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Dougherty v. Heller

Jul 1, 2013
J-A31030-12 (Pa. Super. Ct. Jul. 1, 2013)


J-A31030-12 No. 1333 EDA 2012


JOHN J. DOUGHERTY, Appellant v. KAREN HELLER, Appellee


Appeal from the Order April 11, 2012

In the Court of Common Pleas of Philadelphia County

Civil Division at No.: December Term 2009, No. 00699


Retired Senior Judge assigned to the Superior Court.

Appellant, John J. Dougherty, appeals from the order entered by the Court of Common Pleas of Philadelphia County, denying his motion for a protective order and granting the motion filed by Appellee, Karen Heller, to compel his video deposition. Appellant argues that he showed good cause for a protective order to prevent or limit the use of his video deposition. We affirm.

Appellant is the business manager of the International Brotherhood of Electrical Workers Local 98 and a self-described public figure who has engaged in numerous civic and philanthropic endeavors. ( See Appellant's Brief, at 4-5, 16). Appellee is a reporter and columnist for the Philadelphia Inquirer. On November 28, 2009, the Inquirer published an opinion column written by Appellee entitled "Dad Vail Lesson: Get Out in Front."

The main focus of the article was Appellee's critique of Philadelphia's government and civic community for letting the nationally known Dad Vail Regatta be lured away to Rumson, New Jersey. In the article, Appellee also criticized what she characterized as a $50,000 charge, later waived, by unions associated with Appellant, for setting up holiday season lighting in Rittenhouse Square. There is no dispute that the facts were incorrect. The unions volunteered their services.

The relevant paragraph of the article follows:

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 the first place. Now he's Santa Doc. Next time, don't charge so much and create the crisis in the first place.
(Defendant Karen Heller's Motion to Compel Plaintiff's Videotaped Deposition, Exhibit A, Karen Heller: "Dad Vail lesson: Get out in front," 11/28/09).

Approximately a week later, on December 4, 2009, counsel for Appellant sent Appellee a letter identifying various inaccuracies in the column and demanding, inter alia, a retraction. Appellee published a correction and an apology the next day.

The full text of the retraction follows:

For the record, I blew it in last Saturday's column, and owe John J. Dougherty an apology. I incorrectly stated that the electrical workers 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.
(Defendant Karen Heller's Motion to Compel Plaintiff's Videotaped Deposition, Exhibit D; see also Appellee's Brief, at 4).

On December 9, 2009, Appellant filed a complaint against Appellee, alleging defamation. On February 15, 2012, Appellee served Appellant with a notice for his videotape deposition on March 16, 2012. On the morning of the deposition, Appellant, through counsel, demanded assurances that the videotaped deposition would not be used "outside the litigation of this case." (Appellant's Brief, at 7). Counsel for Appellee confirmed that she would comply with the Rules of Civil Procedure and the Rules of Professional Conduct, but refused to consent to any additional restrictions. ( See Appellee's Brief, at 5). Counsel for the parties could not reach an agreement, and the deposition was not held.

On March 19, 2012, Appellee moved to compel Appellant's video deposition. On March 22, 2012, Appellant filed a cross-motion for an order of protective relief, prohibiting "non-stenographic recording" or, in the alternative, permitting production of one original videotape only, and directing a third-party custodian, at Appellee's expense, to "permit no one to view, edit, audit, or copy the videocassette(s) absent further order of the [c]ourt." ([Appellant's] Cross-Motion for Protective Relief Regarding Videotape Deposition, 3/22/12, at ¶28, ¶29).

The trial court heard argument on April 4, 2012, after which it ordered a video deposition of Appellant to take place within fifteen days and denied Appellant's cross-motion for a protective order. ( See Order, 4/11/12). The deposition was scheduled for April 25, 2012. Appellant filed notice of appeal on April 24, 2012, and did not appear for the video deposition, later arguing that all matters were stayed pending this appeal.

After argument, on June 21, 2012, the trial court entered an order finding that a stay of proceedings was not warranted because the appeal was interlocutory, and the April 11, 2012 order was not a collateral order appealable as of right. The trial court ordered Appellant to appear for a video deposition within fifteen days. On July 13, 2012, this Court entered an order staying all proceedings pending the outcome of this appeal.

Appellant filed a statement of errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), on May 25, 2012. The trial court filed a Rule 1925(a) opinion on July 19, 2012, referring this Court to its June 21, 2012 memorandum opinion.

Appellant presents two overlapping questions for our review:

A. Whether the [t]rial [c]ourt erred in finding that good cause did not exist under Pa.R.C.P. 4012 to restrict the use of [Appellant's] videotaped deposition to litigation purposes only or to require that [Appellant's] deposition be taken by stenographic means only[?]
B. Whether the [t]rial [c]ourt erred by not finding that [Appellant's] privacy right/interest under the First Amendment, the ethical obligations of Rule 3.6 of the Rules of Professional Conduct, and the animosity between [Appellant, Appellee, and Appellee's] media-employer constituted good cause, under Pa.R.C.P. 4012, for limiting the use of [Appellant's] videotaped
deposition to litigation purposes only, or directing that [Appellant's] deposition be taken by stenographic means only[?]
(Appellant's Brief, at 3).

