Dougherty v. Heller

• Decision Date: 14 June 2016
• Docket Number: No. 6 EAP 2015,6 EAP 2015
• Citation: 138 A.3d 611
• Parties: John J. DOUGHERTY, Appellant, v. Karen HELLER, Appellee.
• Court: Pennsylvania Supreme Court

138 A.3d 611

John J. DOUGHERTY, Appellant

v.Karen HELLER, Appellee.

No. 6 EAP 2015

Supreme Court of Pennsylvania.

Argued May 9, 2016.

Decided June 14, 2016.

Peter Andrew Greiner, Esq., Joseph R. Podraza, Esq., Richard A. Sprague, Esq., Sprague and Sprague, Philadelphia, Brooke H. Spigler, Esq., Alan Starker, Esq., Feasterville, for John J. Dougherty.

Michael E. Baughman, Esq., Amy B. Ginensky, Esq., Pepper Hamilton, L.L.P., Philadelphia, for Karen Heller.

Chief Justice SAYLOR, Justice WECHT, and Judges COLINS, FRIEDMAN, LEADBETTER, BROBSON, and STRASSBURGER.

OPINION

PER CURIAM.

A special complement of the Supreme Court of Pennsylvania has been assembled to address multiple issues raised in the present appeal. These include a threshold objection to temporary judicial assignments to the Court and a challenge to a now-supplanted order that previously had dismissed the appeal. In addition, a jurisdictional question has been raised concerning whether a common pleas court's denial of a motion for a protective order seeking, in advance of a videotape deposition, to restrain any public dissemination constitutes a collateral order subject to as-of-right interlocutory appellate review. Finally, on the merits, a challenge is maintained to the common pleas court's refusal to issue a protective order proscribing such dissemination.

I. Background

The underlying civil action is a defamation case arising out of a newspaper column written by the defendant, Karen Heller (“Appellee”), and published in the Philadelphia Inquirer in November 2009. The text encompassed negative commentary about purported actions of the plaintiff, John J. Dougherty (“Appellant”), who is the Business Manager of the International Brotherhood of Electrical Workers Local 98 and a self-described public figure and a participant in numerous civic and philanthropic activities.

When confronted with information demonstrating that the commentary concerning Appellant's conduct was false, Appellee conceded the unfoundedness and publicly apologized. The misinformation, however, appeared on Appellee's Facebook page for an indeterminate period of time after the apology and apparently remained available through third-party sources until several years later.¹

Appellant commenced the present litigation a few weeks after the original publication. On February 15, 2012, Appellee served Appellant with a notice for his videotape deposition, see Pa.R.C.P. No. 4017.1

(permitting the taking of “[a]ny deposition upon oral examination ... as a matter of course as a video deposition”), which was scheduled for one month later. Appellant and two of his attorneys appeared at the pre-designated time and place. Before the deposition could proceed, however, a controversy arose.

Appellant's attorneys expressed concern that video footage resulting from the deposition should not be displayed for any purpose beyond the litigation. The lawyers couched these concerns variously, explaining that they were based, in part, on their client's status as a public figure and upon the prior course of dealings between the Appellant, Appellee, and Appellee's media employer. See, e.g., Statement dated March 16, 2012, in Dougherty v. Heller, No. 00699

Dec. Term 2009 (C.P.Phila.) (“N.T., Mar. 16, 2012”), at 23 (reflecting the observation of one of Appellant's attorneys that “[y]ou are the media and we're here because of what we contend to be malicious conduct by the media of a public figure”). Raising the potential for unjust and unreasonable embarrassment to their client, counsel indicated that they would require assurances that the videotape would not “be used for any other purpose or released to any other third parties outside of relationship with any filing in this case or court proceeding.” Id. at 8–9; see also id. at 4–6, 10, 12.

Appellee's attorney, for her part, repeatedly indicated that she intended to use the videotape solely for purposes of the litigation, and that she would abide by all of her obligations under the Rules of Civil Procedure and the Rules of Professional Conduct. See id. at 6, 11–12, 16–17, 24–25, 30. She declined, however, to make the specific commitment that was asked of her. Counsel highlighted that she had given a month's notice of the deposition, but that no objections had been raised or particular conditions sought throughout the ensuing time period. In this vein, the attorney asserted that it was unreasonable for Appellant's lawyers to make special demands at the outset of a duly-noticed deposition.

See, e.g., id. at 9–10 (reflecting the remark by Appellee's counsel that she would not “agree to something when I haven't thought about it, I don't know what your concerns are, I haven't spoken to any of my clients”).

