Session of 2023
SENATE BILL No. 74
By Committee on Judiciary
1-20
AN ACT concerning the code of civil procedure; relating to litigation
funding by third parties; providing for joint liability for costs and
sanctions; requiring certain discovery disclosures; payment of certain
costs for nonparty subpoenas in third-party funded action; amending
K.S.A. 2022 Supp. 60-226 and 60-245 and repealing the existing
sections.
Be it enacted by the Legislature of the State of Kansas:
New Section 1. (a) Any person, other than an attorney permitted to
charge a contingent fee representing a party, that has a right to receive
compensation that is contingent on and sourced from any proceeds of that
civil action, by settlement, judgment or otherwise, is jointly liable for costs
assessed pursuant to K.S.A. 60-2002, and amendments thereto, or any
monetary sanction imposed pursuant to K.S.A. 60-211(c), 60-226(f)(3) or
60-237(d)(3), and amendments thereto, on the party with whom such
person has such an agreement.
(b) This section shall be a part of and supplemental to the Kansas
code of civil procedure.
Sec. 2. K.S.A. 2022 Supp. 60-226 is hereby amended to read as
follows: 60-226. (a) Discovery methods. Parties may obtain discovery by
one or more of the following methods: Depositions on oral examination or
written questions; written interrogatories; production of documents or
things or permission to enter onto land or other property under K.S.A. 60-
234, K.S.A. 60-245(a)(1)(A)(iii) or K.S.A. 60-245a, and amendments
thereto; physical and mental examinations; and requests for admission.
(b) Discovery scope and limits.
(1) Scope in general. Unless otherwise limited by court order, the
scope of discovery is as follows: Parties may obtain discovery regarding
any nonprivileged matter that is relevant to any party's claim or defense
and proportional to the needs of the case, considering the importance of
the issues at stake in the action, the amount in controversy, the parties'
relative access to relevant information, the parties' resources, the
importance of the discovery in resolving the issues and whether the burden
or expense of the proposed discovery outweighs its likely benefit.
Information within this scope of discovery need not be admissible in
evidence to be discoverable.
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(2) Limitations on frequency and extent. (A) On motion, or on its
own, the court may limit the frequency or extent of discovery methods
otherwise allowed by the rules of civil procedure and must do so if it
determines that:
(i) The discovery sought is unreasonably cumulative or duplicative,
or can be obtained from some other source that is more convenient, less
burdensome or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain
the information by discovery in the action; or
(iii) the proposed discovery is outside the scope permitted by
subsection (b)(1).
(B) A party need not provide discovery of electronically stored
information from sources that the party identifies as not reasonably
accessible because of undue burden or cost. On motion to compel
discovery or for a protective order, the party from whom discovery is
sought must show that the information is not reasonably accessible
because of undue burden or cost. If that showing is made, the court may
nonetheless order discovery from such sources if the requesting party
shows good cause, considering the limitations of subsection (b)(2)(A). The
court may specify conditions for the discovery.
(3) Agreements.
(A) Insurance agreements. A party may obtain discovery of the
existence and contents of any insurance agreement under which an
insurance business may be liable to satisfy part or all of a possible
judgment in the action or to indemnify or reimburse for payments made to
satisfy the judgment. Information concerning the insurance agreement is
not by reason of disclosure admissible in evidence at trial. For purposes of
this paragraph, an application for insurance is not a part of an insurance
agreement.
(B) Third-party agreements. Except as otherwise stipulated or
ordered by the court, a party shall, without awaiting a discovery request,
provide to the other parties any agreement under which any person, other
than an attorney permitted to charge a contingent fee representing a party,
has a right to receive compensation that is contingent on and sourced from
any proceeds of the civil action, by settlement, judgment or otherwise.
(4) Trial preparation; materials.
(A) Documents and tangible things. Ordinarily, a party may not
discover documents and tangible things that are prepared in anticipation of
litigation or for trial by or for another party or its representative, including
the other party's attorney, consultant, surety, indemnitor, insurer or agent.
But, subject to subsection (b)(5), those materials may be discovered if:
(i) They are otherwise discoverable under paragraph (1); and
(ii) the party shows that it has substantial need for the materials to
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prepare its case and cannot, without undue hardship, obtain their
substantial equivalent by other means.
(B) Protection against disclosure. If the court orders discovery of
those materials, it must protect against disclosure of the mental
impressions, conclusions, opinions or legal theories of a party's attorney or
other representative concerning the litigation.
