This is a follow-up to my last post about privacy protection in court filings. Confusion sometimes arises as to whether answers to discovery requests (interrogatories, requests for production and requests for admission) are required to be filed in the court clerk’s office under the Kentucky Rules of Civil Procedure, local rules of Kentucky circuit courts, and local practice. Although a literal reading of the civil rules suggests that discovery responses should be filed, local practice in some circuits is not to file them, and at least one circuit’s local rules provide that they are not to be filed.
CR 5.05(1) provides that “all papers after the complaint required to be served upon a party shall be filed with the court either before service or within a reasonable time thereafter.” CR 33.01, CR 34.02(2) and 36.01(2) require service of answers to interrogatories, responses to requests for production, and answers to requests for admission, respectively, thereby arguably bringing them within the filing requirement of CR 5.05(1). The only exception to the filing requirement is CR 5.06(1), which provides that interrogatories, requests for production, requests for admission, and subpoenas are not to be filed. Literally read, CR 5.06(1) applies only to the discovery requests themselves, and does not mention the answers and responses thereto. Thus a strict reading of the civil rules would call for filing of all responsive material.
At least one circuit has a local rule (Fayette Circuit Court Local Rule 22) that expressly exempts answers to interrogatories and responses to requests for production from the classes of documents that must be filed. One might argue that a local rule, which must be approved by the Chief Justice of the Kentucky Supreme Court, would not be necessary if the Rules of Civil Procedure already contained that exemption. In addition, other local rules (including Jefferson County Local Rule 1408, and Rule 8(A)(1) of the Uniform Local Court Rules (“ULCR”) of Kenton, Campbell, Boone and Gallatin Counties) incorporate the basic provisions of CR 5.06(1) exempting the discovery requests themselves from the filing requirement, without mentioning responses to those requests. Moreover, ULCR 8(A)(1)(c) provides that requests for admission may be filed once the time for answering has passed without answers having been received. This provision would appear to contemplate that responsive material should be filed with the clerk, since requests for admission that are not answered timely may be deemed admitted.
But in most cases there is no practical reason to require the routine filing of discovery answers or documents produced in discovery with the clerk or the trial court, and the local practice in some counties is not to file them. Exceptions would be when court action is requested with respect to one of the discovery requests or responses, such as the filing of a motion to compel discovery or a motion for protective order. Keeping court files free of voluminous discovery documents would also serve the ends of efficiency and conservation of public resources. Of course, our state courts’ adoption of an electronic filing process similar to that used for years in federal courts would obviate that concern, as would the filing of voluminous documents on disk or CD.
In summary, while local practice in some circuit courts is not to file discovery responses, a strict reading of the applicable civil rules suggests that they should be filed. Parties are urged to consult local rules and contact court clerks to determine local practice.
If a party elects to file responsive discovery material, CR 5.05(1) provides that materials may be filed “a reasonable time” after service. Delivery to the clerk by mail should suffice. In the absence of prejudice to another party, the meaning of “reasonable time” should be liberally construed.
Keep in mind that any discovery material that is filed should comply with the privacy protection provisions of CR 7.03, which became effective April 1, 2009.
For more information, contact Dave Kramer at firstname.lastname@example.org or (859) 341-1881.
The foregoing post includes commentary reprinted from the forthcoming 2011 supplement to Rules of Civil Procedure Annotated, 6th ed. (Vols. 6 & 7, Kentucky Practice Series), by David V. Kramer and Todd V. McMurtry, with permission of the authors and publisher. Copyright (c) 2011 Thomson Reuters. For more information about this publication please visit http://store.westlaw.com/rules-of-civil-litigation-annotated-6th-vols-6-7-kentucky/130503/11774808/productdetail.
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