Discovery Interrogatories from Defendant to Plaintiff with Production Requests
Note: This summary is not intended to be an all-inclusive
summary of discovery law in Kentucky, but does include basic and other
information.
Definitions
Discovery: A procedure designed to allow disclosure
of information between Plaintiffs and Defendants. Written questions,
oral questioning, document production and admissions requests are generally
allowed. Discovery was designed to to prevent trial by ambush.
Interrogatories: Written questions from Plaintiff to
Defendant, or from Defendant to Plaintiff. The questions are mailed to
the Plaintiff, Defendant or the attorney for response in writing. The answers
or responses are usually due between 20-30 days.
Deposition: A procedure where verbal questions are
asked a Plaintiff or Defendant for immediate response. Depositions
are usually recorded by a court reporter, who swears the person to tell
the truth before questioning begins.
Production of Documents: The method of obtaining documents
from the other party relevant to the case such as all documents a party
intends to introduce at trial.
Requests for Admissions: Written questions where you
request the other party to admit or deny some relevant fact.
Objections: Objections may be made to all discovery
questions if the questions are not relevant, or likely to lead to the discovery
of relevant evidence.
Civil Procedure Rules: Virtually all states have adopted
a version of civil procedure rules which include rules dealing with discovery.
Kentucky Rules of Civil Procedure
Kentucky has adopted the Kentucky Rules of Civil Procedure which
contain rules governing discovery. The discovery rules also apply in
divorce actions.
Discovery Methods:Parties may obtain discovery by one or
more of the following methods: depositions upon oral examination or written
questions; written interrogatories; production of documents or things or
permission to enter upon land or other property, for inspection and other
purposes; physical and mental examinations; and requests for admission.
Unless the court orders otherwise under Rule 26.03, the frequency of use
of these methods is not limited.
Rule 26.01
Scope: Parties may obtain discovery regarding any matter,
not privileged, which is relevant to the subject matter involved in the
pending action, whether it relates to the claim or defense of the party
seeking discovery or to the claim or defense of any other party, including
the existence, description, nature, custody, condition and location of
any books, documents, or other tangible things and the identity and location
of persons having knowledge of any discoverable matter. It is not ground
for objection that the information sought will be inadmissible at the trial
if the information sought appears reasonably calculated to lead to the
discovery of admissible evidence. Rule 26.02
Experts: Discovery of facts known and opinions held
by experts, otherwise discoverable under the provisions of paragraph (1)
of this rule and acquired or developed in anticipation of litigation or
for trial, may be obtained only as follows:
(a) (i) A party may through interrogatories require any other party
to identify each person whom the other party expects to call as an expert
witness at trial, to state the subject matter on which the expert is expected
to testify, and to state the substance of the facts and opinions to which
the expert is expected to testify and a summary of the grounds for each
opinion. (ii) Upon motion, the court may order further discovery by other
means, subject to such restrictions as to scope and such provisions, pursuant
to paragraph (4)(c) of this rule, concerning fees and expenses as the court
may deem appropriate.
(b) A party may discover facts known or opinions held by an expert
who has been retained or specially employed by another party in anticipation
of litigation or preparation for trial and who is not expected to be called
as a witness at trial, only as provided in Rule 35.02 or upon a showing
of exceptional circumstances under which it is impracticable for the party
seeking discovery to obtain facts or opinions on the same subject by other
means.
