By James J. Franklin and Erik B. Derr*
You find yourself either facing the prospect of litigation or already embroiled in litigation. You want to discover information about the opposing party, the issues involved in the litigation, or your odds of success in litigation. Under what circumstances and through what procedures may you discover such additional information before you advance further into litigation?
When a party suspects that it is about to become involved in litigation, or when it has recently become involved in litigation, it is common for that party to want to obtain and learn additional information as soon as possible. Courts, however, have very specific and varying rules governing when and to what extent a party may engage in this discovery. Accordingly, whether pre-complaint discovery will be available will depend on several factors.
The answer first depends on whether litigation has already commenced, and, if so, how it was commenced. If litigation has not yet commenced, then usually a party will not be able to use the power of the courts to discover information about a potential adverse party or a potential litigation issue. This especially is true in Pennsylvania’s state courts. Of course, the party always may resort to searching publicly-available information, or approaching the adverse party to voluntarily provide or exchange information. The former approach, however, may not provide the information that the party seeks, while the latter will be a business and strategic decision, as doing so may tip the party’s hand as to its potential claims.
A potential exception, exists in both federal courts and Pennsylvania state courts; but the potential exception is narrow. Where the prospective claim could be brought in federal court, Federal Rule of Civil Procedure No. 27(a) provides the circumstances and procedures under which a party may pursue discovery against another party before filing any legal action. The party, however, must first provide specific information to the court, provide notice to all interested parties, and obtain the court’s approval. Normally, the court will only approve the request for discovery prior to filing a complaint where there is a substantial danger of evidence being lost or destroyed; this is a high burden to overcome. Even if the burden is overcome, the rule may limit the pre-complaint discovery to a deposition. Pennsylvania Rule of Civil Procedure No. 1532 provides for a similar procedure.
If a lawsuit has commenced, the answer then depends on how the plaintiff commenced the lawsuit. If the plaintiff filed a complaint, then, generally speaking, either party may serve discovery requests, including but not limited to interrogatories, requests for production of documents, and requests for admission, on a wide range of topics. The procedure will be similar in both federal courts and Pennsylvania state courts. In Pennsylvania state courts, however, a plaintiff may also start a lawsuit by filing a writ of summons, which simply notifies the opposing party of the lawsuit and contains little factual information other than the name of the parties and the court.
Upon the proper filing of a writ of summons, Pennsylvania Rule of Civil Procedure No. 4003.8 permits a plaintiff to serve discovery before filing a complaint; much like pre-complaint discovery in federal court. However, the permitted discovery is narrow in scope. In other words, a plaintiff will not have free reign to seek any and all information that they desire before filing a complaint. Instead, Rule 4003.8 limits the plaintiff to information that is necessary to file a complaint. Pennsylvania state courts usually interpret this limitation to mean identifying information, such as the name of a party, company, or key witness. Therefore, a plaintiff likely will be unable to gather other, potentially useful, information before filing a complaint, e.g. information as to insurance coverage, liens, defenses to potential claims, etc. Lastly, even if the pre-complaint discovery requests only include identifying information, the adverse party may object to the discovery requests and seek the court’s protection. In that case, the requesting party would have to convince the court that the requests seek only necessary information and that the requests would not cause substantial burden, annoyance, oppression, or embarrassment to the opposing party.
Overall, once a plaintiff has filed a complaint, all parties to that litigation will have a broad range of tools at their disposal to discover a wide range of information about the other parties and the issues involved in litigation. Without a complaint, whether in federal or Pennsylvania state court, a party may still conduct discovery through the legal system to learn useful information, but the courts and rules will strictly control and limit the timing, scope, and method of such discovery. As a result, while pre-complaint discovery can be beneficial, there are many detailed procedures and restrictions on it, and a party may ultimately find itself unable to obtain all of the information that it desires without first filing a complaint. If you find yourself contemplating pre-complaint discovery, then it is essential that you follow the pertinent federal, state, and local rules.
The litigators at McNees Wallace & Nurick are available to counsel parties with potential claims on how to find critical information necessary to determine whether and how to pursue litigation.
*Erik B. Derr was a 2013 Summer Associate at McNees Wallace & Nurick
© 2013 McNees Wallace & Nurick LLC
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