The Kansas motion to compel: the fee award tilts toward whoever is right

Kansas runs its civil procedure by statute rather than by court rule, and K.S.A. 60-237 is its version of Rule 37. The numbering follows the federal pattern — 60-233 is interrogatories, 60-234 is production, 60-237 is compelling and sanctions.

The fee structure is asymmetric in the movant's favor: the court must award expenses when the motion is granted, but only may when it is denied.

That makes a well-founded Kansas motion cheaper to bring than the equivalent in Georgia or Mississippi, where both directions are mandatory.

The certification

K.S.A. 60-237(a) requires the motion to include a certification that the movant has in good faith conferred or attempted to confer with the party failing to make disclosure or discovery, in an effort to obtain it without court action.

"Conferred or attempted to confer" — a party who will not engage cannot block the motion, but the attempt must be certified. And as in the other modern versions, filing before attempting in good faith is an exception to the fee award, so the certification protects your costs as well as your motion.

One forum

K.S.A. 60-237(a):

must be made in the court where the action is pending.

No deposition exception and no non-party exception. Everything goes to the court where the action is pending.

What can be compelled

The statute carries the familiar grounds — a deponent who fails to answer, a corporation that fails to designate, a party that fails to answer an interrogatory, and a party that fails to produce or permit inspection — together with a route to compel disclosure.

It also carries the evasive-answer provision: an evasive or incomplete disclosure, answer or response is treated as a failure.

Fees

Both are subject to substantial justification or other circumstances making an award unjust, and the award reaches the party, the advising attorney, or both.

Producing after the motion is filed does not avoid the award — a party that waits for a motion before complying is still exposed.

Contempt for a deposition refusal

K.S.A. 60-237(b) provides that where the court where the deposition is being taken orders a deponent to be sworn or to answer a question and the deponent fails to obey, "the failure may be treated as contempt of court."

So although the motion itself goes to the court where the action is pending, the contempt power for a deposition refusal sits with the deposition court.

Once an order is disobeyed

K.S.A. 60-237(b) supplies the substantive sanctions — deemed-established facts, preclusion, striking pleadings, staying proceedings, dismissal, default judgment and contempt.

Before you file

1. Confirm proper service and that the response period has run — see responding to a Kansas petition for the case timetable.
2. Confer and certify it. It is a condition of recovering expenses.
3. File in the court where the action is pending.
4. Quote the evasive-answer provision where the response was thin rather than absent.

If a default judgment has already been entered, note that K.S.A. 60-255(b) routes relief through two statutes — see setting aside a Kansas default judgment.

How Kansas compares

A short checklist

1. Certify the conference in the motion.
2. File where the action is pending — there is no alternative forum.
3. Quote the evasive-answer provision.
4. Say that late production does not defeat the fee claim.
5. Remember the tilt — mandatory if you win, discretionary if you lose. That makes a solid motion worth bringing.
6. For a deposition refusal, contempt lies with the deposition court, not the court where the action is pending.

Where these rules live

• K.S.A. 60-226 — General provisions governing discovery
• K.S.A. 60-233 — Interrogatories to parties
• K.S.A. 60-234 — Producing documents and things
• K.S.A. 60-237 — Compelling discovery; failure to comply; sanctions

This page explains what the statutes say. It isn't legal advice, and what makes an opposition substantially justified is developed in case law this site doesn't cover.