Pre-trial procedure and discovery

Question 1

When is discovery not permitted?

Answer 1

If it is any of:

1. Privileged;
2. Sought in bad faith;
3. Embarrassing, oppressive, burdensome, etc.
4. Attorney work product or opinion; or
5. requiring unreasonable investigation by a party or witness.

Question 2

How does Pennsylvania’s work product doctrine differ from federal practice?

Answer 2

Non-attorney legal representatives only have protectable work product when containing mental impressions relating to litigation strategy

Question 3

Does Pennsylvania have automatic disclosures?

Answer 3

No

Question 4

Can a party use an interrogatory to ask the other party who they expect to call as an expert witness at trial and what he’ll testify about?

Answer 4

Yes, and the other party can answer with an expert report

Question 5

If a party fails to identify a testifying expert, can the expert be barred from testifying?

Answer 5

Yes

Question 6

When does Pennsylvania require supplementation of previous discovery?

Answer 6

Only when:

1. A party or expert’s prior response is now incorrect;
2. There is additional information about people aware of discoverable information; or
3. A change in identity of who will be called as a witness or the substance of their testimony

Question 7

Can a plaintiff seek pre-complaint discovery?

Answer 7

Yes, by filing a praecipe for writ of summons to obtain information necessary to draft a complaint

Question 8

Can a plaintiff use discovery to obtain insurance information?

Answer 8

Yes, even if inadmissible

Question 9

When can a plaintiff commence discovery into the opposing party’s finances?

Answer 9

Through a court order for a claim for punitive damages

Question 10

Does Pennsylvania limit how many interrogatories can be served on a party?

Answer 10

No, but a court may limit them

Question 11

Does Pennsylvania limit how many depositions a party may take?

Answer 11

No

Question 12

If an action commenced with a complaint, when is early discovery appropriate?

Answer 12

Unless given leave by court, only when the person to be deposed is:

1. Old or infirm; or
2. About to leave the county in which the action is pending to outside PA or 100 miles from the courthouse

Question 13

For what purposes can a deposition be used?

Answer 13

For any purpose at trial

Question 14

What standard governs ESI?

Answer 14

A proportionality standard

Question 15

What is the deadline to respond to an MSJ in PA?

Answer 15

30 days

Question 16

What is Pennsylvania’s Nanty-Glo rule?

Answer 16

Oral testimony of the moving party alone, either through testimonial affidavits or depositions, is generally insufficient to establish the absence of a genuine issue of material fact because credibility of witnesses is an issue of fact for the jury.

Question 17

At least how many times a year must Pennsylvania courts initiate proceedings to dismiss actions for failure to bring the matter to trial?

Answer 17

At least once a year

Question 18

When can a court enter judgment of non pros?

Answer 18

When no activity has occurred for a period of two years or more

Question 19

How many days do parties have to respond to a notice of proposed dismissal for non pros?

Answer 19

30 days; if no intention to proceed is filed, the case is terminated with prejudice

Question 20

How many days does a party have to reinstate a case dismissed for non pros?

Answer 20

60 days, but if more than 60 have passed, good cause may be shown. There are no second reinstatements, however.

Question 21

What elements must a defendant show to obtain dismissal of an action for non pros?

Answer 21

Must show:

1. Lack of diligence causing unreasonable delay;
2. Actual prejudice; and
3. No compelling reason for delay.

Question 22

What are the two ways a plaintiff can voluntarily dismiss a case?

Answer 22

1. Discontinuance; or

2. Voluntary non-suit

Question 23

Is leave of court required for filing a discontinuance before trial?

Answer 23

No, but leave is required if against fewer than all opposing parties

Question 24

Are discontinuances permitted without court approval if the plaintiff is a minor or incompetent?

Answer 24

No

Question 25

Are discontinuances permitted without court approval in class actions?

Answer 25

No

Question 26

Does a discontinuance result in dismissal with prejudice?

Answer 26

No

Question 27

When is voluntary non-suit available?

Answer 27

If trial has begun, upon a showing of good cause and leave of court

Question 28

Are pre-trial conferences mandatory in PA?

Answer 28

No

Question 29

Are pre-trial statements mandatory in PA jury trials?

Answer 29

Yes

Question 30

When are pre-trial statements due?

Answer 30

By the plaintiff, 60 days before trial; by defendant, 30 days

Question 31

What must a pre-trial statement include?

Answer 31

1. Statement of the case;
2. list of the types and amounts of damages claimed;
3. List of witnesses and their locations;
4. Exhibit list;
5. Copies of expert reports, responses to expert ROGs, and
6. Stipulations.

Question 32

What is the PA right to a jury?

Answer 32

12 members and for all actions by which trial by jury was a matter of right when the PA Constitution was adopted

Question 33

When is the deadline for making a jury demand?

Answer 33

20 days after the service of the last pleading

Question 34

Does PA require unanimity in civil verdicts?

Answer 34

No; if 10 of the 12 agree a verdict may be rendered

Question 35

How many peremptory challenges do litigants get in civil cases?

Answer 35

Four; multiparty actions may have more