132 Revision of Rule 4009 governing production of documents and things and entry upon land; proposed recommendation no. 131

PART I. GENERAL

[231 PA. CODE CH. 4000]

Revision of Rule 4009 Governing Production of Documents and Things and Entry Upon Land; Proposed Recommendation No. 131

[26 Pa.B. 431]

   The Civil Procedural Rules Committee proposes the recision of Rule of Civil Procedure 4009 governing the production of documents and things and entry upon land and the adoption of new Rule 4009.1 et seq. The proposed recommendation is being submitted to the bench and bar for comments and suggestions prior to its submission to the Supreme Court. All communications should be sent no later than April 12, 1996 to Harold K. Don, Jr., Esquire, Counsel, Civil Procedural Rules Committee, 5035 Ritter Road, Suite 700, Mechanicsburg, PA 17055.

   The Explanatory Comment which appears in connection with the proposed recommendation has been inserted by the Committee for the convenience of the bench and bar. It will not constitute part of the rules of civil procedure nor will it be officially adopted or promulgated by the Court.

Annex A

TITLE 231.  RULES OF CIVIL PROCEDURE

PART I.  GENERAL

CHAPTER 4000.  DEPOSITIONS AND DISCOVERY

PRODUCTION OF DOCUMENTS AND THINGS

Rule 4009.1.  Production of Documents and Things.

   Any party may serve a request upon a party pursuant to Rule 4009.2 or a subpoena upon a person not a party pursuant to Rule 4009.3 to produce and permit the requesting party, or someone acting on the party's behalf, to inspect and copy any designated documents (including writings, drawings, graphs, charts, photographs, electronically created data, and other compilations of data from which information can be obtained, translated, if necessary, by the respondent party or person upon whom the request or subpoena is served through detection or recovery devices into reasonably usable form), or to inspect and copy, test or sample any tangible things which constitute or contain matters within the scope of Rules 4003.1 through 4003.5 inclusive and which are in the possession, custody or control of the party or person upon whom the request or subpoena is served.

   Official Note: These rules do not prevent a court from entering an order under its common law power preserving or protecting a document or thing.

   Parties to an action and persons not parties but served with a subpoena or request pursuant to these rules have the protective and enforcement provisions of the discovery rules available to them. See Rule 4012 governing protective orders and Rule 4019 governing enforcement and sanctions for failure to make discovery.

   These rules do not preclude (1) the issuance of a subpoena under Rule 234.1 et seq. for the production of documents or things at a deposition or (2) an independent action against a person not a party for production of documents or things.

Rule 4009.2. Request Upon a Party for Production of Documents and Things.

   (a)  The request may be served without leave of court upon the plaintiff after commencement of the action and upon any other party with or after service of the original process upon that party.

   (b)  The request shall set forth in numbered paragraphs the items to be produced either by individual item or by category, and describe each item or category with reasonable particularity. Each paragraph shall seek only a single item or a single category of items. The request shall be prepared in such fashion that sufficient space is provided immediately after each paragraph for insertion of the answer.

   (c)(1)  The party upon whom the request is served shall within thirty days after the service of the request

   (i)  serve an answer including objections to each numbered paragraph in the request, and

   (ii)  produce or make available to the party submitting the request those documents and things described in the request to which there is no objection.

   (2)  The answer shall be in the form of a paragraph-by-paragraph response which shall

   (i)  identify by number, using the system of numbering prescribed by subdivision (d), all documents or things produced or made available;

   (ii)  identify by number, using the system of numbering prescribed by subdivision (d), all documents or things not produced or made available because of the objection that they are not within the scope of permissible discovery under Rule 4003.2 through Rule 4003.5 inclusive and Rule 4011(c). Each document or thing not produced shall be identified with reasonable particularity together with the basis for non-production;

   (iii)  object to the request on the grounds set forth in Rule 4011(a), (b), and (e) or on the ground that the request does not meet the requirements of subdivision (b) of this rule;

   (iv)  state that after reasonable investigation, it has been determined that there are no documents responsive to the request.

   (3)  The answer shall be signed and verified by the person making it and signed also by the attorney making an objection if one is set forth.

   (d)  The party producing documents or things shall identify through a system of numbering the documents or things produced and the documents and things withheld. The party producing the documents and things and the party receiving them shall keep a current list of the documents and things produced and withheld based on the numbering system.

   Official Note: Ordinarily, each page of a document should receive a separate number. However, a document may be assigned a number as a whole if it is bound or if it contains pages which are sequentially numbered.

