K.S.A. 60-227.Perpetuation of testimony; petition; order

Sometimes a witness's testimony is at risk of disappearing before a lawsuit can even be filed. Subsection (a) lets a person who expects to be a party to a future Kansas case, but can't yet bring or cause it to be brought, file a verified petition asking to depose named persons to preserve their testimony. The petition has to identify the expected adverse parties and their addresses so far as known, describe the subject matter and the petitioner's interest (attaching any document whose validity or construction might be at issue), lay out the facts the petitioner wants to establish and why perpetuation matters, and name each deponent along with the expected substance of their testimony. Petitions concerning a will's validity go in the county of the testator's residence; other petitions go where an expected adverse party resides.

Notice has real teeth: the petitioner must serve each expected adverse party at least 21 days before the hearing, using the methods for personal service of summons, restricted mail, or another court-ordered method that ensures actual notice, though the court can shorten that window on a showing of extraordinary circumstances. Before authorizing the depositions, the court has to be satisfied on three points — that the petition isn't a backdoor discovery device, that perpetuating the testimony may prevent a failure or delay of justice, and that the petitioner can't yet bring the case. If satisfied, the court issues an order naming the deponents, describing the subject matter, and setting the time, place, and method of examination, and the depositions proceed under the general discovery rules.

A deposition taken this way can be used later as evidence, subject to the same limits and objections as if the deponent testified live at trial — but with a catch: unless it's the deposition of a party being offered against that party, it can't be used unless the deponent is unavailable at trial. Subsection (b) provides a parallel process for a party who wants to perpetuate testimony while a judgment is on appeal or appealable, through a motion instead of a petition, on the same notice and service requirements. The remaining subsections make clear this section doesn't limit a court's independent power to entertain an action to perpetuate testimony, doesn't restrict using a deposition to impeach the deponent, and that a deposition taken under a similar procedure in another jurisdiction is just as admissible in Kansas as one taken under this section.