Discovery

Question 1

In what ways are the PA rules similar to the Federal Rules?

Answer 1

1. Same tools
2. Basic process is the same
3. Rules about use of depositions at trial are the same

Question 2

How many interrogatories, depositions, and document requests are parties limited to?

Answer 2

No limit! Unless the court orders limits “as justice requires.”

Question 3

What information is discoverable?

Answer 3

Any matter, not privileged, that is relevant to the action, including regarding the party’s defense and any other parties’ defenses.

Question 4

Must information be admissible to be discoverable?

Answer 4

No, as long as it is reasonably calculated to lead to the discovery of admissible evidence.

Question 5

Is discovery of opinions or contentions permissible?

Answer 5

Yes. A party cannot object on the grounds that the info sought involves an opinion or contention that relates to a fact or the application of law to fact.

Question 6

What required disclosures exist in PA?

Answer 6

None.

Question 7

What are the rules surrounding discovery plans?

Answer 7

They are not required. Conferences and scheduling orders are optional and can be requested by the parties or ordered on the court’s own motion.

Question 8

In what sequence must methods of discovery be used?

Answer 8

Any sequence, unless the court orders otherwise.

Question 9

When can interrogatories be served?

Answer 9

With the complaint or any time thereafter.

Question 10

When can a plaintiff file a notice of deposition?

Answer 10

30 days after service of the complaint, UNLESS

• the plaintiff gets leave of the court,
• the defendant has sought discovery, OR
• other exigent circumstances exist.

Question 11

When may a plaintiff obtain pre-complaint discovery?

Answer 11

When

1. the info sought is material and necessary to filing the complaint AND
2. the discovery will not cause unreasonable annoyance, embarrassment, oppression, burden, or expense to any person or party.

Question 12

How can somebody defend against a deposition notice?

Answer 12

By filing a motion for a protective order or other objection.

Question 13

If somebody files a motion for a protective order or other objection, what can the court do?

Answer 13

1. Order the plaintiff to state with particularity how the discovery will materially advance the preparation of the complaint. AND THEN
2. Weigh the importance of the discovery against the burdens imposed on any person or party from whom the discovery is sought.

Question 14

Can you seek discovery about a person’s wealth?

Answer 14

ONLY IF

1. the person is a defendant in a claim for punitive damages AND
2. the court issues an order establishing appropriate limits about time, scope, and permissible dissemination of the information.

Question 15

Can you obtain discovery about insurance policies?

Answer 15

Yes–information about insurance agreements under which an insurance company may be liable to satisfy all or part of a judgment, or to indemnify or reimburse for payments made to satisfy the judgment.

Question 16

When will statements (or copies) be discoverable?

Answer 16

Upon request, if they concern the action or its subject matter and are made by parties or non-party witnesses.

Question 17

What qualifies as a statement?

Answer 17

Any written statement signed or otherwise adopted and approved by the person making it OR a contemporaneously made recording or transcript of an oral statement.

Question 18

Can you get a copy of your own statement?

Answer 18

If you are a non-party witness, yes. Immediately.

Question 19

Can electronically stored information be subject to discovery?

Answer 19

Yes, in the format specified by the requesting party.

If no specifications, in the form in which it is ordinarily maintained OR in a reasonably usable form.

Question 20

What scope of electronically store information will be discoverable?

Answer 20

A scope determined by traditional principles of proportionality:

• the nature and scope of the litigation, including the importance and complexity of the issues and amounts at stake;
• the relevance of the ESI and its importance to the court’s adjudication;
• the cost, burden, and delay that may be imposed on the parties;
• the ease of producing ESI and whether substantially similar information is available with less burden; AND
• any other factors relevant under the circumstances.

Question 21

Can a party discover information that was prepared in preparation for trial?

Answer 21

Yes, as long as it is not subject to the attorney work product doctrine.

Question 22

What is attorney work product material?

Answer 22

An attorney’s mental impressions, conclusions, opinions, memoranda, notes or summaries, legal research, or legal theories.

Question 23

What is not discoverable from a non-attorney representative?

Answer 23

The representative’s mental impressions, conclusions, or opinions respecting the value or merit of a claim or defense or respecting legal strategy or tactics.

Question 24

When will attorney work product (or non-attorney representative) materials be discoverable?

