Civil Discovery 2017
| Publication year | 2017 |
| Pages | 22 |
The Kansas Legislature Adopts Federal Rules on Proportionality
J. Nick Badgerow
I. INTRODUCTION AND BACKGROUND
Consistent with past practice, the Kansas Legislature has adopted most of the 2015 and 2016 amendments to the Federal Rules of Civil Procedure, and those changes are made applicable to the courts of this state in 2017. The major change implemented by these amendments is the express adoption of the concept of "proportionality" in the defined scope of discovery.[1] While "proportionality" is not a new concept, the express statement of this concept as a part of the scope of discovery should have an impact upon the breadth, and therefore the cost, of discovery in civil cases in Kansas going forward.
Effective on December 1, 2015[2] and December 1, 2016,[3] the Federal Rules of Civil Procedure were amended. As usually occurs, these amendments were considered by the Civil Code Advisory Committee of the Kansas Judicial Council,[4] and then a bill incorporating the amendments was proposed by the council to the Kansas Legislature.
The bill was presented as House Substitute for Senate Bill 120 ("Bill 120"), and was introduced in the house of representatives on February 23, 2017.[5] Bill 120 passed in the house on April 7, 2017,[6] and passed in the senate on May 17, 2017.[7] It was then signed by the governor on May 24, 2017,[8] and made effective on the date of publication in the statute book,[9] which is July 1, 2017.[10]
The purpose of this article is to review the changes brought about by these amendments, and to look particularly at the concept of proportionality as adopted by the amended rules.
II. KANSAS TYPICALLY FOLLOWS THE FEDERAL RULES OF CIVIL PROCEDURE
Since the overhaul of the Kansas rules of civil procedure in 1963, the Kansas Code of Civil Procedure has closely followed the Federal Rules of Civil Procedure.[11] In the absence of binding Kansas appellate authority on a particular point of civil procedure, having the Kansas code follow the federal rules so closely has been helpful to Kansas practitioners and judges in interpreting federal cases and applying the comparable federal rules to Kansas procedural issues.[12] As the Kansas Court of Appeals stated in Baumann v. Excel Industries, Inc.:
Federal court decisions interpreting the federal code of civil procedure are highly persuasive in applying the Kansas Code of Civil Procedure, which is based on the federal code.[13]
Thus, as the federal rules have developed and evolved over the years, the Kansas Judicial Council has striven to keep up, and to recommend changes to the Legislature that would maintain the similarity between the state and federal codes of civil procedure.[14] The legislature has generally adopted and incorporated those changes into the Kansas code.[15]
This is not to say that Kansas strictly follows every change brought about in the federal rules or that Kansas does not exercise its independence. Indeed, there are notable departures from the Federal Rules in the Kansas code, and several distinct Kansas procedural rules that were not derived from the federal rules.[16]
However, to a large extent the Kansas rules of civil procedure very closely mirror the federal rules, and maintaining that consistency—when suitable for the citizens, litigants, and courts of this state—is beneficial. As the Kansas Supreme Court has stated:
Kansas courts often look to the case law on the federal rules as guidance for interpretation of our own rules, as the Kansas rules of civil procedure were patterned after the federal rules. See Stock v. Nordhus, 216 Kan. 779, 782, 533 P.2d 1324 (1975) (noting that the Kansas courts have traditionally followed the interpretation of federal procedural rules and that the federal case law is highly persuasive.)[17]
To that end, the 2015 and 2016 amendments to the Federal Rules of Civil Procedure were generally proposed by the judicial council, and were included in the Bill 120. And, as noted above, all recommended amendments were then approved and codified by the Kansas Legislature through that bill, and then signed by the governor.
III. A SUMMARY OF THE 2017 CHANGES (OTHER THAN "PROPORTIONALITY")
A. Construction.
K.S.A. 60-102 was amended to read:
60-102. Construction. The provisions of this act shall be liberally construed, administered and employed by the court and the parties to secure the just, speedy and inexpensive determination of every action and proceeding.
This amendment emphasizes that all parties—along with the court—share the responsibility to employ the rules to secure the just, speedy and inexpensive determination of every action.[18]
Federal Rule of Civil Procedure 1 states that the rules "should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding." The committee notes on the 2015 Amendment to Rule 1 explain that just as the rule applies to the court "so the parties share the responsibility to employ the rules in the same way."[19]
Frankly, it is usually the parties who press to make litigation faster and less expensive.
B. Time.
K.S.A. 60-206(d), as amended, now reads:
60-206. Time, computation and extension; accessibility of court; definitions. . . .
(d) Additional time after certain kinds of service. When a party may or must act within a specified time after being served and service is made under K.S.A. 60-205(b)(2)(C) (mail), or (D) (leaving with the clerk), and amendments thereto, three days are added after the period would otherwise expire under subsection (a).
The import of the amendments to this rule is that three days are no longer added for responding to pleadings served by telefacsimile and electronic means, e.g. e-mail. K.S.A. 60-205(b) is different from federal rule 5(b), in that the federal rule does not list service by telefacsimile and instead has a subsection for service by "other means consented to," which perforce would include service by fax if agreed by the parties.
To emphasize this point, with electronic filing and service, as with service by e-mail, the three-day mail rule has now been deleted. This will likely cause problems, at least initially, for attorneys (and their paralegals or secretaries) who attempt to calculate the correct response time. K.S.A. 60-206 not only applies to discovery, but also to substantive motions served by e-filing or e-mail[20] (including motions for summary judgment).[21]
Originally, there were concerns of potential delays in service by electronic means, and that incompatible systems might make the opening of attachments difficult or impossible, thus justifying an additional three days to respond to pleadings served via e-mail or fax. Time and technological progress have alleviated those outdated concerns.
C. Case Management Conference.
K.S.A. 60-216(b) was amended to provide for consideration of the preservation of electronically stored information, recognizing that a duty to preserve discoverable information may arise before an action is filed. This section was also amended to provide for agreements incorporated in a court order under K.S.A. 60-426a, to control the effects of disclosure of information covered by attorney-client privilege, such as a "clawback" agreement[22] or a "quick-peek agreement."[23]
Courts have adopted both types of agreements on privilege issues and have incorporated such provisions in orders to avoid any finding of future waiver. Hopson v. The Mayor and City Council of Baltimore, 232 F.R.D. 228, 246 (D.Md.2005) ("claw back" agreement was incorporated into court order to avoid any assertion of waiver of a privilege); Murphy Oil USA, Inc. v. Fluor Daniel, Inc., 2002 WL 246439 at *8 (E.D.La. Feb. 19, 2002) (reciting various options for a "quick peek" agreement).[24]
D. Production of documents and things.
K.S.A. 60-234(b)(2)(B) was amended to require that objections to requests under the statute be stated with specificity. This provision adopts the language of K.S.A...
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