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Code of Civil Procedure

Book II. Ordinary Proceedings

Title I. Pleading

Chapter 1. General Dispositions

Art. 851. Three modes of procedure;  Book II governs ordinary proceedings

Three different modes of procedure are used in civil matters in the trial courts of this state: ordinary, summary, and executory.

The articles in this Book govern ordinary proceedings, which are to be used in the district courts in all cases, except as otherwise provided by law.

Summary and executory proceedings are regulated by the provisions of Book V.

Art. 852. Pleadings allowed;  replicatory pleadings prohibited

The pleadings allowed in civil actions, whether in a principal or incidental action, shall be in writing and shall consist of petitions, exceptions, written motions, and answers.  No replicatory pleadings shall be used and all new matter alleged in exceptions, contradictory motions, and answers, whether in a principal or incidental action, shall be considered denied or avoided.

Art. 853. Caption of pleadings;  adoption by reference;  exhibits

            Every pleading shall contain a caption setting forth the name of the court, the title and number of the action, and a designation of the pleading. The title of the action shall state the name of the first party on each side with an appropriate indication of other parties.

            A statement in a pleading may be adopted by reference in a different part of the same pleading or in another pleading in the same court. A copy of any written instrument that is an exhibit to a pleading is a part thereof.

            Acts 2018, No. 195, §1.

Art. 854. Form of pleading

No technical forms of pleading are required.

All allegations of fact of the petition, exceptions, or answer shall be simple, concise, and direct, and shall be set forth in numbered paragraphs.  As far as practicable, the contents of each paragraph shall be limited to a single set of circumstances.

 

Art. 855. Pleading special matters;  capacity

            Except as otherwise provided by law, it is not necessary to allege the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of a legal entity or an organized association of persons made a party. Such procedural capacity shall be presumed, unless challenged by the dilatory exception.

            Acts 2018, No. 195, §1.

Art. 856. Same;  fraud, mistake, or condition of the mind

In pleading fraud or mistake, the circumstances constituting fraud or mistake shall be alleged with particularity.  Malice, intent, knowledge, and other condition of mind of a person may be alleged generally.

Art. 857. Same;  suspensive conditions

In pleading the performance or occurrence of suspensive conditions, it is sufficient to allege generally that all such conditions have been performed or have occurred.  A denial of performance or occurrence shall be alleged specifically and with particularity.

Art. 858. Same;  official document or act

In pleading an official document or official act, it is sufficient to allege that the document was issued or the act done in compliance with law.

Art. 859. Same;  judgment or decision

In pleading a judgment of a domestic or foreign court, or a decision of a judicial or quasi judicial tribunal, or of a board, commission, or officer, it is sufficient to allege the judgment or decision without setting forth matter showing jurisdiction to render it.

Art. 860. Same;  time and place

For the purpose of testing the sufficiency of a pleading, allegations of time and place are material and shall be considered as all other allegations of material matter.

Art. 861. Same;  special damage

When items of special damage are claimed, they shall be specifically alleged.

Art. 862. Relief granted under pleadings;  sufficiency of prayer

Except as provided in Article 1703, a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief.

Art. 863. Signing of pleadings, effect

A. Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose physical address for service of process shall be stated. A party who is not represented by an attorney shall sign his pleading and state his physical address for service of process. If mail is not received at the physical address for service of process, a designated mailing address shall also be provided.

           

 B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading, and that to the best of his knowledge, information, and belief formed after reasonable inquiry, he certifies all of the following:

            

(1) The pleading is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.

          

  (2) Each claim, defense, or other legal assertion in the pleading is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law.

            

(3) Each allegation or other factual assertion in the pleading has evidentiary support or, for a specifically identified allegation or factual assertion, is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

           

 (4) Each denial in the pleading of a factual assertion is warranted by the evidence or, for a specifically identified denial, is reasonably based on a lack of information or belief.

           

 C. If a pleading is not signed, it shall be stricken unless promptly signed after the omission is called to the attention of the pleader.

            

D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party the amount of the reasonable expenses incurred because of the filing of the pleading, including reasonable attorney fees.

            

E. A sanction authorized in Paragraph D shall be imposed only after a hearing at which any party or his counsel may present any evidence or argument relevant to the issue of imposition of the sanction.

           

 F. A sanction authorized in Paragraph D shall not be imposed with respect to an original petition which is filed within sixty days of an applicable prescriptive date and then voluntarily dismissed within ninety days after its filing or on the date of a hearing on the pleading, whichever is earlier.

           

 G. If the court imposes a sanction, it shall describe the conduct determined to constitute a violation of the provisions of this Article and explain the basis for the sanction imposed.

 

Acts 1988, No. 442, §1, eff. Jan. 1, 1989; Acts 2010, No. 540, §1; Acts 2020, No. 13, §1.

 

NOTE: SEE ACTS 1988, NO. 442, §2.

Art. 864. Attorney subject to disciplinary action

An attorney may be subjected to appropriate disciplinary action for a wilful violation of any provision of Article 863, or for the insertion of scandalous or indecent matter in a pleading.

Art. 865. Construction of pleadings

Every pleading shall be so construed as to do substantial justice.

Chapter 2. Petition

Art. 891. Form of petition

A.  The petition shall comply with Articles 853, 854, and 863, and, whenever applicable, with Articles 855 through 861. It shall set forth the name, surname, and domicile of the parties; shall contain a short, clear, and concise statement of all causes of action arising out of, and of the material facts of, the transaction or occurrence that is the subject matter of the litigation; shall designate an address, not a post office box, for receipt of service of all items involving the litigation; and shall conclude with a prayer for judgment for the relief sought. Relief may be prayed for in the alternative.

B.  For petitions involving domestic violence brought pursuant to R.S. 46:2131 et seq., R.S. 9:361 et seq., Children's Code Article 1564 et seq., or Code of Civil Procedure Article 3601 et seq., the address and parish of the residence of each petitioner and each person on whose behalf the petition is filed may remain confidential with the court.

Acts 1990, No. 521, §2, eff. Jan. 1, 1991; Acts 1991, No. 48, §1; Acts 1997, No. 1156, §2.

Art. 892. Alternative causes of action

Except as otherwise provided in Article 3657, a petition may set forth two or more causes of action in the alternative, even though the legal or factual bases thereof may be inconsistent or mutually exclusive.  In such cases all allegations shall be made subject to the obligations set forth in Article 863.

Art. 893. Pleading of damages

A.(1)  No specific monetary amount of damages shall be included in the allegations or prayer for relief of any original, amended, or incidental demand.  The prayer for relief shall be for such damages as are reasonable in the premises except that if a specific amount of damages is necessary to establish the jurisdiction of the court, the right to a jury trial, the lack of jurisdiction of federal courts due to insufficiency of damages, or for other purposes, a general allegation that the claim exceeds or is less than the requisite amount is required.  By interrogatory, an opposing party may seek specification of the amount sought as damages, and the response may thereafter be supplemented as appropriate.

(2)  If a petition is filed in violation of this Article, the claim for a specific monetary amount of damages shall be stricken upon the motion of an opposing party and the court may award attorney's fees and costs against the party who filed the petition.

B.  The provisions of Paragraph A shall not be applicable to a suit on a conventional obligation, promissory note, open account, or other negotiable instrument, for alimony or child support, on a tax claim, or in a garnishment proceeding.

C.  The prohibitions in Paragraph A apply only to an original, amended, or incidental demand.  Evidence at trial or hearing of a specific monetary amount of damages shall be adduced in accordance with the Louisiana Code of Evidence or other applicable law.

Added by Acts 1988, No. 443, §1, eff. Jan. 1, 1989.  Amended by Acts 1989, No. 724, §1, eff. July 8, 1989; Acts 1992, No. 332, §1; Acts 2004, No. 334, §1.

Chapter 3. Exceptions

Art. 921. Exception defined

An exception is a means of defense, other than a denial or avoidance of the demand, used by the defendant, whether in the principal or an incidental action, to retard, dismiss, or defeat the demand brought against him.

 

Art. 922. Kinds of exceptions

Three exceptions and no others shall be allowed: the declinatory exception, the dilatory exception, and the peremptory exception.

Art. 923. Functions of exceptions

The function of the declinatory exception is to decline the jurisdiction of the court, while the dilatory exception merely retards the progress of the action, but neither exception tends to defeat the action.  The function of the peremptory exception is to have the plaintiff's action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action.

Art. 924. Form of exceptions

All exceptions shall comply with Articles 853, 854, and 863, and, whenever applicable, with Articles 855 through 861.  They shall set forth the name and surname of the exceptor, shall state with particularity the objections urged and the grounds thereof, and shall contain a prayer for the relief sought.

Art. 925. Objections raised by declinatory exception;  waiver

            A. The objections which may be raised through the declinatory exception include but are not limited to the following:

            (1) Insufficiency of citation.

            (2) Insufficiency of service of process, including failure to request service of citation on the defendant within the time prescribed by Article 1201(C), or failure to request service of petition within the time prescribed by Article 3955.

            (3) Lis pendens under Article 531.

            (4) Improper venue.

            (5) The court's lack of jurisdiction over the person of the defendant.

            (6) The court's lack of jurisdiction over the subject matter of the action.

            B. When two or more of these objections are pleaded in the declinatory exception, they need not be pleaded in the alternative or in any particular order.

            C. All objections which may be raised through the declinatory exception, except the court's lack of jurisdiction over the subject matter of the action, are waived unless pleaded therein.

            Acts 1990, No. 521, §2, eff. Jan. 1, 1991; Acts 1997, No. 578, §1; Acts 2006, No. 750, §1; Acts 2010, No. 407, §1; Acts 2017, No. 419, §1.

Art. 926. Objections raised by dilatory exception;  waiver

A.  The objections which may be raised through the dilatory exception include but are not limited to the following:

(1)  Prematurity.

(2)  Want of amicable demand.

(3)  Unauthorized use of summary proceeding.

(4)  Nonconformity of the petition with any of the requirements of Article 891.

(5)  Vagueness or ambiguity of the petition.

(6)  Lack of procedural capacity.

(7)  Improper cumulation of actions, including improper joinder of parties.

(8)  Discussion.

B.  All objections which may be raised through the dilatory exception are waived unless pleaded therein.

Acts 1995, No. 662, §1.

Art. 927. Objections raised by peremptory exception

A.  The objections which may be raised through the peremptory exception include but are not limited to the following:

(1)  Prescription.

(2)  Peremption.

(3)  Res judicata.

(4)  Nonjoinder of a party under Articles 641 and 642.

(5)  No cause of action.

(6)  No right of action, or no interest in the plaintiff to institute the suit.

(7)  Discharge in bankruptcy.

B.  The court may not supply the objection of prescription, which shall be specially pleaded.  The nonjoinder of a party, peremption, res judicata, the failure to disclose a cause of action or a right or interest in the plaintiff to institute the suit, or discharge in bankruptcy, may be noticed by either the trial or appellate court on its own motion.

Acts 1995, No. 662, §1; Acts 2008, No. 824, §1, eff. Jan. 1, 2009.

Art. 928. Time of pleading exceptions

            A. The declinatory exception and the dilatory exception shall be pleaded prior to or in the answer and, prior to or along with the filing of any pleading seeking relief other than entry or removal of the name of an attorney as counsel of record, extension of time within which to plead, security for costs, or dissolution of an attachment issued on the ground of the nonresidence of the defendant, and in any event, prior to the signing of a final default judgment. When both exceptions are pleaded, they shall be filed at the same time, and may be incorporated in the same pleading. When filed at the same time or in the same pleading, these exceptions need not be pleaded in the alternative or in a particular order.

            B. The peremptory exception may be pleaded at any stage of the proceeding in the trial court prior to a submission of the case for a decision and may be filed with the declinatory exception or with the dilatory exception, or both.

