Kan. Admin. Regs. § 47-4-15 - Administrative hearings; discovery
Discovery shall be permitted to the extent allowed by the presiding officer or as agreed to by the parties.
(a) Requests for discovery shall be made in
writing to the presiding officer, and a copy of each request for discovery
shall be served on the party or person against whom discovery is sought. The
presiding officer may specify the times during which the parties may pursue
discovery and respond to discovery requests. The presiding officer may issue
subpoenas, discovery orders, and protective orders in accordance with the rules
of civil procedure.
(b) Subpoenas
issued by the presiding officer shall be served by a person designated by the
presiding officer or any other person who is not a party and is not less than
18 years of age. Service shall be in person and at the expense of the
requesting party. Proof of service shall be shown by affidavit.
(c) Subpoenas and orders issued by the
presiding officer shall be enforced pursuant to the provisions of the act for
judicial review and civil enforcement of agency actions pursuant to
K.S.A. 77-601
et seq., as amended.
(d) Discovery methods. Parties may
obtain discovery by one or more of the following methods:
(1) depositions upon oral examination or upon
written interrogatories;
(2)
written interrogatories;
(3)
production of documents or items, or permission to enter upon land or other
property for inspection and other purposes; and
(4) requests for admission.
(e) Time for discovery. Following
the initiation of a proceeding, the parties may initiate discovery at any time
so long as it does not interfere with the conduct of the hearing.
(f) Scope of discovery.
(1) Unless otherwise limited by order of the
presiding officer in accordance with these regulations, the parties may obtain
discovery regarding any matter, not privileged, that is relevant to the subject
matter involved in the proceeding, including the existence, description,
nature, custody, condition, and location of any books, documents, or other
tangible items, and the identity and location of persons having knowledge of
any discoverable matter.
(2) It
shall not be grounds for objection that information sought will not be
admissible at the hearing if the information sought appears reasonably
calculated to lead to the discovery of admissible evidence.
(3) A party may obtain discovery of documents
and tangible items otherwise discoverable under subsection (f)(1) of this
regulation and prepared in anticipation of or for the hearing by or for another
party's representative, including a party's attorney, consultant, surety,
indemnitor, insurer, or agent. This discovery shall occur only upon a showing
that the party seeking discovery has substantial need of the materials for the
preparation of a party's case and that the party is unable without undue
hardship to obtain the substantial equivalent of the materials by other means.
In ordering discovery of such materials when the required showing has been
made, the presiding officer shall protect against disclosure of the mental
impressions, conclusions, opinions, or legal theories of an attorney or other
representative of a party concerning the proceeding.
(g) Protective order. Upon motion by a party
or the person from whom discovery is sought, and for good cause shown, the
presiding officer may make any order that justice requires to protect a party
or person from annoyance, embarrassment, oppression, or undue burden or
expense, including one or more of the following:
(1) the discovery not be had;
(2) the discovery may be had only on
specified terms and conditions, including a designation of the time or place;
(3) the discovery may be had only
by a method of discovery other than the method selected by the party seeking
discovery;
(4) certain matters not
relevant may not be inquired into, or the scope of discovery be limited to
certain matters;
(5) discovery be
conducted with no one present except persons designated by the presiding
officer; or
(6) a trade secret or
other confidential research, development, or commercial information may not be
disclosed or may be disclosed only in a designated way.
(h) Sequence and timing of discovery. Unless
the presiding officer upon motion, for the convenience of parties and witnesses
and in the interests of justice, orders otherwise, methods of discovery may be
used in any sequence. The fact that a party is conducting discovery, whether by
deposition or otherwise, shall not operate to delay any other party's
discovery.
(i) Supplementation of
responses. A party who has responded to a request for discovery with a response
that was complete when made is under no duty to supplement the party's response
to include information thereafter acquired, except as follows.
(1) A party shall be under a duty to timely
supplement the party's response with respect to any question directly addressed
to the following:
(A) the identity and
location of persons having knowledge of discoverable matters; or
(B) the identity of each person expected to
be called as an expert witness at the hearing, the subject matter on which the
expert witness is expected to testify, and the substance of the expert's
testimony.
(2) A party
shall timely amend a prior response if the party later obtains information upon
the basis of which either condition applies:
(A) the party knows the response was
incorrect when made; or
(B) the
party knows that the response, though correct when made, is no longer true, and
the circumstances are such that a failure to amend the response is in substance
a knowing concealment.
(3) A duty to supplement responses may be
imposed by order of the presiding officer or agreement of the parties.
(j) Motion to compel
discovery.
