Rule 4007.2. When Leave of Court Required.
(a) Except as provided by Rules 1042.5 and 4003.5(a)(2) and by subdivisions (b) and (d) of this rule, a deposition may be taken without leave of court.
Official Note
Rule 1042.5 governs discovery in a professional liability action prior to the filing of a certificate of merit.
See Rule 1930.5(a) providing that there shall be no discovery in specified domestic relations matters unless authorized by the court. See also Rules 1910.9 and 1915.5(c) governing discovery in actions for support and custody, respectively.
(b) Leave of court must be obtained if a plaintiff’s notice schedules the taking of a deposition prior to the expiration of thirty days after service of the original process and the defendant has not served a notice of taking a deposition or otherwise sought discovery, unless the party or person to be examined is
(1) aged or infirm, or
(2) about to leave the county in which the action is pending for a place outside the Commonwealth or a place more than one hundred miles from the courthouse in which the action is pending.
(c) If the plaintiff proceeds under subdivision (b)(1) or (2) of this rule the notice of taking the deposition shall set forth the facts which support taking it without leave of court. The plaintiff’s attorney shall sign the notice and this signature shall constitute a certification that to the best of the attorney’s knowledge, information and belief the statement of facts is true.
Official Note
The court upon cause shown may make a protective order with respect to the time and place of taking the deposition. See Rule 4012.
(d) The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.
Explanatory Note This Rule consolidates in one Rule various provisions for leave of court which are now scattered through the prior Rules. It substantially follows present practice.
Rule 4003.5(a)(2), incorporated by reference, requires leave of court for further examination of experts whose opinions or reports have already been disclosed in response to the interrogatories.
Leave of court will also be required, under subdivision (d), to take the deposition of a person confined in prison. This follows the practice under prior Rule 4007(b).
Subdivision (b) states a general rule that leave of court is required where a plaintiff seeks to take an oral deposition prior to the expiration of 30 days after service of original process, if the defendant has not within such period sought discovery or noticed a deposition of his own. This is adapted from prior Rule 4007(b) with an extension of the time from 20 to 30 days.
However, subdivision (b) contains a special exception for aged, infirm or going witnesses. This was not in prior Rule 4007. No leave of court is required if the plaintiff’s notice to take the deposition sets forth the facts respecting the witness and the notice is signed by the plaintiff’s attorney. This constitutes a certification by him that the statement is true to the best of his knowledge, information and belief. The court, however, upon cause shown may under Rule 4012, on motion of an objecting party, enter a protective order changing the time or place.
Explanatory Note—1999 Rule 4007.2(a) has been amended to delete the reference to Rule 4001(a). Rule 4001(a) was amended in 1997 by the deletion of the reference to domestic relations actions, the rules of which formerly contained a broad prohibition against discovery except upon leave of court. That broad prohibition has now been narrowed and discovery is available to the extent provided by Rule 1930.5 governing discovery in domestic relations matters generally and Rules 1910.9 and 1915.5 governing discovery in the actions of support and custody, respectively. At the same time, those rules continue to require leave of court in specified instances.
Source The provisions of this Rule 4007.2 adopted November 20, 1978, effective April 16, 1979, 8 Pa.B. 3551; amended March 19, 1999, effective July 1, 1999, 29 Pa.B. 1715; amended April 12, 1999, effective July 1, 1999, 29 Pa.B. 2281; amended January 27, 2003, effective immediately, 33 Pa.B. 748. Immediately preceding text appears at serial pages (255403) to (255405).
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