   (e)  If a request is reasonably susceptible to one construction under which documents sought to be produced are within the scope of the request and another construction under which the documents are outside the scope of the request, the answering party shall either produce and identify the documents pursuant to subdivision (c)(2)(i) of this Rule or object to the request pursuant to subdivision (c)(2)(ii).

Rule 4009.3.  Subpoena Upon a Person Not a Party for Production of Documents and Things.

   (a)(1)  A party seeking production from a person not a party to the action shall give written notice to every other party of the intent to serve a subpoena at least thirty days before the date of service. A copy of the subpoena proposed to be served shall be attached to the notice.

   Official Note:  For the form of the written notice, see subdivision (f) of this rule.

   (2)  The written notice shall not be given to the person named in the subpoena.

   (b)(1)  Any party may file of record written objections to the service of the subpoena and shall serve a copy of the objections upon every other party to the action.

   Official Note:  For the form of the objections, see subdivision (g) of this rule.

   (2)  If objections are filed of record or are received by the party intending to serve the subpoena on or before the thirtieth day after service of the notice of intent, the subpoena shall not be served. The court upon motion shall rule upon the objections and may enter an appropriate order.

   Official Note:  The party seeking production is under a duty to check the docket of the case in the prothonotary's office to determine if an objection has been filed.

   (3)  If objections are not filed or received within thirty days after service of the notice of intent, the subpoena may be served as provided by subdivision (c) subject to the right of any party or interested person to seek a protective order.

   (c)(1)  The party seeking production may serve on the person named in the subpoena a copy of the subpoena only if it is identical to the subpoena attached to the notice of intent to serve the subpoena and if the party seeking production has filed of record a certificate that

   (i)  the notice of intent to serve a subpoena was mailed or delivered to each party at least thirty days prior to the date on which the subpoena is sought to be served,

   (ii)  a copy of the notice of intent, including the proposed subpoena attached to the notice of intent, is attached to the certificate, and

   (iii)  no party has filed of record or served an objection to the service of the subpoena.

   Official Note:  For the form of the certificate, see subdivision (h) of this rule.

   (2)  The subpoena shall be issued as provided by Rule 234.2(a) and shall be served in the manner provided by Rule 234.2(b).

   Official Note:  Rule 234.2(a) governs the issuance by the prothonotary of a subpoena to testify. Rule 234.2(b) governs service of a subpoena to testify.

   For the form of a subpoena to produce, see subdivision (i) of this rule.

   (d)  The person upon whom the subpoena has been served in complying with the subpoena shall execute a certification of compliance and deliver it with the documents or things produced to the party serving the subpoena within thirty days of service. A form of certification to be executed and delivered shall be served with the subpoena.

   Official Note:  For the form of the certification of compliance, see subdivision (j) of this rule.

   (e)  The party receiving documents and things pursuant to the subpoena shall give notice of receipt to every other party to the action and upon the payment of reasonable cost shall

   (1)  furnish a legible copy of each document to any other party who requests a copy and

   (2)  allow reasonable access to the things to any other party who requests access.

   (f)  The written notice of intent to issue a subpoena required by subdivision (a)(1) shall be substantially in the following form:

(CAPTION)

NOTICE OF INTENT TO OBTAIN A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.3

   ______  (party) intends to serve a subpoena identical to the one that is attached to this notice. You have thirty (30) days from the date listed below in which to file of record and serve upon the undersigned an objection to the issuance of the subpoena. If no objection is made the subpoena may be served.

Date:  ______
______
Attorney for               

   (g)  The objection to the issuance of a subpoena prescribed by subdivision (b) shall be substantially in the following form:

(CAPTION)

OBJECTIONS TO THE SERVICE OF A SUBPOENA
PURSUANT TO RULE 4009.3

   ______(party) objects to service of the proposed subpoena that is attached to these objections for the following reasons:__________ 
__________

Date:  ______
______
Attorney for               

   (h)  The certificate required by subdivision (b) as a prerequisite to the service of a subpoena shall be substantially in the following form:

(CAPTION)
CERTIFICATE
PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.3

   As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.3,  ________________  certifies that
(Plaintiff/Defendant)

   (1)  a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least thirty days prior to the date on which the subpoena is sought to be served,

   (2)  a copy of the notice of intent, including the proposed subpoena, is attached to this certificate,

   (3)  no party has filed of record an objection to the service of the subpoena nor has the undersigned received an objection to the service of the subpoena, and

   (4)  the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena.

Date:  ______
______
Attorney for               

   Official Note:  The party who signs the certificate must ascertain that no objections have been filed of record. See Rule 4009.3(c).

   (i)  A subpoena to produce documents or things shall be substantially in the following form:

(CAPTION)

SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.3

TO:  _________________
      (Name of Person or Entity)

   Within thirty (30) days after service of this subpoena, you are ordered by the court to produce the following documents or things:____________________
 
__________
 

at__________
(Address)

   You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought.

