Rule 4019.Sanctions.

Official Note: Motions for sanctions are governed by the motion rules, Rule 208.1 et seq. 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 inter- ested parties in order to resolve the matter without court action.

Official Note: For other special provisions authorizing the award of expenses including attorney fees see Rule 4008 where a deposition is to be taken more than 100 miles from the courthouse; 4019(d) where a party unjustifiably refuses to admit causing the other party to incur expenses of proof at trial; 4019(e) and (f) where a party notices a deposition and fails to appear or to subpoena a witness to appear causing the other party to incur unnecessary expenses; and 4019(h) where a party files motions or applications for the purpose of delay or bad faith.

Explanatory Note Former Rule 4019 worked reasonably well since it was first adopted in 1950. Amendments were, however, necessary to reflect the many amendments in other Rules. Opportunity was taken to make additional amendments to approach more closely the language of Fed. R.Civ.P. 37. (1) Subdivision (a)(viii) is a blanket authorization to the court to enter a sanction order whenever there is a failure to make discovery or to obey an order of the court. The preceding subsections of subdivision (a) set out a series of specific violations of Rules 4004, 4005, 4007.1, 4007.2, 4009 and 4010 which are included in the blanket authorization. These are only illustrations and do not limit the all-inclusive coverage of subsection (viii). (2) Prior Rule 4019(a) required a showing that an offender had acted ‘‘wilfully.’’ This word has been deleted. The court may impose sanctions even if the failure is not wilful. Wilfulness of course may be a factor in determining the extent of the sanction but it will not be an essential condition pre- cedent to the power to impose a sanction. (3) A new subdivision (a)(2), taken from Fed. R.Civ.P. 37(4), provides that failure to permit deposition or discovery may not be excused on the ground that the discovery sought is objectionable, unless the party failing to act has filed an appropriate objection or has applied for a protective order. Subdivision (b) remains unchanged, except that the procedure for imposition of expenses and counsel fees is transposed to the new subdivision (g). Subdivision (c) remains unchanged except for the addition of a catch-all subsection (5). Subdivision (d) permits an award of expenses including counsel fees where a party has unjustifi- ably failed or refused to admit requests for admissions under Rule 4014, and the inquirer is thereafter compelled to prove the unadmitted facts at the trial. This has been discussed in the commentary to Rule 4014, supra. Subdivisions (e) and (f) are unchanged. These also permit the sanction of expenses, including counsel fees. These provisions have been rarely invoked in practice. They remind counsel that lack of professional courtesy in notifying opposing counsel that parties or witnesses may not attend a depo- sition may subject them to sanctions. Subdivision (g) contains novel provisions with respect to the imposition of expenses and counsel fees in situations other than those regulated in subdivisions (d), (e), (f) and (h). These four sub- sections cover requests for admissions, failure of a party or a witness to attend depositions and the filing motion or application in bad faith or for purposes of delay. These constitutes a relatively small area of deposition and discovery practice. They do not include the situations regulated in subdivisions (a), (b) and (c), which cover the more common situations of interrogatories and answers, oral depositions on notice, production of documents and things and physical and mental examinations. The prior Rule contained no provision for expenses and counsel fees in these situations except in subdivision (b), the case where a witness refused to be sworn or to answer. Fed. R.Civ.P. 37(a)(4) provides that, if a party is successful in obtaining an order of compliance, the court shall, at the same time and without waiting to see if the order of compliance is obeyed, award expenses including counsel fees unless the failure, refusal or objection of the offending party is found to be substantially justified. Conversely, the court shall impose counsel fees against the par- ties unsuccessful in seeking a compliance order unless their conduct was substantially justified. If the motion is granted in part and refused in part, the court could in its discretion apportion expenses in a just manner. The amendment suggest a new approach. It refers generally to ‘‘refusal, objection or failure of a party or person to comply with any provision of this chapter’’ which could hardly be more all- inclusive. However, it preserves the special provisions of subdivisions (d), (e), (f) and (h) by the phrase ‘‘except as otherwise provided in these rules.’’ As to those situations not covered by subdivi- sions (d), (e), (f) and (h), it requires a ‘‘two step’’ procedure rather than the ‘‘single step’’ procedure of the Federal Rule. The first step under subdivision (g)(1) is a motion to compel compliance. If, after a hearing, the motion is granted and depositions or discovery are ordered and the party against whom it is directed complies, that is the end of the matter as far as expenses and counsel fees are concerned. There can be no award of expenses and fees. If the order to comply is not obeyed, the aggrieved party may file a new motion to impose sanctions. The court, at this ‘‘second step’’ of the proceedings, may award expenses and counsel fees for either or both steps depending upon how the court views the conduct of the defaulting party and his counsel. The Rule permits the court to decline any award if the court finds that the opposition to the motion was substantially justified or that other circumstances make an award unjust. Similarly, if the second step procedure is unsuccessful and no award is made, subdivi- sion (g)(2) authorizes the court to impose expenses including counsel fees on the moving party unless the court finds that the making of the second step motion was substantially justified or that other cir- cumstances make an award of expenses unjust. Finally, subdivision (g)(3) permits the court to appor- tion expenses among the parties if the motion for sanctions is granted in part and denied in part. An order of compliance entered in the first step of the proceedings, which is not obeyed, will ordi- narily supply substantial justification for the second step procedure requesting sanctions including expenses and counsel fees. There may be exceptional circumstances where the second step will fail. For example, there may be a failure to notify the respondent and the failure to comply may have resulted from no knowledge of the order. Or, the order of compliance may have directed the respon- dent to do something which the Rules do not permit or which was beyond the jurisdiction of the court. Reference is made in the commentary to Rule 4003 of a possible ambiguity in the availability of sanctions under the prior Rule for failure of a party to appear for a deposition taken on a petition, motion or rule. Any such ambiguity will be removed by the all-inclusive language of subdivision (g)(1). The amendment authorizes the court, if it grants the motion for sanctions, to impose the payment of the expenses on the guilty party or deponent or on the attorney who advised the conduct or on both. If the motion for sanctions is refused, the court is authorized to impose the expenses on the moving party or on the attorney who advised the filing of the motion or on both. These are powerful disciplinary tools, if the courts will use them. The placing of the burden to escape the expenses and counsel fees on the shoulders of the losing party, plus the new provision for imposing the sanction on the attorney, will hopefully assure compliance with the Discovery Rules and a minimum of sanction proceedings. Subdivision (h) adds a new provision for expenses and counsel fees not expressly found in the Federal Rule. It provides that if the filing of a motion or application is in bad faith or for the purpose of delay, the court may impose on the party making the motion reasonable costs, including attorney’s fees, incurred by the opposing party by reason of such delay or bad faith. The party on whom such costs have been imposed may take no further steps in the action without leave of court so long as the costs remain unpaid and may not recover such cost if ultimately successful in the action. The language of this Rule has been adapted from Rule 217 governing the imposition of costs in connection with continuances. Independent of the above provisions, Rule 4008 provides that, as to oral depositions to be taken more than 100 miles from the courthouse, expenses including counsel fees may be imposed in the discretion of the court. This is of course not a sanction provision. Subdivision (i) adds a new provision for sanctions for failure to identify witnesses as to whom dis- covery has been sought. A witness whose identity has not been revealed as provided by the Rules will not be permitted to testify at trial. If the failure to disclose his identity was the result of extenuating circumstances beyond the control of the defaulting party, the court may grant a continuance or other appropriate relief. Subdivision (j) is former subdivision (g) with only a minor stylistic change. It forbids the imposi- tion of expenses and counsel fees on the Commonwealth. The amendment does not compel a party who has identified a witness under Rule 4003.1 as having ‘‘knowledge of discoverable matter’’ to call the witness at the trial. Nor, except as to the disclosure under Rule 4003.5(b) of the identity of experts expected to be called at trial, is a party required to present a ‘‘witness list’’ of those he intends to call at trial. Nor can an opponent claim surprise if an identified witness is not called on the ground that this tactic deprives him of the opportunity for cross-examination. He could have taken his deposition before trial. The Rule does not deal specifically with the difficult problem of rebuttal witnesses. A plaintiff may not identify persons who can testify to rebut a particular defense because the defendant’s pleadings and discovery do not clearly identify that defense. If the defendant introduces this defense at the trial, should the court exclude the plaintiff’s rebuttal witness, on the ground that he did not ‘‘identify’’ this witness? A skilled plaintiff can avoid this danger by careful discovery from the defendant, which will force a disclosure of all the defenses. The problem, of course, can arise only if the defendant has asked the plaintiff to identify all per- sons ‘‘having knowledge,’’ and the plaintiff has done so.