(C) Previous statement. Any party or other person may, on request
and without the required showing, obtain the person's own previous
statement about the action or its subject matter. If the request is refused,
the person may move for a court order, and K.S.A. 60-237, and
amendments thereto, applies to the award of expenses. A previous
statement is either:
(i) A written statement that the person has signed or otherwise
adopted or approved; or
(ii) a contemporaneous stenographic, mechanical, electrical or other
recording, or a transcription of it, that recites substantially verbatim the
person's oral statement.
(5) Trial preparation; experts.
(A) Deposition of an expert who may testify. A party may depose any
person who has been identified as an expert whose opinions may be
presented at trial. If a disclosure is required under subsection (b)(6), the
deposition may be conducted only after the disclosure is provided.
(B) Trial-preparation protection for draft disclosures. Subsections (b)
(4)(A) and (b)(4)(B) protect drafts of any disclosure required under
subsection (b)(6), and drafts of a disclosure by an expert witness provided
in lieu of the disclosure required by subsection (b)(6), regardless of the
form in which the draft is recorded.
(C) Trial-preparation protection for communications between a
party's attorney and expert witnesses. Subsections (b)(4)(A) and (b)(4)(B)
protect communications between the party's attorney and any witness
about whom disclosure is required under subsection (b)(6), regardless of
the form of the communications, except to the extent that the
communications:
(i) Relate to compensation for the expert's study or testimony;
(ii) identify facts or data that the party's attorney provided and that
the expert considered in forming the opinions to be expressed; or
(iii) identify assumptions that the party's attorney provided and that
the expert relied on in forming the opinions to be expressed.
(D) Expert employed only for trial preparation. Ordinarily, a party
may not, by interrogatories or deposition, discover facts known or
opinions held by an expert who has been retained or specially employed
by another party in anticipation of litigation or to prepare for trial and who
is not expected to be called as a witness at trial. But a party may do so
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only:
(i) As provided in K.S.A. 60-235(b), and amendments thereto; or
(ii) on showing exceptional circumstances under which it is
impracticable for the party to obtain facts or opinions on the same subject
by other means.
(E) Payment. Unless manifest injustice would result, the court must
require that the party seeking discovery:
(i) Pay the expert a reasonable fee for time spent in responding to
discovery under subsection (b)(5)(A) or (b)(5)(D); and
(ii) for discovery under subsection (b)(5)(D), also pay the other party
a fair portion of the fees and expenses it reasonably incurred in obtaining
the expert's facts and opinions.
(6) Disclosure of expert testimony.
(A) Required disclosures. A party must disclose to other parties the
identity of any witness it may use at trial to present expert testimony. The
disclosure must state:
(i) The subject matter on which the expert is expected to testify; and
(ii) the substance of the facts and opinions to which the expert is
expected to testify.
(B) Witness who is retained or specially employed. Unless otherwise
stipulated or ordered by the court, if the witness is retained or specially
employed to provide expert testimony in the case, or is one whose duties
as the party's employee regularly involve giving expert testimony, the
disclosure under subsection (b)(6)(A) must also state a summary of the
grounds for each opinion.
(C) Time to disclose expert testimony. A party must make these
disclosures at the times and in the sequence that the court orders. Absent a
stipulation or court order, the disclosures must be made:
(i) At least 90 days before the date set for trial or for the case to be
ready for trial; or
(ii) if the evidence is intended solely to contradict or rebut evidence
on the same subject matter identified by another party under subsection (b)
(6)(B), within 30 days after the other party's disclosure.
(D) Supplementing the disclosure. The parties must supplement these
disclosures when required under subsection (e).
(E) Form of disclosures. Unless otherwise ordered by the court, all
disclosures under this subsection must be:
(i) In writing, signed and served; and
(ii) filed with the court in accordance with K.S.A. 60-205(d), and
amendments thereto.
(7) Claiming privilege or protecting trial preparation materials.
(A) Information withheld. When a party withholds information
otherwise discoverable by claiming that the information is privileged or
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subject to protection as trial preparation material, the party must:
(i) Expressly make the claim; and
(ii) describe the nature of the documents, communications or things
not produced or disclosed, and do so in a manner that, without revealing
information itself privileged or protected, will enable other parties to
assess the claim.
