supplementing disclosures and responses. (1) In general. A party
374374 who has made a disclosure under subsection (b)(6), or who has responded
375375 to an interrogatory, request for production or request for admission, must
376376 1
377377 2
378378 3
379379 4
380380 5
381381 6
382382 7
383383 8
384384 9
385385 10
386386 11
387387 12
388388 13
389389 14
390390 15
391391 16
392392 17
393393 18
394394 19
395395 20
396396 21
397397 22
398398 23
399399 24
400400 25
401401 26
402402 27
403403 28
404404 29
405405 30
406406 31
407407 32
408408 33
409409 34
410410 35
411411 36
412412 37
413413 38
414414 39
415415 40
416416 41
417417 42
418418 43 HB 2510 6
419419 supplement or correct its disclosure or response:
420420 (A) In a timely manner if the party learns that in some material
421421 respect the disclosure or response is incomplete or incorrect, and if the
422422 additional or corrective information has not otherwise been made known
423423 to the other parties during the discovery process or in writing; or
424424 (B) as ordered by the court.
425425 (2) Expert witness. For an expert to whom the disclosure requirement
426426 in subsection (b)(6) applies, the party's duty to supplement extends both to
427427 information included in the disclosure and to information given during the
428428 expert's deposition. Any additions or changes to this information must be
429429 disclosed at least 30 days before trial, unless the court orders otherwise.
430430 (f) Signing disclosures and discovery requests, responses and
431431 objections. (1) Signature required; effect of signature. Every disclosure
432432 under subsection (b)(6) and every discovery request, response or objection
433433 must be signed by at least one attorney of record in the attorney's own
434434 name, or by the party personally, if unrepresented, and must state the
435435 signor's address, e-mail address and telephone number. By signing, an
436436 attorney or party certifies that to the best of the person's knowledge,
437437 information and belief formed after a reasonable inquiry:
438438 (A) With respect to a disclosure, it is complete and correct as of the
439439 time it is made;
440440 (B) with respect to a discovery request, response or objection, it is:
441441 (i) Consistent with the rules of civil procedure and warranted by
442442 existing law or by a nonfrivolous argument for extending, modifying or
443443 reversing existing law or for establishing new law;
444444 (ii) not interposed for any improper purpose, such as to harass, cause
445445 unnecessary delay or needlessly increase the cost of litigation; and
446446 (iii) neither unreasonable nor unduly burdensome or expensive
447447 considering the needs of the case, prior discovery in the case, the amount
448448 in controversy and the importance of the issues at stake in the action.
449449 (2) Failure to sign. Other parties have no duty to act on an unsigned
450450 disclosure, request, response or objection until it is signed, and the court
451451 must strike it unless a signature is promptly supplied after the omission is
452452 called to the attorney's or party's attention.
453453 (3) Sanction for improper certification. If a certification violates this
454454 section without substantial justification, the court, on motion, or on its
455455 own, must impose an appropriate sanction on the signer, the party on
456456 whose behalf the signer was acting, or both. The sanction may include an
457457 order to pay the reasonable expenses, including attorney's attorney fees,
458458 caused by the violation.
459459 Sec. 2. K.S.A. 2023 Supp. 60-226 is hereby repealed.
460460 Sec. 3. This act shall take effect and be in force from and after its
461461 publication in the statute book.
462462 1
463463 2
464464 3
465465 4
466466 5
467467 6
468468 7
469469 8
470470 9
471471 10
472472 11
473473 12
474474 13
475475 14
476476 15
477477 16
478478 17
479479 18
480480 19
481481 20
482482 21
483483 22
484484 23
485485 24
486486 25
487487 26
488488 27
489489 28
490490 29
491491 30
492492 31
493493 32
494494 33
495495 34
496496 35
497497 36
498498 37
499499 38
500500 39
501501 40
502502 41
503503 42
504504 43