For the first time, a standard for obtaining pre-complaint discovery in Pennsylvania was articulated in the Pennsylvania Rule of Civil Procedure 4003.8, which became effective in November 2007. The passing of this rule is noteworthy because the rules previously acknowledged the possibility of pre-complaint discovery, but they did not outline the burden that a litigant seeking such discovery must meet. While judicial consideration of the availability of pre-complaint discovery shared a common theme concerning the circumstances in which it may be had — the discovery must be necessary to prepare a complaint — the threshold burden for demonstrating such a need was not clear.

This article will seek to give the background on pre-complaint discovery in Pennsylvania before this new rule, discuss the significant cases decided since the rule took effect and analyze the implications of pre-complaint discovery, with the hindsight that the past year has given since the rule passed.

This article also raises two practical and collateral concerns impacted by the rule’s particularity requirement: whether as a practical matter, the standard announced in the rule renders pre-complaint discovery available in only the narrowest of circumstances; and the effect of pre-complaint discovery — or lack thereof — on triggering the time for removal from state to federal court.

This new rule largely codifies previous case law, particularly the Pennsylvania Supreme Court’s decision in McNeil v. Jordan, and announces a requirement, as part of a two-pronged test, that a plaintiff show with particularity the discovery’s necessity. Whether or not this new rule affects the availability of pre-complaint discovery remains to be seen. As a practical matter, however, litigants can likely expect an increased interest by plaintiffs in pre-complaint discovery as its outright inclusion in the rules draws attention to it.

Two-Pronged Particularity Standard

Pennsylvania Rule of Civil Procedure 4003.8 has two sections: Section 4003.8 (a) establishes a two-prong test governing the circumstances under which a plaintiff is entitled to pre-complaint discovery; and Section 4003.8 (b) gives courts a framework to consider when faced with a motion for a protective order or an objection to pre-complaint discovery.

The two-prong test under Rule 4003.8 (a) for pre-complaint discovery requires that: "the information sought is material and necessary to the filing of the complaint;" and "the discovery will not cause unreasonable annoyance, embarrassment, oppression, burden or expense to any person or party." Section 4003.8(b) provides that upon a motion for a protective order or other objection to a plaintiff’s pre-complaint discovery, the "court may require the plaintiff to state with particularity how the discovery will materially advance the preparation of a complaint."

The comments to this section emphasize a court’s discretion in deciding a motion for a protective order or other objections to pre-complaint discovery by quoting McNeil as follows: "[i]n practice, of course, a trial court addresses a discovery request not in abstract terms but in the context of the case at bar. In doing so, the court exercises significant discretion, weighing the importance of the request against the burdens imposed on the subject party to determine, as a practical matter, whether the discovery request should be permitted."

Rule 4003.8 does not limit a plaintiff’s pre-complaint discovery to putative defendants. Instead, the rule and its commentary contemplate discovery directed to "any person or party." The pre-complaint discovery rule also references Rule 4001(c), referring to discovery for preparation of pleadings that "are limited to a complaint, an answer thereto, a reply if the answer contains new matter or a counterclaim, a counter-reply if the reply to a counterclaim contains new matter, a preliminary objection and an answer thereto." The citation to rule 4001(c), however, implicitly limits the form of discovery to depositions and written interrogatories.

Procedural and Historical Context

The ability to initiate a suit on a writ of summons in lieu of a complaint and Pennsylvania’s fact-pleading requirement serve as the procedural backdrop for the availability of pre-complaint discovery. A plaintiff in Pennsylvania has the ability — one not shared by litigants in most jurisdictions — to initiate a suit on a writ of summons alone. Pennsylvania Rule of Civil Procedure 1351 only requires that the writ of summons identify the county in which the action is brought, identify the defendant, notify the defendant that the plaintiff has commenced an action against him or her and state the date. The plaintiff does not need to include any information concerning the nature of the action.

Rule 1019(a) requires the plaintiff to state "[t]he material facts on which a cause of action … is based," and to plead allegations with specificity. Because this requires that a complaint set out every act and allegation in detail, a plaintiff could theoretically need discovery to adequately plead a cause of action with the requisite specificity.

Accordingly, the rules have long contemplated that theoretical possibility and acknowledged the notion that a plaintiff might seek discovery prior to the filing of a complaint. Rule 4001(c) refers to discovery for preparation of pleadings. Rule 4005(a) refers to interrogatories served prior to a complaint and requires the interrogatories include a statement of the nature of the cause of action. Rule 4007.1(c) refers to notices of deposition served before the filing of a complaint and similarly requires that the notice contain a statement of the nature of the cause of action and of the matters inquired into. These rules, however, do not set forth any standard for a plaintiff’s entitlement to the pre-complaint discovery referred to.

Most importantly, the contours of pre-complaint discovery cannot be understood without further examination of the court’s opinions in McNeil v. Jordan.

McNeil involved a dispute over the estate of the inventor of Tylenol. An heir filed a complaint alleging the tort of intentional interference with testamentary expectancy against other of the heirs. The court granted a demurrer because it found that the first element of the plaintiff’s claim, relating to the indication of the testator’s intent to change his or her will to provide a described benefit for the plaintiff, was legally insufficient. Prior to filing an amended complaint, however, the plaintiff sought pre-complaint based on an expectation that it would enable him to state a cause of action. The defendants challenged the discovery as a "fishing expedition," and the court agreed.

