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Dougherty v. Heller

Superior Court of Pennsylvania

August 14, 2014


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[Copyrighted Material Omitted]

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Appeal from the Order Entered April 11, 2012 In the Court of Common Pleas of Philadelphia County. Civil Division at No(s): December Term 2009 No. 00699. Before ALLEN, J.

Joseph R. Podraza, Philadelphia, for appellant.

Amy B. Ginesky, Philadelphia, for appellee.

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E., DONOHUE, J., ALLEN, J., LAZARUS, J., MUNDY, J., OLSON, J., and OTT, J. President Judge Gantman and Judges Donohue, Allen, Olson and Ott join in this decision. Judge Lazarus concurs in the result. Judge Mundy files a concurring and dissenting opinion in which President Judge Emeritus Ford Elliott joins.


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John J. Dougherty (Appellant) appeals from the order entered April 11, 2012, in which the trial court granted Karen Heller's (Appellee) motion to compel his videotaped deposition; denied Appellee's motion for costs and fees; and denied Appellant's cross-motion for a protective order regarding his videotaped deposition. We affirm.

Appellant is the business manager of the International Brotherhood of Electrical Workers Local 98. Both individually and as a representative of the union, he has been active in his community, engaging in numerous civic and philanthropic endeavors. He is a self-described public figure.

Appellee is a reporter and columnist. In November 2009, she authored an opinion column published in The Philadelphia Inquirer, which in part criticized Appellant's role in providing outdoor Christmas lights in Rittenhouse Square, a popular destination in Philadelphia.[1] Counsel for Appellant contacted Appellee, informed her that the column was inaccurate, and demanded a retraction and apology. Appellee complied with Appellant's demands, thereafter publishing a retraction and apology in The Philadelphia Inquirer.[2] Nevertheless, an uncorrected version of the original column remained available on Appellee's Facebook page for some brief period of time and on a third-party website for approximately two years.

Appellant commenced this action against Appellee in December 2009, claiming defamation. A videotaped deposition of Appellant was scheduled for March 2012. Upon appearance, a dispute arose as to the terms of his deposition. Appellant expressed concern that potentially embarrassing or inflammatory portions of a videotape could be disseminated to the media. In response, counsel for Appellee stated that she had no present intention to use the videotape for purposes other than the litigation and maintained that she would comply with the Pennsylvania Rules of Civil Procedure and Professional Conduct. Nevertheless, Appellant refused to submit to a deposition when counsel for Appellee declined an agreement not to disseminate the video to any third party absent court permission.

Thereafter, Appellee filed a motion to compel Appellant's videotaped deposition and a motion for costs and fees related to the previously scheduled deposition. Appellant filed a cross-motion for protective relief, requesting that the trial court either preclude Appellee from videotaping his deposition or, in the alternative, prohibit Appellee from using the videotape for any

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non-litigation purpose. Following argument, the trial court issued an interlocutory order, granting Appellee's motion to compel; denying the motion for costs and fees; and denying Appellant's motion for protective relief. Appellant timely appealed and filed a Pa.R.A.P. 1925(b) statement.[3]

On appeal, Appellant raises two interrelated issues, restated for ease of analysis: (1) whether the trial court failed to account for his protected privacy interest in the videotaped deposition; and (2) whether the court abused its discretion by disregarding evidence demonstrating good cause that a protective order prohibiting public dissemination of the videotape was necessary. See Appellant's Substituted Brief at 3.

Preliminarily, we examine our jurisdiction to entertain this appeal.[4] " Generally, discovery orders are deemed interlocutory and not immediately appealable because they do not dispose of the litigation." Pilchesky v. Gatelli, 2011 PA Super. 3, 12 A.3d 430, 435 (Pa. Super. 2011) (quoting Leber v. Stretton, 2007 PA Super. 172, 928 A.2d 262, 265 (Pa. Super. 2007)). However, " [a]n appeal may be taken as of right from a collateral order of ... a lower court." Pa.R.A.P. 313(a); see Pilchesky, 12 A.3d at 437 (granting collateral review of the court-ordered disclosure of the identity of six John Doe defendants, purportedly in violation of their First Amendment rights); Rhodes v. USAA Cas. Ins. Co., 2011 PA Super. 105, 21 A.3d 1253, 1258 (Pa. Super. 2011) (granting collateral review of a discovery order involving purportedly privileged material).

A collateral order is an order [1] separable from and collateral to the main cause of action where [2] the right involved is too important to be denied review and [3] the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost.

Pa.R.A.P. 313(b). The Pennsylvania Supreme Court has admonished that the collateral order doctrine is narrow. Melvin v. Doe, 575 Pa. 264, 836 A.2d 42, 46-47 (Pa. 2003). All three factors must be present before an order may be considered collateral. Id. at 47; Pilchesky, 12 A.3d at 436; Crum v. Bridgestone/Firestone North American Tire, LLC, 2006 PA Super. 230, 907 A.2d 578, 583 (Pa. Super. 2006).