            Acts 1983, No. 60, §1; Acts 1997, No. 1055, §1; Acts 1999, No. 983, §1, eff. July 1, 2000; Acts 2017, No. 419, §1.

Art. 929. Time of trial of exceptions

A.  The declinatory exception, the dilatory exception, and the peremptory exception when pleaded before or in the answer shall be tried and decided in advance of the trial of the case.

B.  If the peremptory exception has been filed after the answer, but at or prior to the trial of the case, it shall be tried and disposed of either in advance of or on the trial of the case.  If the peremptory exception has been pleaded after the trial of the case, the court may rule thereon at any time unless the party against whom it has been pleaded desires and is entitled to introduce evidence thereon.  In the latter event, the peremptory exception shall be tried specially.

Acts 1987, No. 169, §1; Acts 1997, No. 1055, §1.

Art. 930. Evidence on trial of declinatory and dilatory exceptions

On the trial of the declinatory exception, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition, the citation, or return thereon.

On the trial of the dilatory exception, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.

Art. 931. Evidence on trial of peremptory exception

On the trial of the peremptory exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.

When the peremptory exception is pleaded in the trial court after the trial of the case, but prior to a submission for a decision, the plaintiff may introduce evidence in opposition thereto, but the defendant may introduce no evidence except to rebut that offered by plaintiff.

No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.

Art. 932. Effect of sustaining declinatory exception

A.  When the grounds of the objections pleaded in the declinatory exception may be removed by amendment of the petition or other action of plaintiff, the judgment sustaining the exception shall order the plaintiff to remove them within the delay allowed by the court; if the court finds, on sustaining the objection that service of citation on the defendant was not requested timely, it may either dismiss the action as to that defendant without prejudice or, on the additional finding that service could not have been timely requested, order that service be effected within a specified time.

B.  If the grounds of the objection cannot be so removed, or if the plaintiff fails to comply with an order requiring such removal, the action, claim, demand, issue, or theory subject to the exception shall be dismissed; except that if an action has been brought in a court of improper jurisdiction or venue, the court may transfer the action to a proper court in the interest of justice.

Acts 2003, No. 545, §1; Acts 2006, No. 750, §1.

Art. 933. Effect of sustaining dilatory exception

A.  If the dilatory exception pleading want of amicable demand is sustained, the judgment shall impose all court costs upon the plaintiff.  If the dilatory exception pleading prematurity is sustained, the premature action, claim, demand, issue or theory shall be dismissed.

B.  When the grounds of the other objections pleaded in the dilatory exception may be removed by amendment of the petition or other action by plaintiff, the judgment sustaining the exception shall order plaintiff to remove them within the delay allowed by the court; and the action, claim, demand, issue or theory subject to the exception shall be dismissed only for a noncompliance with this order.

Acts 2003, No. 545, §1.

Art. 934. Effect of sustaining peremptory exception

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court.  If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.

Acts 2003, No. 545, §1.

Chapter 4. Written Motions

Art. 961. Written motion required;  exception

An application to the court for an order, if not presented in some other pleading, shall be by motion which, unless made during trial or hearing or in open court, shall be in writing.

Art. 962. Form of written motion

A written motion shall comply with Articles 853 and 863, and shall state the grounds therefor, and the relief or order sought.  It must also comply with Article 854 if the motion is lengthy, and whenever applicable, with Articles 855 through 861.

Art. 963. Ex parte and contradictory motions;  rule to show cause

If the order applied for by written motion is one to which mover is clearly entitled without supporting proof, the court may grant the order ex parte and without hearing the adverse party.

If the order applied for by written motion is one to which the mover is not clearly entitled, or which requires supporting proof, the motion shall be served on and tried contradictorily with the adverse party.

The rule to show cause is a contradictory motion.

Art. 964. Motion to strike

The court on motion of a party or on its own motion may at any time and after a hearing order stricken from any pleading any insufficient demand or defense or any redundant, immaterial, impertinent, or scandalous matter.

Acts 1997, No. 1055, §1.

Art. 965. Motion for judgment on pleadings

Any party may move for judgment on the pleadings after the answer is filed, or if an incidental demand has been instituted after the answer thereto has been filed, but within such time as not to delay the trial.  For the purposes of this motion, all allegations of fact in mover's pleadings not denied by the adverse party or by effect of law, and all allegations of fact in the adverse party's pleadings shall be considered true.

Art. 966. Motion for summary judgment;  procedure

            A.(1) A party may move for a summary judgment for all or part of the relief for which he has prayed. A plaintiff's motion may be filed at any time after the answer has been filed. A defendant's motion may be filed at any time.

            (2) The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends.

            (3) After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.

            (4) The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. The court may permit documents to be filed in any electronically stored format authorized by court rules or approved by the clerk of the court.

            B. Unless extended by the court and agreed to by all of the parties, a motion for summary judgment shall be filed, opposed, or replied to in accordance with the following provisions:

            (1) A motion for summary judgment and all documents in support of the motion shall be filed and served on all parties in accordance with Article 1313 not less than sixty-five days prior to the trial.

            (2) Any opposition to the motion and all documents in support of the opposition shall be filed and served in accordance with Article 1313 not less than fifteen days prior to the hearing on the motion.

            (3) Any reply memorandum shall be filed and served in accordance with Article 1313 not less than five days prior to the hearing on the motion. No additional documents may be filed with the reply memorandum.

            (4) If the deadline for filing and serving a motion, an opposition, or a reply memorandum falls on a legal holiday, the motion, opposition, or reply is timely if it is filed and served no later than the next day that is not a legal holiday.

            C.(1) Unless otherwise agreed to by all of the parties and the court:

            (a) A contradictory hearing on the motion for summary judgment shall be set not less than thirty days after the filing and not less than thirty days prior to the trial date.

            (b) Notice of the hearing date shall be served on all parties in accordance with Article 1313(C) or 1314 not less than thirty days prior to the hearing.

            (2) For good cause shown, the court may order a continuance of the hearing.

            (3) The court shall render a judgment on the motion not less than twenty days prior to the trial.

            (4) In all cases, the court shall state on the record or in writing the reasons for granting or denying the motion. If an appealable judgment is rendered, a party may request written reasons for judgment as provided in Article 1917.

            D.(1) The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

            (2) The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made. Any objection to a document shall be raised in a timely filed opposition or reply memorandum. The court shall consider all objections prior to rendering judgment. The court shall specifically state on the record or in writing which documents, if any, it held to be inadmissible or declined to consider.

            E. A summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case as to that party or parties.

            F. A summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time.

            G. When the court grants a motion for summary judgment in accordance with the provisions of this Article, that a party or non-party is not negligent, is not at fault, or did not cause in whole or in part the injury or harm alleged, that party or non-party shall not be considered in any subsequent allocation of fault. Evidence shall not be admitted at trial to establish the fault of that party or non-party. During the course of the trial, no party or person shall refer directly or indirectly to any such fault, nor shall that party or non-party's fault be submitted to the jury or included on the jury verdict form.

            H. On review, an appellate court shall not reverse a trial court's denial of a motion for summary judgment and grant a summary judgment dismissing a case or a party without assigning the case for briefing and permitting the parties an opportunity to request oral argument.

            Amended by Acts 1966, No. 36, §1; Acts 1983, No. 101, §1, eff. June 24, 1983; Acts 1984, No. 89, §1; Acts 1992, No. 71, §1; Acts 1996, 1st Ex. Sess., No. 9, §1, eff. May 1, 1996; Acts 1997, No. 483, §§1, 3, eff. July 1, 1997; Acts 2001, No. 771, §1; Acts 2003, No. 867, §1; Acts 2010, No. 690, §1; Acts 2012, No. 257, §1; Acts 2012, No. 741, §1; Acts 2013, No. 391, §1; Acts 2014, No. 187, §1; Acts 2015, No. 422, §1, eff. Jan. 1, 2016.

 

            NOTE: See Acts 2015, No. 422, §2, regarding applicability.

Art. 967. Same;  affidavits

A.  Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.  The supporting and opposing affidavits of experts may set forth such experts' opinions on the facts as would be admissible in evidence under Louisiana Code of Evidence Article 702, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.  Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.  The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.

B.  When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial.  If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

C.  If it appears from the affidavits of a party opposing the motion that for reasons stated he cannot present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

D.  If it appears to the satisfaction of the court at any time that any of the affidavits presented pursuant to this Article are presented in bad faith or solely for the purposes of delay, the court immediately shall order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney fees.  Any offending party or attorney may be adjudged guilty of contempt.

Amended by Acts 1966, No. 36, §1; Acts 2003, No. 545, §1.

Art. 968. Effect of judgment on pleadings and summary judgment

Judgments on the pleadings, and summary judgments, are final judgments and shall be rendered and signed in the same manner and with the same effect as if a trial had been had upon evidence regularly adduced.  If the judgment does not grant mover all of the relief prayed for, jurisdiction shall be retained in order to adjudicate on mover's right to the relief not granted on motion.

An appeal does not lie from the court's refusal to render any judgment on the pleading or summary judgment.

Art. 969. Judgment on pleadings and summary judgment not permitted in certain cases;  exception

A.  Judgments on the pleadings and summary judgments shall not be granted in any action for divorce or annulment of marriage, nor in any case where the community, paraphernal, or dotal rights may be involved in an action between husband and wife.

B.(1)  Notwithstanding the provisions of Paragraph A, judgments on the pleadings and summary judgments may be granted without hearing in any action for divorce under Civil Code Article 103(1) under the following conditions:

(a)  All parties are represented by counsel;

(b)  Counsel for each party, after answer is filed, file a written joint stipulation of facts, request for judgment, and sworn verification by each party; and

(c)  Counsel for each party file a proposed judgment containing a certification that counsel and each party agree to the terms thereof.

(2)  The court may render and sign such judgments in chambers without a hearing and without the taking of testimony.

Acts 1986, No. 219, §2; Acts 1987, No. 271, §1; Acts 1990, No. 1009, §4, eff. Jan. 1, 1991.

Art. 970. Motion for judgment on offer of judgment

A.  At any time more than twenty days before the time specified for the trial of the matter, without any admission of liability, any party may serve upon an adverse party an offer of judgment for the purpose of settling all of the claims between them.  The offer of judgment shall be in writing and state that it is made under this Article; specify the total amount of money of the settlement offer; and specify whether that amount is inclusive or exclusive of costs, interest, attorney fees, and any other amount which may be awarded pursuant to statute or rule.  Unless accepted, an offer of judgment shall remain confidential between the offeror and offeree.  If the adverse party, within ten days after service, serves written notice that the offer is accepted, either party may move for judgment on the offer.  The court shall grant such judgment on the motion of either party.

B.  An offer of judgment not accepted shall be deemed withdrawn and evidence of an offer of judgment shall not be admissible except in a proceeding to determine costs pursuant to this Article.

C.  If the final judgment obtained by the plaintiff-offeree is at least twenty-five percent less than the amount of the offer of judgment made by the defendant-offeror or if the final judgment obtained against the defendant-offeree is at least twenty-five percent greater than the amount of the offer of judgment made by the plaintiff-offeror, the offeree must pay the offeror's costs, exclusive of attorney fees, incurred after the offer was made, as fixed by the court.

D.  The fact that an offer is made but not accepted does not preclude a subsequent offer or a counter offer.  When the liability of one party to another has been determined by verdict, order, or judgment, but the amount or extent of the damages remains to be determined by future proceedings, either party may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than thirty days before the start of hearings to determine the amount or extent of damages.

E.  For purposes of comparing the amount of money offered in the offer of judgment to the final judgment obtained, which judgment shall take into account any additur or remittitur, the final judgment obtained shall not include any amounts attributable to costs, interest, or attorney fees, or to any other amount which may be awarded pursuant to statute or rule, unless such amount was expressly included in the offer.