(c) Unless manifest injustice would result, (i) the court shall
require that the party seeking discovery pay the expert a reasonable fee
for time spent in responding to discovery under paragraphs (4)(a)(ii) and
(4)(b) of this rule; and (ii) with respect to discovery obtained under
paragraph (4)(a)(ii) of this rule the court may require, and with respect
to discovery obtained under paragraph (4)(b) of this rule the court shall
require, the party seeking discovery to pay the other party a fair portion
of the fees and expenses reasonably incurred by the latter party in obtaining
facts and opinions from the expert. Rule 26.02(b)(4)
Sequence and Timing of Discovery: Unless the court 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 and
the fact that a party is conducting discovery, whether by deposition or
otherwise, shall not operate to delay any other party's discovery. Rule
26.04
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 his response to include information thereafter
acquired, except as follows:
(a) A party is under a duty seasonably to supplement his response
with respect to any question directly addressed to (i) the identity and
location of persons having knowledge of discoverable matters, and (ii)
the identity of each person expected to be called as an expert witness
at trial, the subject matter on which he is expected to testify, and the
substance of his testimony.
(b) A party is under a duty seasonably to amend a prior response
if he obtains information upon the basis of which (i) he knows that the
response was incorrect when made, or (ii) he 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.
(c) A duty to supplement responses may be imposed by order of the
court, agreement of the parties, or at any time prior to trial through
new requests for supplementation of prior responses. Rule 26.05
Depositions
Before Whom Depositions May Be Taken: Depositions taken
in this state, to be used in its courts, shall be taken before an examiner;
a judge, clerk, commissioner or official reporter of a court; a notary
public; or before such other persons and under such other circumstances
as shall be authorized by law. Rule 28.01
Depositions may be taken out of this state before a commissioner
appointed by the governor of the state where taken; or before any person
empowered by a commission directed to him by consent of the parties or
by order of the court; or before a judge of a court, a justice of the peace,
mayor of a city, or notary public; or before such persons and under such
other circumstances as shall be authorized by the law of this state or
the place where the deposition is taken. Rule 28.02
A party desiring to take depositions in this state to be used in
proceedings outside this state, may produce to a judge of the district
court of the district in which the witness resides a commission authorizing
the taking of such depositions or proof of notice duly served; whereupon
it shall be the duty of the judge to issue, pursuant to Rule 45, the necessary
subpoenas. Orders of the character provided in Rule 45.02 may be made upon
proper application therefor by the person to whom such a subpoena is directed.
Failure by any person without adequate excuse to obey a subpoena served
upon him pursuant to this rule may be deemed a contempt of the court from
which the subpoena issued. Rule 28.03
Stipulations: Unless the court orders otherwise, the parties
may by written stipulation (a) provide that depositions may be taken before
any person, at any time or place, upon any notice, and in any manner and
when so taken may be used like other depositions, and (b) modify the procedures
provided by these Rules for other methods of discovery, except that stipulations
extending the time provided in Rules 33.01, 34.02 and 36.01 for responses
to discovery may be made only with the approval of the court. Rule 29
After commencement of the action, any party may take the testimony
of any person, including a party, by deposition upon oral examination.
Leave of court, granted with or without notice, must be obtained only if
the plaintiff seeks to take a deposition prior to the expiration of 30
days after service of the summons upon any defendant, except that leave
is not required (a) if a defendant has served a notice of taking deposition
or otherwise sought discovery, or (b) if special notice is given as provided
in Rule 30.02(2). The attendance of witnesses may be compelled by subpoena
as provided in Rule 45. The deposition of a person confined in prison may
be taken only by leave of court on such terms as the court prescribes.
Rule 30.01
(1) A party desiring to take the deposition of any person upon oral
examination shall give reasonable notice in writing to every other party
to the action. The notice shall state the time and place for taking the
deposition and the name and address of each person to be examined, if known,
and, if the name is not known, a general description sufficient to identify
him or the particular class or group to which he belongs. If a subpoena
duces tecum is to be served on the person to be examined, the designation
of the materials to be produced as set forth in the subpoena shall be attached
to or included in the notice.
(2) (a) Leave of court is not required for the taking of a deposition
by plaintiff if the notice (i) states that the person to be examined is
about to go out of the state and will be unavailable for examination unless
his deposition is taken before expiration of the 30-day period, and (ii)
sets forth facts to support the statement. The plaintiff's attorney shall
sign the notice, and his signature constitutes a certification by him that
to the best of his knowledge, information, and belief the statement and
supporting facts are true. The sanctions provided by Rule 11 are applicable
to the certification.