   If you fail to produce the documents or things required by this subpoena within thirty (30) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it.

   This subpoena was issued at the request of the following person:

_________________
Attorney's Name
 
_________________
Identification Number
 
_________________
Address
 
_________________
Telephone Number
 
Attorney for______

BY THE COURT:

DATE:______
By  ______
(Prothonotary)      

Seal of the Court

   (j)  The certification of compliance required by subdivision (d) shall be substantially in the following form:

(CAPTION)

NOTICE

   To______(Person Served with Subpoena):

   You are required to complete the following Certificate of Compliance when producing documents or things pursuant to the Subpoena.

CERTIFICATE OF COMPLIANCE
WITH SUBPOENA TO PRODUCE DOCUMENTS OR THINGS PURSUANT TO RULE 4009.3

   ______  (person served with subpoena) certifies to the best of his or her knowledge, information and belief that all documents or things required to be produced pursuant to the subpoena issued on__________(date of subpoena) have been produced.

Date:  ______
_________________
Person served with subpoena  

ENTRY UPON PROPERTY FOR INSPECTION AND OTHER ACTIVITIES

Rule 4009.11.  Entry Upon Property for Inspection and Other Activities.

   Any party may serve a request upon a party pursuant to Rule 4009.12 or a motion upon a person not a party pursuant to Rule 4009.13 to permit entry upon designated property in the possession or control of the party or person upon whom the request is served for the purpose of inspecting and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rules 4003.1 through 4003.5 inclusive.

   Official Note:  These rules do not prevent a court from entering an order under its common law power preserving or protecting property.

   Parties to an action and persons not parties but served with a subpoena or request pursuant to these rules have the protective and enforcement provisions of the discovery rules available to them. See Rule 4012 governing protective orders and Rule 4019 governing enforcement and sanctions for failure to make discovery.

   These rules do not preclude an independent action against a person not a party for permission to enter upon property.

Rule 4009.12.  Request for Entry upon Property of a Party.

   (a)  The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the original process upon that party. The request shall describe with reasonable particularity the property to be entered and the activities to be performed.

   (b)  The party upon whom the request is served shall allow the requested entry unless the request is objected to within thirty days after service of the request, in which event the reasons for objection shall be stated. If objection is made to party of a request, the part shall be specified. The party submitting the request may move for an order under Rule 4019(a) with respect to any objection to or failure to respond to the request or any part thereof, or any failure to permit entry as requested.

   (c)  A party may enter upon property one or more times to accomplish the activities set forth in the request.

   Official Note:  The remedy of a protective order is available to the party to whom the request is directed to prevent abuse.

Rule 4009.13. Motion for Entry Upon Property of a Person Not a Party.

   (a)  A motion to permit entry upon property of a person not a party shall begin with the notice prescribed by subdivision (c) and shall be served personally by a competent adult in the same manner as original process. A copy of the motion shall also be served upon all other parties to the action pursuant to Rule 440.

   Official Note:  For general provisions governing entry upon property, see Rule 4009.11.

   (b)  If the person served does not affirmatively consent to the entry, the motion may be presented to the court. The moving party shall give the person served not less than fifteen days notice of the presentation. Upon proof of service of the notice of the presentation, the court, as it deems appropriate, may enter an order permitting or denying the entry or set a date for a hearing. The order permitting entry shall specify a reasonable time, manner or other condition of entry and of making the inspection and performing any related acts.

   (c)  The notice required by subdivision (a) shall be substantially in the following form:

(CAPTION)

IMPORTANT NOTICE

   YOU HAVE PROPERTY WHICH THE PARTIES TO THE ABOVE LAWSUIT WISH TO ENTER FOR INSPECTION OR OTHER ACTIVITIES. THE MOTION ATTACHED TO THIS NOTICE ASKS THE COURT FOR AN ORDER ALLOWING THE ENTRY INTO YOUR PROPERTY. IF YOU HAVE NO OBJECTION TO THIS ENTRY PLEASE FILL IN THE ATTACHED FORM. PLEASE CONTACT THE ATTORNEY LISTED BELOW:

_________________
(Attorney filing the motion)

_________________
(Address) 

_________________
(Telephone Number)

   IF YOU DO HAVE OBJECTIONS YOU HAVE A RIGHT TO A HEARING ON THE MATTER. A DATE FOR PRESENTATION OF THE MOTION TO THE COURT WILL BE SET AND THE PARTY FILING THE MOTION WILL GIVE YOU FIFTEEN DAYS NOTICE OF THE PRESENTATION. IF YOU DO NOT APPEAR AT THE PRESENTATION OF THE MOTION, THE COURT MAY ENTER AN ORDER ALLOWING ENTRY.