F.  A judgment granted on a motion for judgment on an offer of judgment is a final judgment when signed by the judge; however, an appeal cannot be taken by a party who has consented to the judgment.

Acts 1996, 1st Ex. Sess., No. 60, §1, eff. May 9, 1996; Acts 1997, No. 354, §1; Acts 2012, No. 557, §1.

Art. 971. Special motion to strike

A.(1)  A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim.

(2)  In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.

(3)  If the court determines that the plaintiff has established a probability of success on the claim, that determination shall be admissible in evidence at any later stage of the proceeding.

B.  In any action subject to Paragraph A of this Article, a prevailing party on a special motion to strike shall be awarded reasonable attorney fees and costs.

C.(1)  The special motion may be filed within ninety days of service of the petition, or in the court's discretion, at any later time upon terms the court deems proper.

(2)  If the plaintiff voluntarily dismisses the action prior to the running of the delays for filing an answer, the defendant shall retain the right to file a special motion to strike within the delays provided by Subparagraph (1) of this Paragraph, and the motion shall be heard pursuant to the provisions of this Article.

(3)  The motion shall be noticed for hearing not more than thirty days after service unless the docket conditions of the court require a later hearing.

D.  All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this Article.  The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. Notwithstanding the provisions of this Paragraph, the court, on noticed motion and for good cause shown, may order that specified discovery be conducted.

E.  This Article shall not apply to any enforcement action brought on behalf of the state of Louisiana by the attorney general, district attorney, or city attorney acting as a public prosecutor.

F.  As used in this Article, the following terms shall have the meanings ascribed to them below, unless the context clearly indicates otherwise:

(1)  "Act in furtherance of a person's right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue" includes but is not limited to:

(a)  Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.

(b)  Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official body authorized by law.

(c)  Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.

(d)  Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

(2)  "Petition" includes either a petition or a reconventional demand.

(3)  "Plaintiff" includes either a plaintiff or petitioner in a principal action or a plaintiff or petitioner in reconvention.

(4)  "Defendant" includes either a defendant or respondent in a principal action or a defendant or respondent in reconvention.

Acts 1999, No. 734, §1; Acts 2004, No. 232, §1; Acts 2012, No. 449, §1.

Chapter 5. Answer

Art. 1001. Delay for answering

A defendant shall file his answer within fifteen days after service of citation upon him, except as otherwise provided by law.

When an exception is filed prior to answer and is overruled or referred to the merits, or is sustained and an amendment of the petition ordered, the answer shall be filed within ten days after the exception is overruled or referred to the merits, or ten days after service of the amended petition.

The court may grant additional time for answering.

Art. 1002. Answer or other pleading filed prior to signing of final default judgment

            Notwithstanding the provisions of Article 1001, the defendant may file his answer or other pleading at any time prior to the signing of a final default judgment against him.

            Acts 2017, No. 419, §1.

Art. 1003. Form of answer

The answer shall comply with Articles 853, 854, and 863 and, whenever applicable, with Articles 855 through 861.  It shall admit or deny the allegations of the petition as required by Article 1004, state in short and concise terms the material facts upon which the defenses to the action asserted are based, and shall set forth all affirmative defenses as required by Article 1005.  It shall also contain a prayer for the relief sought.  Relief may be prayed for in the alternative.

Art. 1004. Denials

The answer shall admit or deny the allegations of fact contained in each paragraph of the petition, and all such allegations, other than those as to the amount of damages, are admitted if not denied in the answer.  If the defendant is without knowledge or information sufficient to justify a belief as to the truth of an allegation of fact made in the petition, he shall so state and this shall have the effect of a denial.  Denials shall fairly meet the substance of the allegations denied.  When the defendant intends in good faith to deny only a part of or to qualify an allegation of fact, he shall admit so much of it as is true and material and shall deny or qualify the remainder.

Art. 1005. Affirmative defenses

The answer shall set forth affirmatively negligence, or fault of the plaintiff and others, duress, error or mistake, estoppel, extinguishment of the obligation in any manner, failure of consideration, fraud, illegality, injury by fellow servant, and any other matter constituting an affirmative defense.  If a party has mistakenly designated an affirmative defense as a peremptory exception or as an incidental demand, or a peremptory exception as an affirmative defense, and if justice so requires, the court, on such terms as it may prescribe, shall treat the pleading as if there had been a proper designation.

Acts 2008, No. 824, §1, eff. Jan. 1, 2009.

Art. 1006. Alternative defenses

An answer may set forth two or more defenses in the alternative, even though the factual or legal bases thereof may be inconsistent or mutually exclusive.  All allegations in such cases are made subject to the obligations set forth in Article 863.

Chapter 6. Incidental Actions

Section 1. General Dispositions

Art. 1031. Incidental demands allowed

A.  A demand incidental to the principal demand may be instituted against an adverse party, a co-party, or against a third person.

B.  Incidental demands are reconvention, cross-claims, intervention, and the demand against third parties.

Acts 1983, No. 63, §1.

Art. 1032. Form of petition

An incidental demand shall be commenced by a petition which shall comply with the requirements of Articles 891, 892 and 893.  An incidental demand instituted by the defendant in the principal action may be incorporated in his answer to the principal demand.  In this event, the caption shall indicate appropriately the dual character of the combined pleading.

Amended by Acts 1988, No. 443, §2, eff. Jan. 1, 1989.

{{NOTE:  SEE ACTS 1988, NO. 443, §3.}}

Art. 1033. Delay for filing incidental demand

An incidental demand may be filed without leave of court at any time up to and including the time the answer to the principal demand is filed.

An incidental demand may be filed thereafter, with leave of court, if it will not retard the progress of the principal action, or if permitted by Articles 1066 or 1092.

An incidental demand that requires leave of court to file shall be considered as filed as of the date it is presented to the clerk of court for filing if leave of court is thereafter granted.

Amended by Acts 1970, No. 473, §1.

Art. 1034. Exceptions and motions

A defendant in an incidental action may plead any of the exceptions available to a defendant in a principal action, and may raise any of the objections enumerated in Articles 925 through 927, except that an objection of improper venue may not be urged if the principal action has been instituted in the proper venue.  Exceptions pleaded by the defendant in an incidental action shall be subject to all of the provisions of Articles 924 through 934.

A party to an incidental action may plead any of the written motions available to a party to a principal action, subject to the provisions of Articles 961 through 969.

Art. 1035. Answer

The answer in an incidental action shall be filed within the delay allowed by Article 1001, and shall be subject to all of the rules set forth in Articles 1001 and 1003 through 1006.

Acts 2014, No. 655, §1.

Art. 1036. Jurisdiction;  mode of procedure

A.  Except as otherwise provided in Article 4845, a court shall have jurisdiction over an incidental demand only if it would have had jurisdiction over the demand had it been instituted in a separate suit.  The only exceptions to this rule are those provided in the state constitution.

B.  The mode of procedure employed in the incidental action shall be the same as that used in the principal action, except as otherwise provided by law.

Acts 1995, No. 202, §1.

Art. 1037. Action instituted separately

When a person does not assert in an incidental demand the action which he has against a party to the principal action or a third person, he does not thereby lose his right of action, except as provided in Article 1113, and except as provided in Article 1061.

Acts 1990, No. 521, §2, eff. Jan. 1, 1991.

Art. 1038. Separate trial;  separate judgment

The court may order the separate trial of the principal and incidental actions, either on exceptions or on the merits; and after adjudicating the action first tried, shall retain jurisdiction for the adjudication of the other.

When the principal and incidental actions are tried separately, the court may render and sign separate judgments thereon.  When in the interests of justice, the court may withhold the signing of the judgment on the action first tried until the signing of the judgment on the other.

Art. 1039. Effect of dismissal of principal action

If an incidental demand has been pleaded prior to motion by plaintiff in the principal action to dismiss the principal action, a subsequent dismissal thereof shall not in any way affect the incidental action, which must be tried and decided independently of the principal action.

Art. 1040. Words “plaintiff” and “defendant” include plaintiff and defendant in an incidental action

Unless the context clearly indicates otherwise, wherever the words "plaintiff" and "defendant" are used in this Code, they respectively include a plaintiff and a defendant in an incidental demand.

Art. 1041. When prescribed incidental or third party demand is not barred

            An incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of main demand or in the case of a third party defendant within ninety days from service of process of the third party demand.

            Added by Acts 1970, No. 472, §1. Amended by Acts 1974, No. 86, §1; Redesignated from C.C.P. Art. 1067 by Acts 2017, No. 419, §5.

Section 2. Reconvention

Art. 1061. Actions pleaded in reconventional demand;  compulsory

A.  The defendant in the principal action may assert in a reconventional demand any causes of action which he may have against the plaintiff in the principal action, even if these two parties are domiciled in the same parish and regardless of connexity between the principal and reconventional demands.

B.  The defendant in the principal action, except in an action for divorce under Civil Code Article 102 or 103 or in an action under Civil Code Article 186, shall assert in a reconventional demand all causes of action that he may have against the plaintiff that arise out of the transaction or occurrence that is the subject matter of the principal action.

Acts 1990, No. 521, §2, eff. Jan. 1, 1991; Acts 1991, No. 367, §2; Acts 2006, No. 344, §2, eff. June 13, 2006.

Art. 1062. Pleading compensation

Compensation may be asserted in the reconventional demand.

Art. 1063. Service of reconventional demand;  citation unnecessary

The petition in reconvention, whether incorporated in the answer to the principal action or filed separately, shall be served on the plaintiff in the principal action in the manner prescribed by Article 1314.  Citation of the plaintiff in the principal action shall not be necessary.

Amended by Acts 1972, No. 662, §1.

Art. 1064. Additional parties

Persons other than those made parties to the original action may be made parties to the reconventional demand.

Acts 1995, No. 858, §1.

Art. 1065. Reconventional demand exceeding principal demand

The reconventional demand may or may not diminish or defeat the recovery sought in the principal demand.  It may claim relief exceeding in amount that sought in the principal demand.

Art. 1066. Action matured or acquired after pleading

An action which either matured or was acquired by the defendant in the principal action after answer may be presented, with the permission of the court, as a reconventional demand by supplemental pleading.

Section 3. Cross-Claims

Art. 1071. Cross-claims

A party by petition may assert as a cross-claim a demand against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or a reconventional demand or relating to any property that is the subject matter of the original action.  The cross-claim may include a demand that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of the demand asserted in the action against the cross-claimant.

Added by Acts 1983, No. 63, §1.

Art. 1072. Service of cross-claim, citation unnecessary

The petition in a cross-claim shall be served on the co-party in the manner prescribed by Article 1314.  Citation of the co-party shall not be necessary.

Added by Acts 1983, No. 63, §1.

Art. 1073. Additional parties

Persons other than those made parties to the original action may be made parties to a cross-claim.

Added by Acts 1983, No. 63, §1.

Section 4. Intervention

Art. 1091. Third person may intervene

A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:

(1)  Joining with plaintiff in demanding the same or similar relief against the defendant;

(2)  Uniting with defendant in resisting the plaintiff's demand; or

(3)  Opposing both plaintiff and defendant.

Art. 1092. Third person asserting ownership of, or mortgage or privilege on, seized property

A third person claiming ownership of, or a mortgage or privilege on, property seized may assert his claim by intervention.  If the third person asserts ownership of the seized property, the intervention may be filed at any time prior to the judicial sale of the seized property, and the court may grant him injunctive relief to prevent such sale before an adjudication of his claim of ownership.

If the third person claims a mortgage or privilege on the entire property seized, whether superior or inferior to that of the seizing creditor, the intervention may be filed at any time prior to the distribution by the sheriff of the proceeds of the sale of the seized property, and the court shall order the sheriff to hold such proceeds subject to its further orders.  When the intervener claims such a mortgage or privilege only on part of the property seized, and the intervention is filed prior to the judicial sale, the court may order the separate sale of the property on which the intervener claims a mortgage or privilege; or if a separate sale thereof is not feasible or necessary, or the intervener has no right thereto, the court may order the separate appraisement of the entire property seized and of the part thereof on which the intervener claims a mortgage or privilege.

