Pennsylvania Motion to Compel

Introduction

Key Things to Know

1. 1

   Pennsylvania's rule is not captioned motion to compel. It is Rule 4019, Sanctions, and it lets the court on motion make an appropriate order where, among other things, a party fails to serve answers, sufficient answers or objections to written interrogatories under Rule 4005, or fails to respond that inspection will be permitted or to permit inspection as requested under Rule 4009. There is a catch-all at 4019(a)(1)(viii) for a party or person who otherwise fails to make discovery. The order you are asking for is the thing the rule calls compliance, and the word compelling appears in the rule itself only at 4019(g)(1) and in the deposition power at 4019(b).

2. 2

   The two-step structure is the fact that changes what a Pennsylvania motion is worth. The Explanatory Note printed with Rule 4019 says the rule requires a two step procedure rather than the single step procedure of the Federal Rule, that the first step is a motion to compel compliance, and that if the order is obeyed, that is the end of the matter as far as expenses and counsel fees are concerned. Its next sentence is the one to read twice: there can be no award of expenses and fees. Only if the compliance order is disobeyed does a fresh motion for sanctions become available, and that is where money first comes into it.

3. 3

   The one mandatory fee award in Rule 4019 runs against the party that filed and lost. Under 4019(g)(2), if the motion for sanctions is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay the opposing party's reasonable expenses in opposing the motion, including attorney's fees, unless the court finds the making of the motion was substantially justified or that other circumstances make an award of expenses unjust. The step-two award in the other direction is discretionary, because 4019(g)(1) says may. And 4019(j) removes one opponent entirely: expenses and attorney's fees may not be imposed upon the Commonwealth under this rule.

4. 4

   An objected-to interrogatory does not go to Rule 4019 at all. Rule 4006(a)(2) provides that the party submitting the interrogatories may move the court to dismiss an objection and direct that the interrogatory be answered, so the paper has a different name and a different target. The same subdivision limits what an objection can buy the other side: the statement of an objection shall not excuse the answering party from answering all remaining interrogatories to which no objection is stated. And where a party simply did nothing, 4019(a)(2) closes the obvious escape, because a failure to act may not be excused on the ground that the discovery sought is objectionable unless that party has filed an appropriate objection or applied for a protective order.

5. 5

   Requests for admission are not compellable here. Rule 4014(b) provides that the matter is admitted unless, within thirty days after service of the request, or within such shorter or longer time as the court may allow, the party serves an answer verified by the party or an objection signed by the party or the party's attorney, with a defendant not required to serve answers or objections before forty-five days after service of the original process. So where nothing came back the matter already stands admitted and there is nothing for an order to do. The only costs route is Rule 4019(d), and it arrives at trial: where the requesting party proves a matter the other side failed to admit, the court on motion may tax the reasonable expenses of making that proof, subject to four listed exceptions.

6. 6

   Pennsylvania imposes no statewide step before filing, which is the opposite of what most litigants expect. The Official Note to Rule 4019 routes these motions to the general motion rules at Rule 208.1 and following, and then says that a court of common pleas, by local rule numbered Local Rule 208.2(e), may require that the motion contain a certification that counsel has conferred or attempted to confer with all interested parties in order to resolve the matter without court action. The operative words are may require, so the obligation exists only where a county has created it. Check the local rules of the court of common pleas where your case is pending before you file.

7. 7

   There is no numeric cap on interrogatories in Pennsylvania and no statewide deadline for bringing the motion. Rule 4005(c) says only that the number of interrogatories or of sets of interrogatories may be limited as justice requires, so the ceiling is argued rather than counted, and Rule 4011 supplies the flat prohibitions a motion is tested against: no discovery shall be permitted which is sought in bad faith, would cause unreasonable annoyance, embarrassment, oppression, burden or expense, is beyond the scope of Rules 4003.1 through 4003.6, is prohibited by a law barring disclosure of mediation communications, or would require an unreasonable investigation. Your real date comes from Rule 212.1(a), under which the court's notice of the earliest trial date may include a date by which discovery shall be completed.

