Dougherty, J. v. Heller, K. (opinion)

Annotate this Case

Download PDF

J-E01003-14 2014 PA Super 170 JOHN J. DOUGHERTY, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant v. KAREN HELLER, Appellee No. 1333 EDA 2012 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: 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. OPINION BY BENDER, P.J.E.: FILED AUGUST 14, 2014 John J. Dougherty (Appellant) appeals from the order entered April 11, compel his videotaped deposit -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 J-E01003-14 Rittenhouse Square, a popular destination in Philadelphia.1 Counsel for Appellant contacted Appellee, informed her that the column was inaccurate, demands, thereafter publishing a retraction and apology in The Philadelphia Inquirer.2 Nevertheless, an uncorrected version of the original column 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 ____________________________________________ 1 Appellee opined: Consider the punitive nature of doing business in the city. Why does it cost $50,000 to string lights in Rittenhouse Square? Johnny Dougherty stepped in and magnanimously waived the exorbitant fees his electricians and the theatrical stage employees union imposed in and create the crisis in [the] first place. 2 App Dougherty an apology. I incorrectly stated that the electrical workers union and theatrical stage employees union imposed exorbitant fees for stringing holiday lights in Rittenhouse Square. That was wrong. Dougherty and his union generously donated their time and services to repair, replace, and hang the lights. -2- J-E01003-14 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. 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 non-litigation purpose. Following argument, the trial court issued an relief. Appellant timely appealed and filed a Pa.R.A.P. 1925(b) statement.3 ____________________________________________ 3 Appellant sought, but the trial court declined to issue a stay of proceedings, concluding that the order was not a collateral order appealable as of right. However, this Court entered a stay of proceedings pending the outcome of this appeal. See Order, 07/13/2012. -3- J-E01003-14 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 Preliminarily, we examine our jurisdiction to entertain this appeal.4 Pilchesky v. Gatelli, 12 A.3d 430, 435 (Pa. Super. 2011) (quoting Leber v. Stretton, 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 ____________________________________________ 4 Appellant notes that a panel of this Court previously determined that the relevant order was a collateral order appealable as of right. According to Appellant, that determination is not at issue before the en banc Court. See llant is incorrect. See Superior Court Order, 09/05/2013, at 1 (withdrawing the previous decision of this Court); see also Pa. Code § 65.41. Moreover, Appellee renews her objection to our exercise of appellate jurisdiction, contending that the order does not meet the requirements of the collateral order doctrine. See, infra. Finally, subject matter jurisdiction is always at issue, and we may raise it sua sponte. Parole), 860 A.2d 25, 29 (Pa. 2004); In re Miscin, 885 A.2d 558, 561 (Pa. Super. 2005). -4- J-E01003-14 of their First Amendment rights); Rhodes v. USAA Cas. Ins. Co., 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, 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, 907 A.2d 578, 583 (Pa. Super. 2006). ] in preventing [his] pretrial[,] non-record testimony from being disseminated to interest serves to protect from disclosure potentially embarrassing details of ersonal life. This Court has previously granted collateral review issue. See, e.g., J.S. v. Whetzel, 860 A.2d 1112, 1117 (Pa. Super. 2004) privacy interest in his income was suitable for collateral review); Commonwealth v. Alston, 864 A.2d 539, -5- J-E01003-14 546 (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 collateral review doctrine. According to Appellee, it is impossible to review 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 for collateral review. 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 -6- J-E01003-14 defendants and that such consideration was separate from the underlying defamation action).5 interests against the public policy interests advanced by adherence to the Pridgen v. Parker Hannifin Corp., 905 A.2d 422, 431 (Pa. 2006) (citing Geniviva, 725 A.2d 1209, 1214 (Pa. 1999); Melvin, 836 A.2d at 47; and Ben v. Schwartz, 729 A.2d 547, 552 (Pa. 1999)). ht of privacy is a well-settled part of the jurisprudential Stenger v. Lehigh Valley Hosp. Ctr., 609 A.2d 796, 800 (Pa. 1992) (Stenger II rivate zone of our sufficiently important to warrant collateral review of a discovery ruling. J.S., 860 A.2d at 1117; Alston ____________________________________________ 5 animus toward him, we observe that the Pennsylvania Supreme Court has recognizing that some potential interrelationship between merits issues and the question Pridgen v. Parker Hannifin Corp., 905 A.2d 422, 433 (Pa. 