In his first issue, Appellant asserts a " compelling privacy interest[] in preventing [his] pretrial[,] non-record testimony from being disseminated to the public." Appellant's Substituted Brief at 13. According to Appellant, this interest serves to protect from disclosure potentially embarrassing details of a litigant's personal

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life. This Court has previously granted collateral review of pretrial discovery orders in which an appellant's privacy interests were at issue. See, e.g., J.S. v. Whetzel, 2004 PA Super. 406, 860 A.2d 1112, 1117 (Pa. Super. 2004) (concluding that an expert witness's privacy interest in his income was suitable for collateral review); Commonwealth v. Alston, 2004 PA Super. 471, 864 A.2d 539, 546 (Pa. Super. 2004) (granting collateral review to address privacy interests relevant to a pretrial court-ordered psychiatric evaluation).

In urging us to reject collateral review of this issue, Appellee argues that Appellant's assertion fails to meet any of the requirements of the collateral review doctrine. According to Appellee, it is impossible to review the trial court's decision without addressing the merits of Appellant's defamation claim. In particular, Appellee suggests that Appellant relies merely on his allegations of defamation and purported animus in support of his motion for the protective order, and this reliance impermissibly intertwines this discovery dispute with the underlying claim. Moreover, according to Appellee, the importance of this issue is limited to Appellant alone. Finally, Appellee suggests that subsequent review of this issue, though perhaps inconvenient, will nonetheless be possible. We are not persuaded by Appellee's arguments and conclude that this issue is suitable for collateral review.

Appellant's assertion of a privacy interest in pretrial discovery is clearly separable from his defamation claim, as we need not examine whether a harmful, defamatory statement was made. See Pilchesky, 12 A.3d at 437 (concluding that a discovery dispute entailed consideration of threshold requirements relevant to protecting First Amendment rights of John Doe defendants and that such consideration was separate from the underlying defamation action).[5]

In assessing importance, we " look[] for rights deeply rooted in public policy going beyond the litigation at hand ... and measure[] any such interests against the public policy interests advanced by adherence to the final judgment rule." Pridgen v. Parker Hannifin Corp., 588 Pa. 405, 905 A.2d 422, 431 (Pa. 2006) (citing Geniviva, 555 Pa. 589, 725 A.2d 1209, 1214 (Pa. 1999); Melvin, 836 A.2d at 47; and Ben v. Schwartz, 556 Pa. 475, 729 A.2d 547, 552 (Pa. 1999)).

" [T]he right of privacy is a well-settled part of the jurisprudential tradition in this Commonwealth[.]" Stenger v. Lehigh Valley Hosp. Ctr., 530 Pa. 426, 609 A.2d 796, 800 (Pa. 1992) (Stenger II) (reflecting on the Court's obligation " to avoid unjustified intrusions into the private zone of our citizens' lives" ). In other contexts, we have found privacy interests sufficiently important to warrant collateral review of a discovery ruling. J.S., 860 A.2d at 1117; Alston, 864 A.2d at 546. Clearly, Appellant's assertion implicates fundamental questions related to the nature of pretrial discovery. In light of the robust protections afforded privacy interests in

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Pennsylvania, we conclude that the right to privacy in pretrial discovery " falls within the class of rights that are too important to be denied review." Melvin, 836 A.2d at 50.

Finally, any protectable privacy interest Appellant may have in pretrial discovery would be irreparably lost absent collateral review. J.S., 860 A.2d at 1117 (concluding that an appellant's privacy interest would be " irreparably violated" absent collateral review); Alston, 864 A.2d at 546 (similarly concluding that an appellant's privacy claim would " be lost forever" ). The nature of a litigant's privacy interest is similar to a defamation defendant's First Amendment right to anonymity, or a litigant's property interest in a trade secret. See Pilchesky, 12 A.3d at 437; Crum, 907 A.2d at 584. In each case, an appellant seeks to keep private or secret what may otherwise become public, and in each case, the loss of privacy or secrecy would be irreparable.

Our jurisdictional analysis has focused, thus far, upon Appellant's first issue. In his second issue, Appellant contends the court erred by disregarding evidence demonstrating good cause. In our view, a strong argument exists that Appellant's second issue, which merely questions the trial court's application of the good cause standard, raises factual considerations not well-suited to collateral review. The Supreme Court has adopted an issue-by-issue approach and restricted collateral appeals to those issues which independently satisfy the collateral order test." Pilchesky, 12 A.3d at 436 (citing Rae v. Pa Funeral Dirs. Ass'n, 602 Pa. 65, 977 A.2d 1121, 1129 (Pa. 2009); see also Pridgen, 905 A.2d at 432 n.9 (distinguishing legal from factual controversies and declining collateral review of the latter); Stewart v. Precision Airmotive, LLC, 2010 PA Super. 168, 7 A.3d 266 (Pa. Super. 2010) (rejecting nine of ten issues for which appellants sought collateral review). However, a litigant's privacy interest in discovery and the risk of an unreasonable intrusion should those interests not be sufficiently protected by the good cause standard are inextricably linked. Accordingly, we conclude that collateral review of both of Appellant's issues is appropriate.

