1E9Ct5D

KANSASKenneth R. LangHINKLE LAW FIRM, LLC301 North Main Street, Suite 2000Wichita, KS 67202Phone (316) 267-2000www.hinklaw.comklang@hinklaw.com1. Does your state recognize an exemption from discovery (or a privilege) forpre-suit investigation materials? Is there a key to preserving thisexemption/privilege (i.e. involvement of counsel)?Yes, Kansas recognizes the work product privilege as a privilege from discovery for presuitinvestigation materials when, in light of the nature of the material and the factualsituation of the particular case, the material can fairly be said to have been prepared orobtained in anticipation of litigation. K.S.A. §60-226(b)(4). Kansas courts have appliedthis work product privilege to pre-suit investigation materials created by an insurancecompany at the request of counsel. See Heany v. Nibbelink, 23 Kan. App. 2d 583 (Kan.Ct. App. 1997). By virtue of counsel’s intervention, any subsequent investigationmaterial produced is considered to be work product, and as such, is privileged. “[W]hena file is prepared at the request of counsel and in anticipation of litigation, that file fallsunder the definition of work product as outlined in K.S.A. 60-226(b)(3).” Wedel v.Woods, 1999 Kan. App. Unpub. LEXIS 1132, 13 (Kan. Ct. App. Feb. 5, 1999). Prior tothe Nibbelink decision, the Kansas Supreme Court had recognized the distinctionbetween materials requested by counsel and those produced independently. In HenryEnterprises, Inc. v. Smith, the Court noted: “the initial investigation of a potential claim,made by an insurance company prior to the commencement of litigation, and notrequested by or made under the guidance of counsel, is made in the ordinary course ofbusiness of the insurance company, and not 'in anticipation of litigation or for trial' asthose terms are used in K.S.A. 60-226(b)(3)." Henry Enterprises, Inc. v. Smith, 225 Kan.615, 623, 592 P.2d 915 (1979).2. What is your state’s rule with regard to the discoverability of written orrecorded statements taken during investigation of an incident?Kansas has no specific rules regarding written or recorded statements taken during presuitinvestigation. As such, those materials are subject to the same tests as any othermaterial to determine whether they qualify as work product materials and are thuslyprivileged.