Table of Contents. See also Summary of Contents beginning on page vii.

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1 Table of Contents See also Summary of Contents beginning on page vii. Chapter One General Discovery Duties and Obligations in Pennsylvania Courts... 1 Brian W. Waerig, Esq. I. The Scope of Discovery... 3 A. Scope of Discovery Generally... 3 B. Scope of Discovery for Trial Preparation Materials... 4 II. Limitations on the Scope of Discovery... 6 III. Protective Orders... 7 A. The Availability of Protective Orders... 7 B. The Requirement to Confer in Good Faith before Motions to Compel or For Protective Order Are Filed... 8 IV. Timing of Discovery... 9 A. Discovery May Be Used in Any Sequence Generally... 9 B. Changes by Agreement... 9 V. Pre-Complaint Discovery VI. Interrogatories A. Propounding Interrogatories B. Answering Interrogatories C. Changes from Earlier Rules D. Contention Interrogatories VII. Expert Discovery VIII. Depositions A. Rule Procedure in Deposition by Oral Examination B. Objections to the Taking of Depositions C. Video Depositions IX. Requests for Production of Documents A. General Provisions B. Electronically Stored Information C. Requests upon a Party D. Ability to Obtain Insurance Information in Pennsylvania Courts E. Answers to Requests for Production of Documents upon a Party F. Requirement to Verify Responses G. Dealing with Requests Where the Scope Is Not Clear X. The Duty to Supplement Discovery Responses...25 ix

2 A. Rule s Relationship to the Federal Rules of Civil Procedure...25 B. Practical Implications of Rule XI. Subpoena upon a Person Not a Party A. Notice Required B. Objections to Subpoenas C. Service of Subpoena XII. Entry upon Property for Inspection A. General Provisions B. Request for Entry upon Property of a Party i. The Form of Request ii. Parties May Object or Allow Entry iii. Number of Times Entry Is Permitted iv. Remedies XIII. Physical or Mental Examinations of People A. When an Examination Is Appropriate and the Procedure for Obtaining It B. The Ability for the Examined Party to Record the Examination C. Entitlement to Examination Reports D. Privilege Issues XIV. Requests for Admissions A. Ability to Request Admissions and Scope of Admissions B. Timing of Requests for Admissions C. When the Matter in the Requests Are Deemed Admitted D. Method of Answering or Objecting E. What To Do When the Requesting Party Is Not Satisfied with the Responses F. Effect and Application of Admissions G. Sanctions at Trial XV. Duty to Preserve Evidence XVI. Sanctions A. Appropriate Reasons for Discovery Sanctions B. Discovery Sanctions for Behavior at a Deposition C. Orders that May Be Made D. Orders for Expenses or Costs E. Sanctions Motions Made in Bad Faith F. Sanctions against the Commonwealth XVII. Disclosures in Federal Court A. Pennsylvania Has No Duty to Serve Initial Disclosures B. Duty to Disclose in Federal Court Chapter Two Use and Abuse of Written Discovery Requests Michael L. Kleiman, Esq. Introduction...45 I. General Principles A. Scope of Discovery/Standards Rule 4011, Scope of Discovery Rule 4012, Protective Orders x