Before we proceed, we must first determine whether the trial court's order is appealable. Appellant claims that the order is appealable as a collateral order under Pa.R.A.P. 313(b). ( See Appellant's Brief, at 1). As already noted, the trial court decided that its order was an interlocutory order and not appealable. ( See Trial Court Opinion, 6/21/12, at 3-7). Appellee also argues that this matter is not a collateral order and may not be appealed at this time. ( See Appellee's Brief, at 10).

"[I]n general, discovery orders are not final, and are therefore unappealable." Jones v. Faust, 852 A.2d 1201, 1203 (Pa. Super. 2004). However, "discovery orders involving privileged material are nevertheless appealable as collateral to the principal action" pursuant to Pa.R.A.P. 313, Collateral Orders. Id. Rule 313 provides that:

(a) General rule. An appeal may be taken as of right from a collateral order of an administrative agency or lower court.
(b) Definition. A collateral order is an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and 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.

"Whether an order is appealable under Pa.R.A.P. 313 is a question of law. As such, our standard of review is de novo and our scope of review is plenary." Rae v. Pennsylvania Funeral Directors Ass'n, 977 A.2d 1121, 1126 n.8. (Pa. 2009).

"Rule 313 must be interpreted narrowly, and the requirements for an appealable collateral order remain stringent in order to prevent undue corrosion of the final order rule." Melvin v. Doe, 836 A.2d 42, 47 (Pa. 2003) (citation omitted). Thus, each prong of the collateral order test must be met before the issue will be considered on appeal. See id.

A discovery order is collateral only when it is separate and distinct from the underlying cause of action. [Ben v. Schwartz, 729 A.2d 547,] at 551 [(Pa. 1999)]. In determining whether the right involved is too important to be denied review, it must be determined whether the right is deeply rooted in public policy such that it goes beyond the controversy at hand. Id. at 552. Finally, there must be no effective means of review available after an Order requiring the production of documents is reduced to judgment. Id. [ ].
Feldman v. Ide, 915 A.2d 1208, 1211 (Pa. Super. 2007) (one citation omitted).

"Generally, discovery orders involving purportedly privileged material are appealable because if immediate appellate review is not granted, the disclosure of documents cannot be undone and subsequent appellate review would be rendered moot." Rhodes v. USAA Cas. Ins. Co., 21 A.3d 1253, 1258 (Pa. Super. 2011) (citations omitted).

Here, Appellant argues "[t]his appeal presents an important fundamental legal question of first impression regarding the non-litigation use of videotaped testimony that has not been filed of record in any judicial proceeding." (Appellant's Brief, at 11; see also id. at 12). The trial court determined that possible abuse of a videotape deposition is separate and distinct from the underlying cause of action for defamation, satisfying the first prong of the collateral order doctrine. ( See Trial Court Opinion, 6/02/12, at 2-3). We agree.

Appellee maintains that an order compelling a videotaped deposition may be separable in some cases, but not here. ( See Appellee's Brief, at 10-11). In support, Appellee cites Fidelity Nat'l Title Ins. Co. of New York v. United Settlement Services, Inc., 924 A.2d 1270, 1270 (Pa. Super., 2007) (quashing appeal on ground application of spousal privilege could not be determined without analysis of underlying issues of spouse's participation in fraud), and Vaccone v. Syken, 899 A.2d 1103, 1107 (Pa. 2006) (holding orders disqualifying counsel in civil cases are not collateral orders subject to appeal). We are not persuaded. First, none of those issues (fraud, spousal privilege, disqualification of counsel) are present here. Secondly, the analogy fails because here, Appellant's arguments notwithstanding, it is unnecessary to address whether Appellee defamed Appellant in the past to determine whether he has a protected current interest in avoiding or limiting his deposition in litigation he has brought.

Next, the trial court found that Appellant failed to satisfy the second prong of the collateral order doctrine, that the right involved is too important to be denied review. (Trial Ct. Op. 6/21/12, at 4-5); see also Pa.R.A.P. 313(b). We are constrained to disagree.

"In analyzing the importance prong, we weigh the interests implicated in the case against the costs of piecemeal litigation." Ben, supra at 552 (citing Geniviva v. Frisk, 725 A.2d 1209 (Pa. 1999)). Furthermore,

For purposes of defining an order as a collateral order under Rule 313, it is not sufficient that the issue be important to the particular parties. Rather it must involve rights deeply rooted in public policy going beyond the particular litigation at hand.
Id. (citations and internal quotation marks omitted).

In this case, the scope of our review is inherently limited because Appellant has never participated in the videotape deposition at issue. Therefore, there is no specific discovery material at risk of exposure. Rather, Appellant poses hypothetical risks. In any event, under controlling authority for our appealability review we look beyond importance to the particular parties to examine whether the claim at issue involves "rights deeply rooted in public policy going beyond the particular litigation at hand." Ben, supra.

Here, the trial court concluded that Appellant's allegation of an acrimonious relationship between himself and Appellee did not establish a public policy right to a protective order. ( See Trial Ct. Op., 6/21/12, at 4-5). Further, the court decided that a "cautionary tale" from a colleague of Appellant's counsel, expressing apprehension that "snippets" of a videotape could subject a person "to ridicule outside the merits of the case," did not establish a public policy right. ( Id. at 5). We agree with both conclusions.

