The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.
Issue link: https://kentuckybenchandbar.epubxp.com/i/546018
21 B&B; • 7.15 vides that a physician (or any witness whose deposition can be used under 32.01(c)) cannot be compelled to appear in court unless that witness failed to appear when subpoenaed for deposition. The federal rule has no counterpart to this. A general provision in federal Rule 32(4)(E) allows for deposi- tions to be used upon "motion and notice… in exceptional cir- cumstances… with due regard to the importance of live testi- mony in open court…." This makes federal and state prac- tice very different, with certain specified witnesses under Ken- tucky's CR 32 not subject to a state court trial subpoena, while those same witnesses might not be allowed to testify by deposition in federal court in the absence of exceptional cir- cumstances. This same preference for live testimony in federal proceed- ings shows up in Rule 43, dis- cussed below. Among the vast differences between CR 43 and FRCP 43 is the provision of CR 43.04(1) that testimony in cer- tain cases "shall be taken by deposition" unless otherwise ordered. While some of the proceedings listed in CR 43.04(1) have no federal coun- terpart (divorce, for example), FRCP 43 does not list any type of proceeding for which depo- sition testimony is to be pre- ferred over the appearance of a live witness. CR 33 – Interrogatories Federal practice is limited to 25 written interrogatories (unless otherwise stipulated or ordered by the court), while Kentucky al- lows a maximum of 30. Federal practice prohibits any kind of discovery before the schedul- ing conference, discussed above, but interrogatories un- der CR 33 can be served hand- in-hand with the complaint in state court. In such cases, the time for response is extended from the usual 30 days to 45 days. CR 33.01(2). CR 34 – Document Requests As in the case of interrogato- ries, Kentucky allows document requests to be served with the complaint, but allows 45 days (instead of 30) for a response in such cases. This is very different from modern federal practice, where mandatory initial disclo- sures and scheduling confer- ences must come first. CR 35 – Physical and Mental Examinations FRCP 35 provides expressly that the party ordered to be ex- amined waives any privilege he or she may have concerning testimony about all other "ex- aminations of the same condi- tion" if the examined party asks for the court order and examin- er's report or deposes the court-ordered examiner. CR 37 – Failure to Make Discovery; Sanctions FRCP 37 requires a party who moves to compel discovery to certify that the movant has con- ferred in good faith with the party failing to make the dis- covery before asking the court to get involved. While CR 37 does not contain this require- ment, local rules should be consulted because many Ken- tucky circuits do follow federal practice on this point. A movant's failure to make the good faith attempt under the federal rule precludes the fed- eral court from awarding ex- penses to the moving party, even if the motion is ultimately granted. FRCP 37(a)(5)(A)(i). FRCP 37(e) expressly protects parties from sanctions where electronically stored informa- tion has been lost in the good- faith, routine operation of a sys- tem. While Kentucky's rule does not contain this express provi- sion, CR 37(d) in general allows a court to refuse an award of expenses in any circumstances where the award would be "un- just." The federal rule also authorizes sanctions against a party who refuses to cooperate in framing a joint discovery plan as re- quired by FRCP 26(f), for which there is no state counterpart. FRCP 37(f). CR 38 – Jury Trials When a jury demand is made in state court by one party for only some of the issues, the op- posing party has 10 days in which to serve a demand for tri- al by jury on other or all issues. CR 38.03. The federal rule al- lows 14 days. FRCP 38(c). CR 40 – Scheduling Trials CR 40 requires "reasonable no- tice" of the trial date to all par- ties not in default. While not ex- plicitly stated in the federal rules, this would seem also im- plicit in fundamental due process requirements. FRCP 40 does require each court "to provide by rule" for such scheduling and to give priority to scheduling trials in accor- dance with any federal statuto- ry preferences. CR 42 – Consolidation; Separate Trials The state rule provides that a court "shall order" separate tri- als of claims or issues if it deter- mines that separate trials would further convenience or avoid prejudice. The federal rule says "may," and specifically adds that "the Court must preserve any federal right to a jury trial." CR 43 – Evidence at Trial The state and federal rules are almost completely different, similar only in their requirement that most evidence should be taken in open court. CR 43.04(1); FRCP 43(a). Attorneys who generally practice in feder- al court should study CR 43 to prepare carefully for any state proceedings, as it governs the order of proof, burden of proof and many other details not ad- dressed by the federal rule. And as discussed under CR 32 above, it may not even be pos- sible to subpoena a witness for live testimony in state court un- less that witness failed to ap- pear at a deposition. CR 44 – Proof of Official Records The federal version provides for "Final Certification of Genui- ness" of a foreign record, and other means of proof under certain circumstances. The fed- eral version also specifically al- lows proof regarding lack of a record, after diligent search, which provision has been delet- ed from Kentucky's rules. The Kentucky Rules of Evidence now govern some of this proof and should, of course, be con- sidered in addition to these rules of civil procedure. CR 45 – Subpoenas Both rules allow a subpoenaed party to make written objection to the inspection or copying of documents and to rest on that objection unless the party serv- ing the subpoena obtains a court order. But the deadlines for doing so are different (10 days after service in state court, 14 days after service in federal court). Note that written objec- tions only protect against pro- ducing documents. If a witness has been validly subpoenaed to appear to give testimony, failure to appear can be pun- ished in both systems as con- tempt. CR 45.02; FRCP 45(g). A witness who does not want to appear must move to quash the subpoena, in state court on the grounds that "it is unrea- sonable or oppressive" (CR 45.02), or in federal court on the more specific grounds list- ed in FRCP 45(d)(3) (too little time to comply, exceeds the geographical limits, would re- quire disclosure of privileged or other protected materials, etc.) The state rule also provides res- idents with greater protection against forced travel for discov- ery (need only appear in the county where he resides or works, unless otherwise or-