The Superior Court affirmed on appeal by examining a string of common pleas court cases on pre-complaint discovery. It sided with a string of cases setting reasonable limits on pre-complaint discovery. Grounded in this position, the court held that pre-complaint discovery is permissible only if a plaintiff has set forth a prima facie case, but, nevertheless, cannot prepare and file a complaint without discovery.

A three-justice majority of the Pennsylvania Supreme Court disagreed with the Superior Court’s strict pre-complaint discovery standard. Two justices, led by Justice Max Baer, made far-reaching conclusions about pre-complaint discovery. Concurring and creating the majority, Justice Thomas G. Saylor concluded that pre-complaint discovery was appropriate in the McNeil case, but the circumstances of the cases did not provide a basis for far-reaching conclusions.

Baer’s opinion, however, provides useful illuminations on Rule 4003.8. Baer rejected the Superior Court’s standard of pre-complaint discovery grounded in a showing of a prima facie case. He concluded that this narrow rule wrote pre-complaint discovery out of the rules and was contrary to the case law that had permitted discovery in actions where a complaint sufficient to withstand a demurrer cannot be made out without some discovery.

Baer embraced the case law that held pre-complaint discovery should be restrictively allowed, narrowly drafted and permitted only when a complaint capable of surviving preliminary objections cannot be filed without aid of the requested discovery. This standard was embodied in Rule 4003.8. The comments to the rule note, however, that Baer’s discussion of a probable cause standard is not embodied in the rule. A plaintiff seeking pre-complaint discovery, however, should utilize the probable cause analysis Baer discussed. This notion of probable cause comes from applying the hindsight analysis of the Dragonetti Act to pre-complaint discovery, which requires foresight.

Thus, Baer reasoned that a plaintiff must set forth probable cause that, based on facts known to him or her, the evidence sought prior to filing a complaint will support a cognizable cause of action pursuant to existing or developing Pennsylvania law. This view recognizes Pennsylvania’s fact-pleading system, which requires that a complaint state facts in which the plaintiff reasonably believes, and under which a good faith argument may reasonably be made, that Pennsylvania law provides, or under developing law may provide, relief.

The probable cause analysis emphasizes good faith and reasonableness. It also attempts to stave off the "fishing expedition" by requiring a plaintiff to describe with reasonable detail the material sought and state with particularity the probable cause for believing the information will materially advance his pleading, as well as averring that, but for the discovery requested, he will be unable to craft a legally sufficient complaint.

While not codified in Rule 4003.8, this probable cause analysis gives a plaintiff a framework to present a court with the reasons why a requested pre-complaint discovery is "material and necessary." It also fully presents the reasons why the court should allow the discovery over the objections or motion for protective order.

Practical and Collateral Concerns

The particularity requirement of Rule 4003.8 presents some additional practical collateral concerns. Among them: defining the circumstances that would give a plaintiff the ability to meet the burden of demonstrating his or her need for pre-complaint discovery with particularity, yet render the plaintiff unable to plead a complaint upon information and belief and determining the impact of the particularity standard on removal.

What then are the circumstances in which a plaintiff cannot plead a complaint but can meet the particularity standard for obtaining pre-complaint discovery? What is to prevent a plaintiff from filing such a complaint and then — in response to any preliminary objections raising specificity — engaging in discovery?

In Potts v. Consolidated Rail Corp., a pre-McNeil case, Judge R. Stanton Wettick of the Allegheny Court of Common Pleas presciently raised the same issue. Wettick noted the function of fact pleading in narrowing factual issues for discovery and noted that a plaintiff should file a complaint and, if necessary, engage in discovery in order to amend to meet Pennsylvania’s fact pleading requirements. The particularity requirement of Rule 4003.8 appears to underscore that result. How courts address this question following the rule’s enactment remains to be seen.

Rule 4003.8′s impact on removal, however, has been squarely addressed. In the relatively short period of time following the enactment of Rule 4003.8, the Eastern District of Pennsylvania has already addressed the implications on removal of motions for pre-complaint discovery under the rule’s specificity standard.

In Layne v. CBS Broadcasting Inc., Judge R. Barclay Surrick of the Eastern District of Pennsylvania held that the 30-day period in which to remove a pleading setting forth the basis of federal jurisdiction under 28 U.S.C. Section 1446(b) was not triggered by pre-complaint discovery along with a writ of summons, notwithstanding the degree of specificity required or contained in the motion. Surrick held that notwithstanding the great deal of particularity of the nature of the claims raised in the plaintiff’s motion for pre-complaint discovery, it could not constitute an initial pleading along with the writ of summons sufficient to trigger removal.

Such a bright-line rule should provide comfort to defendants presented with a pre-complaint discovery motion setting forth a basis for federal jurisdiction that removal is premature. •

Daniel Walworth is an associate in Wolf Block’s litigation practice group. He provides representation to clients in an array of litigation matters, including white-collar criminal and government investigations, employment, regulatory and appellate.

Patrick Troy is an associate in the firm’s litigation practice group.