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.