Because we agree with the trial court, we need not address the obvious hearsay implications of counsel's proffered assertion. See Pennsylvania Rules of Evidence 801, 802.

Appellant also asserts that the question of what rights a person has in his (or her) videotaped deposition before publication in open court, "impacts every potential deponent." (Appellant's Brief, at 11) (emphasis in original).

Appellant's argument overreaches, because the primary premise of his argument is that "[f]irst, there exists the distinct possibility for the videotape of [Appellant's] deposition to be misused due to his public figure status and substantial involvement in public and political activities." (Appellant's Brief, at 13) (emphasis added).

Public figures, voluntarily or otherwise, have a heightened risk of a violation of their privacy or other rights in discovery. See Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) ("[T]he communications media are entitled to act on the assumption that public officials and public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them."). Id. at 345; see also American Future Systems, Inc. v. Better Business Bureau of Eastern Pennsylvania, 923 A.2d 389, 401 (Pa. 2007), cert. denied, 552 U.S. 1076 (2007) (citing Gertz ).The extent of such an assumed risk is obviously dependent on the actual circumstances. Nevertheless,

As the right of privacy is a well-settled part of the jurisprudential tradition in this Commonwealth, we are mindful, as ever, to avoid unjustified intrusions into the private zone of our citizens' lives. We must bear in mind, however, that the right is not an unqualified one; it must be balanced against weighty competing private and state interests.
Stenger v. Lehigh Valley Hosp. Center, 609 A.2d 796, 800 (Pa. 1992) (citation omitted).
Because one individual's speech has the ability to harm another person's reputation, there is an inevitable tension in the law between the goals of protecting freedom of expression and safeguarding reputation from unjust harm. See generally Gertz, [ supra at] 342; Norton v. Glenn, 580 Pa. 212, 228, 860 A.2d 48, 58 (2004) (referring to the "seesawing balance between the constitutional rights of freedom of expression and of safeguarding one's reputation"). On one side of the equation, the [United States Supreme] Court in New York Times determined that the First Amendment limits the reach of state defamation laws. See New York Times [ v. Sullivan ], 376 U.S. [254], at 269, 84 S. Ct. at 720 [(1964)][.] On the other side, this Court has indicated that reputational interests occupy an elevated position within our state Constitution's system of safeguards, FN7 and hence, in the context of defamation law the state Constitution's free speech guarantees are no more extensive than those of the First Amendment.
FN7. While the Pennsylvania Constitution, as well as the First Amendment, protects freedom of speech and of the press, see PA. CONST. art. I, § 7, the state charter places reputational interests on the highest plane, that is, on the same level as those pertaining to life, liberty, and property. See PA. CONST. art. I, §§ 1, 11; Sprague v. Walter, 518 Pa. 425, 438-39, 543 A.2d 1078, 1084 (1988). See generally Norton v. Glenn, 580 Pa. 212, 225-26, 860 A.2d 48, 56 (2004) (" 'The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being ....' " (quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 22, 110 S.Ct. 2695, 2708, 111 L.Ed.2d 1 (1990))).
American Future Systems, supra at 395 (some citations omitted).

We further note that while there is an ample body of Pennsylvania caselaw construing the application of the collateral order doctrine, there is relatively little precedent directly addressing its effect on public figures.

Therefore, we conclude that the claim of risk of an improper invasion of privacy of a public figure in a deposition presents a question which "involve[s] rights deeply rooted in public policy going beyond the particular litigation at hand . . . that would potentially go unprotected without immediate appellate review[.]" Ben, supra at 552. Accordingly, we find that the second prong of the collateral order doctrine has been satisfied.

The third prong requires that "there must be no effective means of review available after an Order requiring the production of documents is reduced to judgment." Feldman, supra at 1211. As we have already noted, "[g]enerally, discovery orders involving purportedly privileged material are appealable because if immediate appellate review is not granted, the disclosure of documents cannot be undone and subsequent appellate review would be rendered moot." Rhodes, supra at 1258 (citations omitted). We find no meaningful distinction between the need for protection of unwarranted disclosure of purportedly privileged material based on whether it is in document form or on videotape.

The trial court suggests that Appellant would have "grounds for another lawsuit" if his rights were violated. (Trial Ct. Op., 6/21/12, at 6). However, our caselaw does not regard the availability of future monetary damages as sufficient to preclude immediate appeal of a claim of unwarranted disclosure of purportedly protected material. "[T]here is no effective means of reviewing after a final judgment an order requiring the production of putatively protected material." Ben, supra at 552-53 (citation omitted); see also Rhodes, supra at 1258. "Such disclosure could not be undone in a subsequent appeal." T.M. v. Elwyn, Inc., 950 A.2d 1050, 1058 (Pa. Super. 2008). Accordingly, we decline to do so here. Therefore, all three prongs of Rule 313(b) have been met and we will review Appellant's claims on the merits.

