Brogan v. Rosenn, Jenkins & Greenwald, LLP

28 Pa. D. & C.5th 553
CourtPennsylvania Court of Common Pleas, Lawrence County
DecidedApril 22, 2013
DocketNo. 11250 of 2010, C.A.
StatusPublished

This text of 28 Pa. D. & C.5th 553 (Brogan v. Rosenn, Jenkins & Greenwald, LLP) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lawrence County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brogan v. Rosenn, Jenkins & Greenwald, LLP, 28 Pa. D. & C.5th 553 (Pa. Super. Ct. 2013).

Opinion

NEALON, J.,

MEMORANDUM AND ORDER

Plaintiffs’ discovery motion, which seeks to compel a deponent to produce her Facebook username and [555]*555password, presents a social media discovery issue of first impression in Lackawanna County. To obtain discovery of private information contained on social networking sites, a party must, at a minimum, demonstrate that the information sought is relevant, and the requestor may establish the requisite relevancy by showing that publicly accessible information published by the user on the social networking account arguably controverts the account holder’s claims or defenses in the underlying action. In addition, social media discovery requests must be properly framed with reasonable particularity so that only relevant and non-privileged information is sought and produced. Since plaintiffs have not established the relevance of the deponent’s private Facebook information, and their demand for her username and password is overly intrusive and would cause unreasonable embarrassment and burden for her, their motion to compel will be denied.

I. FACTUAL BACKGROUND

Plaintiffs, Thomas Brogan and Wendy Brogan (“the Brogans”), commenced this civil action against their former counsel, defendants David F. Chuff, Esquire (“Chuff’), and Rosenn, Jenkins & Greenwald, LLP (“Rosenn”), title searcher, defendant Anthony J. Popeck t/a SBP Abstracting (“Popeck”), and title insurer, defendant Conestoga Title Insurance Company (“Conestoga”), after the Brogans purchased a property which, allegedly unbeknownst to them, was encumbered by a utility easement for a 42” water main passing through the property. (Docket entry no. 11 at ¶¶ 18, 20-23, 36). The Brograns contend that Pennsylvania Gas & Water Company (“PG&W”) holds a duly recorded [556]*556easement prohibiting any structures within thirty (30) feet of the easement, as a result of which they allegedly must construct their sewer and water lines at least eight feet beneath the PG&W water main. (Id. at ¶¶ 44, 46-47, 49). The Brogans assert that Chuff, Rosenn and Popeck negligently failed to discover the recorded easement, and in their complaint, the Brogans advance causes of action for legal malpractice by Chuff and Rosenn, (Id. at ¶¶ 68-83, 88-98), negligent supervision by Rosenn, (Id. at ¶¶ 84-87), negligence by Popeck, (Id. at ¶¶99-105), and breach of contract, bad faith liability and negligent misrepresentation by Conestoga. (Id. at ¶¶ 1 Ob-135).

Chuff and Rosenn maintain that they hired and relied upon Popeck to search the title, and may not be held liable for that independent contractor’s alleged failure to discover the easement. (Docket entry no. 46 at ¶¶ 1-5). Popeck avers that he discovered the existence of “an easement situation” and advised Chuff and Rosenn of the same, and that the Brogans had “actual knowledge of the easement/right-of-way and contrary to the advice given by Chuff and Rosenn,...decided to close the property transaction anyway.” (Docket entry no. 62 at ¶¶23, 104). Conestoga admits that a title insurance policy was issued in conjunction with the purchase of the property, but denies that the Brogans’ title defect claim is covered by the terms of the policy. (Docket entry no. 69 at ¶¶108-124).

Despite the relatively straightforward and uncomplicated nature of the claims and defenses at issue, this litigation has been mired in perpetual discovery disputes which have generated an inordinate number of filings [557]*557that have unduly taxed the available judicial resources of Lackawanna County. Under Local Rule 4000.1, all discovery motions must initially be presented to and decided by the court-appointed special trial master who entertains discovery motions every Monday and Thursday. See Lacka. Co. R.C.P. 4000.1(a), (c). The special trial master’s discovery ruling may be appealed de novo to the court of common pleas pursuant to Lacka. Co. R.C.P. 4000.1(b), upon the filing of a timely discovery appeal and the payment of an appeal fee of $120.50. See Fratzola v. Klepadlo, 26 Pa. D. & C. 5th 533 (Lacka. Co. 2012).

Virtually all discovery disputes in Lackawanna County are resolved by the special trial master without the subsequent filing of a de novo appeal. In 2011, 3,837 new civil cases were filed in Lackawanna County, but only twenty-eight (28) de novo discovery appeals were filed under Lacka. Co. R.C.P. 4000.1(b). (See Lackawanna County Court of Common Pleas 2011 Case Load Statistics Report to Administrative Office of Pennsylvania Courts, at p. 3 (Oct. 19,2012)). However, of those twenty-eight (28) de novo discovery appeals in 2011, ten (10) were filed by the Brogans and one (1) was filed by Conestoga.1 (Docket entry nos. 84,100,103,104,108,124,125,135,138,151, 153). Thus, almost 40% of the Lackawanna County de novo discovery appeals in 2011 involved this single case.

Due to the excessive number of discovery appeals, Chuff and Rosenn sought exceptional relief from the President Judge of Lackawanna County by presenting a “Motion [558]*558for Assignment of Judge for Discovery Proceedings.” (Docket entry no. 156). Chuff and Rosenn averred that although “[t]his is a fairly straightforward case that does not require anywhere near the discovery, particularly the discovery motion practice and appeals, pursued by [the Brogans],” the parties have become “embroiled in seemingly endless discovery battles.” (Id. at ¶¶5, 11). Chuff and Rosenn posited that if the President Judge “assigned one judge to hear all discovery proceedings, it would eliminate the numerous appeals which have greatly slowed the resolution of this case.” (Id. at ¶13).

By order dated January 13, 2012, President Judge Thomas J. Munley appointed the undersigned “to hear and rule upon all motions and matters relating to discovery” in this case. (Docket entry no. 156 at p. 1). Since that time, the Brogans have filed twenty-four (24) additional discovery motions, (Docket entry nos. 166-167,183,187-188, 190-193, 195, 197-205, 211, 214, 217), and Popeck and Conestoga have each filed motions for protective Orders to prohibit certain discovery being sought by the Brogans. (Docket entry nos. 194, 218). The Brogans’ discovery motions have included such unsuccessful requests as the Brogans’ motion to compel Chuff to provide an interrogatory answer which he had already attested that he did not know, (Docket entry no. 166), their motion to compel a witness to appear for a deposition on a scheduled date even though the deponent’s physician had stated in writing that “it would not be in his best medical interest” to do so on that exact date, (Docket entry no. 187), and their motion to compel Conestoga to produce former employees for depositions at Conestoga’s own expense. (Docket entry no. 167). To date, the undersigned has been [559]*559required to issue eleven (11) separate discovery rulings disposing of more than two dozen discovery motions and sanctions requests. (Docket entry nos. 160, 163-164, 169, 184, 196,212,232-235).

The Brogans’ latest discovery motion concerns their demand for the Facebook log-in name, username and password for a paralegal in Conestoga’s claims department. On December 4, 2012, the Brogans deposed Conestoga’s former Director of Claims & Recovery, Gregory L. Amand (“Amand”), who testified that he communicated via Facebook with a Conestoga paralegal, Rebecca Brown Breault (“Breault”), regarding his deposition subpoena.

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Bluebook (online)
28 Pa. D. & C.5th 553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brogan-v-rosenn-jenkins-greenwald-llp-pactcompllawren-2013.