(b) If a party shows that when he was served with notice under subparagraph
(a) of this paragraph (2) he was unable through the exercise of diligence
to obtain counsel to represent him at the taking of the deposition, the
deposition may not be used against him.
(3) The court may for cause shown enlarge or shorten the time for
taking the deposition.
(4) Videotaped depositions may be taken in pending actions and shall
be taxed as costs. Notice to take depositions shall be in accordance with
the Rules of Civil Procedure. At the deposition the videotape recorder
shall be operated by a person qualified to operate such recording equipment,
who is to mark the recording with the style and number of the action and
the name of the witness and to file a certificate which identifies the
said recording.
Video depositions shall be taken under the following conditions:
(a) The party noticing the deposition shall provide the operator
with a copy of this rule. At the beginning of the taping of the deposition,
the operator of the video camera will focus on each attorney, party and
witness present at the taking of the deposition, and such person shall
be identified; or the operator may read a statement introducing by name
parties to the litigation and the attorneys present without focusing on
each person, at the election of the noticing party.
(b) The camera will remain stationary at all times during the deposition
and will not "zoom" in or out on the witness excepting those times during
the deposition when the witness is displaying, for the jury's viewing,
exhibits or other pieces of demonstrative proof that can only be fairly
and reasonably seen on the videotape by use of the camera "zooming" in
on said evidence. The purpose of this clause is so that the camera will
not "zoom" in on a witness solely to give unfair or undue influence upon
the words of the witness, and does not apply to the "zooming" in for other
purposes described above.
(c) A stenographic transcript, in addition to the videotape recording,
will not be necessary. Any party desiring same may obtain it at that party's
cost.
(d) The videotape itself will be kept in the possession of the attorney
taking the deposition and will be available for the Court and any and all
counsel to compare the stenographic transcript, if any, with the videotape
transcript to view or to copy said videotape. If discrepancies appear between
the stenographic transcript, if any, and the videotape recording, the discrepancies
will be resolved by agreement of counsel or ruling of the Court if counsel
cannot agree. The decision on the manner in which to handle the discrepancies,
insofar as the videotape is concerned, will be included in the agreement
of counsel or ruling of the Court.
(e) All objections will be reserved and shall not be stated on the
videotape except for objections relating to the form of the question. Objections
to testimony on the videotape and the ruling thereof will be resolved by
agreement of counsel or ruling of the Court if counsel cannot agree. All
objections relating to said depositions must be made at least 10 days before
trial. An edited version shall be presented at trial.
(f) Admissibility of the tape may be objected to by any counsel
if a review of the finished tape reveals any technical errors giving undue
influence to the testimony of the witness which would unfairly prejudice
the side objecting; or if the general technical quality of the tape is
so poor that its being viewed by the jury would be unfairly prejudicial
to the side so objecting.
(5) The notice to a party deponent may be accompanied by a request
made in compliance with Rule 34 for the production of documents and tangible
things at the taking of the deposition. The procedure of Rule 34.02 shall
apply to the request.
(6) A party may in his notice and in a subpoena name as the deponent
a public or private corporation or a partnership or association or governmental
agency and describe with reasonable particularity the matters on which
examination is requested. In that event, the organization so named shall
designate one or more officers, directors, or managing agents, or other
persons who consent to testify on its behalf, and may set forth, for each
person designated, the matters on which he will testify. A subpoena shall
advise a non-party organization of its duty to make such a designation.
The persons so designated shall testify as to matters known or reasonably
available to the organization. This paragraph (6) does not preclude taking
a deposition by any other procedure authorized in these rules. Rule 30.02
Interrogatories
(1) Any party may serve upon any other party written interrogatories
to be answered 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 such information as
is available to the party. Interrogatories may, without leave of court,
be served upon the plaintiff after commencement of the action and upon
any other party with or after service of the summons upon that party.
