Section 4007.1. Procedure in Deposition by Oral Examination

(a) A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action, except that no notice need be given a defendant who was served by publication and has not appeared in the action. A party noticed to be deposed shall be required to appear without subpoena.

(b) The notice shall conform with the requirements of subdivision (c) of this rule and of Rule 4007.2(b) and (c) where appropriate and shall state the time and place of taking the deposition and the name and address of each person to be examined if known, and, if the name is not known, a general description sufficient to identify the deponent or the particular class or group to which the deponent belongs.

Official Note

The court upon cause shown may make a protective place of taking the deposition. See Rule 4012.

(c) The purpose of the deposition and matters to be inquired into need not be stated in the notice unless the action has been commenced by writ of summons and the plaintiff desires to take the deposition of any person upon oral examination for the purpose of preparing a complaint. In such case the notice shall include a brief statement of the nature of the cause of action and of the matters to be inquired into.

Official Note

See Rule 4003.8 governing pre-complaint discovery.

(d)(1) If the person to be examined is a party, the notice may include a request made in compliance with Rule 4009.1 et seq., for the production of documents and tangible things at the taking of the deposition.

(2) If the person to be examined is not a party, and is to be served with a subpoena duces tecum to produce designated materials, the notice shall specify the materials to be produced. The materials shall be produced at the deposition and not earlier, except upon the consent of all parties to the action.

(e) A party may in the notice and in a subpoena, if issued, name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters to be inquired into and the materials to be produced. In that event, the organization so named shall serve a designation of one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which each person will testify. A subpoena shall advise a non-party organization of its duty to make such a designation. The person or persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision (e) does not preclude taking a deposition by any other procedure authorized in these rules.

(f) An application for an order pursuant to Section 5326(a) of the Judicial Code may be filed only in the county in which the person who is the subject of the order resides, is employed or regularly transacts business in person.

Official Note

Section 5326 of the Judicial Code, 42 Pa.C.S. § 5326, a part of the Uniform Interstate and International Procedure Act, provides for assistance to tribunals and litigants outside the Commonwealth.

The provisions of this Rule 4007.1 adopted November 20, 1978, effective April 16, 1979, 9 Pa.B. 3551; amended April 7, 1997, effective July 1, 1997, 27 Pa.B. 1921; amended August 4, 1998, effective January 1, 1999, 28 Pa.B. 4175; amended April 12, 1999, effective July 1, 1999, 29 Pa.B. 2281; amended September 20, 2007, effective November 1, 2007, 27 Pa.B. 5374. Immediately preceding text appears at serial pages (255401) to (255402) and (295865).

Notation

Explanatory Note

Former Rule 4007 has been rescinded. The subject matter of former subdivision (a), dealing with the scope of discovery, has been enlarged and transposed to Rule 4003.1, supra. The provisions of former subdivision (b), dealing with the requirement of leave of court, have been transposed to Rule 4007.2. The provisions of former subdivision (c), dealing with notice, are enlarged in Rule 4007.1. The provisions of former subdivision (d)(1), authorizing local option rules for the content of the notice, are deleted and all local rules under former subdivision (d) will be invalid. The provisions of former subdivision (d)(2) for the filing of objections are deleted. A protective order under Rule 4012 is available.

In place of former Rule 4007 are new Rule 4007.1, which prescribes the procedure in deposition by oral examination, Rule 4007.2 which prescribes when leave of court is required, and Rules 4007.3 and 4007.4, which govern the sequence and timing of discovery and supplementary responses, subjects not previously governed by the Rules. These new Rules will be commented on separately.

Subdivisions (a) and (b) repeat the substance of former Rule 4007(c). A provision has been added to make it clear that a party noticed to be deposed need not be subpoenaed. The notice is sufficient to support subsequent sanction procedures under Rule 4019 for failure to appear.

Subdivision (c) is new. It provides that the purpose of the deposition and the matters to be inquired into need not be stated in the notice, except in the relatively infrequent case where the action has been commenced by a writ of summons and the plaintiff desires to take a deposition upon oral examination for the purpose of preparing a complaint. In this situation the inquirer must provide a brief statement of the nature of the cause of action and of the matters to be inquired into. The reason for the Rule is obvious. The party who has not yet been served with a complaint may in some instances not be aware of the nature of the action and thus be totally unprepared to submit to oral examination.

Subdivision (d) clarifies the practice for the production of documents in connection with an oral deposition. Under it, a simple request to a party to produce documents is sufficient. No subpoena is needed. But if the person examined is a witness and not a party, a subpoena duces tecum to produce specified materials and documents must be served.

Subdivision (e) is adapted, almost verbatim, from Fed. R.Civ.P. 30(b)(6). It provides, as an optional alternative to other forms of discovery, that the notice may name as a deponent a public or private corporation or a partnership or association or governmental agency. In this situation, however, the notice must describe with reasonable particularity the matters to be inquired into and the materials to be produced. The organization, if it is a party, is then required to serve on the inquirer a designation of the officers, directors, managing agents or other persons who will testify on its behalf. The purpose of the Rule is to avoid the wholesale subpoenaing of named directors, officers, and others where the inquirer does not know the identity of the exact person or persons who will be able to testify as to the requested information.

If it develops that the designated persons reveal others whose testimony may be relevant, they can also be deposed. The procedure is not exclusive and the inquirer may resort to any other method of discovery and subpoena available.

The reference to the ‘‘consent to testify’’ is limited to persons other than officers, directors or managing agents. The latter may not frustrate the discovery by declining to testify; their position requires them to testify. A subordinate employe is not in the same position and the organization cannot designate such a subordinate employe unless it certifies that he will testify.