"Generally, in reviewing the propriety of a discovery order, our standard of review is whether the trial court committed an abuse of discretion. However, to the extent that we are faced with questions of law, our scope of review is plenary." Gormley v. Edgar, 995 A.2d 1197, 1202 (Pa. Super. 2010) (citation omitted).

Similarly, "[t]he questions of whether disclosure is to be allowed, if protection is to be afforded, and the form of such protection, are matters to be determined according to the discretion of the court." Crum v. Bridgestone/Firestone N. Am. Tire, LLC, 907 A.2d 578, 586 (Pa. Super. 2006) (citations omitted). "An abuse of discretion is not merely an error of judgment but is found where the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will as shown by the evidence or the record." Fischer v. UPMC Northwest, 34 A.3d 115, 120 (Pa. Super. 2011) (citation omitted).

Pennsylvania Rule of Civil Procedure 4017.1, Video Depositions, provides in relevant part as follows:

(a) Any deposition upon oral examination may be taken as a matter of course as a video deposition by means of simultaneous audio and visual electronic recording. Except as provided by this rule, the rules of this chapter governing the practice and procedure in depositions and discovery shall apply.
Pa.R.C.P. 4017.1 (emphasis added). The most recent comment to the rule, in relevant part, adds the following:
Rule 4017.1 governing video depositions has been amended in two respects. First, the amendment allows a party to take video depositions as a matter of course. . . .
There has been a noted lack of civility of parties, deponents and attorneys in connection with depositions upon oral examination. There also occurs the abusive practice of attorneys who raise objections which suggest an answer to the deponent or who instruct the deponent not to answer a question without reasonable basis. The ability of a party to use video depositions as a matter of course may have the salutary effect of discouraging egregious conduct during depositions.
Pa.R.C.P. 4017.1, EXPLANATORY COMMENT-2007 (emphasis added).

Furthermore, Rule 4017.1 provides that:

(f) The attorney for the party taking the deposition shall take custody of and be responsible for the safeguarding of the videotape and shall permit the viewing of and shall provide a copy of the videotape or the audio portion thereof upon the request and at the cost of a party.
Pa.R.C.P. 4017.1(f).

In his first question, Appellant claims that the trial court erred in finding that he failed to establish "good cause" pursuant to Pa.R.C.P. 4012. (Appellant's Brief, at 3, 13). He asserts there are eight grounds "that individually or collectively establish plain error by the [t]rial [c]ourt." ( Id. at 13). We disagree.

We note that the trial court, having decided that its order of April 10, 2012 was interlocutory and non-appealable in its memorandum opinion of June 21, 2012, declined to address Appellant's assertions of trial court error in its Rule 1925(a) opinion. ( See Rule 1925(a) Opinion, 7/19/12; Trial Court Memorandum Opinion, 6/21/12.).

In pertinent part, Rule 4012, Protective Orders, provides as follows:

(a) 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:
(1) that the discovery or deposition shall be prohibited;
(2) that the discovery or deposition shall be only on specified terms and conditions, including a designation of the time and place;
(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)(1)-(3) (emphases added).

The eight grounds that Appellant posits may be summarized as follows: (1) "the distinct possibility" of misuse of the videotape "due to his public figure status;" (2) heightened "potential for misuse" based on the "acrimonious relationship" between Appellant and Appellee, "her media employer, and other media entities as demonstrated by the defamation lawsuits filed by [Appellant]"; (3) the publication at issue in the instant case "continued[d] uncorrected"; (4) Appellee's "strong incentive to misuse" the video "to deter [Appellant] from fully acting on his legal rights to secure full compensation for the defamation involved here"; (5) Appellee's "refusal to agree not to disseminate or make other non-litigation use of" the video; (6) Appellant's belief that Appellee seeks to "destroy his good name"; (7) Appellant's suggestion that Appellee seeks the videotape "to accumulate non-contextual, non-sequential film clips and sound bites . . . that could be particularly devastating"; and (8) possible taint of the jury pool. (Appellant's Brief, at 13-15).

As previously noted, Appellant maintains that this is a case of first impression in Pennsylvania. ( See Appellant's Brief, at 11, 12). On independent review, we also find a dearth of caselaw from this Court or our Supreme Court defining "good cause" in this context. However, this Court has previously looked to federal caselaw construing similar federal procedural rules for guidance. See Crum, supra at 586-87 (finding non-binding federal case law persuasive in resolving claim under Pa.R.C.P. 4012(a)); see also Umbelina v. Adams, 34 A.3d 151, 159 n.2 (Pa. Super. 2011), appeal denied, 47 A.3d 848 (Pa. 2012) ("While we recognize that federal district court cases are not binding on this court, Pennsylvania appellate courts may utilize the analysis in those cases to the extent we find them persuasive.") (citations omitted).

Similarly, "[w]e recognize that decisions of the Court of Common Pleas are not binding precedent; however, they may be considered for their persuasive authority." Hirsch v. EPL Technologies, Inc., 910 A.2d 84, 89 (Pa. Super. 2006), appeal denied, 920 A.2d 833 (Pa. 2007) (citation omitted).