We examine the merits of this appeal pursuant to the following standard of review:

Generally, on review of an order concerning discovery, an appellate court applies an abuse of discretion standard. [Nevertheless,] [o]ur caselaw long has held that questions of law are accorded full appellate review, and our consideration is plenary.

McNeil v. Jordan, 586 Pa. 413, 894 A.2d 1260, 1268 (Pa. 2006) (citations omitted); see also Crum, 907 A.2d at 585; George v. Schirra, 2002 PA Super. 395, 814 A.2d 202, 204 (Pa. Super. 2002).

Appellant asserts that he retains a compelling privacy interest in non-record, pretrial discovery. According to Appellant, the relative ease with which a videotaped deposition can be modified, and thereafter disseminated to the public in a manner harmful to a litigant, increases the risk that the discovery process will be abused. This increased risk of abuse warrants protection to insure a litigant's privacy interest is not damaged irrevocably. Thus, based upon his asserted right of privacy, Appellant claims that the trial court erred in declining his motion for a protective order. No relief is due.

Appellant does not identify expressly for the Court the origin of this privacy interest;

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he does not define its nature or limits; and he fails to suggest a meaningful way of examining any potential intrusion upon it. See, e.g., Stenger II, 609 A.2d at 800-03 (comparing the right of privacy as evaluated pursuant to both the United States Constitution and the Pennsylvania Constitution; citing numerous cases). Nevertheless, he implies a constitutionally protected right under the First Amendment,[6] primarily citing in support the following cases: Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984) (Seattle Times); Stenger v. Lehigh Valley Hosp. Ctr., 382 Pa.Super. 75, 554 A.2d 954 (Pa. Super. 1989) (Stenger I); MarkWest Liberty Midstream & Res., LLC v. Clean Air Council, 71 A.3d 337 (Pa. Cmwlth. 2013) (MarkWest). These cases are inapposite.

In Seattle Times, the spiritual leader of a religious group brought claims of defamation and invasion of privacy on behalf of himself and the group (collectively, Rhinehart) against media defendants, following the publication of a series of newspaper articles focused on the group. Seattle Times, 467 U.S. at 22-23. During discovery, the media defendants requested information related to the financial affairs of the group. Id. at 24. Rhinehart refused to provide certain information, including the identity of the group's financial backers and a list of members. Id. The media defendants filed a motion to compel, and Rhinehart sought a protective order. Id. at 25-26. Initially, the trial court granted the motion to compel and denied the motion for protective order, but it did so without prejudice to Rhinehart's right to establish " a factual showing of good cause for restraining defendants in their use of those materials." Id. at 26. After considering several affidavits submitted by Rhinehart detailing threats of violence against the group's membership, the trial court granted a protective order, and the media defendants appealed. Id. at 27-28.

The Seattle Times Court granted certiorari of the following issue: " whether parties to civil litigation have a First Amendment right to disseminate, in advance of trial, information gained through the pretrial discovery process." Id. at 22 (emphasis added). In rejecting the media defendants' argument that any restraint on their right to disseminate freely demanded strict scrutiny, the Court observed that litigants have no First Amendment right of access to information gained through the discovery process and that pretrial proceedings are generally conducted in private. Id. at 32-34. Therefore, applying intermediate scrutiny to the trial court's decision, the Court recognized substantial governmental interests in protecting the integrity of the discovery process and concluded that where " a protective order is entered on a showing of good cause[,] is limited to the context of pretrial civil discovery, and does not restrict the dissemination of the information if gained from other sources, it does not offend the First Amendment." Id. at 37.

Our review of Seattle Times reveals that Appellant's reliance upon it is misplaced.

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The Court recognized that " liberal discovery," provided to facilitate litigation, " may seriously implicate privacy interests." Id. at 34. However, notably absent from the Court's analysis was any recognition of a party's constitutional right to keep private information provided through discovery. Id. To be clear, Seattle Times affords Appellant no meaningful protection, absent a showing of good cause. Id. at 37.

In Stenger I, this Court addressed a third party intervener's constitutional right of access to information exchanged between litigants in discovery. See Stenger I, 554 A.2d at 957. It did not analyze a litigant's purported constitutional right of privacy. Id. In that case, the plaintiff and her family sued a hospital when she was transfused with units of blood allegedly contaminated with the AIDS virus. Id. at 955. Upon agreement of counsel, the trial court issued a protective order preventing public dissemination of pretrial discovery. Id. A local newspaper petitioned to intervene and filed exceptions to the protective order, which were ...

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