   YOU MAY WISH TO TAKE THIS NOTICE TO A LAWYER WHO CAN ADVISE YOU. IF YOU DO NOT HAVE A LAWYER AND WISH TO OBTAIN ONE, CONTACT THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP:

_________________
(Name of Office)
 
_________________
(Address of Office)
 
_________________
(Telephone Number)

   Official Note:  The office shall be that designated by the court under Rule 1018.1(c).

Explanatory Comment

   Recommendation No. 131 proposes to rescind present Rule 4009 governing production of documents and things and entry upon land and to replace it with Rule 4009.1 et seq. The new section is divided into Rules 4009.1--4009.3, relating to production of documents and things and Rules 4009.11--4009.13, relating to entry upon property.

PRODUCTION OF DOCUMENTS AND THINGS

Rule 4009.1 Production of Documents and Things

   Proposed Rule 4009.1 is derived from present Rule 4009(a)(1) and sets forth the parameters of production. While continuing to provide for a request for production by a party to an action, the rule also provides for a new subpoena for production by a person not a party.

Rule 4009.2 Request Upon a Party for Production

   The rule provides that the request is to be in the form of numbered paragraphs, each of which should request one item or category of items described with ''reasonable particularity.'' As in the case of written interrogatories to a party, the rule requires that sufficient space be ''provided following each paragraph for insertion of the answer.''

   The party upon whom the request is served must serve a verified answer within thirty days after service of the request. Any objections to the request must be set forth in the answer. Subdivision (c) also provides specific guidance to the manner of answering a request. Documents or things whether produced or not produced are to be identified through a system of numbering required by subdivision (d).

   If a request is subject to a reasonable interpretation that certain documents are within the scope of the request, the party from whom production is sought must respond to the request. Subdivision (e) requires that in such a circumstance the document must be produced and identified or an objection made.

Rule 4009.3 Subpoena Upon a Person Not a Party for Production of Documents and Things

   The subpoena upon a person not a party for the production of documents and things is new. A party who wishes to take advantage of this procedure must give thirty days advance notice to all other parties of the intention to serve the subpoena. A copy of the subpoena proposed to be served must be attached to the notice of intent. Advance notice is not given to the person to be served with the subpoena from whom production is sought.

   Any party may object to service of the subpoena and, if the objection is filed of record or received by the party who served the notice of intent within thirty days of service, ''the subpoena shall not be served.'' A protective order is available to a party who has not timely filed or served objections.

   Service of the subpoena is authorized by subdivision (c) if it is identical to the subpoena attached to the notice of intent and if the party seeking to serve it files the required certification. The rule provides several forms, including the form of subpoena and the form of certification.

   Subdivision (d) provides for the party upon whom the subpoena has been served to execute a certificate of compliance. Subdivision (e) provides for the party who has received documents or things to give notice to other parties of the receipt of documents or things and, upon request and payment of reasonable costs, to provide copies of documents or reasonable access to things.

ENTRY UPON PROPERTY FOR INSPECTION AND OTHER ACTIVITIES

Rule 4009.11 Entry Upon Property for Inspection and Other Activities

   Proposed Rule 4009.11 is derived from present Rule 4009(a)(2) and describes the entry upon property. In addition to providing for a request for entry upon property of a party to an action as under the present rule, the proposed rule also provides for a motion for entry upon the property of a person not a party.

Rule 4009.12 Request for Entry Upon Property of a Party

   The request must ''describe with reasonable particularity the property to be entered and the activities to be performed.'' The party served must permit the requested entry or object within thirty days after service of the request. The enforcement provisions of Rule 4019(a) are available with respect to an objection, a failure to respond or a failure to permit the requested entry.

   The party requesting entry may enter ''one or more times to accomplish the activities set forth in the request.'' A note advises that abuse may be prevented by means of a protective order.

Rule 4009.13 Motion for Entry Upon Property of a Person Not a Party

   The rule governs three aspects of procedure upon a motion for entry upon property of a person not a party. First, subdivision (a) requires that the motion begin with the form of ''Important Notice'' prescribed by subdivision (c). Second, subdivision (a) also requires service of the motion upon both the person not a party whose property is to be entered and all other parties to the action. Finally, subdivision (b) provides for notice of presentation of the motion to the court when the person does not affirmatively consent to the entry.

By the Civil Procedural Rules Committee,

EDWIN L. KLETT,   
Chairperson

[Pa.B. Doc. No. 96-132. Filed for public inspection February 2, 1996, 9:00 a.m.]