In addressing cross-claims for protective orders in a sexual assault and defamation suit brought against a well-known entertainer, the federal district court for the Eastern District of Pennsylvania reasoned as follows:

A party seeking a protective order over discovery materials must demonstrate that good cause exists for the protection of that material. A party can establish good cause by showing that disclosure will work a clearly defined and serious injury to the party seeking closure. It is essential that the injury to be prevented be shown with specificity. Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not support a good cause showing. Ultimately, in deciding whether good cause exists for a protective order, i.e., whether a party has shown a clearly defined and serious injury, the court must employ a balancing process.
Constand v. Cosby, 29 F.R.D. 472, 479 (E.D. Pa. 2005) (citations and internal quotation marks omitted) (emphases added). We find the court's reasoning persuasive and adopt it as our own.

We also find the decision of the Court of Common Pleas of Philadelphia County in Ornsteen v. Bass, 50 Pa. D.&C.3d 371, 1988 WL 168509, 2 (Pa.Com.Pl. 1988), legally sound and persuasive. The Ornsteen court, in a suit by a former senior partner against the law firm and his former colleagues, denied the defendants' motion for a confidentiality order, on a claim of attorney-client privilege. The court reasoned in relevant part as follows:

Federal Rule of Civil Procedure 26, upon which Pa.R.C.P. 4012 is modeled, states that for "good cause" shown, the court in which the action is pending [m]ay make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense. In order for a protective order to issue, the moving party bears the burden of proving its necessity. . . .
Establishing "good cause" requires, at a minimum, some evidence upon which a court can make a determination that harm will result from disclosure. The law is clear that the determination of whether good cause does or does not exist must be based upon appropriate testimony and other factual data, not the unsupported contentions and conclusions of counsel.
A claim for this type of relief must be supported by particularization demonstrating that such relief is warranted. The mere fact that a case has achieved notoriety which may attract attention to information is not sufficient ground for protection.
Id. at 373-75 (citations and internal quotation marks omitted; emphases added). We find the Ornsteen court's reasoning persuasive and adopt it as our own, as well.

In the instant case, we observe that the majority of Appellant's eight asserted grounds for relief amount to no more than his own speculation, beliefs, suggestions, and insinuation of potential misuse of a video. ( See Appellant's Brief, at 13-15). Furthermore, in all but one instance, Appellant offers no authority at all in support of the claim that his grounds prove trial court error.

In the single exception to the absence of authority, Appellant cites Weaver v. Lancaster Newspapers, Inc., 926 A.2d 899, 903-907 (Pa. 2007) for the proposition that "continuing publication that is known to contain false information may be convincing evidence of wrong motive of actual malice." (Appellant's Brief, at 14) (emphasis added). Appellant's reliance is misplaced.

Appellant materially misstates and misapplies the holding in Weaver. First, the facts in Weaver are readily distinguishable. Secondly, Weaver involved whether subsequent republication in independent media could be evidence of malice in the original publication; it had nothing to say about "continuing publication" or its legal consequences. Thirdly, in this case there is no claim of republication in an independent publication. Rather, here, Appellant asserts that Appellee, "through her media-employer (The Philadelphia Inquirer) . . . allowed those false statements to continue uncorrected even after their admitted knowledge of the falsity[.]" (Appellant's Brief, at 13).

In Weaver, Oscar Lee Brownstein wrote a letter to the editor of a Lancaster newspaper, arguing in support of convicted murderer Lisa Lambert's claim that police officer Robin Weaver had raped her, and asserting that Weaver was later arraigned for the sexual abuse of (other) women and children. Weaver filed suit for defamation against the newspaper and Brownstein, averring that he had not raped Lambert, was never charged with doing so, and further, had never been arraigned for the sexual abuse of women and children. Three months after the complaint, Brownstein's letter was reprinted on the "Free Lisa Lambert" website. In deposition, Brownstein both admitted and later denied memory of whether he authorized the website to reprint his letter. Our Supreme Court, reversing this Court's affirmance of summary judgment for Brownstein, held, inter alia, that "a subsequent act of republication after a defendant is put on notice by a lawsuit that alleges defamation is relevant to a determination of actual malice in the initial publication[.]" Weaver, supra at 905 (emphases added). Further, since republication remained an issue of material fact, summary judgment was precluded. See id. at 907.

Inasmuch as Appellant chose to file suit only against Appellee Heller personally, what the Philadelphia Inquirer, or its Internet affiliate "" did or did not do is irrelevant to the claims at issue. Furthermore, at most, Appellant's Weaver -based claim goes to proof of malice "at the time of the first publication." Weaver, supra at 905. Weaver, a summary judgment case, says nothing about whether an appellant has a protected claim in discovery.

We note for completeness that Appellee claims she removed the article from her Facebook account as soon as counsel for Appellant brought it to her attention, and disputes her responsibility for the third-party archives. (See Appellee's Brief, at 4 n.2).

Accordingly, Appellant has failed to present anything more than speculation or "the unsupported contentions and conclusions of counsel;" specifically, he provides no "evidence upon which a court can make a determination that harm will result from disclosure." Ornsteen, supra at 374-75. Mere speculation is not evidence, and therefore, is insufficient to show good cause or to prove abuse of discretion. Appellant's first claim fails.

