Rule 4007.1 Procedure in Deposition by Oral Examination

Regarding subdivision (b), the court upon cause shown may make a protective order with respect to the time and place of taking the deposition. See Pa.R.Civ.P. 4012.

Regarding subdivision (c), see Pa.R.Civ.P. 4003.8 governing pre-complaint discovery.

See the Uniform Interstate Depositions and Discovery Act, 42 Pa.C.S. § § 5331 et seq., for the issuance of a foreign subpoena from outside the Commonwealth.

Historical Commentary

The following commentary is historical in nature and represents statements of the Committee at the time of rulemaking:

Explanatory Comment—1978

Former Rule 4007 has been rescinded. The subject matter of former subdivision (a), dealing with the scope of discovery, has been enlarged and transposed to Rule 4003.1, supra. The provisions of former subdivision (b), dealing with the requirement of leave of court, have been transposed to Rule 4007.2. The provisions of former subdivision (c), dealing with notice, are enlarged in Rule 4007.1. The provisions of former subdivision (d)(1), authorizing local option rules for the content of the notice, are deleted and all local rules under former subdivision (d) will be invalid. The provisions of former subdivision (d)(2) for the filing of objections are deleted. A protective order under Rule 4012 is available.

In place of former Rule 4007 are new Rule 4007.1, which prescribes the procedure in deposition by oral examination, Rule 4007.2, which prescribes when leave of court is required, and Rules 4007.3 and 4007.4, which govern the sequence and timing of discovery and supplementary responses, subjects not previously governed by the Rules. These new Rules will be commented on separately.

Subdivisions (a) and (b) repeat the substance of former Rule 4007(c). A provision has been added to make it clear that a party noticed to be deposed need not be subpoenaed. The notice is sufficient to support subsequent sanction procedures under Rule 4019 for failure to appear.

Subdivision (c) is new. It provides that the purpose of the deposition and the matters to be inquired into need not be stated in the notice, except in the relatively infrequent case where the action has been commenced by a writ of summons and the plaintiff desires to take a deposition upon oral examination for the purpose of preparing a complaint. In this situation the inquirer must provide a brief statement of the nature of the cause of action and of the matters to be inquired into. The reason for the Rule is obvious. The party who has not yet been served with a complaint may in some instances not be aware of the nature of the action and thus be totally unprepared to submit to oral examination.

Subdivision (d) clarifies the practice for the production of documents in connection with an oral deposition. Under it, a simple request to a party to produce documents is sufficient. No subpoena is needed. But if the person examined is a witness and not a party, a subpoena duces tecum to produce specified materials and documents must be served.

Subdivision (e) is adapted, almost verbatim, from Fed.R.Civ.P. 30(b)(6). It provides, as an optional alternative to other forms of discovery, that the notice may name as a deponent a public or private corporation or a partnership or association or governmental agency. In this situation, however, the notice must describe with reasonable particularity the matters to be inquired into and the materials to be produced. The organization, if it is a party, is then required to serve on the inquirer a designation of the officers, directors, managing agents or other persons who will testify on its behalf. The purpose of the Rule is to avoid the wholesale subpoenaing of named directors, officers, and others where the inquirer does not know the identity of the exact person or persons who will be able to testify as to the requested information.

If it develops that the designated persons reveal others whose testimony may be relevant, they can also be deposed. The procedure is not exclusive and the inquirer may resort to any other method of discovery and subpoena available.

The reference to the ‘‘consent to testify’’ is limited to persons other than officers, directors or managing agents. The latter may not frustrate the discovery by declining to testify; their position requires them to testify. A subordinate employe is not in the same position and the organization cannot designate such a subordinate employe unless it certifies that he will testify.

Explanatory Comment—1998

Section 5326 of the Judicial Code, 42 Pa.C.S. § 5326, relating to ‘‘Assistance to tribunals and litigants outside this Commonwealth with respect to depositions’’ provides:

(a) General Rule.—A court of record of this Commonwealth may order a person who is domiciled or is found within this Commonwealth to give his testimony or statement or to produce documents or other things for use in a matter pending in a tribunal outside this Commonwealth. . . .

New subdivision (f) of Rule 4007.1 responds to the concern that there should be a limitation upon the county from which an order may be sought so that the person who is the subject of the order is not put to unreasonable expense or burden. A resident of Erie should not have to travel to Easton to object to an order obtained in connection with litigation outside the Commonwealth.