Pennsylvania Requirements for Motion to Compel

• Which Paper You Are Actually Filing, Because Pennsylvania Has Three

  A missing or insufficient interrogatory answer goes to Pa. R. Civ. P. 4019(a)(1)(i), which reaches a party who fails to serve answers, sufficient answers or objections. An unanswered production request goes to 4019(a)(1)(vii). But an objection that was actually stated has its own vehicle at Rule 4006(a)(2): the party submitting the interrogatories may move the court to dismiss an objection and direct that the interrogatory be answered. And requests for admission go nowhere, because Rule 4014(b) has already admitted the matter. Settle which of the three you are on before drafting, because the relief and the rule number both change.

• The Form of the Answers You Received, Against Rules 4006(a)(1) and 4009.12(a)

  Rule 4005(a) requires interrogatories to be prepared so that sufficient space is provided immediately after each interrogatory or subsection for insertion of the answer or objection, and Rule 4006(a)(1) requires the answers to be in writing and verified and inserted in those spaces, with any remainder on a supplemental sheet. Rule 4009.12(a) requires a production response to include an answer with objections to each numbered paragraph. Record what you actually received against each requirement. Note that the rules state no consequence for a defective form, so the ground to plead is insufficiency under 4019(a)(1)(i) rather than a formal defect.

• Proof the Thirty Day Period Had Run, With the Dates

  Rule 4006(a) gives thirty days after service of the interrogatories for the answers and any objections. Rule 4009.12(a) gives thirty days after service of a production request, both to answer each numbered paragraph and to produce the items not objected to. Rule 4014(b) gives thirty days for requests for admission, with a defendant not required to serve answers or objections before forty-five days after service of the original process unless the court shortens the time. Note that interrogatories may be served at the time of service of the original process or later, and even before the complaint if limited to preparing it, so an early set is possible and the clock still runs from service of the request.

• Whether Your County Requires a Conferral Certification

  There is no statewide Pennsylvania requirement. The Official Note to Rule 4019 says motions for sanctions are governed by the motion rules, Rule 208.1 et seq., and that a court of common pleas, by local rule numbered Local Rule 208.2(e), may require that the motion contain a certification that counsel has conferred or attempted to confer with all interested parties in order to resolve the matter without court action. Because the delegation is permissive, the answer depends on the county, so read the local rules of the court of common pleas where the case is pending before filing.

• The Relief You Can Actually Ask For at This Step

  Step one asks for an order compelling compliance and nothing more. Rule 4019(g)(1) attaches expenses only to a later motion, and only where a compliance order has been entered and not obeyed, at which point the court on a subsequent motion for sanctions may require the party or deponent whose conduct necessitated the motions, or the party or attorney advising that conduct, or both, to pay the reasonable expenses incurred in obtaining the order of compliance and the order for sanctions. The Explanatory Note is explicit that where the order is obeyed there can be no award of expenses and fees. So ask for the order, a date for compliance, and nothing you cannot get.

• Your Own Exposure Under Rule 4019(g)(2) If the Motion Fails

  The only mandatory fee award in Rule 4019 runs against the movant. If a motion for sanctions is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust. Weigh that before filing, and drop the weak items. Note 4019(j) as well: expenses and attorney's fees may not be imposed upon the Commonwealth under this rule.

• The Rule 4011 Prohibitions Your Motion Will Be Tested Against

  Pennsylvania sets no numeric cap on interrogatories. Rule 4005(c) says only that the number of interrogatories or of sets of interrogatories may be limited as justice requires. What bounds the request instead is Rule 4011, drafted as a flat prohibition: no discovery, including discovery of electronically stored information, shall be permitted which is sought in bad faith, would cause unreasonable annoyance, embarrassment, oppression, burden or expense, is beyond the scope of Rules 4003.1 through 4003.6, is prohibited by any law barring disclosure of mediation communications and mediation documents, or would require the making of an unreasonable investigation. Address those in the motion rather than waiting for them to be raised.

• The Trial Date Notice, Which Is Where Your Real Deadline Comes From

  No Pennsylvania rule sets a time limit for bringing the motion and none says delay waives it. The date that binds you comes from the calendar. Under Pa. R. Civ. P. 212.1(a), in a jury case where the damages sought exceed the compulsory arbitration limit, the court gives notice of the earliest date on which the case may be tried, that notice should be given at least thirty days before the plaintiff's pre-trial statement is due, and the notice may include a date by which discovery shall be completed. Rule 212.1(b) sets the pre-trial statement dates at sixty days before the earliest trial date for the plaintiff, thirty for the defendant and fifteen for an additional defendant. Check whether your county requires discovery to be completed before a case is listed for trial.