An intervener claiming the proceeds of a judicial sale does not thereby admit judicially the validity, nor is he estopped from asserting the invalidity, of the claim of the seizing creditor.

Amended by Acts 1962, No. 92, §1.

Art. 1093. Service of petition;  citation unnecessary

When the intervention asserts ownership of, or a mortgage or privilege on, the seized property, the petition shall be served on the sheriff and all parties to the principal action as provided in Article 1313.  Any other petition of intervention shall be served on all parties to the principal action as provided in Article 1314.  Citation is not necessary in intervention.

 

Art. 1094. Intervener accepts proceedings

An intervener cannot object to the form of the action, to the venue, or to any defects and informalities personal to the original parties.

Section 5. Demand Against Third Party

Art. 1111. Defendant may bring in third person

The defendant in a principal action by petition may bring in any person, including a codefendant, who is his warrantor, or who is or may be liable to him for all or part of the principal demand.

In such cases the plaintiff in the principal action may assert any demand against the third party defendant arising out of or connected with the principal demand.  The third party defendant thereupon shall plead his objections and defenses in the manner prescribed in Articles 921 through 969, 1003 through 1006, and 1035.  He may reconvene against the plaintiff in the principal action or the third party plaintiff, on any demand arising out of or connected with the principal demand, in the manner prescribed in Articles 1061 through 1066.

Art. 1112. Defendant in reconvention may bring in third person

The defendant in reconvention likewise may bring in his warrantor, or any person who is or may be liable to him for all or part of the reconventional demand, and the rules provided in Articles 1111, and 1113 through 1115 shall apply equally to such third party actions.

Art. 1113. Effect of failure to bring in third party

A defendant who does not bring in as a third party defendant a person who is liable to him for all or part of the principal demand does not on that account lose his right or cause of action against such person, unless the latter proves that he had means of defeating the action which were not used, because the defendant either failed to bring him in as a third party defendant, or neglected to apprise him that the suit had been brought.  The same rule obtains with respect to a defendant in reconvention who fails to bring in as a third party defendant a person who is liable to him for all or part of the reconventional demand.

Art. 1114. Service of citation and pleadings

A citation and a certified copy of the third party petition shall be served on the third party defendant in the manner prescribed by Articles 1231 through 1293.  Unless previously served on or filed by the third party defendant, certified copies of the following pleadings shall also be served on him in the same manner: the petition in the principal demand; the petition in the reconventional demand, if any; and the answers to the principal and reconventional demands filed prior to the issuance of citation in the third party action.

Amended by Acts 1964, No. 4, §1.

Art. 1115. Defenses of original defendant available to third party defendant

The third party defendant may assert against the plaintiff in the principal action any defenses which the third party plaintiff has against the principal demand.

Art. 1116. Third party defendant may bring in third person

A third party defendant may proceed under Articles 1111 through 1115 against any person who is or may be liable to him for all or any part of the third party demand.

Chapter 7. Amended and Supplemental Pleadings

Art. 1151. Amendment of petition and answer;  answer to amended petition

A plaintiff may amend his petition without leave of court at any time before the answer thereto is served.  He may be ordered to amend his petition under Articles 932 through 934.  A defendant may amend his answer once without leave of court at any time within ten days after it has been served.  Otherwise, the petition and answer may be amended only by leave of court or by written consent of the adverse party.

A defendant shall plead in response to an amended petition within the time remaining for pleading to the original pleading or within ten days after service of the amended petition, whichever period is longer, unless the time is extended under Article 1001.

Art. 1152. Amendment of exceptions

A defendant may amend his declinatory or dilatory exceptions by leave of court or with the written consent of the adverse party, at any time prior to the trial of the exceptions, so as to amplify or plead more particularly an objection set forth or attempted to be set forth in the original exception.  A declinatory or a dilatory exception may not be amended so as to plead an objection not attempted to be set forth in the original exception.

A defendant may amend his peremptory exception at any time and without leave of court, so as to either amplify an objection set forth or attempted to be set forth in the original exception, or to plead an objection not set forth therein.

Art. 1153. Amendment relates back

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.

Art. 1154. Amendment to conform to evidence

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleading.  Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues.  If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby, and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense on the merits.  The court may grant a continuance to enable the objecting party to meet such evidence.

Art. 1155. Supplemental pleadings

The court, on motion of a party, upon reasonable notice and upon such terms as are just, may permit mover to file a supplemental petition or answer setting forth items of damage, causes of action or defenses which have become exigible since the date of filing the original petition or answer, and which are related to or connected with the causes of action or defenses asserted therein.

Art. 1156. Amended and supplemental pleadings in incidental action

The petition, the answer, and the exceptions filed in an incidental action may be amended or supplemented in the manner provided in Articles 1151 through 1155.

Title II. Citation and Service of Process

Chapter 1. Citation
Chapter 2. Service on Persons

Art. 1231. Types of service;  time of making

Service of citation or other process may be either personal or domiciliary, and except as otherwise provided by law, each has the same effect.

Service, whether personal or domiciliary, may be made at any time of day or night, including Sundays and holidays.

Art. 1232. Personal service

Personal service is made when a proper officer tenders the citation or other process to the person to be served.

Art. 1233. Same;  where made

Personal service may be made anywhere the officer making the service may lawfully go to reach the person to be served.

Art. 1234. Domiciliary service

Domiciliary service is made when a proper officer leaves the citation or other process at the dwelling house or usual place of abode of the person to be served with a person of suitable age and discretion residing in the domiciliary establishment.

Acts 1985, No. 355, §1.

Art. 1235. Service on representative

A.  Service is made on a person who is represented by another by appointment of court, operation of law, or mandate, through personal or domiciliary service on such representative.

B.  Service on an attorney, as a representative of a client, is proper when the attorney's secretary is served in the attorney's office.

C.  For the purposes of this Article "secretary" shall be defined as the person assigned to a particular attorney and who is charged with the performance of that part of the attorney's business concerned with the keeping of records, the sending and receiving of correspondence, and the preparation and monitoring of the attorney's appointments calendar.

Acts 1991, No. 45, §1.

Art. 1235.1. Service on incarcerated person

A.  Service is made on a person who is incarcerated in a jail or detention facility through personal service on the warden or his designee for that shift.  The warden or his designee shall in turn make personal service on the person incarcerated.

B.  When requested by the petitioner or mover, proof of service may be made by filing in the record the affidavit of the person serving the citation and pleadings on the person who is incarcerated.

C.  Personal service on the person incarcerated as required by Paragraph A of this Article shall be made promptly, but in no event shall it be made later than ten days after service upon the warden or his designee.  If, for reasons beyond the control of the warden, such personal service cannot be accomplished by the tenth day, then on the next day or as soon as it is apparent that such personal service cannot be accomplished, the warden or his designee shall note the inability to serve on the citation or pleadings and return the citation or pleadings to the issuing court.

D.  Service as provided in Paragraph A of this Article shall be deemed to be accomplished on the date of personal service shown by the affidavit specified in Paragraph B of this Article, or if no such affidavit is timely received, nor a return by the warden or his designee in Paragraph C of this Article indicating a lack of personal service, then service is deemed to be accomplished ten days after service upon the warden or his designee under Paragraph A of this Article.

Acts 1991, No. 46, §1; Acts 2004, No. 744, §1.

Art. 1236. Service on clerical employees of physicians

Service on any physician, when not a party to an action, may be made at his or her office through personal service on any clerical employee of such physician.

Added by Acts 1975, No. 778, §1.  Amended by Acts 1997, No. 1056, §1.

Art. 1237. Service on individual in multiple capacities

In cases wherein an individual is named in pleadings in more than one capacity, personal service on that individual is sufficient to constitute service of process on that individual in all capacities, including but not limited to as an individual, tutor, or a representative of a legal or quasi legal entity, when it is clear from the pleadings or service instructions the capacities in which the individual is being served.

Acts 1995, No. 851, §1; Acts 1995, No. 1257, §1.

Chapter 3. Service on Legal and Quasi Legal Entities

Art. 1261. Domestic or foreign corporation

A.  Service of citation or other process on a domestic or foreign corporation is made by personal service on any one of its agents for service of process.

B.  If the corporation has failed to designate an agent for service of process, if there is no registered agent by reason of death, resignation, or removal, or if the person attempting to make service certifies that he is unable, after due diligence, to serve the designated agent, service of the citation or other process may be made by any of the following methods:

(1)  By personal service on any officer, or director, or on any person named as such in the last report filed with the secretary of state.

(2)  By personal service on any employee of suitable age and discretion at any place where the business of the corporation is regularly conducted.

(3)  By service of process under the provisions of R.S. 13:3204, if the corporation is subject to the provisions of R.S. 13:3201.

C.  Service of citation or other process on a bank is made pursuant to R.S. 6:285(C).

Amended by Acts 1988, No. 37, §1, eff. June 10, 1988; Acts 1991, No. 656, §2; Acts 1995, No. 859, §1; Acts 1995, No. 1257, §1.

 

Art. 1262. Same;  secretary of state

If the officer making service certifies that he is unable, after diligent effort, to have service made as provided in Article 1261, then the service may be made personally on the secretary of state, or on a person in his office designated to receive service of process on corporations.  The secretary of state shall forward this citation to the corporation at its last known address.

Art. 1263. Partnership

Service of citation or other process on a partnership is made by personal service on a partner.  Service of citation or other process on a partnership in commendam is made by personal service on a general partner.  When the officer certifies that he is unable, after diligent effort, to make service in this manner, he may make personal service on any employee of suitable age and discretion at any place where the business of the partnership or partnership in commendam is regularly conducted.

Acts 2001, No. 512, §1.

Art. 1264. Unincorporated association

Service on an unincorporated association is made by personal service on the agent appointed, if any, or in his absence, upon a managing official, at any place where the business of the association is regularly conducted.  In the absence of all officials from the place where the business of the association is regularly conducted, service of citation or other process may be made by personal service upon any member of the association.

Art. 1265. Political entity;  public officer

Service of citation or other process on any political subdivision, public corporation, or state, parochial or municipal board or commission is made at its office by personal service upon the chief executive officer thereof, or in his absence upon any employee thereof of suitable age and discretion.  A public officer, sued as such, may be served at his office either personally, or in his absence, by service upon any of his employees of suitable age and discretion.

If the political entity or public officer has no established office, then service may be made at any place where the chief executive officer of the political entity or the public officer to be served may be found.

Art. 1266. Limited liability company

A.  Service of citation or other process on a domestic or foreign limited liability company is made by personal service on any one of its agents for service of process.

B.  If the limited liability company has failed to designate an agent for service of process, if there is no registered agent by reason of death, resignation, or removal, or if the person attempting to make service certifies that he is unable, after due diligence, to serve the designated agent, service of the citation or other process may be made by any of the following methods:

(1)  Personal service on any manager if the management of the limited liability company is vested in one or more managers or if management is not so vested in managers, then on any member.

(2)  Personal service on any employee of suitable age and discretion at any place where the business of the limited liability company is regularly conducted.

(3)  Service of process under the provisions of R.S. 13:3204, if the limited liability company is subject to the provisions of R.S. 13:3201.

(4)  Repealed by Acts 2001, No. 407, §2.

Acts 1999, No. 145, §1; Acts 2001, No. 407, §2.

Art. 1267. Same;  service on secretary of state

If the officer making service certifies that he is unable, after diligent effort, to have service made as provided in Article 1266, then the service may be made personally on the secretary of state, or on a person in his office designated to receive service of process on limited liability companies.  The secretary of state shall forward this citation to the limited liability company at its last known address.