(B) Information produced. If information produced in discovery is
subject to a claim of privilege or of protection as trial preparation material,
the party making the claim may notify any party that received the
information of the claim and the basis for it. After being notified, a party
must promptly return, sequester or destroy the specified information and
any copies it has; must not use or disclose the information until the claim
is resolved; must take reasonable steps to retrieve the information if the
party disclosed it before being notified; and may promptly present the
information to the court under seal for a determination of the claim. The
producing party must preserve the information until the claim is resolved.
(c) Protective orders.
(1) In general. A party or any person from whom discovery is sought
may move for a protective order in the court where the action is pending,
as an alternative on matters relating to a deposition, in the district court
where the deposition will be taken. The motion must include a certification
that the movant has in good faith conferred or attempted to confer with
other affected parties in an effort to resolve the dispute without court
action and must describe the steps taken by all attorneys or unrepresented
parties to resolve the issues in dispute. The court may, for good cause,
issue an order to protect a party or person from annoyance,
embarrassment, oppression or undue burden or expense, including one or
more of the following:
(A) Forbidding the disclosure or discovery;
(B) specifying terms, including time and place or the allocation of
expenses, for the disclosure or discovery;
(C) prescribing a discovery method other than the one selected by the
party seeking discovery;
(D) forbidding inquiry into certain matters, or limiting the scope of
disclosure or discovery to certain matters;
(E) designating the persons who may be present while the discovery
is conducted;
(F) requiring that a deposition be sealed and opened only on court
order;
(G) requiring that a trade secret or other confidential research,
development or commercial information not be revealed or be revealed
only in a specified way; and
(H) requiring that the parties simultaneously file specified documents
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or information in sealed envelopes, to be opened as the court orders.
(2) Ordering discovery. If a motion for a protective order is wholly or
partly denied the court may, on just terms, order that any party or person
provide or permit discovery.
(3) Awarding expenses. The provisions of K.S.A. 60-237, and
amendments thereto, apply to the award of expenses.
(d) Sequence of discovery. Unless the parties stipulate or the court
orders otherwise for the parties' and witnesses' convenience and in the
interests of justice:
(1) Methods of discovery may be used in any sequence; and
(2) discovery by one party does not require any other party to delay
its discovery.
(e) Supplementing disclosures and responses.
(1) In general. A party who has made a disclosure under subsection
(b)(6), or who has responded to an interrogatory, request for production or
request for admission, must supplement or correct its disclosure or
response:
(A) In a timely manner if the party learns that in some material
respect the disclosure or response is incomplete or incorrect, and if the
additional or corrective information has not otherwise been made known
to the other parties during the discovery process or in writing; or
(B) as ordered by the court.
(2) Expert witness. For an expert to whom the disclosure requirement
in subsection (b)(6) applies, the party's duty to supplement extends both to
information included in the disclosure and to information given during the
expert's deposition. Any additions or changes to this information must be
disclosed at least 30 days before trial, unless the court orders otherwise.
(f) Signing disclosures and discovery requests, responses and
objections.
(1) Signature required; effect of signature. Every disclosure under
subsection (b)(6) and every discovery request, response or objection must
be signed by at least one attorney of record in the attorney's own name, or
by the party personally, if unrepresented, and must state the signor's
address, e-mail address and telephone number. By signing, an attorney or
party certifies that to the best of the person's knowledge, information and
belief formed after a reasonable inquiry:
(A) With respect to a disclosure, it is complete and correct as of the
time it is made;
(B) with respect to a discovery request, response or objection, it is:
(i) Consistent with the rules of civil procedure and warranted by
existing law or by a nonfrivolous argument for extending, modifying or
reversing existing law or for establishing new law;
(ii) not interposed for any improper purpose, such as to harass, cause
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unnecessary delay or needlessly increase the cost of litigation; and
(iii) neither unreasonable nor unduly burdensome or expensive
considering the needs of the case, prior discovery in the case, the amount
in controversy and the importance of the issues at stake in the action.
(2) Failure to sign. Other parties have no duty to act on an unsigned
disclosure, request, response or objection until it is signed, and the court
must strike it unless a signature is promptly supplied after the omission is
called to the attorney's or party's attention.
(3) Sanction for improper certification. If a certification violates this
section without substantial justification, the court, on motion, or on its
own, must impose an appropriate sanction on the signer, the party on
whose behalf the signer was acting, or both. The sanction may include an
order to pay the reasonable expenses, including attorney's fees, caused by
the violation.
Sec. 3. K.S.A. 2022 Supp. 60-245 is hereby amended to read as
follows: 60-245. (a) In general.
(1) Form and contents.
