Current through Register Vol. 54, No. 38, September 21, 2024
(a)
(1) The court may, on motion, make an
appropriate order if
(i) a party fails to
serve answers, sufficient answers or objections to written interrogatories
under Rule 4005;
(ii) a corporation
or other entity fails to make a designation under Rule 4004(a)(2) or
4007.1(e);
(iii) a person,
including a person designated under Rule 4004(a)(2) to be examined, fails to
answer, answer sufficiently or object to written interrogatories under Rule
4004;
(iv) a party or an officer,
or managing agent of a party or a person designated under Rule
4007.1(e) to be
examined, after notice under Rule
4007.1, fails to appear before
the person who is to take the deposition;
(v) a party or deponent, or an officer or
managing agent of a party or deponent, induces a witness not to
appear;
(vi) a party or an officer,
or managing agent of a party refuses or induces a person to refuse to obey an
order of court made under subdivision (b) of this rule requiring such party or
person to be sworn or to answer designated questions or an order of court made
under Rule 4010;
(vii) a party, in
response to a request for production or inspection made under Rule 4009, fails
to respond that inspection will be permitted as requested or fails to permit
inspection as requested;
(viii) a
party or person otherwise fails to make discovery or to obey an order of court
respecting discovery.
(2)
A failure to act described in subdivision (a)(1) 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.
(b) If a deponent
refuses to be sworn or to answer any question, the deposition shall be
completed on other matters or adjourned, as the proponent of the question may
prefer. Thereafter, on reasonable notice to all persons affected thereby, the
proponent may apply to a proper court in the county where the deposition is
being taken or to the court in which the action is pending, for an order
compelling the witness to be sworn or to answer, under penalty of contempt,
except that where the deposition of a witness not a party is to be taken
outside the Commonwealth, the application shall be made only to a court of the
jurisdiction in which the deposition is to be taken.
(c) The court, when acting under subdivision
(a) of this rule, may make
(1) an order that
the matters regarding which the questions were asked, or the character or
description of the thing or land, or the contents of the paper, or any other
designated fact shall be taken to be established for the purposes of the action
in accordance with the claim of the party obtaining the order;
(2) an order refusing to allow the
disobedient party to support or oppose designated claims or defenses, or
prohibiting such party from introducing in evidence designated documents,
things or testimony, or from introducing evidence of physical or mental
condition;
(3) an order striking
out pleadings or parts thereof, or staying further proceedings until the order
is obeyed, or entering a judgment of non pros or by default against the
disobedient party or party advising the disobedience;
(4) an order imposing punishment for
contempt, except that a party may not be punished for contempt for a refusal to
submit to a physical or mental examination under Rule 4010;
(5) such order with regard to the failure to
make discovery as is just.
(d) If at the trial or hearing, a party who
has requested admissions as authorized by Rule 4014 proves the matter which the
other party has failed to admit as requested, the court on motion may enter an
order taxing as costs against the other party the reasonable expenses incurred
in making such proof, including attorney's fees, unless the court finds that
(1) the request was or could have been held
objectionable pursuant to Rule 4014, or
(2) the admission sought was of no
substantial importance, or
(3) the
party failing to admit had reasonable ground to believe that he or she might
prevail on the matter, or
(4) there
was other good reason for the failure to admit.
(e) If the party giving the notice of the
taking of a deposition fails to attend and proceed therewith and another party
attends in person or by attorney pursuant to the notice, the court may order
the party giving the notice to pay to such other party the amount of the
reasonable expenses incurred by such other party and his or her attorney in so
attending, including attorney's fees.
(f) If the party giving the notice of the
taking of a deposition of a witness fails to serve a subpoena upon the witness
and because of such failure the witness does not attend, and if another party
attends in person or by attorney expecting the deposition of that witness to be
taken, the court may order the party giving the notice to pay to such other
party the amount of the reasonable expenses incurred by such other party and
his or her attorney in so attending, including attorney's fees.
(g)
(1)
Except as otherwise provided in these rules, if following the refusal,
objection or failure of a party or person to comply with any provision of this
chapter, the court, after opportunity for hearing, enters an order compelling
compliance and the order is not obeyed, the court on a subsequent motion for
sanctions may, if the motion is granted, require the party or deponent whose
conduct necessitated the motions or the party or attorney advising such conduct
or both of them to pay to the moving party the reasonable expenses, including
attorney's fees, incurred in obtaining the order of compliance and the order
for sanctions, unless the court finds that the opposition to the motion was
substantially justified or that other circumstances make an award of expenses
unjust.
(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 to
the party or deponent who opposed the motion the 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.
(3) If the motion for sanctions is granted in
part and denied in part, the court may apportion the reasonable expenses
incurred in relation to the motion among the parties and persons in a just
manner.
(h) If the filing
of a motion or making of an application under this chapter is for the purpose
of delay or in bad faith, the court may impose on the party making the motion
or application the reasonable costs, including attorney's fees, actually
incurred by the opposing party by reason of such delay or bad faith. A party
upon whom such costs have been imposed may neither (1) take any further step in
the suit without prior leave of court so long as such costs remain unpaid nor
(2) recover such costs if ultimately successful in the action.
(i) A witness whose identity has not been
revealed as provided in this chapter shall not be permitted to testify on
behalf of the defaulting party at the trial of the action. However, if the
failure to disclose the identity of the witness is the result of extenuating
circumstances beyond the control of the defaulting party, the court may grant a
continuance or other appropriate relief.
(j) Expenses and attorney's fees may not be
imposed upon the Commonwealth under this rule.