Acts 2001, No. 407, §1.

Chapter 4. Persons Authorized to Make Service

Art. 1291. Service by sheriff

Except as otherwise provided by law, service shall be made by the sheriff of the parish where service is to be made or of the parish where the action is pending.

Art. 1292. Sheriff's return

            A. The sheriff shall endorse on a copy of the citation or other process the date, place, and method of service and sufficient other data to show service in compliance with law. He shall sign and return the copy promptly after the service to the clerk of court who issued it. The return, when received by the clerk, shall form part of the record, and shall be considered prima facie correct. The court, at any time and upon such terms as are just, may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.

            B. In addition to the provisions of Paragraph A of this Article, when the citation or other process is a temporary restraining order, protective order, preliminary injunction, permanent injunction, or court-approved consent agreement as referenced in R.S. 46:2136.2(B), the person making the service, or his designee, shall transmit proof of service to the judicial administrator's office, Louisiana Supreme Court, for entry into the Louisiana Protective Order Registry, as provided in R.S. 46:2136.2(A), by facsimile transmission or direct electronic input as expeditiously as possible, but no later than the end of the next business day after making service, exclusive of weekends and holidays. This proof shall include, at a minimum, the case caption, docket number, type of order, serving agency and officer, and the date and time service was made.

            Acts 2018, No. 679, §1.

Art. 1293. Service by private person

            A. When the sheriff has not made service within ten days after receipt of the process or when a return has been made certifying that the sheriff has been unable to make service, whichever is earlier, on motion of a party the court shall appoint a person over the age of majority, not a party and residing within the state whom the court deems qualified to perform the duties required, to make service of process in the same manner as is required of sheriffs. Service of process made in this manner shall be proved like any other fact in the case. Any person who is a Louisiana licensed private investigator shall be presumed qualified to perform the duties required to make service.

            B. In serving notice of a summary proceeding as provided by Article 2592 or a subpoena which is related to the proceeding, on motion of a party the court shall have the discretion to appoint any person over the age of majority, not a party and residing within the state, to make service of process, notices, and subpoenas in the same manner as is required of sheriffs, without first requiring the sheriff to attempt service. The party making such a motion shall include the reasons, verified by affidavit, necessary to forego service by the sheriff, which shall include but not be limited to the urgent emergency nature of the hearing, knowledge of the present whereabouts of the person to be served, as well as any other good cause shown.

            C. In addition to those natural persons who the court may appoint to make service of process pursuant to Paragraph A or B of this Article, the court may also appoint a juridical person which may then select an employee or agent of that juridical person to make service of process, provided the employee or agent perfecting service of process is a natural person who qualifies as an agent for service of process pursuant to Paragraph A or B of this Article.

            D. In addition to the provisions of Paragraph A of this Article, when the citation or other process is a temporary restraining order, protective order, preliminary injunction, permanent injunction, or court-approved consent agreement as referenced in R.S. 46:2136.2(B), the person making the service, or his designee, shall transmit proof of service to the judicial administrator's office, Louisiana Supreme Court, for entry into the Louisiana Protective Order Registry, as provided in R.S. 46:2136.2(A), by facsimile transmission or direct electronic input as expeditiously as possible, but no later than the end of the next business day after making service, exclusive of weekends and holidays. This proof shall include, at a minimum, the case caption, docket number, type of order, serving agency and officer, and the date and time service was made.

            Acts 1984, No. 210, §1; Acts 2006, No. 704, §1, eff. June 29, 2006; Acts 2010, No. 185, §1; Acts 2010, No. 466, §1, eff. June 22, 2010; Acts 2012, No. 521, §1; Acts 2018, No. 679, §1.

Chapter 5. Service of Pleadings

Art. 1311. Service of copy of exhibit to pleading unnecessary

A copy of any written instrument which is an exhibit to a pleading need not be served upon the adverse party unless the party who files the pleading expressly prays for such service.

Art. 1312. Service of pleadings subsequent to petition;  exceptions

Except as otherwise provided in the second paragraph hereof, every pleading subsequent to the original petition shall be served on the adverse party as provided by Article 1313 or 1314, whichever is applicable.

No service on the adverse party need be made of a motion or petition for an appeal, of a petition for the examination of a judgment debtor, of a petition for the issuance of garnishment interrogatories in the execution of a final judgment, or of any pleading not required by law to be in writing.

Art. 1313. Service by mail, delivery, or electronic means

A.  Except as otherwise provided by law, every pleading subsequent to the original petition, and every pleading which under an express provision of law may be served as provided in this Article, may be served either by the sheriff or by:

(1)  Mailing a copy thereof to the counsel of record, or if there is no counsel of record, to the adverse party at his last known address, this service being complete upon mailing.

(2)  Delivering a copy thereof to the counsel of record, or if there is no counsel of record, to the adverse party.

(3)  Delivering a copy thereof to the clerk of court, if there is no counsel of record and the address of the adverse party is not known.

(4)  Transmitting a copy by electronic means to counsel of record, or if there is no counsel of record, to the adverse party, at the number or addresses expressly designated in a pleading or other writing for receipt of electronic service.  Service by electronic means is complete upon transmission but is not effective and shall not be certified if the serving party learns the transmission did not reach the party to be served.

B.  When service is made by mail, delivery, or electronic means, the party or counsel making the service shall file in the record a certificate of the manner in which service was made.

C.  Notwithstanding Paragraph A of this Article, if a pleading or order sets a court date, then service shall be made either by registered or certified mail or as provided in Article 1314, or by actual delivery by a commercial courier.

D.  For purposes of this Article, a "commercial courier" is any foreign or domestic business entity having as its primary purpose the delivery of letters and parcels of any type, and that:

(1)  Acquires a signed receipt from the addressee, or the addressee's agent, of the letter or parcel upon completion of delivery.

(2)  Has no direct or indirect interest in the outcome of the matter to which the letter or parcel concerns.

Amended by Acts 1997, No. 249, §1; Acts 1999, No. 1263, §1, eff. Jan. 1, 2000; Acts 2010, No. 185, §1; Acts 2012, No. 741, §1.

 

Art. 1314. Same;  service by sheriff

A.  A pleading which is required to be served, but which may not be served under Article 1313, shall be served by the sheriff by either of the following:

(1)  Service on the adverse party in any manner permitted under Articles 1231 through 1266.

(2)(a)  Personal service on the counsel of record of the adverse party or delivery of a copy of the pleading to the clerk of court, if there is no counsel of record and the address of the adverse party is not known.

(b)  Except as otherwise provided in Article 2293, service may not be made on the counsel of record after a final judgment terminating or disposing of all issues litigated has been rendered, the delays for appeal have lapsed, and no timely appeal has been taken.

B.  Personal service on a partner or office associate of a counsel of record, including a secretary, receptionist, legal staff, administrative staff, or paralegal in the employ of the counsel of record, at the office address of record of the counsel of record shall constitute valid service under Paragraph A of this Article.

Amended by Acts 1968, No. 125, §1; Acts 1997, No. 268, §1; Acts 1997, No. 1056, §1; Acts 1999, No. 1263, §1, eff. Jan. 1, 2000; Acts 2001, No. 512, §1; Acts 2012, No. 242, §1.

Title III. Production of Evidence

Chapter 1. Subpoenas

Art. 1351. Issuance;  form

The clerk or judge of the court wherein the action is pending, at the request of a party, shall issue subpoenas for the attendance of witnesses at hearings or trials.  A subpoena shall issue under the seal of the court.  It shall state the name of the court, the title of the action, and shall command the attendance of the witness at a time and place specified, until discharged.

Art. 1352. Restrictions on subpoena

A witness, whether a party or not, who resides or is employed in this state may be subpoenaed to attend a trial or hearing wherever held in this state.  No subpoena shall issue to compel the attendance of such a witness who resides and is employed outside the parish and more than twenty-five miles from the courthouse where the trial or hearing is to be held, unless the provisions of R.S. 13:3661 are complied with.

Amended by Acts 1961, No. 23, §1.

Art. 1353. Prepayment of fees

No subpoena shall issue until the party who wishes to subpoena the witness first deposits with the clerk of court a sum of money sufficient to pay all fees and expenses to which the witness is entitled by law.

Art. 1354. Subpoena duces tecum

A.  A subpoena may order a person to appear and produce at the trial, deposition, or hearing, books, papers, documents, any other tangible things, or electronically stored information, in his possession or under his control, if a reasonably accurate description thereof is given.  A subpoena may specify the form or forms in which electronically stored information is to be produced.  A party or an attorney requesting the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or cost on a person subject to that subpoena.  The court in which the action is pending in its discretion may vacate or modify the subpoena if it is unreasonable or oppressive.  Except when otherwise required by order of the court, certified copies, extracts, or copies of books, papers, and documents may be produced in obedience to the subpoena duces tecum instead of the originals thereof.  If the party or attorney requesting the subpoena does not specify that the named person shall be ordered to appear, the person may designate another person having knowledge of the contents of the books, papers, documents, other things, or electronically stored information, to appear as his representative.

B.  A person commanded to respond to a subpoena duces tecum may within fifteen days after service of the subpoena or before the time specified for compliance, if such time is less than fifteen days after service, send to the party or attorney designated in the subpoena written objections, with supporting reasons, to any or all of the requests, including objection to the production of electronically stored information in the form or forms requested.  If objection is so made, the party serving the subpoena may file a motion to compel compliance with the subpoena and may move for sanctions for failure to reasonably comply.

C.  A person responding to a subpoena to produce books, papers, or documents shall produce them as they are kept in the usual course of business or may organize and label them to correspond with the categories in the demand.

D.  If a subpoena does not specify the form or forms for producing electronically stored information, a person responding to a subpoena may produce the information in a form or forms in which the person ordinarily maintains it or in a form or forms that are reasonably useable.

E.  A person responding to a subpoena need not produce the same electronically stored information in more than one form.

F.  A person responding to a subpoena need not produce books, papers, documents, or electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost.  On motion to compel production or to quash, the person from whom production is sought shall show that the information sought is not reasonably accessible because of undue burden or cost.  If that showing is made, the court may nonetheless order production from such sources if the requesting party shows good cause.  The court may specify conditions, including an allocation of the costs, for the production.

G.  When the person subpoenaed is an adverse party, the party requesting the subpoena duces tecum may accompany his request with a written request under oath as to what facts he believes the books, papers, documents, electronically stored information, or tangible things will prove, and a copy of such statement shall be attached to the subpoena.  If the party subpoenaed fails to comply with the subpoena, the facts set forth in the written statement shall be taken as confessed, and in addition the party subpoenaed shall be subject to the penalties set forth in Article 1357.

H.  Subpoenas duces tecum shall reproduce in full the provisions of this Article.

Amended by Acts 1978, No. 593, §1; Acts 2008, No. 824, §2, eff. Jan. 1, 2009.

Art. 1355. Service of subpoena

A.  Except as provided in Paragraph B of this Article, a subpoena shall be served and a return thereon made in the same manner and with the same effect as a service of and return on a citation.  When a party is summoned as a witness, service of the subpoena may be made by personal service on the witness' attorney of record.

B.  Except as otherwise provided by law, when the sheriff has not made service of a subpoena within five days after its receipt or when a return has been made certifying that the sheriff has been unable to make service, any person over the age of majority, not a party and residing within the state, may make service of the subpoena in the same manner as is required by the sheriff.  Proof of service by a private person shall be made by filing with the clerk of the court by which the subpoena is issued a notarized return showing the title of the action and the name of the court issuing it, the date and manner of service, and the name of the person served, signed by the person who made the service.

Acts 2008, No. 824, §3, eff. Jan. 1, 2009.

