DCR 3.203 Depositions

1. Cooperation.

Counsel are expected to cooperate with, and be courteous to each other and deponents. Counsel are further expected to cooperate in selecting the least expensive and least disruptive manner of conducting the deposition. Counsel should consider such cost saving methods as telephone depositions, and sharing of expenses in bringing an out-of-state witness to Kansas for the deposition rather than all counsel traveling to the out-of-state location.

2. Stipulations.

Unless contrary to or inconsistent with an order of the Court, the parties (and, when appropriate, a non-party witness) may stipulate in any suitable writing to alter, amend, or modify any practice relating to noticing, conducting, or filing a deposition. Stipulations for the extension of discovery deadlines set by the Court will not be effective until, and unless, approved by the Court.

3. Scheduling.

Absent extraordinary circumstances, counsel shall consult in advance with opposing counsel and proposed deponents in an effort to schedule depositions at mutually convenient times and places. Depositions shall be scheduled to conform to normal business hours of 9:00 a.m. to 5:00 p.m. Monday through Friday unless otherwise mutually agreed by all counsel and the witness. The most convenient location for a party's deposition shall be presumed to be in the office of that party's counsel. Except for the principal plaintiff, defendant or key experts, the fact that some counsel may be unavailable shall not, in view of the number of attorneys involved in the litigation, be grounds for postponing a deposition if another attorney from the same firm is able to attend. Unless by agreement of counsel or leave of court is first obtained, at least 14 days notice of any deposition shall be given.

4. Attendance.

(a) Who may be present. Unless otherwise mutually agreed by the parties or ordered under K.S.A. 60-226(c), depositions may be attended by counsel of record, members and employees of their firms, attorneys specially engaged by a party for purpose of the deposition, the parties or the representative of a party, and counsel for the deponent. While a deponent is being examined about any stamped confidential document or the confidential information contained therein, persons to whom disclosure is not authorized under the Confidentiality Order shall be excluded.

5. Conduct.

(a) Objections. The only objections that should be raised at the deposition are those made required to be under K.S.A. 60-232(d)(3) in order to preserve the objection or to preserve a privilege, judicial limitation, or opportunity to seek court protection. Objections on other grounds are unnecessary and should generally be avoided. Relevance and materiality are not appropriate grounds. All objections should be concise, stating the basis of the objection and nothing more than is necessary to preserve the objection and must not suggest answers to (or otherwise coach) the deponent. Argumentative interruptions will not be permitted.

(b) Directions not to answer. Directions to the deponent not to answer are improper except on the ground of privilege to enforce a judicial limitation or to enable a party or deponent to present a motion to the Court for termination of the deposition on the ground that it is being conducted in bad faith or in such a manner as unreasonably to annoy, embarrass, or oppress the party or the deponent. When a privilege is claimed, the witness should nevertheless answer questions relevant to the existence, extent, or waiver of the privilege, such as the date of a communication, who made the statement, to whom the contents of the statement have been disclosed, and the general subject matter of the statement.

(c) Private consultation. Private conferences between deponents and their attorneys during the actual taking of the deposition are improper except for the purpose of determining whether a privilege should be asserted. Unless prohibited by the Court for good cause shown, such conferences may, however, be held during normal recesses and adjournments.

6. Documents.

(a) Production of documents. Witnesses subpoenaed to produce numerous documents must be served at least 30 days before the scheduled deposition unless the witness agrees to a shorter time period. Depending upon the quantity of documents to be produced, some time may be needed for inspection of the documents before the interrogation commences.

(b) Confidentiality order. A copy of any Confidentiality Order shall be provided to the deponent before the deposition commences if the deponent is to produce or may be asked about documents which may contain confidential information.

7. Depositions of Witnesses Who Have No Knowledge of the Facts. An officer, director or managing agent of a corporation, partnership, association other organization or a government entity serviced with a notice of a deposition or subpoena regarding a matter about which such person has no knowledge may submit to the noticing party a reasonable time before the date noticed an affidavit so stating and identifying a person within the corporation or government entity believed to have such knowledge. Notwithstanding such affidavit, the noticing party may proceed with the deposition, subject to the right of the witness to seek a protective order. A public or private corporation, partnership, association, other organization or governmental entity, noticed as the deponent under K.S.A. 60-230(b)(6) shall designate the person to be deposed as the representative of the entity who has the most knowledge regarding the subject matter on which the examination is requested.

