Rule 4007.4. Supplementing Responses.
A party or an expert witness who has responded to a request for discovery with a response that was complete when made is under no duty to supplement the response to include information thereafter acquired, except as follows:
(1) A party is under a duty seasonably to supplement the response with respect to any question directly addressed to the identity and location of persons having knowledge of discoverable matters and the identity of each person expected to be called as an expert witness at trial, the subject matter on which each person is expected to testify and the substance of each person’s testimony as provided in Rule 4003.5(a)(1).
(2) A party or an expert witness is under a duty seasonably to amend a prior response if he or she obtains information upon the basis of which he or she knows
(i) the response was incorrect when made, or
(ii) the response though correct when made is no longer true.
(3) A duty to supplement responses may be imposed by order of the court, agreement of the parties, or at any time prior to trial through new requests to supplement prior responses.
Explanatory Note The prior Rules contained no provisions imposing any continuing obligation on an answering party to supplement his responses to interrogatories or oral depositions if he becomes aware of subsequent facts which make his prior answers incorrect when made or no longer true in the light of new circumstances.
Rule 4007.4 is adapted from Fed. R.Civ.P. 26(e) to provide such an automatic obligation. The automatic obligation is limited to (a) disclosure by a party of the identity and location of additional persons having knowledge of discoverable facts and the identity of persons expected to be called at trial as expert witnesses, and (b) amendment of a prior answer if a party or expert witness obtains information on the basis of which he knows that the original response was incorrect, or, if correct when originally made, is no longer true. Additional obligations to supplement may be imposed by (1) an order of court; or (2) an agreement of the parties; or (3) supplemental interrogatories.
Fed. R.Civ.P. 26(e) has not been adopted verbatim. It restricts the duty to cases where ‘‘the circumstances are such that a failure to amend the response is in substance a knowing concealment.’’ This limitation has been rejected. It would introduce collateral issues. The test in new Rule 4007.4 is whether the party or the expert witness knows that the response was incorrect or is no longer correct in the light of intervening events of which he has knowledge. If he knows this, he must correct the response. If he does not know it, he need do nothing. Whether a failure to correct it is a ‘‘knowing concealment’’ introduces a different issue.
The Rule operates in several different ways as a practical matter.
First, it is quite common, when an oral deposition is complete, for the inquirer to request, and obtain, an agreement from the opponent or from an expert witness to supplement the response within the scope of the Rule. This also can be accomplished by appropriate closing questions in interrogatories.
Second, the inquirer, if such an agreement is refused, may move the court to enter an appropriate order.
Third, the inquirer may, at any time, force a review of prior responses by filing supplementary interrogatories or noticing a supplementary oral examination to discover whether the respondent has become aware of any information which requires an amendment of any prior response.
The Rule also expands the Federal Rule by including ‘‘a party or an expert witness’’; the Federal Rule includes ‘‘a party’’ only.
Source The provisions of this Rule 4007.4 adopted November 20, 1078, effective April 16, 1979, 8 Pa.B. 3551; amended April 12, 1999, effective July 1, 1999, 29 Pa.B. 2281. Immediately preceding text appears at serial pages (247872) to (247873) and (228825).
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