Answer 24

When they are directly relevate to another case.

Question 25

How can you obtain discovery from a non-party?

Answer 25

Using a subpoena requesting testimony, documents, or both.

Question 26

How do you seek a deposition of a non-party?

Answer 26

Serve the non-party with the subpoena with reasonable notice to the parties of the deposition.

Question 27

How do you request documents and a deposition?

Answer 27

By specifying in the subpoena the documents to be produced at the deposition.

Question 28

When can the non-party witness produce the documents if they’ve also been subpoenaed for a deposition?

Answer 28

Only at or after the deposition, unless the parties otherwise agree.

Question 29

What rules limit the request for documents from a non-party?

Answer 29

1. There must be a 20-day notice and objection period
2. The party must serve notice on all other parties of the intent to serve the subpoena at least 20 days in advance of serving the subpoena.
3. Any party must be permitted to object to the subpoena.
4. An objecting party must serve objections on all parties.
5. In the face of objections, the party seeking discovery cannot serve the subpoena and the court will decide the issue on a motion.
6. If no objection occurs, or if the court approves the discovery request, then the subpoena will be issued and served pursuant to regular subpoena rules.

Question 30

How may a party seek to preclude or limit requested discovery?

Answer 30

By filing a motion for a protective order.

These will be granted/denied based on similar rules as the Federal Rules.

Question 31

How will a court rule on motions to compel and for sanctions?

Answer 31

Using the same considerations as in the federal rules.

Question 32

Does PA require automatic disclosure of expert witnesses and their reports?

Answer 32

No. There is no automatic discovery in PA at all.

Question 33

How will a party find out about another party’s experts?

Answer 33

Through interrogatories, which can require the disclosure of:

1. the expert’s identity;
2. the subject matter of the expert’s testimony; AND
3. the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

Question 34

How can a party respond to an interrogatory about its experts?

Answer 34

By submitting an expert report or simply answering the interrogatories themselves, as long as either option is signed by the expert.

Question 35

What forms of expect discovery are parties entitled to in all cases?

Answer 35

ONLY expert interrogatories.

Question 36

When will an expert deposition be permitted?

Answer 36

Only upon cause shown, in which case the court may order additional discovery.

Question 37

Can a party seek discovery about an expert who another party consulted, but who is not expected to testify?

Answer 37

Non-testifying experts are generally shielded from discovery, UNLESS

• the non-testifying expert is a medical expert who conducted a court-ordered physical or mental examination; OR
• on order of court due to exceptional circumstances under which the party cannot obtain the same information by other means.

Question 38

What if an expert is not disclosed in response to expert interrogatories?

Answer 38

Then that expert will not be permitted to testify UNLESS the court finds that the failure to disclose was caused by extenuating circumstances beyond the control of the defaulting party, in which case the court may permit that expert to testify.

Question 39

What if information in a response to an expert interrogatory changes?

Answer 39

Then the party must supplement the interrogatory, including the identities of the experts and the substance of their proposed opinions.

Question 40

What if a party itself is an expert?

Answer 40

Then,

• AS LONG AS the improper exercise of his professional skills is involved in the action,
• the expert-party can be deposed and forced to answer interrogatories like any other party AND
• the expert-party cannot object to providing opinions.

Question 41

What if an expert is a regular employee of a party?

Answer 41

They have no immunity from discovery rules, even if they’re not going to be called as witnesses!

Question 42

What must an expert report in medical malpractice cases include?

Answer 42

They ALWAYS must address all issues in the liability phase of the case, like professional negligence, causation, etc., for which the party will offer expert testimony. Even if “all opinions” are not explicitly requested.

Question 43

What if you fail to produce an expert report as ordered by the court?

Answer 43

Then that testimony can be barred at trial AND the court is directed to consider a motion for summary judgment which is based solely on a court order barring a party from introducing expert discovery.

Question 44

When must you supplement a response to discovery that was complete at the time?

Answer 44

Never, UNLESS

• the information confirms that the initial response was incorrect when made or is no longer correct;
• the question was directly addressed to the identity and location of persons having knowledge of discoverable matters; OR
• the question was directly addressed to the identity of each person expected to be called as an expert witness at trial, and the subject matter and substance of the anticipated expert testimony.