Discovery Deficiency Meet-and-Confer Letter

Discovery Deficiency Meet-and-Confer Letter — Kansas

[FIRM NAME]
[Street Address]
[City, Kansas ZIP]
Telephone: ([____]) [____]-[________]
Facsimile: ([____]) [____]-[________]
Email: [________________________________]

[__/__/____]

VIA [________________________________]
(Email / Certified Mail / Hand Delivery)

[Opposing Counsel Name]
[Law Firm Name]
[Street Address]
[City, State ZIP]

Re: [Case Name], [Court Name], [County] County, Case No. [________________]
Discovery Deficiency — Meet-and-Confer Letter (K.S.A. 60-237(a)(1))

Dear [Mr./Ms./Mx.] [________________________________]:

I. Purpose of This Letter

This letter is sent pursuant to K.S.A. 60-237(a)(1) and constitutes [Requesting Party]'s written, good-faith effort to resolve identified discovery deficiencies without judicial intervention. Before filing any motion to compel, K.S.A. 60-237(a)(1) requires the moving party to include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery. The certification must also describe the steps taken by all attorneys or unrepresented parties to resolve the issues in dispute.

PLEASE RESPOND IN WRITING NO LATER THAN [__/__/____] (10 business days from the date of this letter). Failure to respond or to resolve the deficiencies identified herein will result in the filing of a motion to compel accompanied by a request for attorney's fees and costs under K.S.A. 60-237(a)(5).

II. Factual Background

On [__/__/____], [Requesting Party] served the following discovery upon [Responding Party]:

☐ Interrogatories (Set [____]), consisting of [____] interrogatories
☐ Requests for Production of Documents (Set [____]), consisting of [____] requests
☐ Requests for Admission (Set [____]), consisting of [____] requests
☐ Other: [________________________________]

Responses were due on [__/__/____] (30 days after service per K.S.A. 60-233(b)(2), 60-234(b)(2)(A), 60-236(a)(3)).

On [__/__/____], [Responding Party] served responses. Those responses are deficient in the respects identified below.

☐ No response has been received despite the deadline having passed.
☐ Responses were served but are substantively deficient as described below.
☐ An extension was agreed upon; the extended deadline of [__/__/____] has now passed.

III. Kansas Discovery Rules — Applicable Standards

A. Interrogatories (K.S.A. 60-233)

• Responses due within 30 days of service (K.S.A. 60-233(b)(2))
• Maximum of 30 interrogatories including all discrete subparts without leave of court (K.S.A. 60-233(a)(1))
• Answers must be signed under oath by the party; objections must be signed by the attorney (K.S.A. 60-233(b)(3)-(4))
• Objections must state grounds with particularity
• Business records option under K.S.A. 60-233(d): responding party may specify records where the burden of ascertaining the answer is substantially the same for both parties

B. Requests for Production (K.S.A. 60-234)

• Responses due within 30 days of service (K.S.A. 60-234(b)(2)(A))
• Documents must be produced as kept in the ordinary course of business or organized to correspond to each request (K.S.A. 60-234(b)(2)(E))
• Responding party must state whether any responsive materials are being withheld and on what basis (K.S.A. 60-234(b)(2)(C))
• For ESI, production must be in a form the party ordinarily maintains it or in a reasonably usable form (K.S.A. 60-234(b)(2)(E))

C. Requests for Admission (K.S.A. 60-236)

• Responses due within 30 days of service (K.S.A. 60-236(a)(3))
• Failure to timely respond results in matters being deemed admitted (K.S.A. 60-236(a)(3))
• Denials must specifically deny the matter or set forth reasons why the party cannot truthfully admit or deny
• "Lack of information" response requires a statement that a reasonable inquiry was made (K.S.A. 60-236(a)(4))

D. Scope of Discovery (K.S.A. 60-226(b))

Kansas discovery follows proportionality principles: discovery must be proportional to the needs of the case, considering the importance of issues at stake, the amount in controversy, the parties' resources and access to information, and the importance of discovery in resolving the issues.

E. Meet-and-Confer Requirement (K.S.A. 60-237(a)(1))

A motion to compel must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to make discovery. The certification must describe the steps taken by all attorneys to resolve the issues. Courts will scrutinize this certification and may deny motions that lack a genuine good-faith effort.

