Former Rule 4013 provided that the filing of any motion or application directed to a deposition or to discovery would automatically stay proceedings with respect to that deposition or discovery. Further, the court could also stay all proceedings in the action until disposition of the motion or application. It had no counterpart in the Federal Rules. Under federal practice the filing of a motion for a protective order will not constitute a stay unless a stay order is granted.
The automatic stay under former Rule 4013 presented the possibility of misuse. Assume one party notices an emergency deposition of a going, aged or infirm witness. Assume his opponent files a motion for a protective order. This will automatically stay the deposition. The witness may be dead or may have left the Commonwealth before the motion is disposed of and the stay is lifted.
If the motion, in such a case, was frivolous and filed in bad faith, simply to assure no deposition before death or departure, Rule 4019(h) authorized the imposition of counsel fees and costs. This will be a hollow benefit if the testimony of an important witness is irrevocably lost.
A number of alternative solutions for controlling misuse were suggested, including a provision for timely filing as a prerequisite to automatic stay, or limiting the automatic stay to 48 hours unless the court granted a further stay. None of these adequately solved the difficulties presented by the automatic stay procedure. Timely filing was imprecise as to time and the fixed 48-hour period failed to reach critical situations in the case of going or aged witnesses.
The amendment therefore abolishes all automatic stay and adopts the federal practice requiring a stay order in all cases. It is recognized that this will impose on the courts the creation of necessary administrative machinery to insure prompt access to and prompt action by the court. A judge must be available on short notice.
This has worked well in the federal courts and should work equally well in our courts.
In urgent discovery and deposition matters, there is no place for motion and argument lists held only once a month or quarterly. This is not a matter limited to protective orders; it cuts across the whole field of obstructive and dilatory tactics to frustrate discovery.
In many counties the machinery already exists, with special assignment of motion judges available at all times. Most counties also provide for emergency judges assigned for weekends and holidays, so that no major changes in administrative machinery should be required.
There are, in addition, a number of other Rules which provide for the equivalent of self-executing stays without special allowance, so that the need for emergency action in many instances will be obviated.
(a) Rule 4003.4 as amended permits a party to refuse to produce the statement of a party or a witness. He needs no stay order, because the Rule puts the burden on the requesting party to move for an order for production.
(b) Rule 4006(a)(1) provides that an answer to written interrogatories to a party may include grounds for objection. This similarly puts the burden on the inquirer to move for dismissal of the objection and a direction that the interrogatory be answered.
(c) Rule 4019 contains a group of additional instances where the burden is placed on the moving party to move for relief on the basis of an unjustifiable refusal of a party or witness to respond. These include failure to answer interrogatories (under Rules 4004 and 4005), refusal of a party to appear for deposition after notice, refusal of a party to obey an order of court, inducing a person to refuse to obey an order of court, refusal to obey an order of court under Rule 4009 for production and inspection of documents or things or entry upon land, refusal to obey an order of court under Rule 4010 for a medical examination, and, generally, a failure to make discovery or to obey an order of court relating to discovery.
(d) Rule 4014, regulating requests for admission, provides that the answering party may raise objections in his answer. The burden is placed on the requesting party to move for a determination of the sufficiency of the objection. The requirement of a stay order to protect against abusive discovery should not be an excessive burden on the parties, nor should the courts be swamped with applications for a stay. The federal experience and the Pennsylvania experience suggest that there are adequate means by which counsel can protect his client and his witnesses from abusive discovery other than by seeking protective orders, and that the requirement of asking the court for a stay order in a significant case is a minor procedural act.