3 B. Discovery Generally in Family Law II. Written Discovery A. Interrogatories Rules of Civil Procedure Misuse of Interrogatories Problems Related to Interrogatory Responses...52 B. Request for Production of Documents Discovery Rules Inappropriate Conduct C. Discovery Subpoenas to a Third Party D. Misuse of Notice to Attend and Produce...59 Appendices Appendix A: Sample Form Motion for Protective Order Appendix B: Sample Form Motion to Compel Full and Complete Response Appendix C: Sample Form Notice of Intent to Serve a Subpoena Pursuant to Rule Appendix D: Sample Certificate Prerequisite to Service of a Subpoena Pursuant to Rule Appendix E: Sample Form Objection to Subpoena Pursuant to Pennsylvania Rule of Civil Procedure Appendix F: Sample Form Motion to Quash a Notice to Attend and Produce Chapter Three Abusive Discovery Motions and Sanctions J.T. Herber, III, Esq. I. Applicable Rules/General Principals II. Motions to Compel A. Failure to Respond/Produce ) Good Faith Requirements ) Complying with Local Good Faith Requirements ) Failure to Timely Respond to Discovery Does Not Automatically Waive Privilege/Objections B. Recurring and/or Recently Decided Cases Regarding Objections to Discovery Information Equally Available To/Under Control of Requesting Party Identity of Anonymous/Pseudonymous Speakers Lack of Standing to Contest Discovery III. Motions for Sanctions Following Noncompliance with Order to Compel A. Preclusion of Evidence/Testimony B. Entry of Judgment C. Striking of Pleadings D. Monetary Sanctions E. Contempt Proceedings/Bench Warrants F. Practical Tips for Obtaining Enforcement of Bench Warrants Initiate a FOIA Request and Provide a Copy to the Judge When Requesting a Warrant Aim for Broad Empowerment An Unknown Warrant Is an Unenforceable Warrant xi

4 G. Practical Tips for Representing a Client Detained as a Result of a Civil Bench Warrants IV. Adverse Orders to Compel A. Orders Which Are Immediately Appealable B. Discovery Orders That Are Not Immediately Appealable Exhibits...95 Exhibit 1: Example of Hybrid Order Granting Sanctions Exhibit 2: Example of Bench Warrant Exhibit 3: Example of Bench Warrant Empowering Other Judges to Hold the Hearing If Issuing Judge Is Unavailable Exhibit 4: Example of Information Needed for Service of Legal Process Form Exhibit 5: Example Order of Release Chapter Four Obstructionist and Abusive Deposition Tactics Brian P. Shire, Esq. I. Form Objections II. Speaking Objections III. Profane and Unprofessional Behavior IV. Conferring With the Witness and Invoking Privileges Appendices Appendix A: Example: Hostile/Abusive Deposition Conduct Appendix B: Example: How Not To Handle an Obstructionist Lawyer Appendix C: Example: How To Handle an Obstructionist Lawyer Select Pennsylvania Rules of Civil Procedure, Business of Courts Pa.R.C.P Notice to Attend. Notice to Produce Pa.R.C.P Subpoena. Notice to Attend. Notice to Produce. Relief from Compliance. Motion to Quash Pennsylvania Rules of Civil Procedure, Depositions and Discovery Pa.R.C.P Scope. Definitions Pa.R.C.P Agreement Regarding Discovery or Deposition Procedure Pa.R.C.P Filing Discovery Material Pa.R.C.P Right to Take Depositions. Notice Pa.R.C.P Scope of Discovery Generally. Opinions and Contentions Pa.R.C.P Scope of Discovery. Insurance Pa.R.C.P Scope of Discovery. Trial Preparation Material. Generally Pa.R.C.P Scope of Discovery. Trial Preparation Material. Statements Pa.R.C.P Discovery of Expert Testimony. Trial Preparation Material Pa.R.C.P Discovery of Treating Physician xii

