Printable Format60-234. Production of documents, electronically stored information, tangible things and entry onto land for inspection and other purposes. (a) In general. A party may serve on any other party a request within the scope of K.S.A. 60-226(b), and amendments thereto:
(1) To produce and permit the requesting party, or its representative, to inspect, copy, test or sample the following items in the responding party's possession, custody or control:
(A) Any designated documents or electronically stored information, including writings, drawings, graphs, charts, photographs, sound recordings, images and other data or data compilations, stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or
(B) any designated tangible things; or
(2) to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test or sample the property or any designated object or operation on it.
(b) Procedure. The request may be served on the plaintiff after commencement of the action and on any other party with or after service of process on that party.
(1) Contents of request. The request:
(A) Must describe with reasonable particularity each item or category of items to be inspected;
(B) must specify a reasonable time, place and manner for the inspection and for performing the related acts; and
(C) may specify the form or forms in which electronically stored information is to be produced.
(2) Responses and objections. (A) Time to respond. The party to whom the request is directed must respond in writing within 30 days after being served, except that a defendant may serve a response within 45 days after being served with process. A shorter or longer time may be stipulated to under K.S.A. 60-229, and amendments thereto, or be ordered by the court.
(B) Responding to each item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.
(C) Objections. An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.
(D) Responding to a request for production of electronically stored information. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form, or if no form was specified in the request, the party must state the form or forms it intends to use.
(E) Producing the documents or electronically stored information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:
(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;
(ii) if a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and
(iii) a party need not produce the same electronically stored information in more than one form.
(c) Nonparties. As provided in K.S.A. 60-245 and 60-245a, and amendments thereto, a nonparty may be compelled to produce documents, electronically stored information and tangible things or to permit an inspection.
History: L. 1963, ch. 303, 60-234; amended by Supreme Court order dated July 20, 1972; L. 1986, ch. 215, § 8; L. 1997, ch. 173, § 17; L. 2008, ch. 21, § 4; L. 2010, ch. 135, § 103; L. 2017, ch. 75, § 7; July 1.
Source or prior law:
G.S. 1868, ch. 80, § 368; L. 1909, ch. 182, § 365; R.S. 1923, 60-2850.
Cross References to Related Sections:
Failure to allow discovery, consequences, see 60-237(b).
Perpetuation of testimony, order and examination, see 60-227(a)(3).
Summary judgment, refusal or continuance to permit affidavits or depositions, see 60-256(f).
Pretrial procedure, see 60-216.
Depositions and discovery, see 60-226.
Interrogatories to parties, see 60-233.
Law Review and Bar Journal References:
Enlarging Kansas discovery, Ronan E. Degnan, 11 K.L.R. 221, 235 (1962).
Court has held section not applicable to criminal procedure, Thomas M. Van Cleave III, 14 K.L.R. 121, 123 (1965).
Use of depositions and interrogatories, David Prager, 33 J.B.A.K. 25, 76 (1964).
The "good cause" requirement hereunder discussed generally, Joseph Flynn, 4 W.L.J. 325 (1965).
Discovery and production of documents under civil code, Wayne Coulson, 33 J.B.A.K. 96, 97 (1964).
Relation of privileged documents and discovery under civil code, Spencer A. Gard, 33 J.B.A.K. 7, 60 (1964).
"Interrogatories Restrained," Roger D. Stanton, 37 J.B.A.K. 7, 9, 10 (1968).
"Mandamus as an Appellate Device," Roger D. Stanton, 18 K.L.R. 383, 384 (1970).
Survey of civil procedure, Spencer A. Gard, 17 K.L.R. 739 (1969).
"Evidence: The Admissibility of Computer Print-outs in Kansas," Thomas E. Lowman, 8 W.L.J. 330, 337 (1969).
Civil code provision, R.S. section 60-2850 (1923) mentioned as being the basis for this section, Michael G. Norris, 18 K.L.R. 755, 757 (1970).
The duty of prosecution to disclose evidence, Michael A. Barbara, 10 W.L.J. 54, 57 (1970).
"Discovery Techniques in Workmen's Compensation: Largely Undiscovered?" Robert Fowks, 42 J.B.A.K. 83 (1973).
