Kansas subpoenas: any party can stop a business-records subpoena before it issues

In most states a party who objects to a subpoena has to move to quash after it has gone out. Kansas puts the objection first for one common category of subpoena, and an objection there is not a motion — it is a veto.

Fourteen days' notice, and an objection blocks issuance

K.S.A. 60-245a(b)(1)(A):

Not less than 14 days before issuance of a nonparty business records subpoena, the requesting party must give notice to all parties of the intent to request the subpoena. A copy of the proposed subpoena must be served on all parties with the notice. If prior to the issuance of the subpoena any party objects to the production of the records sought, the subpoena must not be issued unless ordered by the court.

Three obligations and one consequence.

Fourteen days' notice of intent, to all parties.

A copy of the proposed subpoena goes with the notice, so the objection is informed.

And any party's objection stops it. Not the record holder's objection — any party's. The subpoena "must not be issued unless ordered by the court," which puts the burden of going to court on the party that wants the records.

For the requesting party that means building two weeks plus a possible motion into the schedule. For everyone else it means the objection window is before anything is served, and a party that waits for the subpoena to issue has missed the cheapest opportunity to stop it.

Two further duties sit on the requesting party. When the subpoena issues, "it must be accompanied by a form of declaration that complies with paragraph (3), to be completed by the records custodian" — the form is supplied, not left to the custodian to find. And if the records make a scheduled deposition unnecessary, the requesting party "must cancel the deposition and give written notice to the parties of the receipt of the records and the cancellation of the deposition."

How a custodian complies, and what the declaration must say

K.S.A. 60-245a(b)(2) lets the custodian answer by post:

Unless the personal attendance of a custodian of the business records or the production of original business records is required under subsection (c), it is sufficient compliance with a nonparty business records subpoena if, within the earlier of the time specified for compliance or 14 days after receipt of the subpoena, a custodian of the business records delivers to the party or attorney requesting them, by mail or otherwise, a true and correct copy of all records described in the subpoena and a completed copy of a declaration or an affidavit that complies with paragraph (3) accompanying the records.

Note the deadline: the earlier of the compliance date or 14 days after receipt. A subpoena that allows a month does not give the custodian a month.

The custodian "must file the declaration or affidavit with the court" — so the certification is on the docket even though the records are not. And a custodian who wants the paper back must say so on the outside: "If return of the records is desired, the words 'return requested' must be inscribed clearly on the envelope or wrapper."

The declaration itself has three prescribed statements:

(i) The declarant or affiant is an authorized custodian of the records and has authority to certify records; (ii) the copy is a true copy of all the records described in the subpoena that are in the business' possession, custody or control and whether it is all or part of the requested records; and (iii) the records were prepared by the personnel or staff of the business, or persons acting under their control, in the regular course of the business at or about the time of the act, condition or event recorded.

Where nobody has knowledge of all of it, "more than one declaration or affidavit may be made." And where the business holds nothing responsive, a custodian "must submit a declaration ... stating that fact" — a nil return is still a return.

Copying costs are payable in advance

K.S.A. 60-245a(b)(4):

The person to whom the subpoena is directed may demand the reasonable costs of copying the records. If the costs are demanded, the records need not be produced until the costs are advanced.

A custodian can hold production until paid. The same applies to other parties who want copies afterwards: on a request to inspect or copy, "the reasonable costs of copying the records may be demanded of the requesting party. If the costs are demanded, the copies need not be provided until the costs are advanced."

And there is a disposal rule to diary: thirty days after the case ends, records not introduced in evidence or required as part of the record "may be destroyed, or returned to the records custodian who submitted them if return was requested, after giving notice to the parties."

A non-party asked to travel too far is excused — without moving

K.S.A. 60-245(e) is the provision most worth knowing on the receiving end:

The issuing court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena. Punishment for contempt should be in accordance with K.S.A. 20-1204, and amendments thereto. A nonparty's failure to obey must be excused if the subpoena purports to require the nonparty to attend or produce at a place outside the limits of subsection (c)(3)(A)(ii).

Read the last sentence carefully. A non-party commanded to appear beyond the geographic limits is not required to move to quash, and is not at risk for staying away. The failure to obey "must be excused."