(1) If a deponent fails to answer
a question propounded, or if a party upon whom a request is made pursuant to
subsection (d)(3) of this regulation or a party upon whom answers to
interrogatories are served fails to adequately respond or objects to the
request, or any part thereof, or fails to permit inspection as requested, the
discovering party may move the presiding officer for an order compelling a
response or inspection in accordance with the request.
(2) The motion shall set forth the following:
(A) the nature of the questions or request;
(B) the response or objection of
the party upon whom the request was served; and
(C) arguments in support of the motion.
(3) For purposes of
this section, an evasive answer or an incomplete answer or response shall be
treated as a failure to answer or respond.
(4) In ruling on a motion made pursuant to
this section, the presiding officer may make such protective orders as the
presiding officer is authorized to make on a motion made pursuant to K.A.R.
47-4-15(g).
(k) Failure
to comply with orders compelling discovery. If a party or an officer, director,
or other agent of a party fails to obey an order to provide or permit
discovery, the presiding officer before whom the action is pending may make
such orders in regard to the failure as are just, including the following:
(1) an order that the matters sought to be
discovered or any other designated facts shall be taken to be established for
the purposes of the action in accordance with the claim of the party obtaining
the order;
(2) an order refusing
to allow the disobedient party to support or oppose designated claims or
defenses, or prohibiting the party from introducing designated matters into
evidence; or
(3) an order striking
out pleadings or parts of pleadings, or staying further proceedings until the
order is obeyed, or dismissing the action or proceeding or any part of the
action or proceeding, or rendering a judgment by default against the
disobedient party.
(l)
Depositions upon oral examination or upon written questions.
(1) Any party desiring to take the testimony
of any other party or other person by deposition upon oral examination or
written questions shall, without leave of the presiding officer, give
reasonable notice in writing to every other party, to the person to be examined
and to the presiding officer, of the following:
(A) the proposed time and place of taking the
deposition;
(B) the name and
address of each person to be examined, if known, or if the name is not known, a
general description sufficient to identify the person or the particular group
or class to which the person belongs;
(C) the matter upon which each person will be
examined; and
(D) the name or
descriptive title and address of the officer before whom the deposition is to
be taken.
(2) A
deposition may be taken before any officer authorized to administer oaths by
the laws of the United States or by those of the place where the examination is
held.
(3) The actual taking of the
deposition shall proceed as follows.
(A) The
deposition shall be on the record.
(B) The officer before whom the deposition is
to be taken shall put the witness under oath or affirmation.
(C) Examination and cross-examination shall
proceed as at a hearing.
(D) Each
objection made at the time of the examination shall be noted by the officer.
(E) The officer shall not rule on
objections to the evidence, but evidence objected to shall be taken subject to
the objections.
(4)
When the testimony is fully transcribed, the deposition shall be submitted to
the deponent for examination and signature, unless examination and signature
are waived by the deponent. The officer shall certify the deposition or, if the
deposition is not signed by the deponent, shall certify the reasons for the
failure to sign.
(5) When the
deposition is to be taken on written questions, the party taking the deposition
shall serve a copy of the questions, showing each question separately and
consecutively numbered, on every other party with a notice stating the name and
address of the person who is to answer the questions, and the name,
description, title, and address of the officer before whom the questions are to
be taken. Within 30 days after service, any other party may serve
cross-questions. The questions, cross-questions, and answers shall be recorded
and signed, and the deposition certified, as in the case of a deposition on
oral examination.
(6) A deposition
shall not become a part of the record in the hearing unless received in
evidence. If only part of a deposition is offered in evidence by a party, any
other party may introduce any other parts.
(7) A deponent whose deposition is taken and
the officer taking a deposition shall be entitled to the same fees as are paid
for like services in the district courts of the United States, to be paid by
the party at whose request the deposition is taken.
(8) The deponent may be accompanied,
represented, and advised by legal counsel.
(m) Use of depositions. At the hearing, any
part or all of a deposition, so far as admissible, may be used against any
party who was present or represented at the taking of the deposition, or who
had reasonable notice of the deposition, in accordance with any of the
following provisions.
(1) Any deposition may
be used by any party for the purpose of contradicting or impeaching the
testimony of a deponent as a witness.
(2) The deposition of a party or of anyone
who at the time of taking the deposition was an officer, director, or managing
agent or a person designated to testify on behalf of a public or private
corporation, partnership, or association or governmental agency that is a party
may be used by an adverse party for any purpose.
