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Nov 27, 2013

Utilizing the Kansas Uniform Interstate Depositions and Discovery Act

Kansas has joined a majority of states in passing the Uniform Interstate Depositions and Discovery Act (“UIDDA”), which is codified at K.S.A. 60-228a. The UIDDA replaces the arcane practices of commissions and letters rogatory with a more straightforward approach to obtaining discovery from third parties in states outside the jurisdiction of the court where your case is pending.

The procedure is simple, though Kansas courts are relatively unfamiliar with the statute, which was enacted in 2010. To obtain a Kansas subpoena for materials to be used in another jurisdiction, a litigant must first obtain a properly-issued subpoena from the home court. Once that subpoena is issued, the foreign subpoena, a proposed Kansas subpoena, and a docketing fee for a new civil case should be transmitted to the clerk of court in the county in which the subpoena recipient is located. The cover letter to the clerk should specifically cite K.S.A. 60-228a, and it is probably best practice to set forth the pertinent text from the statute:

(c) Issuance of subpoena.

(1) To request issuance of a subpoena under this section, a party must submit a foreign subpoena to a clerk of court in the county in which discovery is sought to be conducted in this state and pay the docket fee as required by K.S.A. 60-2001, and amendments thereto. A request for the issuance of a subpoena in this state under this act does not constitute an appearance in the courts of this state.

(2) When a party submits a foreign subpoena to a clerk of court in this state, the clerk, in accordance with that court's procedure, must:

(A) Promptly issue a subpoena for service on the person to which the foreign subpoena is directed; and

(B) assign the subpoena a case file number and enter it on the docket as a civil action pursuant to K.S.A. 60-2601, and amendments thereto.

(3) A subpoena under subsection (c)(2) must:

(A) Incorporate the terms used in the foreign subpoena; and

(B) contain or be accompanied by the names, addresses and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel.

Service of the subpoena must be proper under the Kansas statutes.  

Kansas permits the issuance of records subpoenas, but most counties’ subpoena forms require the option for the subpoena recipient to appear in person. K.S.A. 60-245, which pertains generally to subpoenas, is modeled upon Fed. R. Civ. P. 45, and contains virtually identical provisions and limitations.