2006). Further, the probative value of any personal hostility Appellee may hold toward Appellant is unclear relative to the underlying defamation claim. See Harte-Hanks , 491 U.S. 657, 666 (1989). -7- J-E01003-14 implicates fundamental questions related to the nature of pretrial discovery. In light of the robust protections afforded privacy interests in Pennsylvania, class of rights that are too 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 interest would be Alston, 864 A.2d at 546 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. issue. In his second issue, Appellant contends the court erred by disregarding evidence demonstrating good cause. In our view, a strong considerations not well-suited to collateral review. The Supreme Court has -8- J-E01003-14 adopted an issue-by-issue approach and restricted collateral appeals to Pilchesky, 12 A.3d at 436 (citing , 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, 7 A.3d 266 (Pa. Super. 2010) (rejecting nine of ten issues for which appellants sought collateral review). However, a litigan risk of an unreasonable intrusion should those interests not be sufficiently protected by the good cause standard are inextricably linked. Accordingly, ues 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, 894 A.2d 1260, 1268 (Pa. 2006) (citations omitted); see also Crum, 907 A.2d at 585; George v. Schirra, 814 A.2d 202, 204 (Pa. Super. 2002). Appellant asserts that he retains a compelling privacy interest in nonrecord, pretrial discovery. According to Appellant, the relative ease with -9- J-E01003-14 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 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; 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 (1984) (Seattle Times); Stenger v. Lehigh Valley Hosp. Ctr., 554 A.2d 954 (Pa. Super. 1989) (Stenger I); MarkWest Liberty ____________________________________________ 6 s panel of this Court, Appellant invoked the First Amendment expressly. See [his] constitutionally protected right under the First Amendment against the public disclosure of disco en banc Court relies on the same precedent to establish his purported privacy right in pretrial discovery. - 10 - J-E01003-14 Midstream & Ress., 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 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 showing of good cause for restraining defendants Id. at 26. After considering several affidavits submitted by Rhinehart detailing threats of violence against the rder, and the media defendants appealed. Id. at 27-28. The Seattle Times Court granted certiorari of the following issue: right to disseminate, in advance of trial, information gained through the pretrial Id. at 22 (emphasis added). - 11 - In rejecting the media J-E01003-14 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 32decision, the Court recognized substantial governmental interests in 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 Id. at 37. Our review of Seattle Times revea Id. at 34. nition of a 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 constitutional right of access to information exchanged between litigants in discovery. See Stenger I purported constitutional right of privacy. Id. In that case, the plaintiff and - 12 - J-E01003-14 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 denied. Id. at 955-56. On appeal, relying on Seattle Times, this Court affirmed, concluding that a protective order could issue upon a showing of good cause. Id. at 960. In MarkWest, the Commonwealth Court addressed the appropriate standard by which a trial court should evaluate a motion for a protective order related to trade secrets or confidential business information. MarkWest, 71 A.3d at 343-44. See The court declined to rule on a second Id. at 345. Nevertheless, in a footnote supplementing s no right to Id. at 345 n.15 (citing Seattle Times, 467 U.S. at 32-34). As is clearly evident from our review of Seattle Times, this brief statement, offered without analysis or context, does not accurately reflect the opinion of the United States Supreme Court. Thus, we afford MarkWest no persuasive authority. Finally, though we will not address every case cited by Appellant, we Baker v. Buffenbarger, 2004 WL - 13 - J-E01003-14 2124787 (N.D.Ill. 2004), is also misplaced. members sued international union leadership. In that case, local union Id. at *1. The defendants sought a protective order when the plaintiffs threatened to send copies of videotaped deposition website devoted to criticizing the defendants. Id. representations to this Court regarding the exclusively private nature of pretrial discovery, the federal district court in Baker observed: public unless compelling reasons exist for denying the public Jepson, Inc. v. Makita Elec. a Works, Ltd., 30 F.3d 854, 858 (7th Cir. 1994).