F. ESI Preservation (K.S.A. 60-237(e))

K.S.A. 60-237(e) addresses sanctions for failure to preserve ESI. Where ESI is lost because a party failed to take reasonable steps to preserve it when it should have anticipated litigation, the court may impose sanctions including:

• An order presuming certain facts
• Adverse inference jury instruction
• Dismissal or default judgment (in cases of serious prejudice with intent to deprive)

IV. Identified Deficiencies — Interrogatories

The following interrogatory responses are deficient:

Specific deficiency types identified (check all that apply):

☐ No Verification / Oath — K.S.A. 60-233(b)(3) requires interrogatory answers to be signed under oath by the party. No sworn verification accompanies the answers to Interrogatory Nos. [____].

☐ Incomplete Answer — Interrogatory No. [____] asks for [________________________________] but the response provides only [________________________________], omitting [________________________________].

☐ Boilerplate / General Objections — The block of general objections preceding the specific responses is impermissible under Kansas practice. Objections must be specific to each interrogatory and state grounds with particularity.

☐ Improper Overbreadth Objection Without Substantive Response — The objection to Interrogatory No. [____] is not accompanied by any substantive answer. Under Kansas law, the party must answer to the extent the interrogatory is not objectionable.

☐ Improper Burden Objection Without Factual Support — No factual basis or supporting declaration has been provided to substantiate the claimed undue burden for Interrogatory No. [____].

☐ Proportionality Objection Unsupported — A bare proportionality objection under K.S.A. 60-226(b)(1) without factual support is insufficient for Interrogatory No. [____].

☐ Business Records Response Deficient — If invoking K.S.A. 60-233(d), the party must specify the records with sufficient detail and confirm the burden is substantially the same for both parties.

☐ Other: [________________________________]

V. Identified Deficiencies — Requests for Production

The following requests for production responses are deficient:

Specific deficiency types identified (check all that apply):

☐ Blanket Objections Without Substantive Response — RFP Nos. [____] received only objections with no indication of whether any responsive documents exist or will be produced.

☐ Failure to State Whether Documents Are Withheld — K.S.A. 60-234(b)(2)(C) requires the responding party to state whether any responsive materials are being withheld on the basis of an objection. RFP No. [____] does not comply.

☐ No Privilege Log — Documents have been withheld on privilege or work-product grounds for RFP Nos. [____] but no privilege log has been provided. K.S.A. 60-226(b)(5)(A) requires a privilege log enabling assessment of the claim.

☐ Incomplete Production — RFP No. [____] seeks [________________________________], but the production is incomplete because [________________________________].

☐ No Date Certain for Production — The response to RFP No. [____] states production is forthcoming without a specific date. Please confirm a date certain for production completion.

☐ ESI Not in Usable Format — ESI responsive to RFP No. [____] was not produced in the form ordinarily maintained or in a reasonably usable form, as required by K.S.A. 60-234(b)(2)(E).

☐ Documents Not Organized — Documents produced are not organized as kept in the ordinary course of business and are not labeled to correspond to each specific request, as required by K.S.A. 60-234(b)(2)(E).

☐ Other: [________________________________]

VI. Identified Deficiencies — Requests for Admission

The following requests for admission responses are deficient:

Specific deficiency types identified (check all that apply):

☐ Evasive Denial — RFA No. [____] was denied in a manner that does not specifically deny the matter or explain why it cannot be truthfully admitted or denied, as required by K.S.A. 60-236(a)(4).

☐ Improper "Lack of Information" Response — RFA No. [____] claims insufficient information without stating that a reasonable inquiry was made, as required by K.S.A. 60-236(a)(4).

☐ Improper Objection — The objection to RFA No. [____] is not well-founded within the scope of K.S.A. 60-226(b)(1).

☐ Deemed Admitted — No response to RFA Nos. [____] was served within the 30-day deadline. Those matters are now deemed admitted under K.S.A. 60-236(a)(3). Please advise whether [Responding Party] intends to move to withdraw or amend the admissions under K.S.A. 60-236(b).

☐ Other: [________________________________]

VII. Privilege Log Deficiencies

K.S.A. 60-226(b)(5)(A) requires that when a party withholds otherwise discoverable information by claiming privilege or work-product protection, the party must: (1) expressly make the claim, and (2) describe the nature of the documents in a manner enabling other parties to assess the claim.