(3) The deposition of a witness, whether or
not a party, may be used by a party for any purpose if the presiding officer
finds that any of these conditions occur:
(A)
the witness is dead;
(B) the
witness is at a distance greater than 100 miles from the place of hearing, or
is outside the United States, unless it appears that the absence of the witness
was procured by the party offering the deposition;
(C) the witness is unable to attend or
testify because of age, illness, infirmity, or imprisonment;
(D) the party offering the deposition has
been unable to procure the attendance of the witness by subpoena; or
(E) such exceptional circumstances exist as
to make it desirable, in the interest of justice and with due regard to the
importance of presenting the testimony of witnesses orally at the hearing, to
allow the deposition to be used.
(n) Written interrogatories to parties.
(1) Any party may serve upon any other party
written interrogatories to be answered in writing by the party served, or if
the party served is a public or private corporation or a partnership or
association or governmental agency, by any officer or agent, who shall furnish
the requested information that is available to the party. A copy of the
interrogatories, answers, and all related pleadings shall be served on the
presiding officer and upon all parties to the proceeding.
(2) Each interrogatory shall be answered
separately and fully in writing under oath or affirmation, unless it is
objected to, in which event the reasons for objection shall be stated in lieu
of an answer. The answer and objections shall be signed by the person making
them. The party upon whom the interrogatories were served shall serve a copy of
the answers and objections upon all parties to the proceeding within 30 days
after service of the interrogatories, or within a shorter or longer period that
the presiding officer may allow.
(3) Interrogatories may relate to any matters
that can be inquired into under subsection (f) of this regulation. An
interrogatory otherwise proper is not necessarily objectionable merely because
an answer to the interrogatory involves an opinion or contention that relates
to fact or the application of law to fact. However, the presiding officer may
order that such an interrogatory need not be answered until after the
completion of designated discovery or until a prehearing conference or other
later time.
(o)
Production of documents and items, and entry upon land for inspection and other
purposes.
(1) Any party may serve on any
other party a request to perform the following:
(A) produce and permit the party making the
request, or a person acting on the party's behalf, to inspect and copy any
designated document, or to inspect and copy, test, or sample any tangible items
within the scope of subsection (f) above of this regulation, that are in the
possession, custody, or control of the party upon whom the request is served;
or
(B) permit entry upon
designated land or other property in the possession or control of the party
upon whom the request is served for the purpose of inspection and measuring,
surveying, photographing, testing, or sampling the property, including the air,
water, and soil, or any designated object or operation on the land, within the
scope of subsection (f) of this regulation.
(2) The request may be served on any party
without leave of the presiding officer.
(3) The request shall fulfill these
requirements:
(A) set forth the items to be
inspected either by individual item or by category;
(B) describe each item or category with
reasonable particularity; and
(C)
specify a reasonable time, place, and manner of making the inspection and
performing the related acts.
(4) The party upon whom the request is served
shall serve a written response on the party submitting the request within 30
days after service of the request.
(5) The response shall state the following,
with respect to each item or category:
(A)
that inspection and related activities will be permitted as requested; or
(B) that objection is made in
whole or in part, in which case the reasons for objection shall be stated.
(p) Request
for admissions.
(1) A party may serve upon
any other party a written request for the admission, for purposes of the
pending action only, of the genuineness and authenticity of any relevant
document described in or attached to the request, or for the admission of the
truth of any specified relevant matter of fact.
(2) Each matter of which an admission is
requested shall be admitted unless, within 30 days after service of the request
or shorter or longer time that the presiding officer may allow, the party to
whom the request is directed serves on the requesting party the following:
(A) a sworn statement denying specifically
the relevant matters of which an admission is requested;
(B) a sworn statement setting forth in detail
the reasons why the party can neither truthfully admit nor deny the matters; or
(C) written objections on the
grounds that some or all of the matters involved are privileged or irrelevant
or that the request is otherwise improper in whole or in part.
(3) An answering party shall not
give lack of information or knowledge as a reason for failure to admit or deny
unless the party states that the party has made reasonable inquiry and that the
information known or readily obtainable by the party is insufficient to enable
the party to admit or deny.
(4)
The party who has requested the admissions may move to determine the
sufficiency of the answers or objections. Unless the presiding officer
determines that an objection is justified, the presiding officer shall order
that an answer be served. If the presiding officer determines that an answer
does not comply with the requirements of this section, the presiding officer
may order either that the matter is admitted or that an amended answer be
served. The presiding officer may, in lieu of these orders, determine that
final disposition of the request be made at a prehearing conference or at a
designated time before hearing.
(5) Any matter admitted under this section
shall be conclusively established unless the presiding officer on motion
permits withdrawal or amendment of the admission.
(6) Any admission made by a party under this
section shall be for the purpose of the pending action only and shall not be an
admission by the party for any other purpose. The admission shall not be used
against the party in any other proceeding.
Notes
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