Rule 4002 Agreement Regarding Discovery or Deposition Procedure

See Rule 201 for advisability of writing.

The amendments of this Rule make two changes in present practice.

First, they enlarge the rights of the parties by permitting them to agree to modify the procedures for discovery as well as for the taking of depositions. This will be broader than Fed. R. Civ.P. 29 as amended in 1970. The Federal Rule requires court approval of any agreement to extend the time for responses in three instances during the discovery stage. The amendments to Rule 4002 do not incorporate this limitation. The need for leave of court to extend time may act as a spur to prompt responses but it must be balanced against the need for conservation of judicial manpower of already overburdened courts. Busy judges normally approve stipulations of counsel with respect to extra-judicial matters at the early stages of litigation. Little will be gained as a practical matter by requiring leave, and the need for hearing could actually accentuate delay. If one party agrees to give his opponent extra time to answer, why should the judge intervene and refuse?

Second, the phrase ‘‘stipulate in writing’’ in the prior Rule is changed to read ‘‘by agreement.’’ This will validate the common practice during the taking of oral depositions of dictating various stipulations to the reporter for inclusion in the transcript. Technically such a stipulation is not an‘‘agreement in writing’’ within the meaning of the Business of the Court Rule 201 and is not an agreement ‘‘at bar’’ since no judge is present and the deposition is not taken in a courtroom.

Counsel will be well advised to confirm such agreements in writing to avoid misunderstandings.