In his companion second claim, Appellant asserts three specific bases for asserting trial court error in not finding "good cause." ( See Appellants' Brief, at 3, 11, 16-19). First, he claims a "privacy right/interest under the First Amendment[.]" ( Id. at 3). Secondly, he invokes the ethical obligations of Rule 3.6 of the Rules of Professional Conduct. ( See id. ).Finally, he posits "the animosity between Dougherty, Heller and Heller's media-employer." ( Id. ) None of Appellant's asserted grounds merit relief.

Initially, we note that Appellant has failed to develop an argument in support of his first assertion, that he has First Amendment privacy rights which the trial court's order put at risk. ( See Appellant's Brief, at 16). The entirety of Appellant's purported argument consists of one sentence: "As importantly, Dougherty, even as a public figure, has a privacy right/interest protected under the First Amendment in the non-disclosure of discovery not yet admitted into the judicial record of the underlying action." (Appellant's Brief, at 16). Subsequent discussion, in the very next sentence, assumes the conclusion: "Given his constitutionally protected privacy interest[.]" ( Id. ) (emphasis added). Accordingly, Appellant's argument is waived. See Pa.R.A.P. 2119(a):

(a) General rule. The argument shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part—in distinctive type or in type distinctively displayed—the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent.
Pa.R.A.P. 2119(a); see also J.J. DeLuca Co., Inc. v. Toll Naval Associates, 56 A.3d 402, 411 (Pa. Super. 2012) (waiving argument which merely restated question as general factual premise but did not develop independent argument of trial court error).

Appellant also cites three cases in support of his claim. ( See Appellant's Brief, at 16). However, he does not attempt to relate their holdings to the claims at issue; he merely lists them without further discussion or explanation. ( See id. ).They do not merit independent relief.

First, he cites Nixon v. Administrator of General Services, 433 U.S. 425, 457 (1977). ( See id.). That case addressed former President Nixon's various challenges to the constitutionality of the Presidential Recordings and Materials Preservation Act. The United States Supreme Court decided, in pertinent part, that the act did not unconstitutionally invade appellant Nixon's right of privacy. See Nixon, supra at 457 ("We agree with the District Court that the Act does not unconstitutionally invade appellant's right of privacy."); see also id. at 466-67 ("The court therefore held that the Act does not significantly interfere with or chill appellant's First Amendment rights. We agree with the District Court's conclusion.") (record citation omitted).

The Supreme Court added, "We may agree with appellant [Nixon] that, at least when Government intervention is at stake, public officials, including the President, are not wholly without constitutionally protected privacy rights in matters of personal life unrelated to any acts done by them in their public capacity." Nixon, supra at 457 (emphasis added). Here, it is difficult to conceive what part of this dicta Appellant finds applicable to himself.

Furthermore, Appellant confuses and misconstrues former President Nixon's claims. His First Amendment claims, ultimately unsuccessful, alleged invasion of his constitutionally protected rights of associational privacy and political speech, as "head of his national political party" for "[r]ecords arising from his political activities[.]" Id. at 465, 466. None of those claimed rights are present in this case. Appellant's reliance on Nixon merits no relief.

Next, Appellant cites Stern v. Cosby, 529 F.Supp.2d 417 (S.D. N.Y. 2007). ( See Appellant's Brief, at 16). In Stern, the district court granted a protective order in favor of the defendant, author Rita Cosby, after finding, inter alia, that portions of the transcript of her videotaped deposition had already been leaked; judicial efficiency had already been impaired; and release of the videotape and complete transcript would only add to the "circus-like atmosphere" of the sensational case; which "would create additional impediments to the fair and efficient administration of justice, without serving any legitimate purpose." Id. at 422-23. Notably, no claim to public figure status, or First Amendment privacy rights, was at issue.

In Stern, Howard K. Stern, Esq. brought a libel action against author Rita Cosby and her publisher. In her bestseller, "Blonde Ambition," about the death of Vickie Lynn Marshall, better known as Anna Nicole Smith, a model and celebrity, Cosby claimed that Smith enjoyed watching video of Stern, Smith's longtime lawyer and companion, participating in gay sex. Stern sued, alleging the claim was false and defamatory. Stern also accused Cosby of witness tampering, claiming evidence that she offered substantial sums to two nannies to corroborate her report. See Stern v. Cosby, 246 F.R.D. 453, 454-55 (S.D. N.Y. 2007). In granting the protective order to defendant Cosby, the district court relied on a three factor test established by the Second Circuit, not a First Amendment right of privacy, as claimed by Appellant here. See Stern, 529 F.Supp.2d at 420. Further, we take judicial notice that none of the provocative aspects of this celebrity-oriented case are present in the instant matter.

Finally, Appellant invokes Westmoreland v. CBS, Inc., 584 F.Supp. 1206, 1212-13 (D.C.D.C. 1984). ( See Appellant's Brief, at 16). This case involved the objection of a non-party witness, former Central Intelligence Agency Director Richard Helms, to a videotape deposition by defendant CBS in General Westmoreland's libel action against it. Helms maintained, inter alia, that CBS's deposition of numerous high-profile individuals, whose testimony he claimed was of limited relevance to the libel action, was actually intended for non-litigation commercial use.

