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The Perils of Out of State Discovery Practice

December 21, 2009

Most of us practice in Pennsylvania and specifically, in the Philadelphia area  For those of use who do litigation, after a while, we get used to how discovery practice works in our jurisdiction.  So, whenever we practice in other counties in the Commonwealth, there’s a little bit of an adjustment.  You have to figure out what counties don’t have a discovery deadline, how discovery motions are adjudicated, etc.   

Still, adjusting from county to county in Pennsylvania is nothing like figuring out discovery practice in some other states.  Sure, certain states, like Ohio, for instance, make it easy by pretty much following federal practice procedures.  Then, there’s New York.  As those who are licensed in New York and/or have practiced in it would probably attest, civil procedure there is a whole different animal.  

To start with, in addition to the good old fashioned interrogatories and document requests, there’s exotic things like “combined demands” and “verified bill of particulars.”  Heck, the latter isn’t even technically discovery (it is to amplify pleadings), though it essentially serves as such.  Then, in certain actions, if you serve interrogatories, you waive the right of deposition (or “examinations before trial” as they are often called).

And if you wanna take depositions, there’s all sorts of “rules” to follow.  First off, the plaintiff gets deposed first, and you can try other order, defense counsel won’t produce their witnesses.  But perhaps most absurdly, a lot of counsel will asbolutely insist that the depositions take place within the county that the action was filed.  Forget the fact that the New York City public transportation system is as extensive as it is.  If you filed an action in Brooklyn or Queens, good luck trying to get counsel to agree to have the deps take place in your firm’s Midtown office.  You can try to fight it, but courts will most often side with having the deps take place in the county. 

So, point being, even with all the “faults” of Pennsylvania practice (notably, the local county rules system), let’s be thankful we’re somewhat more reasonable than other states.

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