8. Expert Witnesses.> Leave is granted to depose expert witnesses in addition to or in lieu of discovery through interrogatories. Objection to such depositions may be made by motion. Experts shall, upon written request without the necessity of a subpoena, bring to the deposition, the expert's written report, complete file, documents or other materials reviewed and billing records regarding the compensation to be paid for the study and testimony.

9. Videotaped depositions. By indicating in its notice of a deposition that it will record the deposition by videotape, a party shall be entitled to videotape the deposition pursuant to the following terms and conditions.

(a) Stenographic recording. The videotaped deposition shall be simultaneously recorded stenographically by a qualified court reporter. The court reporter shall on camera administer the oath or affirmation to the deponents. The written transcript by the court reporter shall constitute the official record of the deposition for purposes of K.S.A. 60-230(e) (submission to witness) and K.S.A. 60-230(f) (filing; exhibits).

(b) Cost. The requesting party shall bear the expense of the videotaping. Any party may at its own expense obtain a copy of the videotape and the stenographic transcript. Requests for taxation of these costs and expenses may be made at the conclusion of the litigation in accordance with applicable law.

(c) Video Operator. The operator(s) of the videotape recording equipment shall be subject to the provisions of K.S.A. 60-228(c) unless otherwise agreed by the parties. At the commencement of the deposition, the court reporter shall swear or affirm to record the proceedings fairly and accurately.

(d) Attendance. Each witness, attorney, and other person attending the deposition shall be identified on camera at the commencement of the deposition. Thereafter, only the deponent (and demonstrative materials used during the deposition) will be videotaped.

(e) Standards. The deposition will be conducted in a manner to replicate, to the extent feasible, the presentation of evidence at a trial. Unless physically incapacitated, the deponent shall be seated at a table or in a witness box except when reviewing or presenting demonstrative materials for which a change in position is needed. To the extent practicable, the deposition will be conducted in a neutral setting, against a solid background, with only such lighting as is required for accurate video recording. Lighting, camera angle, lens setting, and field of view will be changed only as necessary to record accurately the natural body movements of the deponent or to portray exhibits and materials used during the deposition. Sound levels will be altered only as necessary to record satisfactorily the voices of counsel and the deponent. Eating and smoking by deponents or counsel during the deposition will not be permitted.

(f) Interruptions. The videotape shall run continuously throughout the active conduct of the deposition. Videotape recording will be suspended during all "off the record" discussions.

(g) Examination; exhibits; re-reading. The provisions of paragraphs 5 and 6 of this order apply to videotaped depositions. Re-reading of questions or answers, when needed, will be done on camera by the stenographic court reporter.

(h) Filing. The party requesting the videotape deposition shall preserve custody of the original videotape in its original condition until further order of the court. No part of a videotape deposition shall be released or made available to any member of the public unless authorized by the Court.

(I) Objections. Requests for pretrial rulings on the admissibility of evidence obtained during a videotaped deposition shall be accompanied by appropriate pages of the written transcript. If the objection involves matter peculiar to the videotaping, a copy of the videotape and equipment for viewing the tape shall also be provided to the Court.

(j) Use at trial; purged tapes. A party desiring to offer a videotape deposition at trial shall be responsible for having available appropriate playback equipment and a trained operator. After the designation by the parties of the portions of a videotape to be used at trial, an edited copy of the tape, purged of unnecessary portions (and any portions to which objections have been sustained), shall be prepared by the offering party to facilitate continuous playback; but a copy of the edited tape shall be made available to other parties at least 14 days before it is used, and the unedited original of the tape shall also be available at the trial.

10. Waiver of transcription and filing. The parties and deponents are authorized and encouraged to waive transcription and filing of depositions that prove to be of little or no usefulness in the litigation or to agree to defer transcription and filing until the need for using the deposition arises.

11. Rulings. Immediate presentation. Disputes arising during depositions that cannot be resolved by agreement and that, if not immediately resolved, will significantly disrupt the discovery schedule or require a rescheduling of the deposition, may be presented by telephone to the Court. The presentation of the issue and the Court's ruling will be recorded as part of the deposition by the court reporter taking the deposition.

Revised: August 18, 2010