5 Pa.R.C.P Punitive Damages Pa.R.C.P Pre-Complaint Discovery Pa.R.C.P Procedure on Depositions by Written Interrogatories Pa.R.C.P Written Interrogatories to a Party Pa.R.C.P Answers to Written Interrogatories by a Party Pa.R.C.P Discovery. Depositions. Scope of Examination. Notice Pa.R.C.P Procedure in Deposition by Oral Examination Pa.R.C.P When Leave of Court Required Pa.R.C.P Sequence and Timing of Discovery Pa.R.C.P Supplementing Responses Pa.R.C.P Oral Examination. Limitation Pa.R.C.P Production of Documents and Things and Entry for Inspection and Other Purposes. [Rescinded] Pa.R.C.P Production of Documents and Things. General Provisions Pa.R.C.P Request Upon a Party for Production of Documents and Things Pa.R.C.P Pa.R.C.P Answer to Request Upon a Party for Production of Documents and Things Subpoena Upon a Person Not a Party for Production of Documents and Things. Prior Notice. Objections Pa.R.C.P Service of Subpoena Pa.R.C.P Certificate of Compliance by a Person Not a Party. Notice of Documents or Things Received Pa.R.C.P Notice of Intent to Serve Subpoena. Objection to Subpoena. Forms Pa.R.C.P Certificate Prerequisite to Service of Subpoena. Form Pa.R.C.P Subpoena to Produce Documents or Things. Form Pa.R.C.P Certification of Compliance. Form Pa.R.C.P Entry Upon Property for Inspection and Other Activities. General Provisions Pa.R.C.P Request for Entry Upon Property of a Party Pa.R.C.P Motion for Entry Upon Property of a Person Not a Party Pa.R.C.P Physical and Mental Examination of Persons Pa.R.C.P Evaluation of Earning Capacity Pa.R.C.P Limitation of Scope of Discovery Pa.R.C.P Protective Orders Pa.R.C.P Stay of Proceedings Pa.R.C.P Request for Admission xiii

6 Pa.R.C.P Persons Before Whom Depositions May be Taken Pa.R.C.P Taking of Depositions. Objections Pa.R.C.P Transcript of Testimony. Objections Pa.R.C.P Video Depositions Pa.R.C.P [Rescinded] Pa.R.C.P Sanctions Pa.R.C.P Use of Depositions at Trial Pa.R.C.P Acts of Assembly not Suspended Pa.R.C.P Effective Date. Pending Actions Pa.R.C.P Abolition of Practice and Procedure under Repealed Statutes Federal Rules of Civil Procedure Title V Disclosures and Discovery Fed.R.Civ.P. 26. Duty to Disclose; General Provisions Governing Discovery (a) Required Disclosures (1) Initial Disclosure (2) Disclosure of Expert Testimony (3) Pretrial Disclosures (4) Form of Disclosures (b) Discovery Scope and Limits (1) Scope in General (2) Limitations on Frequency and Extent (3) Trial Preparation: Materials (4) Trial Preparation: Experts (5) Claiming Privilege or Protecting Trial-Preparation Materials (c) Protective Orders (1) In General (2) Ordering Discovery (3) Awarding Expenses (d) Timing and Sequence of Discovery (1) Timing (2) Sequence (e) Supplementing Disclosures and Responses (1) In General (2) Expert Witness (f) Conference of the Parties; Planning for Discovery (1) Conference Timing (2) Conference Content; Parties Responsibilities (3) Discovery Plan (4) Expedited Schedule (g) Signing Disclosures and Discovery Requests, Responses, and Objections (1) Signature Required; Effect of Signature (2) Failure to Sign (3) Sanction of Improper Certification Fed.R.Civ.P. 27. Depositions to Perpetuate Testimony (a) Before an Action is Filed xiv

7 (1) Petition (2) Notice and Service (3) Order and Examination (4) Using the Deposition (b) Pending Appeal (1) In General (2) Motion (3) Court Order (c) Perpetuation by an Action Fed.R.Civ.P. 28. Persons Before Whom Depositions May Be Taken (a) Within the United States (1) In General (2) Definition of Officer (b) In a Foreign Country (1) In General (2) Issuing a Letter of Request or a Commission (3) Form of a Request, Notice, or Commission (4) Letter of Request Admitting Evidence (c) Disqualification Fed.R.Civ.P. 29. Stipulations About Discovery Procedure Fed.R.Civ.P. 30. Depositions by Oral Examination (a) When a Deposition May Be Taken (1) Without Leave (2) With Leave (b) Notice of the Deposition; Other Formal Requirements (1) Notice in General (2) Producing Documents (3) Method of Recording (4) By Remote Means (5) Officer s Duties (6) Notice or Subpoena Directed to an Organization (c) Examination and Cross-Examination; Record of the Examination; Objections; Written Questions (1) Examination and Cross-Examination (2) Objections (3) Participating Through Written Questions (d) Duration; Sanction; Motion to Terminate or Limit (1) Duration (2) Sanction (3) Motion to Terminate or Limit (e) Review by the Witness; Changes (1) Review; Statement of Changes (2) Changes Indicated in the Officer s Certificate (f) Certification and Delivery; Exhibits; Copies of the Transcript or Recording; Filing (1) Certification and Delivery (2) Documents and Tangible Things (3) Copies of the Transcript or Recording (4) Notice of Filing (g) Failure to Attend a Deposition or Serve a Subpoena; Expenses xv