(A) Requirements; in general. Every subpoena must:
(i) State the court from which it is issued;
(ii) state the title of the action, the court in which it is pending and the
file number of the action;
(iii) command each person to whom it is directed to do the following
at a specified time and place: Attend and testify; produce designated
documents, electronically stored information or tangible things in that
person's possession, custody or control; or permit the inspection of
premises; and
(iv) set out the text of subsections (c) and (d).
(B) Command to attend a deposition; notice of the recording method.
A subpoena commanding attendance at a deposition must state the method
for recording the testimony.
(C) Combining or separating a command to produce or to permit
inspection; specifying the form for electronically stored information. A
command to produce documents, electronically stored information or
tangible things or to permit the inspection of premises may be included in
a subpoena commanding attendance at a deposition, hearing or trial, or
may be set out in a separate subpoena. A subpoena may specify the form or
forms in which electronically stored information is to be produced.
Subpoena and production of records of a business that is not a party may
be in accordance with K.S.A. 60-245a, and amendments thereto.
(D) Command to produce; included obligations. A command in a
subpoena to produce documents, electronically stored information or
tangible things requires the responding party to permit inspection, copying,
testing or sampling of the materials.
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(2) Issued from which court. A subpoena must issue as follows:
(A) For attendance at a hearing or trial, from the court where the
hearing or trial is to be held;
(B) for attendance at a deposition, from the court in which where the
action is pending or from the officer before whom the deposition is to be
taken, or, if the deposition is to be taken outside this state, from an officer
authorized by the law of the other state to issue the subpoena; and
(C) for production or inspection, if separate from a subpoena
commanding a person's attendance, from the court in which where the
action is pending, or, if the production, inspection, copying, testing or
sampling is to be made outside this state, from an officer authorized by the
law of the other state to issue the subpoena.
(3) Issued by whom. Every subpoena issued by the court must be
issued by the clerk under the seal of the court or by a judge. The clerk
must issue a subpoena, signed but otherwise in blank, to a party who
requests it. The blank subpoena must bear the seal of the court and the
clerk's signature. The party to whom a blank subpoena is issued must fill it
in before service.
(b) Service. Service of a subpoena may be made anywhere within this
state, must be made in accordance with K.S.A. 60-303, and amendments
thereto, and must, if the subpoena requires a person's attendance, be
accompanied by the fees for one day's attendance and the mileage allowed
by law. If, independently of a deposition, the subpoena commands the
production of documents, electronically stored information or tangible
things or the inspection of premises before trial, then before it is served, a
notice must be served on each party in accordance with subsection (b) of
K.S.A. 60-205(b), and amendments thereto.
(c) Protecting a person subject to a subpoena.
(1) Avoiding undue burden or expense; sanctions. A party or attorney
responsible for issuing and serving a subpoena must take reasonable steps
to avoid imposing undue burden or expense on a person subject to the
subpoena. The issuing court must enforce this duty and impose an
appropriate sanction, which may include lost earnings and reasonable
attorney's fees, on a party or attorney who fails to comply.
(2) Command to produce materials or permit inspection.
(A) Appearance not required. A person commanded to produce
designated documents, electronically stored information or tangible things,
or to permit the inspection of premises, need not appear in person at the
place of production or inspection unless also commanded to appear for a
deposition, hearing or trial.
(B) Objections. A person commanded to produce designated materials
or to permit inspection may serve on the party or attorney designated in the
subpoena a written objection to inspecting, copying, testing or sampling
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any or all of the designated materials or to inspecting the premises, or to
producing electronically stored information in the form or forms
requested. The objection must be served before the earlier of the time
specified for compliance or 14 days after the subpoena is served. If an
objection is made, the following rules apply:
(i) At any time, on notice to the commanded person, the serving party
may move the issuing court for an order compelling production or
inspection; and
(ii) these acts may be required only as directed in the order, and the
order must protect a person who is neither a party nor a party's officer
from significant expense resulting from compliance.
(3) Quashing or modifying a subpoena.
(A) When required. On timely motion, the issuing court must quash
or modify a subpoena that:
(i) Fails to allow a reasonable time to comply;
(ii) requires a resident of this state who is neither a party nor a party's
officer to travel more than 100 miles from where that person resides, is
employed or regularly transacts business in person or requires a
nonresident who is neither a party nor a party's officer to travel more than
100 miles from where the nonresident was served with the subpoena, is
employed or regularly transacts business in person, except that, subject to
paragraph (3)(B)(iii), the person may be commanded to travel to the place
of trial;
(iii) requires disclosure of privileged or other protected matter, if no
exception or waiver applies; or
(iv) subjects a person to undue burden.