Consumer protection in Tenth Judicial District, William P. Coates, Jr., 44 J.B.A.K. 67, 104 (1975).
Federal counterpart fully discussed in "Post-1970 Amendment Developments Concerning Federal Rules of Civil Procedure—Rules 34 and 36," Max Logan, 46 J.B.A.K. 9 (1977).
"Contested Estate Matters After Court Unification," Calvin J. Karlin, 48 J.B.A.K. 97, 101 (1979).
"The Privilege Log: Where the Battle Can Be Won or Lost," Mark B. Hutton, J.K.T.L.A. Vol. XIX, No. 6, 27 (1996).
"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).
"The paper trail has gone digital: Discovery in the age of electronic information," Todd N. Thompson, 71 J.K.B.A. No. 3, 16 (2002).
"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).
"The Time-Tested Use of ex parte Communications: Interviewing a Plaintiff's Health Care Providers as a Vital Means of Discovery," Kyle J. Steadman, K.D.J. Winter (2009).
"Written Discovery: A Bag of Tools (Part 1)," James R. Howell, 34 J.K.A.J., No. 2, 4 (2010).
"Discovery Tools: Requests For Production of Documents (Part 3)," James R. Howell, 34 J.K.A.J. No. 4, 6 (2011).
"E-discovery: An Under-Utilized Weapon in Medical Litigation in Kansas (and Elsewhere)," Dr. Thomas R. McLean, 36 J.K.A.J. No. 2, 16 (2012).
CASE ANNOTATIONS
Prior law cases, see G.S. 1949, 60-2850 and the 1961 Supp. thereto.
1. Factors to be considered in determining good cause recited; discretion of trial court considered; statements taken by claims adjuster not privileged. Alseike v. Miller, 196 K. 547, 552, 553, 558, 412 P.2d 1007.
2. Denial of motion hereunder did not result in prejudice. Bowers v. City of Kansas City, 202 K. 268, 270, 448 P.2d 6.
3. An order issued hereunder cannot require production of documents not held by, or under control of, the adverse or nonmoving party. Williams v. Consolidated Investors, Inc., 205 K. 728, 729, 730, 731, 732, 733, 742 P.2d 248.
4. Under this statute, which permits discovery and inspection of documents which are in the possession, custody or control of a party, the true test is "control," rather than "custody" or "possession." Williams v. Consolidated Investors, Inc., 205 K. 728, 729, 732, 733, 735, 472 P.2d 248.
5. Failure to comply with section noted; abuse of discretion in dismissing damage action pursuant to 60-237 for failure to produce documents. Vickers v. City of Kansas City, 216 K. 84, 88, 90, 531 P.2d 113.
6. Section applied; discovery not fully complied with. Prather v. Olson, 1 K.A.2d 142, 144, 562 P.2d 142.
7. Section applied; request for documents improperly disallowed by lower court. Barbara Oil Co. v. Patrick Petroleum Co., 1 K.A.2d 437, 442, 443, 566 P.2d 389.
8. Appellant failed to provide court with adequate record; review impossible. Farmers Ins. Exchange v. Schropp, 222 K. 612, 625, 567 P.2d 1359.
9. Former section's good cause requirement mentioned; writ of mandamus to set aside order to produce denied. Henry Enterprises, Inc. v. Smith, 225 K. 615, 618, 592 P.2d 915.
10. 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 K. 691, 696, 715 P.2d 2 (1986).
11. Court order to allow entry on property in proceedings under Kansas Historical Preservation Act. Lawrence Preservation Alliance, Inc. v. Allen Realty, Inc., 16 K.A.2d 93, 106, 819 P.2d 138 (1991).
12. 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 K.A.2d 688, 693, 858 P.2d 833 (1993).
13. Whether subsection (c) creates an independent cause of action for discovery against nonparties examined; equitable bill of discovery not recognized. Austin v. Johnston Coca-Cola Bottling Group, Inc., 20 K.A.2d 715, 716, 893 P.2d 1143 (1995).
14. Discovery rules of K.S.A. 60-234 are not applicable in K.S.A. 60-1507 proceedings. LaPointe v. State, 42 K.A.2d 522, 214 P.3d 684 (2009).