A compliant privilege log must include for each withheld document:

• Date of the document
• Author(s) and all recipient(s)
• General subject matter (without revealing privileged content)
• Privilege or protection claimed
• Whether document is withheld in full or produced in redacted form

☐ No privilege log has been provided despite documents being withheld on privilege grounds.
☐ The privilege log provided is deficient because: [________________________________]
☐ Please provide a complete privilege log by [__/__/____].

VIII. ESI Issues and Preservation

☐ ESI responsive to RFP Nos. [____] has not been produced.
☐ ESI was not produced in a reasonably usable form; please propose an ESI production protocol.
☐ [Requesting Party] is concerned that ESI may not be preserved. Please confirm litigation holds are in place for all data sources relevant to this matter.

Under K.S.A. 60-237(e), if ESI is lost because a party failed to take reasonable steps to preserve it when litigation was reasonably anticipated, the court may impose curative measures, presume facts, give an adverse inference instruction, or (in cases of intentional deprivation) dismiss the action or enter default.

IX. Demand for Supplementation

[Requesting Party] demands that [Responding Party] serve complete and verified supplemental responses to all deficiencies identified above no later than:

[__/__/____] (the "Supplementation Deadline")

This deadline is [____] business days from the date of this letter.

X. Meet-and-Confer Availability

[Requesting Party] is available to confer by telephone or in person at the following times (all Central Time):

• [__/__/____] at [____:____] [AM/PM]
• [__/__/____] at [____:____] [AM/PM]
• [__/__/____] at [____:____] [AM/PM]

Please contact the undersigned to schedule a conference or to propose alternative times. [Requesting Party] intends to document the details of any conference held for purposes of the K.S.A. 60-237(a)(1) certification.

XI. Warning — Motion to Compel and Sanctions

If [Responding Party] fails to serve substantially complete supplemental responses by the Supplementation Deadline, or the parties cannot resolve disputes through the meet-and-confer process, [Requesting Party] will file a Motion to Compel pursuant to K.S.A. 60-237(a).

The motion will include:

1. This letter as evidence of good-faith efforts
2. A certification describing the steps taken to resolve disputes, per K.S.A. 60-237(a)(1)
3. A request for reasonable attorney's fees and expenses per K.S.A. 60-237(a)(5)

Sanctions available under K.S.A. 60-237:

Under K.S.A. 60-237(a)(5), if the motion to compel is granted, the court must require the party whose conduct necessitated the motion to pay the movant's reasonable expenses including attorney's fees, unless the failure was substantially justified or other circumstances make an award unjust.

Under K.S.A. 60-237(b)(2), for failure to comply with a court order:

• Directing that designated facts be taken as established
• Prohibiting the disobedient party from supporting or opposing designated claims or defenses
• Striking pleadings in whole or in part
• Entering a default judgment or dismissing the action
• Treating the failure as contempt of court

Under K.S.A. 60-237(d), for failure to attend deposition or serve answers:

• Award of expenses and attorney's fees
• Additional sanctions as authorized by K.S.A. 60-237(b)(2)(A)-(C)

XII. Preservation Reminder

Please confirm that litigation holds are in place for all potentially relevant documents and ESI, including email, text messages, shared drives, cloud storage, and social media communications related to this matter.

XIII. Certification of Good Faith

This letter constitutes [Requesting Party]'s written record of good-faith efforts to resolve the above-described discovery disputes pursuant to K.S.A. 60-237(a)(1). This letter, along with a description of any subsequent conference, will be attached to any motion to compel filed in this matter. The certification filed with any such motion will describe the steps taken by all attorneys to resolve the issues in dispute.

Sincerely,

______________________________
[Attorney Name], Kansas Bar No. [____]
[Law Firm Name]
[Address]
[City, Kansas ZIP]
([____]) [____]-[________]
[Email Address]
Counsel for [Party Name]

CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], a true and correct copy of the foregoing Discovery Deficiency Meet-and-Confer Letter was served upon:

[Opposing Counsel Name], [Law Firm], [Address]

☐ Electronic Mail: [________________________________]
☐ U.S. Mail, First Class, Postage Prepaid
☐ Certified Mail, Return Receipt Requested
☐ Hand Delivery
☐ Kansas eCourt Electronic Filing System

______________________________
[Attorney Name]