8 Fed.R.Civ.P. 31. Depositions by Written Questions (a) When a Deposition May Be Taken (1) Without Leave (2) With Leave (3) Service; Required Notice (4) Questions Directed to an Organization (5) Questions from Other Parties (b) Delivery to the Officer; Officer s Duties (c) Notice of Completion or Filing (1) Completion (2) Filing Fed.R.Civ.P. 32. Using Depositions in Court Proceedings (a) Using Depositions (1) In General (2) Impeachment and Other Uses (3) Deposition of Party, Agent, or Designee (4) Unavailable Witness (5) Limitations on Use (6) Using Part of a Deposition (7) Substituting a Party (8) Deposition Taken in an Earlier Action (b) Objections to Admissibility (c) Form of Presentation (d) Waiver of Objections (1) To the Notice (2) To the Officer s Qualification (3) To the Taking of the Deposition (4) To Completing and Returning the Deposition Fed.R.Civ.P. 33. Interrogatories to Parties (a) In General (1) Number (2) Scope (b) Answers and Objections (1) Responding Party (2) Time to Respond (3) Answering Each Interrogatory (4) Objections (5) Signature (c) Use (d) Option to Produce Business Records Fed.R.Civ.P. 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes (a) In General (b) Procedure (1) Contents of the Request (2) Responses and Objections (c) Nonparties Fed.R.Civ.P. 35. Physical and Mental Examinations (a) Order for an Examination xvi

9 (1) In General (2) Motion and Notice; Contents of the Order (b) Examiner s Report (1) Request by the Party or Person Examined (2) Contents (3) Request by the Moving Party (4) Waiver of Privilege (5) Failure to Deliver a Report (6) Scope Fed.R.Civ.P. 36. Requests for Admission (a) Scope and Procedure (1) Scope (2) Form; Copy of a Document (3) Time to Respond; Effect of Not Responding (4) Answer (5) Objections (6) Motion Regarding the Sufficiency of an Answer or Objection (b) Effect of an Admission; Withdrawing or Amending It Fed.R.Civ.P. 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions (a) Motion for an Order Compelling Disclosure or Discovery (1) In General (2) Appropriate Court (3) Specific Motions (4) Evasive or Incomplete Disclosure, Answer, or Response (5) Payment of Expenses; Protective Orders (b) Failure to Comply with a Court Order (1) Sanctions in the District Where the Deposition Is Taken (2) Sanctions Sought in the District Where the Action Is Pending (c) Failure to Disclose, to Supplement an Earlier Response, or to Admit (1) Failure to Disclose or Supplement (2) Failure to Admit (d) Party s Failure to Attend Its Own Deposition, Serve Answers to Interrogatories, or Respond to a Request for Inspection (1) In General (2) Unacceptable Excuse for Failing to Act (3) Types of Sanctions (e) Failure to Provide Electronically Stored Information (f) Failure to Participate in Framing a Discovery Plan xvii

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TABLE OF CONTENTS. PREFACE...i

TABLE OF CONTENTS. PREFACE...i PREFACE...i CHAPTER 1: DISCOVERY: OVERVIEW AND RULES... 1 I. DEFINITION AND PURPOSE...1 II. ROLE OF THE ADMINISTRATIVE JUDGE IN INITIAL DISCOVERY MATTERS...2 III. RESPONSIBILITY OF THE PARTIES IN PURSING