The limits it refers to are in the mandatory-quashing provision:

requires a resident of this state who is neither a party nor a party's officer to travel more than 100 miles from where that person resides, is employed or regularly transacts business in person or requires a nonresident who is neither a party nor a party's officer to travel more than 100 miles from where the nonresident was served with the subpoena, is employed or regularly transacts business in person, except that, subject to paragraph (3)(B)(iii), the person may be commanded to travel to the place of trial

Two different measuring points. A resident is measured from home, work or regular business; a nonresident from the place of service, work or regular business. And trial is the exception — a person may be commanded to travel to the place of trial, subject to the separate protection for substantial expense.

What the court must quash, and what it may quash

K.S.A. 60-245(c)(3)(A) lists four mandatory grounds — failure to allow a reasonable time to comply, the distance limits above, requiring disclosure of privileged or protected matter where no exception or waiver applies, and subjecting a person to undue burden.

Subsection (c)(3)(B) adds three discretionary ones, and they are the ones non-parties most often need:

(i) Disclosing a trade secret or other confidential research development or commercial information; (ii) disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party; or (iii) a person who is neither a party nor a party's officer to incur substantial expense to travel more than 100 miles to attend trial.

And there is a middle course. Rather than quashing, the court may order appearance or production on conditions, where the serving party "shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship" and "ensures that the subpoenaed person will be reasonably compensated."

Objecting to a records demand: the earlier of two dates

K.S.A. 60-245(c)(2)(B) lets a person commanded to produce serve a written objection instead of moving, and sets the deadline as a race:

The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served.

If an objection is made, the serving party may move to compel "at any time, on notice to the commanded person," and any order "must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance."

A person commanded only to produce or permit inspection "need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing or trial."

Two duties on the issuing side

K.S.A. 60-245(c)(1) states the burden-avoidance duty in mandatory terms for the court as well as the party:

A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The issuing court must enforce this duty and impose an appropriate sanction, which may include lost earnings and reasonable attorney's fees, on a party or attorney who fails to comply.

"Must enforce" and "impose an appropriate sanction" — and lost earnings are named, which matters for a witness who took a day off work.

There is also a pre-service notice rule for documents-only subpoenas in K.S.A. 60-245(b): where the subpoena commands production or inspection before trial independently of a deposition, "then before it is served, a notice must be served on each party."

Service must be accompanied by "the fees for one day's attendance and the mileage allowed by law" if attendance is required.

What the subpoena has to contain

K.S.A. 60-245(a)(1)(A) requires every subpoena to state the issuing court, the title, court and file number, the command, and:

(iv) set out the text of subsections (c) and (d).

The protections and the response duties travel on the face of the document, so the recipient does not have to find the statute. A subpoena that omits them is incomplete.

Two more content rules: a subpoena commanding attendance at a deposition "must state the method for recording the testimony," and a subpoena "may specify the form or forms in which electronically stored information is to be produced."

One final protection worth noting: under K.S.A. 60-245(c)(4), "A person confined in prison may be required to appear for examination by deposition only in the county where the person is imprisoned."

A short checklist

If you are issuing one:

1. For non-party business records, give 14 days' notice of intent with a copy of the proposed subpoena.
2. Expect an objection to stop you. Any party's objection means no subpoena without a court order.
3. Send the declaration form with the subpoena.
4. Set out the text of subsections (c) and (d) on the subpoena itself.
5. Serve the parties before serving a documents-only subpoena.
6. Cancel the deposition and tell everyone if the records make it unnecessary.

If you have been served:

1. Object in writing before the earlier of the compliance date or 14 days after service.
2. Check the distance. A non-party commanded beyond the limits is excused automatically.
3. Demand copying costs in advance; production waits until they are paid.
4. File your declaration with the court if you comply by delivering copies.

Where these rules live

• K.S.A. 60-245 — Subpoena
• K.S.A. 60-245a — Non-party business records subpoenas
• Kansas motion to compel discovery
• Responding to a Kansas petition
• Kansas summary judgment
• Kansas motion to dismiss

This page explains what the rules say. It isn't legal advice, and the contempt statute referred to in K.S.A. 60-245(e) is not carried on this site.