[7 protective order, parties to a lawsuit may disseminate materials Id. Id. at *2; but see cf. Seattle Times, 467 U.S. at 32-34. Thereafter, based upon affidavits submitted to the court, detailing plaintiffs embarrass defendants, including an attempt to influence an impending intentions, the court found good cause to issue a protective order. Id. at *3. Generally, the analytical focus of the cases relied upon by Appellant is ____________________________________________ 7 Jepson cites in support: Oklahoma Pub. Co., 748 F.2d 1421, 1424 (10th Cir. 1984), cert. denied, 473 U.S. 905 (1985); American Tel. & Tel. Co. v. Grady, 594 F.2d 594, 596 (7th Cir. 1978), cert. denied, 440 U.S. 971 (1979). - 14 - J-E01003-14 privacy interests. Moreover, these ca discovery warrants protection, absolute or independent of other relevant afforded protection rests upon a showing of good cause. In our view, the interests, including a litiga defined), the First Amendment freedoms of speech and access, and the to be without merit. In his second issue, Appellant contends that the trial court abused its discretion by disregarding evidence demonstrating good cause. As in his first issue, Appellant offers little depth of analysis: he does not define good cause nor suggest an appropriate standard by which to evaluate it. Appellant does not even set forth the relevant text of the procedural rule that governs his motion. We caution Appellant that failure to develop a legal argument risks waiver. See McEwing v. Lititz Mut. Ins. Co., 77 A.3d 639, 647 (Pa. Super. 2013) (quoting Umbelina v. Adams, 34 A.3d 151, 161 (Pa. Super. 2011)); Pa.R.A.P. 2119(a). Moreover, Appellant offers no factual - 15 - J-E01003-14 evidence in support of his contention, with two exceptions: (1) Appellant references several statements of counsel made at the aborted deposition alleged in support of his defamation claim, including an assertion that Appellee harbors animus toward him.8 The trial court concluded that Appellant failed to establish good cause pursuant to Pennsylvania Rule of Civil Procedure 4012(a)(3). The rule provides: Upon motion by a party or by the person from whom discovery or deposition is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from unreasonable annoyance, embarrassment, oppression, burden or expense, including one or more of the following: (3) that the discovery or deposition shall be only by a method of discovery or deposition other than that selected by the party seeking discovery or deposition[.] Pa.R.C.P. 4012(a)(3).9 ____________________________________________ 8 -will directed toward him by third parties to this may violate the Rules of Professional Conduct, we consider it inappropriate and needlessly inflammatory, particularly absent any evidence to support the suggestion. 9 Rule 4012 is similar to Federal Rule of Civil Procedure 26(c) and Washington Superior Court Civil Rule 26(c), considered by the Seattle (Footnote Continued Next Page) - 16 - J-E01003-14 No Pennsylv But see Seattle Times, 467 U.S. at 26 (referencing Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d C cause is established on a showing that disclosure will work a clearly defined and serious injury to the party seeking closure. The injury must be shown with specificity. Broad allegations of harm, unsubstantiated by specific examples Constand v. Cosby, 229 F.R.D. 472, 479 (E.D.Pa. 2005) (applying the Pansy standard); Ornsteen v. Bass, 50 Pa. D. & C.3d 371, 374-75 (Phila. ion of whether good cause does or does not exist must be based upon appropriate testimony and other (quotation omitted). In light of the deference with which we review a trial cour whether to issue a protective order, we decline to adopt any specific requirements to establish good cause. We have previously observed that afforded, and the form of such protection, are matters to be determined (Footnote Continued) Times Court. _______________________ However, the Pennsylvania rule qualifies the harms to be this distinction, and we need not explore it here. - 17 - J-E01003-14 Crum, 907 A.2d at 586. Further, the Seattle Times Court approved of the broad discretion afforded trial courts by the rules: The trial court is in the best position to weigh fairly the competing needs and interests of the parties affected by discovery. The unique character of the discovery process requires that the trial court have substantial latitude to fashion protective orders. Seattle Times, 467 U.S. at 36. Though we need not impose a rigid standard of analysis, it is selfevident that a party seeking a protective order must, at the very least, present some evidence of substance that supports a finding that protection is necessary. Such evidence must address the harm risked, and not merely an unsubstantiated risk of dissemination, as suggested by Appellant here. In Seattle Times, for example, good cause was based upon several affidavits. ailed a series of letters and Id. Id. In Stenger I Stenger I, 554 A.2d at 959. - 18 - J-E01003-14 Appellant offered nothing of comparable substance. Accordingly, we Order affirmed. 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. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 8/14/2014 - 19 -

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.