Defense Digest

Unveiling The Mysteries Of A Deposition By Written Interrogatories Under Cooper v. Schoffstall

In Cooper v. Schoffstall, __ A.2d __ (Pa. 2006) (2006 Pa. LEXIS 1717; filed 9/7/06), the Pennsylvania Supreme Court addressed "the availability, in a civil case, of discovery of financial records of a non-party expert medical witness to facilitate an inquiry into potential bias." The Court decided that, once a party establishes sufficient cause to believe that another's "non-party expert witness retained for trial preparation … may have entered the professional witness category," limited discovery can be conducted to explore the potential bias of the witness through "a deposition by written interrogatories under Rule of Civil Procedure 4004." Cooper, 2006 Pa. LEXIS 1717, p. 32-36.

According to Cooper, once the proponent of the discovery has demonstrated "a significant pattern of compensation that would support a reasonable inference that the witness might color, shade, or slant his testimony in light of the substantial financial incentives" enjoyed by professional witnesses, the proponent may be permitted, subject to the trial court's exercise of its sound discretion, to use a deposition by written interrogatories under Rule 4004 to inquire into:

The Cooper majority opinion made four additional points of general interest: (1) "[t]o the degree that the witness will incur expenses connected with the deposition, the trial court has discretion to allocate costs appropriately"; (2) "we would expect that the questions often may be propounded to the expert deponent at a convenient time at his regular place of business"; (3) the written interrogatories may not pose "inquiries into the approximate portion of the witness's total income derived from medicolegal services"; and (4) the trial courts might allow further discovery, including the production of the witness's tax returns, if the proponent files a motion which strongly shows that witness has been evasive or untruthful. Cooper, supra, 2006 Pa. LEXIS 1717, p. 36-37.

To understand the nature of a deposition by written interrogatories, it is helpful to illustrate what does not constitute that procedure. A good example can be found in First Seneca Bank v. Sunseri, 674 A.2d 1080, 1085 (Pa. Super. 1996), where the trial court ordered depositions to be taken on disputed issues of fact raised by an answer to a petition. The Bank attempted to submit what it termed "depositions by written interrogatories," which "consisted of questions by one attorney for the Bank directed to the Bank's principal attorney and one of the Bank's vice presidents." Noting that the "depositions" did not allow the defendants to cross-examine the deponents, the trial court branded the "depositions" as "self-serving attempts at giving uncontested testimony, in the nature of affidavits" and refused to consider them. The Superior Court agreed with that determination and upheld the trial court's refusal to consider the documents.

As First Seneca illustrates, a deposition by written interrogatories involves more than a one-sided exercise. All parties must have the opportunity to be involved in the procedure.

But, unlike a deposition by oral examination, the parties' involvement in a deposition by written interrogatories occurs chiefly before the deposition takes place and is limited to proposing questions for the witness, registering objections, and making appropriate motions for protection or to overrule objections. Moreover, unlike a deposition by oral examination where all interested parties may be present and can participate, only the court reporter and the witness are present during the deposition by written interrogatories.

In essence, a deposition by written interrogatories under Cooper will typically involve a meeting between a court reporter and the expert witness in the latter's office, during which the court reporter reads to the witness the written questions posed by the parties within the topics outlined by the Pennsylvania Supreme Court, and the court reporter records and later transcribes the expert's oral responses to those questions. The court reporter is then obliged to provide a certified copy of the questions and the transcribed answers to the party who initiated the deposition. That party is then obliged to notify the other parties of the receipt of the certified questions and answers.

Pa.R.C.P. Rule 4004, which governs the procedures for depositions by written interrogatories, states:

Analysis of Rule 4004 under Cooper yields several practice pointers.

First, the additional discovery permitted by Cooper is limited to discovery in Pennsylvania state court cases. The federal courts in Pennsylvania operate under different rules and case law, which are beyond the scope of this article.

Second, the additional discovery under Cooper is not automatic. In the absence of an agreement of the parties, the Pennsylvania Supreme Court's opinion requires the party who seeks that discovery to obtain permission to conduct it from the trial court via a motion. The moving party has to establish "sufficient cause" to believe that the proposed deponent "may have entered the professional witness category." That requirement can be satisfied by showing "a significant pattern of compensation that would support a reasonable inference that the witness might color, shade, or slant his testimony in light of the substantial financial incentives." Cooper, 2006 Pa. LEXIS 1717, p. 32-33. Obtaining evidence of the threshold "significant pattern of compensation" is left to the devices of counsel, and defining what constitutes sufficient proof of such a pattern is left to the courts to define.

Third, the additional discovery permitted by Cooper is limited to discovery from a "non-party expert witness." Cooper, supra, 2006 Pa. LEXIS 1717, p. 32 (emphasis added). That category should eliminate testifying medical personnel who are parties, such as defendants or additional defendants, and treating medical personnel who are called for essentially factual testimony. See also, Pa.R.C.P. 4003.5, which distinguishes between experts who are expected to testify at trial and those who are not so expected.