Appellee's attorney then suggested an arrangement whereby the videotape deposition would proceed as planned, and she would agree not to give the tape to anyone for ten days, during which time Appellant could seek a protective order or other relief from the common pleas court. See id. at 12–13, 18–22. Furthermore, counsel stated, if such a motion were to be filed, she would commit that there would be no dissemination of the video pending a court ruling. See id. at 24–25 (“I'm willing to agree that to go forward with the videotaped deposition, to have the deposition videotape remain basically in escrow until you get a ruling from Judge Allen[.]”).

Appellant's lawyers, however, declined this proposal. See, e.g., id. at 23 (“[Y]ou do not have a right to go ahead with a videotape for trial purposes where you will not agree that it will only be used for those purposes and not turned over for the news media to broadcast on television.”). In the discussion, one of Appellant's attorneys expressed, as follows, a reluctance to involve the common pleas court, because he foresaw that it was unlikely that a protective order would issue:

[I]t's inappropriate to go to the judge and say hypothetically somebody may at some point ask [Appellee's counsel] for this tape or she may have an inclination to want to do something with this tape outside of legal proceedings. What do you think, Judge?

And Judge Allen is going to say to me, just like every other judge, [c]ome to me when you have an issue.

Id. at 28.

Nevertheless, Appellant's counsel insisted upon a commitment that the video would not be released to any third party “for televising or whatnot,” without permission from the common pleas court. Id. at 13. In the absence of an agreement on their specified terms, the attorneys would only permit their client to participate in the deposition if it were to proceed without videotaping. Since this was unacceptable to Appellee's counsel, see id. at 32–33, the deposition was aborted.

Appellee then filed a motion to compel the videotape deposition as authorized by Rule of Civil Procedure 4017.1

. She highlighted that, under the rules, failing to participate in a video deposition may not be excused on the ground that discovery sought is objectionable “unless the party failing to act has filed an appropriate objection or has applied for a protective order.” Id. No. 4019(a)(2).

In addition, Appellee contended that a protective order was inappropriate, because Appellant had failed to meet the “good cause” standard under Rule of Civil Procedure 4012

. See Pa.R.C.P. No. 4012(a) (“Upon motion by a party ..., and for good cause shown, the court may make any order which justice requires to protect a party ... from unreasonable annoyance, embarrassment, oppression, burden or expense[.]” (emphasis added)). At issue, she explained, was the deposition of a public figure in a case involving matters of public concern. In Appellee's view, speculative embarrassment from the mere possibility of dissemination of unknown content cannot constitute “good cause.” In this regard, Appellee referenced several decisions of federal courts which had refused to enter protective orders, where the proponent failed to demonstrate “specific prejudice or oppression that will be caused by disclosure” or “concrete reasons justifying a protective order,” as contrasted with “unverified fears.” Pia v. Supernova Media, Inc., 275 F.R.D. 559, 560 (D.Utah 2011)

; cf.

Condit v. Dunne, 225 F.R.D. 113, 118 (S.D.N.Y.2004) ( “[W]hile sound bites are a recognized Achilles heel of videotaped depositions, the fact that the media may edit a tape that may or may not be released by the parties does not warrant a protective order barring all public dissemination of the videotape in this case.” (citations omitted)).

Appellant responded with a cross-motion for a protective order. He emphasized that Appellee had admitted that she had made a false representation about him. Further, Appellant asserted that there was a long history of acrimony between Appellant and Appellee's media employer. Appellant continued to explain that none of the seventeen other depositions that had been noticed and/or conducted in the case was accomplished, or was sought to be undertaken, with video recording. In support of his position, Appellant also referenced a series of federal and state decisions, although in these instances, protective relief was granted. See, e.g., Stern v. Cosby, 529 F.Supp.2d 417, 423 (S.D.N.Y.2007)

; Inhofe v. Wiseman, 772 P.2d 389, 394 (Okla.1989).

It was Appellant's position that there was good cause for protection under Rule 4012(a)(3)

because: there was “the distinct possibility” for misuse of the videotape given Appellant's status as a public figure and substantial involvement in public and political activities; the potential for mischief was heightened, in light of Appellee's status as a media representative and on account of the history and alleged acrimony; and the refusal of Appellee's counsel to acquiesce in Appellant's demand for a commitment “strongly suggest [ed] ulterior purposes for why defendant insists on videotaping plaintiff's deposition.” Plaintiff's Cross–Motion for Protective Relief in Dougherty, No. 00699 Dec. Term 2009, at 7–8. Additionally,...