In the underlying action, plaintiff General William C. Westmoreland alleged that defendants CBS and others libeled him in a January 23, 1982 telecast by CBS News titled "The Uncounted Enemy: A Vietnam Deception." See Westmoreland v. CBS, Inc., 584 F.Supp., at 1207 n.1 (D.C.D.C. 1984). We take judicial notice that on appeal this case was affirmed in part and reversed in part. See Westmoreland v. CBS, Inc., 770 F.2d 1168, 1175 (C.A.D.C. 1985).

Other prospective videotape witnesses included former Secretary of State Dean Rusk, former Secretary of Defense Robert S. McNamara, and former CIA Director William E. Colby; they all objected. See Westmoreland v. CBS, Inc. , 584 F.Supp. 1206, 1213 n.10 (D.C.D.C. 1984).

Presumably, Appellant intends to make reference to the Westmoreland court's observation that "[n]on-party witnesses, even public figures, have privacy rights under the First and Fourth Amendments and under the Federal Rules." Westmoreland, supra at 1212-13. However, the plain meaning of this statement applies only to a non-party witness, not a party plaintiff, as Appellant is here.

Notably, under the then-applicable federal rule, contrary to Pa.R.C.P. 4017.1, a videotape deposition was permitted only on written stipulation or on motion granted by the court. See Westmoreland v. CBS, Inc., 770 F.2d 1168, 1175 (C.A.D.C. 1985) ("Unless a court order otherwise provides, at a subpoenaed deposition "the testimony shall be taken stenographically.") (citing Fed.R.Civ.P. 30(c)) (emphasis added in original).

The current federal rule is in accord with Pa.R.C.P. 4017.1, permitting videotape deposition on notice, unless the court orders otherwise:

(3) Method of Recording.
(A) Method Stated in the Notice. The party who notices the deposition must state in the notice the method for recording the testimony. Unless the court orders otherwise, testimony may be recorded by audio, audiovisual, or stenographic means.
Federal Rule of Civil Procedure 30(3)(A).

Under our Rule of Civil Procedure 4017.1, the exact opposite procedure controls ("Any deposition upon oral examination may be taken as a matter of course as a video deposition"). Pa.R.C.P. 4017.1(a) (emphasis added). Appellant's authority is irrelevant, and merits no relief.

Appellant mentions that of the twelve depositions noticed by Appellee Heller, his was the only one selected for videotaping. ( See Appellant's Brief, "Chronological Statement of Facts," at 6-7). He does not develop an argument on this point. Because Appellant chose not to address this matter as an issue in the argument section, it is of course waived for purposes of our review. Moreover, the point is immaterial. Dougherty does not dispute that he would have been the most important deponent for discovery. So Appellee and her counsel were clearly entitled to select Dougherty, as plaintiff in the defamation action, for videotaping, whether as a litigation strategy (e.g., for use as impeachment or possible rebuttal evidence), or simply for budgeting purposes. See Pa.R.C.P. No. 4017.1(a) ("examination may be taken as a matter of course as a video"); see also 23 AM JUR TRIALS 95, III B. § 19 (2013) (discussing decision to use videotape based on cost, importance of testimony, use at trial for impeachment, impact of deponent's demeanor on jury, etc.).

In his last argument, Appellant posits that "ethical considerations demand reversal of the trial court's . . . order[.]" (Appellant's Brief, at 18). Specifically, he asserts that:

"protective relief was additionally warranted here to stop a potential violation of Rule 3.6 of the RULES OF PROFESSIONAL CONDUCT that prohibits a lawyer from making or assisting another person in making an extrajudicial statement if the attorney knows or reasonably should know that the statement would materially prejudice an adjudicative proceeding."
( Id. )(emphasis added). We disagree.

First, Appellant misstates and overstates the rule. Rule 3.6, Trial Publicity, speaks only to attorney conduct, and does not address "assisting another person." Appellant's invocation of a potential attorney ethical violation is not only speculative, but plainly outside the scope of the rule, and, accordingly, gratuitous.

In relevant part, the rule provides:

(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
Pennsylvania Rule of Prof. Conduct 3.6, 42 Pa.C.S.A.

Further, Appellant, in a cursory treatment consisting of about a half a page, fails to develop an independent argument in support of his claim, merely reciting the general assertion that he "has everything to lose in terms of reputation" if this Court does not grant the relief requested. ( Id. at 18). Notably, Appellant's sole citation to authority in support of this claim is to an Oklahoma case, construing Oklahoma law. ( See Appellant's Brief, at 18) (citing Inhofe v. Wiseman, 772 P.2d 389 (Okl. 1989) ).

Inhofe granted a writ of mandamus for a protective order to prevent the videotaped deposition of a candidate for re-election in unrelated civil litigation, on his contention that the defendant, his brother, intended to abuse the discovery process by giving the videotape to the press, to embarrass him during the reelection. See Inhofe, supra at 391, 393.

