61-3105. Depositions.
61-3105
61-3105. Depositions.(a) Anyparty to an action pursuant to the code of civil procedure for limited actionsmay takethe testimony ofany person, including a party, either within or without the state, bydeposition upon oralexamination or written questions but only for use as evidence in the action.Unless the courtorders otherwise, the parties may by written stipulation provide thatdepositions may be takenbefore any person, at any time or place, upon any notice, and in any manner andwhen sotaken may be used like other depositions. The taking of such depositions shallbe governed bythe provisions of K.S.A. 60-228, subsections (b) through (h) ofK.S.A. 60-230, K.S.A.60-231 and subsection (d) of K.S.A. 60-232, and amendments thereto, except thatany party desiring to take a depositionshall first file with the court, and serve on all other parties to the action,a motion that thetaking of such deposition be allowed due to the existence of at least one ofthe conditionsprescribed in subsection (b) for the use of depositions as evidence. Withinfive days afterany such motion has been made, any other party to the action may file anobjection to suchmotion, and in such event, the court shall hold a hearing within five daysthereof todetermine the issue. No deposition shall be taken unless and until the courtshall have grantedthe motion requesting permission therefor.
(b) At the trial, or upon the hearing of a motion or an interlocutoryproceeding, any part orall of a deposition of a witness, whether or not a party, so far as it isadmissible under the rulesof evidence, may be used for any purpose against any party who was present orrepresentedat the taking of the deposition, or who had due notice thereof, if the courtfinds that:
(1) The witness is dead;
(2) the witness is outside of the county of the place of trial or hearing,unless it appearsthat the absence of the witness was procured by the party offering thedeposition;
(3) the witness is unable to attend or testify because of age, sickness,infirmity orimprisonment;
(4) the party offering the deposition has been unable to procure theattendance of thewitness by subpoena; or
(5) upon application and notice, that such exceptional circumstances exist asto makeit desirable, in the interest of justice and with due regard to the importanceof presenting thetestimony of witnesses orally in open court, to allow the deposition to beused.
(c) In addition to the uses of depositions enumerated in subsection (b), thecourt onmotion may permit the use of depositions as provided in subsections (b)(1), (2)and (4) of K.S.A.60-232, and amendments thereto, in the interest of justice and on such termsand conditions as will fairly protect theparties.
History: L. 2000, ch. 161, § 29; Jan. 1, 2001.