1347 Amendment of rules of civil procedure governing depositions by oral examination; proposed recommendation no. 185

PART I. GENERAL

[231 PA. CODE CH. 4000]

Amendment of Rules of Civil Procedure Governing Depositions by Oral Examination; Proposed Recommendation No. 185

[33 Pa.B. 3362]

   The Civil Procedural Rules Committee proposes that the Rules of Civil Procedure be amended by adding new Rules 4007.5 and 4019(a)(1)(viii) to govern conduct in depositions by oral examination. The proposed recommendation is being submitted to the bench and bar for comments and suggestions prior to its submission to the Supreme Court of Pennsylvania.

   All communications in reference to the proposed recommendation should be sent not later than September 12, 2003 to:

Harold K. Don, Jr.,
Counsel
Civil Procedural Rules Committee
5035 Ritter Road, Suite 700
Mechanicsburg, Pennsylvania 17055
or E-Mail to
[e-mail]

   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 or be officially adopted or promulgated by the Court.

Annex A

TITLE 231.  RULES OF CIVIL PROCEDURE

PART I.  GENERAL

CHAPTER 4000.  DEPOSITIONS AND DISCOVERY

Rule 4007.5.  Conduct in Deposition by Oral Examination.

   (a)  At a deposition upon oral examination, deponents, parties and attorneys shall conduct themselves in a civil manner.

   Official Note:  For remedies and sanctions for violation of this rule, see Rule 4019(a)(1)(viii).

   (b)  An attorney or party conducting the examination shall not engage in questioning that violates the limitations in Rule 4011.

   (c)  The attorney for the deponent shall not

   (1)  make objections or statements which coach the deponent on how to answer a question, instruct the deponent concerning the way in which he or she should frame an answer, or suggest an answer to the deponent, and

   Official Note:  While the rule does not permit an attorney to coach the deponent or to suggest an answer, it does not prohibit an attorney from seeking a good faith clarification of a question or an answer.

   (2)  instruct a deponent to refuse to answer a question without reasonable basis.

   (d)  When making an objection, the attorney for the deponent shall state the objection concisely but, if requested by the attorney or party conducting the examination, shall give a detailed explanation of the basis for the objection.

   Official Note:  In most cases, a short-form objection such as ''leading,'' ''argumentative,'' or ''asked and answered'' should constitute a sufficient objection for the record.

ENTRY UPON PROPERTY FOR
INSPECTION AND OTHER ACTIVITIES

Rule 4019.  Sanctions.

   (a)(1)  The court may, on motion, make an appropriate order if

*      *      *      *      *

   (viii)  a deponent, party or attorney violates Rule 4007.5;

   (ix)  a party or person otherwise fails to make discovery or to obey an order of court respecting discovery.

*      *      *      *      *

Explanatory Comment

   The preamble to the Rules of Professional conduct defines a lawyer as ''a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.'' Proposed Rule 4007.5 is designed to assist the lawyer in these responsibilities by setting guidelines and boundaries for depositions.

   Proposed Rule 4007.5 consists of four subdivisions. Subdivision (a) is a general provision requiring all participants at a deposition to ''conduct themselves in a civil manner.'' Subdivision (b) incorporates the limitations of Rule 4011 and specifically applies them to attorneys and parties conducting a deposition. Subdivisions (c) and (d) set forth guidelines with respect to the manner of objecting to questions at a deposition.

   The amendment to Rule 4019(a)(1) provides the enforceability of the new rule. New subparagraph (viii) authorizes the court, on motion, to make an appropriate order if ''a deponent, party or attorney violates Rule 4007.5.'' The enforcement provisions of Rule 4019 then become applicable to remedy a violation of the rule. The catchall provision of Rule 4019(a)(1), formerly subparagraph (viii), is designated as new subparagraph (ix).

By the Civil Procedural Rules Committee

R. STANTON WETTICK, Jr.,   
Chair

[Pa.B. Doc. No. 03-1347. Filed for public inspection July 11, 2003, 9:00 a.m.]