(2) Each interrogatory shall be answered separately and fully in
writing under oath, unless it is objected to, in which event the reasons
for objection shall be stated in lieu of an answer. The answers are to
be signed by the person making them, and the objections signed by the attorney
making them. The party upon whom the interrogatories have been served shall
serve a copy of the answers, and objections if any, within 30 days after
the service of the interrogatories, except that a defendant may serve answers
or objections within 45 days after service of the summons upon that defendant.
The court may allow a shorter or longer time. The party submitting the
interrogatories may move for an order under Rule 37.01 with respect to
any objection to or other failure to answer an interrogatory.
(3) Each party may propound a maximum of thirty (30) interrogatories
and thirty (30) requests for admission to each other party; for purposes
of this Rule, each subpart of an interrogatory or request shall be counted
as a separate interrogatory or request. The following shall not be included
in the maximum allowed: interrogatories requesting (a) the name and address
of the person answering; (b) the names and addresses of the witnesses;
and (c) whether the person answering is willing to supplement his answers
if information subsequently becomes available. Any party may move the court
for permission to propound either interrogatories or requests for admission
in excess of the limit of thirty (30). Rule 33.01
Production
Any party may serve on any other party a request (a) to produce
and permit the party making the request, or someone acting on his behalf,
to inspect and copy any designated documents (including writings, drawings,
graphs, charts, photographs, phono-records, and other data compilations
from which information can be obtained, translated, if necessary, by the
respondent through detection devices into reasonably usable form), or to
inspect and copy, test, or sample any tangible things which constitute
or contain matters within the scope of Rule 26.02 and which are in the
possession, custody or control of the party upon whom the request is served;
or (b) to 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 or any designated object or operation thereon, within the
scope of Rule 26.02. Rule 34.01
(1) The request may, without leave of court, be served upon the
plaintiff after commencement of the action and upon any other party with
or after service of the summons upon that party. The request shall set
forth the items to be inspected either by individual item or by category,
and describe each item and category with reasonable particularity. The
request shall specify a reasonable time, place, and manner of making the
inspection and performing the related acts.
(2) The party upon whom the request is served shall serve a written
response within 30 days after the service of the request, except that a
defendant may serve a response within 45 days after service of the summons
upon that defendant. The court may allow a shorter or longer time. The
response shall state, with respect to each item or category, that inspection
and related activities will be permitted as requested, unless the request
is objected to, in which event the reasons for objection shall be stated.
If objection is made to part of an item or category, the part shall be
specified. The party submitting the request may move for an order under
Rule 37.01 with respect to any objection to or other failure to respond
to the request or any part thereof, or any failure to permit inspection
as requested. Rule 34.02
Physical and Mental Examinations of Persons
When the mental or physical condition (including the blood group)
of a party, or of a person in the custody or under the legal control of
a party, is in controversy, the court in which the action is pending may
order the party to submit to a physical or mental examination by a physician,
dentist or appropriate health care expert, or to produce for examination
the person in his custody or legal control. The order may be made only
on motion for good cause shown and upon notice to the person to be examined
and to all parties and shall specify the time, place, manner, conditions,
and scope of the examination and the person or persons by whom it is to
be made. Rule 35.01
(1) If requested by the party against whom an order is made under
Rule 35.01 or the person examined, the party causing the examination to
be made shall deliver to that person or party a copy of a detailed written
report of the examining health care expert setting out all findings, including
results of all tests made, diagnoses and conclusions, together with like
reports of all earlier examinations of the same condition. After delivery,
the party causing the examination shall be entitled upon request to receive
from the party against whom the order is made a like report of any examination,
previously or thereafter made, of the same condition, unless, in the case
of a report of examination of a person not a party, the party shows an
inability to obtain it. The court on motion may make an order against a
party requiring delivery of a report on such terms as are just, and if
a physician or examining health care expert fails or refuses to make a
report the court may exclude such testimony if offered at the trial.