Fourth, although the majority's opinion in Cooper used the phrase "non-party expert witness retained for trial preparation," Cooper, supra, 2006 Pa. LEXIS 1717, p. 32 (emphasis added), the full context of the case and the Court's decision should make it obvious that the Court was only addressing discovery of witnesses who are expected to be called at trial and that the Court was not opening an avenue of discovery for experts who are merely used as non-testifying consultants.

Fifth, Cooper restricts and actually specifies the areas of inquiry, albeit using some terms which may generate interpretational disputes.

Sixth, the procedures for a deposition by written interrogatories fall into three stages: before, during, and after the deposition. The first stage focuses on the development of the questions to be asked of the witness. The second stage involves the interrogation of the expert witness. The third stage concludes the process.

The proponent of the deposition by written interrogatories initiates the procedure by serving a set of interrogatories on all other parties, which not only includes the proposed questions, but also provides notice of who will be deposed, when and where the deposition will take place, and the identification of the court reporter who will conduct the deposition.

After service of the opening interrogatories, the other parties have 30 days (1) to propound cross-interrogatories and (2) to object to the form of the opening interrogatories, the form of the notice, the qualifications of the court reporter, the competency of the witness, and to known deficiencies in the "competency, relevance, or materiality of the testimony." Pa.R.C.P. 4016(b), incorporated by Pa.R.C.P. 4004(b). It is important to note that objections to those matters will be waived if not timely made, but all other objections are reserved and can be raised later.

As noted above, a party who wishes to pose cross-interrogatories must serve them on all other parties within 30 days of service of the opening interrogatories, but the proponent of the opening interrogatories and other parties have only 10 days (1) to serve objections and (2) to propound additional interrogatories. Rule 4004 does not restrict the number of waves of additional interrogatories and it imposes the same 10-day limit on each wave. However, given the limitations on the scope of the inquiries under Cooper and that decision's preference for discovery that is "the least burdensome and intrusive kind possible," Cooper, supra, 2006 Pa. LEXIS 1717, p. 34, counsel on both sides should spend time in carefully framing opening interrogatories and in considering the use and wording of additional interrogatories.

As noted above, Rule 4004 requires objections on certain points to be made within certain time frames. Raising those objections, however, does not automatically bring them into effect. Instead, under Rule 4004(e), the objecting party or the deponent must "promptly" make a motion "[a]fter the service of interrogatories and prior to the taking of the testimony of the deponent" and to "the court in which the action is pending" for enforcement of the objections or for protective relief under Rule 4012. If raised, the objections should be specific as to each contested interrogatory and as to the grounds for the objections. Moreover, the objections should be timely filed and served, and timely prosecuted.

Under Rule 4004(c), the parties must provide the court reporter with a copy of the interrogatories to be propounded by the reporter to the witness, and the court reporter is required to "promptly give notice to the witness and thereafter propound the interrogatories to the witness and complete, certify and send the deposition by registered mail to the party taking the deposition, attaching thereto the copy of the interrogatories." Pa.R.C.P. 4004(c). Although a very strict reading of Rule 4004(c) and of 9 Goodrich Amram 245, 250 might suggest that the witness learns of the interrogatories only at the time when they are read by the court reporter, neither the Rule nor common sense prohibits the witness from seeing the questions in advance of the deposition. Moreover, both sides would benefit greatly if the witness had the questions in advance. Among other things, preparation would shorten the time for the actual deposition and ensure accuracy and completeness in the answers.

As noted above, the actual deposition is conducted by the court reporter, and the witness is the only other participant. The court reporter should obtain the witness's oath or affirmation as required by Pa.R.C.P. 4017 before beginning the process of reading the interrogatories and recording the witness's answers. Ideally, the process should proceed question by question, and the questions should be recorded in conjunction with their respective answers.

Once the deposition is completed, the court reporter must transcribe, certify, and send it to the proponent of the discovery by registered mail together with a copy of the propounded interrogatories. The proponent then gives written notice to all other parties of the receipt of the transcript and questions. The proponent does not have to furnish a copy of the transcript and questions to the other parties. However, the other parties can make arrangements with the court reporter to obtain a copy of the transcript and questions in accordance with Pa.R.C.P. 4004(f), which allows parties to obtain copies upon payment of a reasonable charge.

Although not addressed specifically by Rule 4004, the better practice should follow the reading, correction, and signing procedures – or the agreed waiver thereof – used with respect to depositions by oral examination.

It will be interesting to see how the deposition by written interrogatories practice under Cooper develops. Please feel free to drop me a line or give me a call about your experiences and if you have any questions or comments about this article. Thank you for your attention and interest.

* Chuck Craven is a shareholder in our firm's Philadelphia, Pennsylvania office. He can be reached at (215) 575-2626 or cwcraven@mdwcg.com.