(B) When permitted. To protect a person subject to or affected by a
subpoena, the issuing court may, on motion, quash or modify the subpoena
if it requires:
(i) Disclosing a trade secret or other confidential research
development or commercial information;
(ii) disclosing an unretained expert's opinion or information that does
not describe specific occurrences in dispute and results from the expert's
study that was not requested by a party; or
(iii) a person who is neither a party nor a party's officer to incur
substantial expense to travel more than 100 miles to attend trial.
(C) Specifying conditions as an alternative. In the circumstances
described in subsection (c)(3)(B), the court may, instead of quashing or
modifying a subpoena, order appearance or production under specified
conditions as the serving party:
(i) Shows a substantial need for the testimony or material that cannot
be otherwise met without undue hardship; and
(ii) ensures that the subpoenaed person will be reasonably
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compensated.
(4) Nonparty subpoenas in third-party funded action. A party that has
entered into an agreement subject to K.S.A. 60-226(b)(3)(B), and
amendments thereto, shall reasonably compensate a person who is neither
a party nor a party's officer the cost of responding to a subpoena to
produce designated documents, electronically stored information or
tangible things, to permit the inspection of premises or to appear at a
deposition. Reasonable costs incurred include, but are not limited to:
(A) Costs incurred in identifying, collecting, reviewing and producing
the designated materials;
(B) the measurable cost of disruption to the nonparty's normal
business operations;
(C) costs of travel to appear at a deposition; and
(D) fees charged by outside counsel directly related to compliance
with the subpoena.
(5) Person in prison. A person confined in prison may be required to
appear for examination by deposition only in the county where the person
is imprisoned.
(d) Duties in responding to a subpoena.
(1) Producing documents or electronically stored information. These
procedures apply to producing documents or electronically stored
information:
(A) Documents. A person responding to a subpoena to produce
documents must produce them as they are kept in the ordinary course of
business or must organize and label them to correspond to the categories in
the demand.
(B) Form for producing electronically stored information not
specified. If a subpoena does not specify a form for producing
electronically stored information, a person responding to a subpoena must
produce it in a form or forms in which it is ordinarily maintained or in a
reasonably usable form or forms.
(C) Electronically stored information produced in only one form. The
person responding need not produce the same electronically stored
information in more than one form.
(D) Inaccessible electronically stored information. The person
responding need not provide discovery of electronically stored information
from sources that the person identifies as not reasonably accessible
because of undue burden or cost. On motion to compel discovery or for a
protective order, the person responding must show that the information is
not reasonably accessible because of undue burden or cost. If that showing
is made, the court may nonetheless order discovery from such sources if
the requesting party shows good cause, considering the limitations of
subsection (b)(2)(A) of K.S.A. 60-226(b)(2)(A), and amendments thereto.
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The court may specify conditions for the discovery.
(2) Claiming privilege or protection.
(A) Information withheld. A person withholding subpoenaed
information under a claim that it is privileged or subject to protection as
trial-preparation material must:
(i) Expressly make the claim; and
(ii) describe the nature of the withheld documents, communications
or things in a manner that, without revealing information itself privileged
or protected, will enable the parties to assess the claim.
(B) Information produced. If information produced in response to a
subpoena is subject to a claim of privilege or of protection as trial-
preparation material, the person making the claim may notify any party
that received the information of the claim and the basis for it. After being
notified, a party must promptly return, sequester or destroy the specified
information and any copies it has; must not use or disclose the information
until the claim is resolved; must take reasonable steps to retrieve the
information if the party disclosed it before being notified; and may
promptly present the information to the court under seal for a
determination of the claim. The person who produced the information
must preserve the information until the claim is resolved.
(e) Contempt. The issuing court may hold in contempt a person who,
having been served, fails without adequate excuse to obey the subpoena.
Punishment for contempt should be in accordance with K.S.A. 20-1204,
and amendments thereto. A nonparty's failure to obey must be excused if
the subpoena purports to require the nonparty to attend or produce at a
place outside the limits of subsection (c)(3)(A)(ii).
Sec. 4. K.S.A. 2022 Supp. 60-226 and 60-245 are hereby repealed.
Sec. 5. This act shall take effect and be in force from and after its
publication in the statute book.
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