(2) This rule applies to examinations made by agreement of the parties,
unless the agreement expressly provides otherwise. This rule does not preclude
discovery of a report of an examining physician or health care expert or
the taking of a deposition of the physician or health care expert in accordance
with the provisions of any other rule. Rule 35.02
Requests 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 truth of
any matters within the scope of Rule 26.02 set forth in the request that
relate to statements or opinions of fact or of the application of law to
fact, including the genuineness of any documents described in the request.
Copies of documents shall be served with the request unless they have been
or are otherwise furnished or made available for inspection and copying.
The request may, without leave of court, be served upon the plaintiff after
commencement of the action and upon any other party with or after service
of the summons upon that party.
(2) Each matter of which an admission is requested shall be separately
set forth. The matter is admitted unless, within 30 days after service
of the request, or within such shorter or longer time as the court may
allow, the party to whom the request is directed serves upon the party
requesting the admission a written answer or objection addressed to the
matter, signed by the party or by his attorney, but, unless the court shortens
the time, a defendant shall not be required to serve answers or objections
before the expiration of 45 days after service of the summons upon him.
If objection is made, the reasons therefor shall be stated. The answer
shall specifically deny the matter or set forth in detail the reasons why
the answering party cannot truthfully admit or deny the matter. A denial
shall fairly meet the substance of the requested admission, and when good
faith requires that a party qualify his answer or deny only a part of the
matter of which an admission is requested, he shall specify so much of
it as is true and qualify or deny the remainder. An answering party may
not give lack of information or knowledge as a reason for failure to admit
or deny unless he states that he has made reasonable inquiry and that the
information known or readily obtainable by him is insufficient to enable
him to admit or deny. A party who considers that a matter of which an admission
has been requested presents a genuine issue for trial may not, on that
ground alone, object to the request; he may, subject to the provisions
of Rule 37.03, deny the matter or set forth reasons why he cannot admit
or deny it.
(3) The party who has requested the admissions may move to determine
the sufficiency of the answers or objections. Unless the court determines
that an objection is justified, it shall order that an answer be served.
If the court determines that an answer does not comply with the requirements
of this Rule, it may order either that the matter is admitted or that an
amended answer be served. The court may, in lieu of these orders, determine
that final disposition of the request be made at a pretrial conference
or at a designated time prior to trial. Rule 36.01
Compel Discovery
A party, upon reasonable notice to other parties and all persons
affected thereby, may apply for an order compelling discovery as follows:
(a) Appropriate court.
An application for an order to a party may be made to the court
in which the action is pending, or, on matters relating to a deposition,
to the court of equivalent jurisdiction in the county where the deposition
is being taken.
(b) Motion.
(i) If a deponent fails to answer a question propounded or submitted
under Rule 30 or 31, or a corporation or other entity fails to make a designation
under Rule 30.02(6) or 31.01(2), or a party fails to answer an interrogatory
submitted under Rule 33, or if a party, in response to a request for inspection
submitted under Rule 34, fails to respond that inspection will be permitted
as requested or fails to permit inspection as requested, the discovering
party may move for an order compelling an answer, or a designation, or
an order compelling inspection in accordance with the request. When taking
a deposition on oral examination, the proponent of the question may complete
or adjourn the examination before he applies for an order.
(ii) If the court denies the motion in whole or in part, it may
make such protective order as it would have been empowered to make on a
motion made pursuant to Rule 26.03.
(c) Evasive or incomplete answer.
For the purposes of this rule an evasive or incomplete answer is
to be treated as a failure to answer. Rule 37.01
Domestic Actions Discovery Notes
If you require extra time to respond to discovery, you should ask
the other side for an extension in writing. It may also be necessary
to enter an order granting the extension to protect your rights.
Discovery questions are limited in number so select the most important
questions to ask the other side. Don't waste your requests writing
questions that you already know the answer to.
