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Issue link: https://kentuckybenchandbar.epubxp.com/i/546018
20 B&B; • 7.15 K E N T U C K Y C I V I L P R O C E D U R E : A R U L E S C O M P A R I S O N CR 17 – Capacity to Sue and Be Sued Kentucky's list of persons who may sue on behalf of another without joining the person for whose benefit the action is brought is broader than the federal rule, but that is partly because FRCP 17 expressly de- fers to state law on certain is- sues of capacity to sue or be sued. Careful attention should be paid to the applicable rule, and any state rules designated by FRCP 17, to ensure that the proper party is before the court. CR 23 – Class Actions While CR 23 remains similar to FRCP 23, any class action (or "mass action") brought in ei- ther court is also potentially subject to the federal Class Action Fairness Act ("CAFA"), 28 U.S.C. §1332(d). Thus actions ini- tially filed in state court un- der CR 23 may be subject to removal to federal court un- der CAFA where they would be governed by FRCP 23. 14 CR 25 – Substitution of Parties Kentucky's rule says substitution of a proper party for a de- ceased party must occur "with- in the period allowed by law." CR 25.01. This implicates KRS 395.278, specifying a one-year period after death in which an application to revive an action may be filed. FRCP 25(a)(1) contains an express time limit of 90 days for filing a motion to substitute. CR 26 – General Provisions for Discovery FRCP 26 has been amended nearly beyond recognition, while a previous version re- mains essentially intact in the form of CR 26. For example, federal practice now provides for mandatory initial disclo- sures; specifies the timing of expert disclosures and the con- tents (both for witnesses who must prepare written reports and those who do not); ex- pressly protects drafts of expert reports and disclosures; and ex- pressly requires a privilege log. While some of the federal pro- tocols are observed in state practice as a matter of choice or good practice, the actual governing rules are now very different. CR 28 – Logistics of Depositions Practice under CR 28, following the use of depositions taken out of state and the taking of depositions here for use in oth- er states, is now also subject to KRS 421.360, the Uniform Inter- state Depositions and Discov- ery Act. The federal rule is more directed toward foreign countries (and such circum- stances may implicate The Hague Convention on the Tak- ing of Evidence Abroad in Civil or Commercial Matters). The safest approach in any case is to consider first where the dep- osition will be used and make sure that those rules are satis- fied, and then to consider where the deposition must be taken so that the evidence can actually be obtained. If the deposition is to be used in Ken- tucky and the witness is in Ken- tucky, CR 28 will not likely be implicated at all (except to make sure the deposition is tak- en before a person listed in CR 28.01). But if the deposition is to be taken in California for use in a Kentucky proceeding, care- ful attention to CR 28.02, KRS 421.360, and whatever Califor- nia procedure requires must all be considered. Only the federal rule expressly disqualifies a party's relative or employee from taking deposi- tions. FRCP 28 (c). CR 29 – Stipulations Governing Discovery Procedures Kentucky's rule is more restric- tive than FRCP 29 concerning what stipulations the parties may reach to modify discovery deadlines. CR 29 provides that court approval is needed even to extend deadlines for re- sponses to interrogatories and requests for ad- missions and for pro- duc- tion of documents. This rule is certainly more hon- ored in the breach than in actu- al observance, as parties fre- quently cooperate in extending state-court deadlines, especial- ly in complex cases. Waiver or estoppel principles presumably would prevent a cooperating party from reneging on such extensions. The federal rule lim- its such cooperation only if it would interfere with deadlines otherwise set by the court or delay other proceedings. CR 30 – Depositions Upon Oral Examination The major difference between CR 30 and FRCP 30 is that dep- ositions can be taken almost immediately in state court (30 days after service of summons), whereas federal practice is con- trolled by a mandatory "meet and confer" scheduling confer- ence at the beginning of the case. 15 Once depositions are con- vened, the rules are very similar. For example, while Kentucky's rule contains more detailed provisions on video deposi- tions, both sets of rules allow for video depositions or steno- graphic recordings, or both. Both rules also allow for organi- zations to be deposed so long as the entity receives a descrip- tion "with reasonable particu- larity" in the areas of inquiry. Both allow a party or witness to suspend the deposition when necessary to seek an order to limit or terminate the deposi- tion. 16 But the rules differ in such details on when and how a request for the witness to sign is made, (in writing, CR 30.05; on request before the deposi- tion is completed, FRCP 30(e)); how many can be taken (only 10 under FRCP 30 (a)(2)); and how long they can last (1 day of 7 hours under FRCP 30(d)(1)). Such de- tails make deposition practice another key area in which the applicable rule should be studied carefully. CR 31 – Depositions by Written Questions While both sets of rules allow for depositions upon written questions (rarely used in actual practice), the deadlines for cross-questions are different. CR 31.10(3) allows 30 days for cross-questions, followed by 10 days for redirect; FRCP 31(a)(5) allows only 14 days for cross and 7 days for redirect, but does allow re-cross 7 days after that. CR 32 – Use of Depositions in Court Proceedings While both the state and feder- al rules allow the use of deposi- tions at trial where the witness is distant or unavailable, Ken- tucky's rule contains notable specific provisions for gover- nors, postmasters, lawyers, bank tellers and quite a few others. This comes up perhaps most routinely with medical proof, because CR 45.05 pro-