Defense Digest

On September 20, 2007, the Pennsylvania Supreme Court approved the creation of Pennsylvania Rule of Civil Procedure 4003.8, providing for and regulating pre-complaint discovery. The approval of this rule is intended to resolve long-standing uncertainty and confusion regarding the availability and scope of pre-complaint discovery in the Commonwealth.

Rule 4003.8, which took effect on November 1, 2007, is entitled Pre-Complaint Discovery and provides as follows:

(a) A plaintiff may obtain pre-complaint discovery where the information sought is material and necessary to the filing of the complaint and the discovery will not cause unreasonable annoyance, embarrassment, oppression, burden or expense to any person or party.

(b) Upon a motion for protective order or other objection to a plaintiff's pre-complaint discovery, the court may require the plaintiff to state with particularity how the discovery will materially advance the preparation of the complaint. In deciding the motion or other objection, the court shall weigh the importance of the discovery request against the burdens imposed on any person or party from whom the discovery is sought.

In conjunction with the creation of Rule 4003.8, notes have been added to Rules 4001(c) (Scope. Definitions) and 4007.1(c) (Procedure in Deposition by Oral Examination), and the note to Rule 4005(a) (Written Interrogatories to a Party) has been amended. Each note instructs the reader to see Rule 4003.8 governing pre-complaint discovery. By adding or amending notes to the existing rules governing depositions and interrogatories, the Supreme Court has approved the ability of a potential plaintiff to take pre-complaint depositions or issue pre-complaint interrogatories in order to effectuate the goals of Rule 4003.8.

The Explanatory Comment to the Pennsylvania Supreme Court's Order indicates that the creation of the new Rule arose, in part, from the Pennsylvania Supreme Court case of McNeil v. Jordan, 894 A.2d 1260 (2006). In McNeil, Appellant Henry McNeil, Jr., one of four children of Henry McNeil, Sr., the president of McNeil Laboratories, Inc. (the maker of Tylenol) appealed the trial court's refusal to allow him to take pre-complaint discovery regarding his claim for intentional interference with testamentary expectancy against his sister, Barbara McNeil Jordan, and her husband. The Pennsylvania Supreme Court granted allocatur to "clarify the parameters of pre-complaint discovery in Pennsylvania." McNeil, 894 A.2d at 1262.

In its opinion, the Pennsylvania Supreme Court addressed the disparate case law regarding the availability of pre-complaint discovery in Pennsylvania and set forth a detailed rationale as to why, and within limits, pre-complaint discovery should be permitted. The Court explained that the Pennsylvania Rules of Civil Procedure already contemplated the availability of pre-complaint discovery. The Court first cited the text of Pa.R.C.P. 4001(c), which provides:

Subject to the provisions of this chapter, any party may take the testimony of any person, including a party, by deposition upon oral examination or written interrogatories for the purpose of discovery, or for preparation of pleadings, or for preparation or trial of a case, or for use at a hearing upon petition, motion or rule, or for any combination of the foregoing purposes.

Pa. R.C.P. 4001(c) (emphasis added).

The Court reasoned that, because a complaint is a pleading, discovery may be utilized in its preparation. The Court then cited Pa.R.C.P. 4007.1(c) regarding the availability of depositions in aid of preparing a complaint if the action is commenced by writ of summons as further evidence of the right of a party to take pre-complaint discovery.

The Court explained that, despite the statutory right to take pre-complaint discovery, the courts had failed to provide uniformity on the issue, causing confusion. The Court described a "lack of appellate case law establishing objective criteria for balancing the rights of a complaining party to take measured pre-complaint discovery with the right of a responding party to be free from intrusive and burdensome discovery demands lodged prior to the vesting of any right to respond to the premises underlying the plaintiff's suit." As such, the Court sought to "address directly [and for the first time] the parameters of pre-complaint discovery" and also indicated that it would refer the issue to the Civil Procedure Rules Committee to "consider the adequacy of Rules 4001(c) and 4007(c) vis-à-vis pre-complaint and pre-amended complaint discovery, and to recommend any amendments that might clarify this vexing area of civil procedure."

While the Civil Procedure Rules Committee did not adopt all of the language used by the McNeil Court in drafting Rule 4003.8, it did draw directly from the opinion in an effort to create a balancing test between the need for pre-complaint discovery and the right of a potential defendant to be free from intrusive and burdensome discovery demands before a formal complaint is filed.

As such, 4003.8(a) creates a two-part test for the availability of pre-complaint discovery: (1) the information sought must be "material and necessary to the filing of the complaint," and (2) the discovery sought "will not cause unreasonable annoyance, embarrassment, oppression, burden or expense to any person or party." See Explanatory Comment to Rule 4003.8.

If a party or potential party files a motion for a protective order or objects to the pre-complaint discovery, the court may then require "the plaintiff to state with particularity how the discovery will materially advance the preparation of the complaint." See Rule 4003.8(b). At that point, the court will balance "the importance of the discovery request against the burdens imposed on any person or party from whom the discovery is sought."

Only time will tell as to the impact this Rule will have. The responsibility for the success or failure of Rule 4003.8 will depend largely on the personal restraint shown by members of the Bar as the potential for abuse, even with the Rule's two-part test, is substantial. The hope is that the availability of pre-complaint discovery will actively facilitate the filing of legitimate cases that would otherwise not be able to withstand a demurrer. However, it is also possible that the Pennsylvania Supreme Court has simply told the plaintiffs' bar to "go fish."

* Rachael is an associate in our Philadelphia, Pennsylvania, office. She can be reached at (215) 575-2766 or rmcarp@mdwcg.com.