Furthermore, contrary to Appellant's' claim, the Inhofe decision is not based on Rule 3.6. To the contrary, it mentions the Oklahoma version of Rule 3.6 only in passing, to note that "[a]lthough attorneys are subject to discipline for extrajudical public dissemination of depositions, others involved in the process are not." Inhofe at 393. Therefore, Appellant's assertion that "[u]nder an ethical Rule, like Rule 3.6, at least one court [quoting Inhofe ]has ruled that protective relief is mandated," is plainly wrong. (Appellant's Brief, at 18). It is precisely because the Inhofe court concluded that its version of Rule 3.6 did not provide relief that it issued its writ of mandamus. Appellant's argument is undeveloped, and except for the irrelevant citation to Inhofe, devoid of citation to authority. Accordingly, this argument is waived. See Pa.R.A.P. 2119(a), (b).

Moreover, it would not merit relief. The rules of professional conduct do not constitute a per se basis for "good cause" for a protective order. To the contrary, counsel is already obligated to follow the rules of professional conduct, and the rules of civil procedure, even without a protective order.

In particular, it is important to keep in mind that under our rules of civil procedure, counsel for Appellee is already required to be responsible for the safeguarding of a videotaped deposition. See Pa.R.C.P. 4017.1(f): ("[t]he attorney for the party taking the deposition shall take custody of and be responsible for the safeguarding of the videotape"). Appellant's purported argument merely assumes he has "everything to lose[.]" (Appellant's Brief, at 18). It does nothing to prove it. "Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not support a good cause showing." Constand, supra at 479. Even if Appellant's issue were not already waived, Rule 3.6 does not establish good cause and Appellant's claim would not merit relief.

Finally, Appellant asserts trial court error by claiming that "good cause" was supported by the "animosity between [Appellant], [Appellee], and [Appellee's] media-employer[.]" (Appellant's Brief, at 3). We disagree.

Appellant fails to support this claim with any separate argument whatsoever. ( See Appellant's Brief, at 16-19). Accordingly, this issue is also waived. See Pa.R.A.P. 2119(a), (b).

Moreover, the claim would not merit relief. In his statement of facts, Appellant asserts that "there exists a long history of defamation litigation between [Appellant], The Philadelphia Inquirer ([Appellee's] employer), and other media entities."). (Appellant's Brief, at 6). As Appellant merely lists the lawsuits, with no favorable results, (in fact, no results at all), and he is the plaintiff in all the litigation, his history of bringing defamation litigation, without more, proves nothing about Appellee.

Furthermore, Appellant's assertion that Appellee "dislike[s]" Appellant, arguably irrelevant anyhow, is unsupported by the record before us. ( Id. ).Appellant refers to Appellee's deposition. ( See id.). However, Appellant has failed to insure that a transcript of Appellee's deposition is included in the two part certified record before us for review. "[F]or purposes of appellate review, what is not in the certified record does not exist." Commonwealth v. Garvin, 50 A.3d 694, 700 (Pa. Super. 2012) (citation omitted).

Moreover, the partial excerpts provided in the various exhibits which are included in the record confirm that Appellee consistently resisted counsel's repeated efforts to get her to admit to personal bias, dislike, or animus of unions, Local 98, or Appellant. Appellant's mere bald assertion of animus does not establish good cause and would not merit relief, even if it were not waived.

To prove good cause, Appellant had to present evidence of a "substantial likelihood of material prejudice." Constand, supra at 475. "[T]he Court must be convinced, not merely suspect, that there is a substantial likelihood that extrajudicial statements by counsel, in light of the circumstances of the case, will materially prejudice the pending proceedings." Id. (citations omitted).

"In order for a protective order to issue, the moving party bears the burden of proving its necessity." Ornsteen, supra at 374 (citation omitted). In this case, Appellant has failed to meet that burden. "Establishing 'good cause' requires, at a minimum, some evidence upon which a court can make a determination that harm will result from disclosure." Id. Proof of good cause requires factual data, not speculation or "the unsupported contentions and conclusions of counsel." Id. (citation omitted).

Appellant argues several times that the refusal of Appellee to agree "not to disseminate or make other non-litigation use of [his] videotaped deposition strongly suggests ulterior purposes for why she insists on videotaping [his] deposition." (Appellant's Brief, at 14; see also id. at 17-18). The inference is unwarranted.

Appellant candidly concedes that once a video is "entered into the public record," there would be no restriction on its further dissemination. (Appellant's Brief, at 19). Neither Appellee nor her counsel had any obligation to agree to additional restrictions as a precondition to videotaping Appellant's deposition, especially after counsel confirmed her commitment to observing the rules of civil procedure and the rules of professional conduct.

After careful review, we discern no basis to conclude that the trial court abused its discretion in ordering Appellant's videotaped deposition, and in denying any protective order. Appellant failed to establish good cause.

Order affirmed. Case remanded. Jurisdiction relinquished.

Stevens, P.J., files a dissenting memorandum. Judgment Entered.

Summaries of

Dougherty v. Heller

Jul 1, 2013
J-A31030-12 (Pa. Super. Ct. Jul. 1, 2013)
Case details for

Dougherty v. Heller

Case Details

Full title:JOHN J. DOUGHERTY, Appellant v. KAREN HELLER, Appellee


Date published: Jul 1, 2013


J-A31030-12 (Pa. Super. Ct. Jul. 1, 2013)