Art. 1355.1. Reissuance of subpoena;  service by certified or registered mail

When a subpoena that has been personally served is ordered reissued due to continuance or passage of the trial or hearing, the party requesting such reissuance may have the subpoena served in accordance with Article 1355 or may serve the subpoena by mailing a copy of the original subpoena, together with a notice of the new date and time for attendance, to the witness at his dwelling house or usual place of abode, or to a representative of the witness if personal service of the original subpoena was made on such representative.  The mailing shall be by registered or certified mail, return receipt requested.  The date of mailing shall be not less than thirty-five days prior to the date on which the witness is subpoenaed to appear.  A copy of the documents mailed to the witness and the signed return receipt shall be filed by the party in the record as proof of service.  If the registered or certified mail is unclaimed, service of the subpoena shall be as otherwise provided by law.

Acts 1988, No. 283, §1.

Art. 1356. Subpoenas and subpoenas duces tecum for depositions or inspection

A.  Proof of service of a notice to take a deposition or of a notice of inspection under Article 1463 constitutes sufficient authorization for issuance by the clerk or judge of the district court wherein the action is pending of subpoenas and subpoenas duces tecum.

B.  Subpoenas and subpoenas duces tecum compelling the appearance of a witness who is not a party shall be served within a reasonable period of time before the time specified for the deposition.

C.  All provisions applicable to subpoenas and subpoenas duces tecum shall apply to subpoenas and subpoenas duces tecum issued under the provisions of this Article, except as otherwise provided by law.

Amended by Acts 1968, No. 116, §1; Acts 1995, No. 410, §1; Acts 1995, No. 1068, §1, eff. June 29, 1995.

Art. 1357. Failure to comply with subpoena

A person who, without reasonable excuse, fails to obey a subpoena may be adjudged in contempt of the court which issued the subpoena.  The court may also order a recalcitrant witness to be attached and brought to court forthwith or on a designated day.

Chapter 2. Proof of Official Records

Art. 1392. Proof of statutes

             The court shall take judicial notice of the laws of the United States, of every state, territory, and other jurisdiction of the United States as provided by Code of Evidence Article 202.

            Acts 2018, No. 184, §1.

Chapter 3. Discovery

Section 1. General Provisions Governing Discovery

Art. 1420. Signing of discovery requests, responses, or objections

A.  Every request for discovery, or response or objection thereto, made by a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated.  A party who is not represented by an attorney shall sign the request, response, or objection and state his address.

B.  The signature of an attorney or party constitutes a certification by him that he has read the request, response, or objection and that to the best of his knowledge, information, and belief formed after reasonable inquiry the request, response, or objection is:

(1)  Consistent with all the rules of discovery and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law;

(2)  Not interposed for any improper purpose, such as to harass or to cause unnecessary or needless increase in the cost of litigation; and

(3)  Not unreasonable, unduly burdensome, or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation.

C.  If a request, response, or objection is not signed, it shall be stricken unless promptly signed after the omission is called to the attention of the person whose signature is required.  A party shall not be obligated to take any action with respect to the request, response, or objection until it is signed.

D.  If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the request, response, or objection, including a reasonable attorney's fee.

E.  A sanction authorized in Paragraph D shall be imposed only after a hearing at which any party or his counsel may present any evidence or argument relevant to the issue of imposition of the sanction.

Added by Acts 1988, No. 442, §1, eff. Jan. 1, 1989.

{{NOTE:  SEE ACTS 1988, NO. 442, §2.}}

Art. 1421. Discovery methods

            Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations, including additional medical opinions under Article 1464; request for release of medical records; and requests for admission. Unless the court orders otherwise under Article 1426, the frequency of use of these methods is not limited.

            Acts 1976, No. 574, §1; Acts 1993, No. 823, §1; Acts 2017, No. 381, §1, eff. June 23, 2017.

Art. 1422. Scope of discovery;  in general

Unless otherwise limited by order of the court in accordance with this Chapter, the scope of discovery is as set forth in this Article and in Articles 1423 through 1425.

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.  It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

Acts 1976, No. 574, §1.

Art. 1422.1. Scope of discovery;  records of the Louisiana Bureau of Criminal Identification and Information

In civil proceedings, the records of the Louisiana Bureau of Criminal Identification and Information as defined in R.S. 15:577 shall be privileged and shall not be subject to discovery by third parties.  The term "records" as used in this Article shall include but not be limited to"rap sheets", fingerprint records, or any other record created by or maintained by the bureau.

Acts 2003, No. 1199, §1.

 

Art. 1423. Scope of discovery;  insurance agreements

A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.

Acts 1976, No. 574, §1.

Art. 1424. Scope of discovery;  trial preparation;  materials

A.  The court shall not order the production or inspection of any writing, or electronically stored information, obtained or prepared by the adverse party, his attorney, surety, indemnitor, or agent in anticipation of litigation or in preparation for trial unless satisfied that denial of production or inspection will unfairly prejudice the party seeking the production or inspection in preparing his claim or defense or will cause him undue hardship or injustice.  Except as otherwise provided in Article 1425(E)(1), the court shall not order the production or inspection of any part of the writing, or electronically stored information, that reflects the mental impressions, conclusions, opinions, or theories of an attorney.

B.  A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party.  Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person.  If the request is refused, the person may move for a court order.  The provisions of Article 1469(4) apply to the award of expenses incurred in relation to the motion.  For purposes of this Paragraph, a statement previously made is a written statement signed or otherwise adopted or approved by the person making it, or a stenographic, mechanical, electronically stored, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.

C.  When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.

D.  A disclosure of a communication or information covered by the attorney-client privilege or work product protection does not operate as a waiver if the disclosure is inadvertent and is made in connection with litigation or administrative proceedings, and if the person entitled to assert the privilege or work product protection took reasonably prompt measures, once the holder knew of the disclosure, to notify the receiving party of the inadvertence of the disclosure and the privilege asserted.  Once notice is received, the receiving party shall either return or promptly safeguard the inadvertently disclosed material, but with the option of asserting a waiver.  Even without notice of the inadvertent disclosure from the sending party, if it is clear that the material received is privileged and inadvertently produced, the receiving party shall either return or promptly safeguard the material, and shall notify the sending party of the material received, but with the option of asserting a waiver.

Acts 1976, No. 574, §1; Acts 2003, No. 545, §1; Acts 2007, No. 140, §1.

Art. 1425. Experts;  pretrial disclosures;  scope of discovery

A.  A party may through interrogatories or by deposition require any other party to identify each person who may be used at trial to present evidence under Articles 702 through 705 of the Louisiana Code of Evidence.

B.  Upon contradictory motion of any party or on the court's own motion, an order may be entered requiring that each party that has retained or specially employed a person to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony provide a written report prepared and signed by the witness.  The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor and the data or other information considered by the witness in forming the opinions.  The parties, upon agreement, or if ordered by the court, shall include in the report any or all of the following: exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.

C.  If the court orders the disclosures of Paragraph B of this Article, they shall be made at the times and in the sequence directed by the court.  In the absence of directions from the court or stipulation by the parties, the disclosures ordered pursuant to Paragraph B of this Article shall be made at least ninety days before the trial date or, if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Paragraph B of this Article, within thirty days after the disclosure made by the other party.  The parties shall supplement these disclosures when required by Article 1428.

D.(1)  Except as otherwise provided in Paragraph E of this Article, a party may, through interrogatories, deposition, and a request for documents and tangible things, discover facts known or opinions held by any person who has been identified as an expert whose opinions may be presented at trial.  If a report from the expert is required under Paragraph B, the deposition shall not be conducted until after the report is provided.

(2)  A party may, through interrogatories or by deposition, discover facts known by and opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Article 1465 or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

(3)  Unless manifest injustice would result, the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under this Paragraph; and with respect to discovery obtained under Subparagraph (2) of this Paragraph, the court shall also require the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.

E.(1)  The expert's drafts of a report required under Paragraph B of this Article, and communications, including notes and electronically stored information or portions thereof that would reveal the mental impressions, opinions, or trial strategy of the attorney for the party who has retained the expert to testify, shall not be discoverable except, in either case, on a showing of exceptional circumstances under which it is impractical for the party seeking discovery to obtain facts or opinions on the same subject by other means.

(2)  Nothing in this Article shall preclude opposing counsel from obtaining any facts or data the expert is relying on in forming his opinion, including that coming from counsel, or from otherwise inquiring fully of an expert into what facts or data the expert considered, whether the expert considered alternative approaches, or into the validity of the expert's opinions.

F.(1)  Any party may file a motion for a pretrial hearing to determine whether a witness qualifies as an expert or whether the methodologies employed by such witness are reliable under Articles 702 through 705 of the Louisiana Code of Evidence.  The motion shall be filed not later than sixty days prior to trial and shall set forth sufficient allegations showing the necessity for these determinations by the court.

(2)  The court shall hold a contradictory hearing and shall rule on the motion not later than thirty days prior to the trial. At the hearing, the court shall consider the qualifications and methodologies of the proposed witness based upon the provisions of Articles 104(A) and 702 through 705 of the Louisiana Code of Evidence.  For good cause shown, the court may allow live testimony at the contradictory hearing.

(3)  If the ruling of the court is made at the conclusion of the hearing, the court shall recite orally its findings of fact, conclusions of law, and reasons for judgment.  If the matter is taken under advisement, the court shall render its ruling and provide written findings of fact, conclusions of law, and reasons for judgment not later than five days after the hearing.

(4)  The findings of facts, conclusions of law, and reasons for judgment shall be made part of the record of the proceedings.  The findings of facts, conclusions of law, and reasons for judgment shall specifically include and address:

(a)  The elements required to be satisfied for a person to testify under Articles 702 through 705 of the Louisiana Code of Evidence.

(b)  The evidence presented at the hearing to satisfy the requirements of Articles 702 through 705 of the Louisiana Code of Evidence at trial.

(c)  A decision by the judge as to whether or not a person shall be allowed to testify under Articles 702 through 705 of the Louisiana Code of Evidence at trial.

(d)  The reasons of the judge detailing in law and fact why a person shall be allowed or disallowed to testify under Articles 702 through 705 of the Louisiana Code of Evidence.

(5)  A ruling of the court pursuant to a hearing held in accordance with the provisions of this Paragraph shall be subject to appellate review as provided by law.

(6)  Notwithstanding the time limitations in Subparagraphs (1), (2), and (3) of this Paragraph, by unanimous consent of the parties, and with approval by the court, a motion under this Paragraph may be filed, heard, and ruled upon by the court at any time prior to trial.  The ruling by the court on such motion shall include findings of fact, conclusions of law, and reasons for judgment complying with the provisions of Subparagraph (4) of this Paragraph.

(7)  The provisions of this Paragraph shall not apply to testimony in an action for divorce or annulment of marriage, or to a separation in a covenant marriage, to a property partition, or to an administration of a succession, or to testimony in any incidental or ancillary proceedings or matters arising from such actions.

(8)  All or a portion of the court costs, including reasonable expert witness fees and costs, incurred when a motion is filed in accordance with this Paragraph may, in the discretion of the court, be assessed to the non-prevailing party as taxable costs at the conclusion of the hearing on the motion.

Acts 1976, No. 574, §1; Acts 2003, No. 545, §1; Acts 2007, No. 140, §1; Acts 2008, No. 787, §1, eff. Jan. 1, 2009; Acts 2014, No. 655, §1.

NOTE:  See Acts 2008,  No.787, §3 re:  effectiveness of Act.

Art. 1426. Protective orders

A.  Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(1)  That the discovery not be had.

(2)  That the discovery may be had only on specified terms and conditions, including a designation of the time or place.

(3)  That the discovery may be had only by a method of discovery other than that selected by the party seeking discovery.

(4)  That certain matters not be inquired into, or that the scope of the discovery be limited to certain matters.

(5)  That discovery be conducted with no one present except persons designated by the court.

(6)  That a deposition after being sealed be opened only by order of the court.

(7)  That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way.

(8)  That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the courts.

