Dougherty v. Heller
| Decision Date | 01 July 2013 |
| Docket Number | No. 1333 EDA 2012,J-A31030-12,1333 EDA 2012 |
| Parties | JOHN J. DOUGHERTY, Appellant v. KAREN HELLER, Appellee |
| Court | Pennsylvania Superior Court |
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P 65.37
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 PhiladelphiaInquirer. 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.1 There is no dispute that the facts were incorrect. The unions volunteered their services.
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.2
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.3
Appellant presents two overlapping questions for our review:
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:
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 judicialproceeding." (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).4 We agree.
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.
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...
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