B.  If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery.  The provisions of Article 1469 apply to the award of expenses incurred in relation to the motion.

C.  No provision of this Article authorizes a court to issue a protective order preventing or limiting discovery or ordering records sealed if the information or material sought to be protected relates to a public hazard or relates to information which may be useful to members of the public in protecting themselves from injury that might result from such public hazard, unless such information or material sought to be protected is a trade secret or other confidential research, development, or commercial information.

D.  Any portion of an agreement or contract which has the purpose or effect of concealing a public hazard, any information relating to a public hazard, or any information which may be useful to members of the public in protecting themselves from injury that might result from a public hazard is null and shall be void and unenforceable as contrary to public policy, unless such information is a trade secret or other confidential research, development, or commercial information.

E.  Any substantially affected person or any representative of the news media has standing to contest any order or judgment that violates the provisions of Paragraph C of this Article or any agreement or contract contrary to public policy pursuant to Paragraph D of this Article.

Acts 1976, No. 574, §1; Acts 1995, No. 49, §1.

Art. 1426.1. Stay of discovery in civil matters by a district attorney in a related criminal matter

            A. Upon motion of the district attorney in a criminal proceeding, a court having jurisdiction over any related pending civil action or proceeding may, in the interests of justice and for good cause shown after a contradictory hearing with all parties in the civil action, stay all or a portion of discovery sought in such civil action or proceeding. The contradictory hearing shall be held by the court in the civil action within thirty days of the filing of the motion. Good cause shall include but not be limited to a finding by the court that such discovery will adversely affect the ability of the district attorney to conduct a related criminal investigation or the prosecution of a related felony criminal case.

            B. No provision of this Article shall prohibit a party to the stayed discovery proceeding from moving to have the stay subsequently lifted for good cause.

            C. Within thirty days after disposition in the trial court of the related criminal prosecution, in any matter where a stay has issued, the district attorney shall file an ex parte motion consenting to the termination of the stay.

            D. The time during which the civil proceeding is stayed pursuant to this Article shall not be used to compute the three-year abandonment period of the civil matter.

            E. Repealed by Acts 2017, No. 91, §1.

            Acts 2012, No. 664, §1; Acts 2017, No. 91, §1.

Art. 1427. Sequence and timing of discovery

Unless the court upon motion, for the convenience of parties and witnesses and in the interest of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party's discovery.

Acts 1976, No. 574, §1.

Art. 1428. Supplementation of responses

A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows:

(1)  A party is under a duty seasonably to supplement his response with respect to any question directly addressed to the identity and location of persons having knowledge of discoverable matters, and the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony.

(2)  A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which he knows that the response was incorrect when made, or he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.

(3)  A duty to supplement responses may be imposed by order of the court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses.

Acts 1976, No. 574, §1.

Section 2. Depositions:  General Dispositions

Art. 1429. Perpetuation of testimony;  petition

A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of this state may file a verified petition in a court in which the anticipated action might be brought.  The petition shall be entitled in the name of the petitioner and shall show:

(1)  That the petitioner expects to be a party to an action cognizable in a court of this state but is presently unable to bring it or cause it to be brought.

(2)  The subject matter of the expected action and his interest therein.

(3)  The facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it.

(4)  The names or a description of the persons he expects will be adverse parties and their addresses so far as known.

(5)  The names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony.

Acts 1976, No. 574, §1.

Art. 1430. Notice and service of petition;  perpetuation of testimony

The petitioner shall thereafter serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition.  At least twenty days before the date of hearing the notice shall be served as provided in Article 1314; but if such service cannot with due diligence be made upon any expected adverse party named in the petition, the court may make such order as is just for service by publication or otherwise, and shall appoint, for persons not served in the manner provided in Article 1314, an attorney who shall represent them, and, in case they are not otherwise represented, shall cross examine the deponent.  If any expected adverse party is a minor or incompetent the court shall appoint an attorney to represent him.

Acts 1976, No. 574, §1.

Art. 1430.1. Ex parte order;  death or incapacitating illness

A.  Notwithstanding the provisions of Article 1430, the court may by ex parte order grant the perpetuation of testimony as provided in Article 1431 if:

(1)  The facts set forth in the petition show the desire to perpetuate testimony is based upon a reasonable belief that there is a substantial possibility that the person whose testimony is sought will die or be too incapacitated to testify before a contradictory hearing can be held; and

(2)  The interest of justice requires the immediate perpetuation of the testimony.

B.  Should the court grant perpetuation of testimony in accordance with this Article, the petitioner shall give reasonable notice in writing to an expected adverse party of the time and place for perpetuating the testimony, manner of perpetuation, name and address of the person whose testimony is to be perpetuated, and the subject matter of the testimony.

C.  If an expected adverse party is a minor or incompetent, the court shall appoint an attorney to represent him, and the notice shall be sent to the attorney.

D.  No appeal shall lie from the granting or denial of an ex parte order under this Article.  The admissibility at trial or other proceeding of any testimony perpetuated under this Article shall be governed by the Louisiana Code of Evidence.

E.  The procedure authorized by this Article shall be in addition to any other procedure provided by law for the perpetuation of testimony.

Acts 1989, No. 53, §1.

Art. 1431. Order and examination;  perpetuation of testimony

If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written interrogatories.  The depositions may then be taken in accordance with this Chapter; and the court may make orders of the character provided for by Articles 1461 through 1465.  For the purpose of applying the provisions of this Chapter to depositions for perpetuating testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed.

Acts 1976, No. 574, §1.

Art. 1432. Use of deposition

A deposition to perpetuate testimony taken under Articles 1429 through 1431 may be used in any action involving the same subject matter subsequently brought in any court of this state, in accordance with the provisions of Article 1450.

Acts 1976, No. 574, §1.

Art. 1433. Deposition after trial

A.  If an appeal has been taken from a judgment of a district court or before the taking of an appeal if the time has not expired, the district court in which the judgment was rendered may allow the taking of the depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the district court.  In such case the party who desires to perpetuate the testimony may make a motion in the district court for leave to take the depositions, upon the same notice and service thereof as if the action was pending in the district court.  The motion shall show:

(1)  The names and addresses of persons to be examined and the substance of the testimony which he expects to elicit from each.

(2)  The reasons for perpetuating their testimony.

B.  If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken and may make orders of the character provided for in Articles 1461 through 1465, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in this Chapter for depositions taken in actions pending in the court.

C.  In aid of execution of the judgment, the district court in which the judgment was rendered may, upon motion of the judgment creditor, allow the taking of a third person's deposition, as provided in Article 2451, upon the same notice and service thereof as if the action was pending in the district court.  The person whose deposition is so ordered shall be reimbursed by the judgment creditor for the reasonable costs incurred or to be incurred in the course of complying with the order, including document reproduction costs and travel expenses.

Acts 1976, No. 574, §1; Acts 1990, No. 1000, §1.

Art. 1434. Person before whom deposition taken

A.(1)  A deposition shall be taken before an officer authorized to administer oaths, who is not an employee or attorney of any of the parties or otherwise interested in the outcome of the case.

(2)  For purposes of this Article, an employee includes a person who has a contractual relationship with a party litigant to provide shorthand reporting or other court reporting services and also includes a person employed part or full time under contract or otherwise by a person who has a contractual relationship with a party litigant to provide shorthand reporting or other court reporting services.  A party litigant does not include federal, state, or local governments, and the subdivisions thereof, or parties in proper person.

B.  "Officer" as used in this Article means a certified shorthand or general reporter currently holding a valid certificate issued by the Board of Examiners of Certified Shorthand Reporters pursuant to the provisions of R.S. 37:2551 et seq., and an official court reporter, and a deputy official court reporter, as defined in R.S. 37:2555(B)(1) and (2).

C.  In a video deposition, the deponent can be sworn by anyone authorized to take oaths.  The oath shall be recorded on tape.

Acts 1976, No. 574, §1; Acts 1990, No. 295, §1; Acts 1990, No. 842, §1, eff. July 24, 1990; Acts 1995, No. 1145, §1.

{{NOTE:  SEE ACTS 1990, NO. 842, §2 FOR TRANSITIONAL PROVISION.}}

Art. 1435. Deposition taken in another state, or in a territory, district, or foreign jurisdiction

If the witness whose deposition is to be taken is found in another state, or in a territory, district, or foreign jurisdiction, the law of the place where the deposition is to be taken shall govern the compulsory process to require the appearance and testimony of witnesses, but otherwise the provisions of this Chapter or of R.S. 13:3823 shall be applicable to such a deposition.

Acts 1976, No. 574, §1.

Art. 1436. Stipulations;  manner of taking;  modification of procedures

Unless the court orders otherwise and except as provided by Article 1425, the parties may by written stipulation provide that depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions, and modify the procedures provided by these rules for other methods of discovery.

A witness who is a resident of this state may be required to attend an examination to take his deposition only in the parish in which he resides or is employed or transacts his business in person, or at such other convenient place as may be fixed by order of court.  A witness who is a nonresident of this state, but is temporarily in this state, may be required to attend an examination to take his deposition only in the parish where he is served with a subpoena or at such other convenient place as may be fixed by order of court.

Acts 1976, No. 574, §1.

Art. 1436.1. Depositions by telephone

If agreed upon by every party to a suit or if ordered by the court, a deposition may be taken by telephone or other remote electronic means.

Acts 1986, No. 205, §1; Acts 2003, No. 545, §1.

Art. 1437. Deposition upon oral examination;  when deposition may be taken

After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination.  Leave of court, granted with or without notice, must be obtained only if the plaintiff seeks to take a deposition prior to the expiration of fifteen days after service of citation upon any defendant, except that leave is not required if a defendant has served a notice of taking deposition or otherwise sought discovery, or if special notice is given as provided in Article 1439.  The attendance of witnesses may be compelled by the use of subpoena as for witnesses in trials.  The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.

Acts 1976, No. 574, §1.

Art. 1438. Notice of examination;  time and place;  subpoena duces tecum

A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action.  The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs.  If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice.

The court may for cause shown lengthen or shorten the time for taking the deposition.

Acts 1976, No. 574, §1.

Art. 1439. Special notice

Leave of court is not required for the taking of a deposition by plaintiff if the notice states that the person to be examined is about to go out of the state and will be unavailable for examination unless his deposition is taken before expiration of the fifteen-day period, and sets forth facts to support the statement.  The plaintiff's attorney shall sign the notice, and his signature constitutes a certification by him that to the best of his knowledge, information, and belief the statement and supporting facts are true.  The sanctions provided by Articles 863 and 864 are applicable to the certification.

If a party shows that when he was served with notice under this Article he was unable through the exercise of diligence to obtain counsel to represent him at the taking of the deposition, the deposition may not be used against him.

Acts 1976, No. 574, §1.

Art. 1440. Nonstenographic recordation of testimony

The testimony at a deposition may be recorded by other than stenographic means, in which event the notice shall designate the manner of recording, preserving, and filing the deposition, and shall include other provisions to assure that the recorded testimony will be accurate and trustworthy.  A videotaped deposition may be taken and used without court order just as any other deposition.  A certified shorthand reporter shall be present at the time of any videotaped deposition taken without a court order unless waived by all parties.  A party may nevertheless arrange to have a stenographic transcription made at his own expense.

Acts 1976, No. 574, §1; Acts 1990, No. 295, §1.

Art. 1441. Production of documents and things

The notice to a party deponent may be accompanied by a request made in compliance with Article 1461 for the production of documents and tangible things at the taking of the deposition.  The procedure of Articles 1461 through 1463 shall apply to the request.

Acts 1976, No. 574, §1.

Art. 1442. Deposition of an organization

A party may in his notice name as the deponent a public or private corporation or a partnership or association or governmental agency and designate with reasonable particularity the matters on which examination is requested.  The organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which he will testify.  The persons so designated shall testify as to matters known or reasonably available to the organization.  This Article does not preclude taking a deposition by any other procedure authorized in this Chapter.

Acts 1976, No. 574, §1.

Art. 1443. Examination and cross-examination;  record of examination;  oath;  objections

A.  Examination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of the Louisiana Code of Evidence.  The officer before whom the deposition is to be taken shall administer an oath or affirmation to the witness and shall personally, or by someone acting under his direction and in his presence, record the testimony of the witness.  The testimony shall be taken stenographically or recorded by any other means.  If requested by one of the parties, the testimony shall be transcribed.

B.  All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition.  The officer shall cease or suspend recordation of the testimony, questions, objections, or any other statements only upon agreement of all counsel and parties present at the deposition, or upon termination or suspension of the deposition pursuant to Code of Civil Procedure Article 1444.  Any objection during a deposition shall be stated concisely and in a non-argumentative and non-suggestive manner.  Evidence objected to shall be taken subject to the objections.  Counsel shall cooperate with and be courteous to each other and to the witness and otherwise conduct themselves as required in open court and shall be subject to the power of the court to punish for contempt.  In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition, and he shall transmit them to the officer, or anyone authorized to take oaths, who shall propound them to the witness and record the answers verbatim.

C.  "Officer" as used in this Article means a certified shorthand reporter currently holding a valid certificate issued by the Board of Examiners of Certified Shorthand Reporters pursuant to the provisions of R.S. 37:2551 et seq., and an official court reporter, and a deputy official court reporter, as defined in R.S. 37:2555 (C) and (D).

D.  Unless otherwise stipulated or as provided in Article 1455, objections are considered reserved until trial or other use of the deposition.  A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence imposed by the court, to prevent harassing or repetitious questions, or to prevent questions which seek information that is neither admissible at trial nor reasonably calculated to lead to the discovery of admissible evidence.

E.  If the court finds that an objection made during a deposition taken for trial purposes is in violation of this Article, the court shall order the party in violation to pay for the editing or redacting of the transcript or video, along with any other costs or sanctions the court deems appropriate unless good cause is shown.

Acts 1976, No. 574, §1; Acts 1988, No. 515, §2, eff. Jan. 1, 1989; Acts 1990, No. 295, §1; Acts 1990, No. 842, §1, eff. July 24, 1990; Acts 1997, No. 1056, §1; Acts 2004, No. 365, §1; Acts 2010, No. 456, §1; Acts 2010, No. 458, §1.

Art. 1444. Motion to terminate;  limit examination

At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in Article 1426.  If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court.  Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order.  The provisions of Article 1469 apply to the award of expenses incurred in relation to the motion.

Acts 1976, No. 574, §1.

Art. 1445. Submission to witness;  changes;  signing

When the testimony is fully transcribed the deposition shall be submitted to the witness for examination and shall be read to or by him, unless such examination and reading are waived by the witness and by the parties.  Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them.  The deposition shall then be signed by the witness unless the parties by stipulation waive the signing or the witness is ill or is absent from the parish where the deposition was taken or cannot be found or refuses to sign.  If the deposition is not signed by the witness within thirty days of its submission to him, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together with the reason, if any, given therefor; and the deposition may then be used as fully as though signed unless on a motion to suppress under Article 1456 the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.  A video deposition does not have to comply with the requirements of reading and signing by the deponents.

Acts 1976, No. 574, §1; Acts 1990, No. 295, §1.

Art. 1446. Certification by officer;  custody of deposition;  exhibits;  copies;  notice of availability for inspection or copying;  cost of originals and copies of transcripts

            A.(1)(a) The officer as defined in Article 1434(B) shall certify on the deposition that the witness was duly sworn and that the deposition is a true record of the testimony given by the witness.

            (b) The officer shall do either of the following:

            (i) Securely seal the deposition in an envelope endorsed with the title of the action and marked "Deposition of (here insert name of witness)" and shall promptly and simultaneously send it by United States mail or by courier to the party at whose request the deposition was taken, who shall become the custodian of the deposition, and to all other parties to the action who have ordered a copy of the deposition transcript.

            (ii) At the request of the parties, seal the deposition electronically by secure electronic means approved by rules promulgated by the Louisiana Board of Examiners of Certified Shorthand Reporters and shall promptly and simultaneously deliver the deposition electronically to the party at whose request the deposition was taken and to all other parties to the action who have ordered a copy of the deposition transcript. The party at whose request the deposition was taken shall then become the custodian of the deposition.

            (c) The original of the deposition shall not be filed in the record, but shall be made available to all other parties in the matter for inspection or copying. The failure or lack of filing such original in the record shall not affect the use or admissibility of the original at trial or by the court if otherwise authorized or provided by law.

            (2) Documents and things produced for inspection during the examination of the witness shall, upon the request of a party, be marked for identification and annexed to and returned with the deposition, and may be inspected and copied by any party, except that the person producing the materials may substitute copies to be marked for identification, if he affords to all parties fair opportunity to verify the copies by comparison with the originals, and if the person producing the materials requests their return, the officer shall mark them, give each party an opportunity to inspect and copy them, and return them to the person producing them, and the materials may then be used in the same manner as if annexed to and returned with the deposition. Any party may move for an order that the original be annexed to and returned with the deposition to the court, pending final disposition of the case.

            B.(1) Upon payment of reasonable charges therefor, the officer as defined in Article 1434(B) shall furnish a copy of the deposition to any party or to the deponent.

            (2) Except as provided by Subparagraph (4) of this Paragraph, an attorney who takes a deposition, the attorney's firm, and the client are liable in solido for a certified shorthand reporter's charges for the reporting of the deposition, transcribing the deposition, and each copy of the deposition transcript requested by the attorney.

            (3) Except as provided by Subparagraph (4) of this Paragraph, an attorney who appears at a deposition, the attorney's firm, and the client are liable in solido for the certified shorthand reporter's charges for each copy of the deposition transcript provided by the certified shorthand reporter at the request of the attorney.

            (4) Prior to the taking of any deposition, a determination of the person who will pay for the deposition costs shall be agreed upon by the parties in writing or be made on the record, if an attorney is unwilling to be bound by the provisions of Subparagraphs (2) or (3) of this Paragraph. If this determination is made in writing instead of on the record, the certified shorthand reporter shall give a copy of the written determination to all the parties.

            (5) In this Paragraph "firm" means a partnership organized for the practice of law in which an attorney is a partner or with which an attorney is associated, or a professional corporation organized for the practice of law of which an attorney is a shareholder or employee. An attorney "takes" a deposition if the attorney obtains the deponent's appearance through an informal request of the deponent directly or through his attorney, or obtains the deponent's appearance through a formal means, including a notice of deposition or subpoena.

            (6) Nothing contained in this Paragraph shall preclude the court from awarding the charges of the certified shorthand reporter as a court cost.

            C. The party taking the deposition shall give prompt notice to all other parties of its availability for inspection or copying.

            D. The taking of a deposition shall be considered a step in the prosecution or defense of an action for the purposes of Article 561, notwithstanding that the deposition is not filed in the record of the proceedings.

            Acts 1989, No. 388, §1, eff. June 30, 1989; Acts 1992, No. 336, §1; Acts 1992, No. 1002, §1, eff. Sept. 1, 1992; Acts 2017, No. 268, §1.

Art. 1447. Failure to attend or to serve subpoena;  expenses

A.  If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney's fees.

B.  If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon him and the witness because of such failure does not attend, and if another party attends in person or by attorney because he expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney's fees.

Arts 1976, No. 574, §1.

Art. 1448. Serving written questions;  notice

A.  After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon written questions.  The attendance of witnesses may be compelled by the use of subpoena as for witnesses in trials.  The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.

B.  A party desiring to take a deposition upon written questions shall serve them upon every other party with a notice stating the name and address of the person who is to answer them, if known, and if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs, and the name or descriptive title and address of the officer before whom the deposition is to be taken.  A deposition upon written questions may be taken of a public or private corporation or a partnership or association or governmental agency in accordance with the provisions of Article 1442.

C.  Within thirty days after the notice and written questions are served, a party may serve cross questions upon all other parties.  Within ten days after being served with cross questions, a party may serve redirect questions upon all other parties.  Within ten days after being served with redirect questions, a party may serve recross questions upon all other parties.  The court may for cause shown enlarge or shorten the time.

Acts 1976, No. 574, §1.

Art. 1449. Taking of testimony;  preparation of record;  notice of filing

A copy of the notice and copies of all questions served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed promptly, in the manner provided by Articles 1443, 1445, and 1446, to take the testimony of the witness in response to the questions and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the questions received by him.

When the deposition is filed the party taking it shall promptly give notice thereof to all other parties.

Acts 1976, No. 574, §1.

Art. 1450. Use of depositions

A.  At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the Louisiana Code of Evidence applied as though the witnesses were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:

(1)  Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.

(2)  The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under Article 1442 or 1448 to testify on behalf of a public or private corporation, partnership, or association, or governmental agency which is a party may be used by an adverse party for any purpose.

(3)  The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:

(a)  That the witness is unavailable;

(b)  That the witness resides at a distance greater than one hundred miles from the place of trial or hearing or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition; or

(c)  Upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.

(4)  If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce any other part which, in fairness, should be considered with the part introduced, and any party may introduce any other parts.

(5)  However, any party may use the deposition of an expert witness for any purpose upon notice to all counsel of record, any one of whom shall have the right within ten days to object to the deposition, thereby requiring the live testimony of an expert.  The objecting counsel of record shall pay in advance the fee, reasonable expenses, and actual costs of such expert witness associated with such live testimony.  The fees, expenses, and costs specified in this Subparagraph shall be subject to the approval of the court.  The provisions of this Subparagraph do not supersede Subparagraph (A)(3) nor Code of Evidence Article 804(A).  However, the court may permit the use of the expert's deposition, notwithstanding the objection of counsel to the use of that deposition, if the court finds that, under the circumstances, justice so requires.

B.  Substitution of parties does not affect the right to use depositions previously taken; and, when an action in any court of this state, or the United States or of any state has been dismissed and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor.

C.  Conflicts between this Article and Code of Evidence Article 804, regarding the use of depositions, shall be resolved by the court in its discretion.

Acts 1976, No. 574, §1; Acts 1988, No. 515, §2, eff. Jan. 1, 1989; Acts 1990, No. 134, §1; Acts 1991, No. 304, §1, eff. July 3, 1991; Acts 1992, No. 645, §1; Acts 1999, No. 1263, §1, eff. Jan. 1, 2000.

Art. 1451. Objections to admissibility

Subject to the provisions of R.S. 13:3823 and Article 1455, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.

Acts 1976, No. 574, §1.

Art. 1452. Effect of taking or using depositions;  deposing attorneys of record

A.  A party does not make a person his own witness for any purpose by taking his deposition.  The introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition, but this shall not apply to the use by an adverse party of a deposition as described in Article 1450(2).  At the trial or hearing any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any other party.

B.  No attorney of record representing the plaintiff or the defendant shall be deposed except under extraordinary circumstances and then only by order of the district court after contradictory hearing.

Acts 1976, No. 574, §1.  Amended by Acts 1981, No. 767, §1.

Art. 1452. Effect of taking or using depositions;  deposing attorneys of record

A.  A party does not make a person his own witness for any purpose by taking his deposition.  The introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition, but this shall not apply to the use by an adverse party of a deposition as described in Article 1450(2).  At the trial or hearing any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any other party.

B.  No attorney of record representing the plaintiff or the defendant shall be deposed except under extraordinary circumstances and then only by order of the district court after contradictory hearing.

Acts 1976, No. 574, §1.  Amended by Acts 1981, No. 767, §1.

Art. 1454. Objections as to disqualification of officer;  waiver

An objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.

Acts 1976, No. 574, §1.