Dougherty v. Heller

97 A.3d 1257, 2014 Pa. Super. 170, 2014 WL 3953953, 2014 Pa. Super. LEXIS 2330
CourtSuperior Court of Pennsylvania
DecidedAugust 14, 2014
StatusPublished
Cited by15 cases

This text of 97 A.3d 1257 (Dougherty v. Heller) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dougherty v. Heller, 97 A.3d 1257, 2014 Pa. Super. 170, 2014 WL 3953953, 2014 Pa. Super. LEXIS 2330 (Pa. Ct. App. 2014).

Opinions

[1260]*1260OPINION BY

BENDER, P.J.E.:

John J. Dougherty (Appellant) appeals from the order entered April 11, 2012, in which the trial court granted Karen Heller’s (Appellee) motion to compel his videotaped deposition; denied Appellee’s motion for costs and fees; and denied Appellant’s cross-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 part criticized Appellant’s role in providing outdoor Christmas lights in Rittenhouse Square, a popular destination in Philadelphia.1 Counsel for Appellant contacted Appellee, informed her that the column was inaccurate, and demanded a retraction and apology. Ap-pellee complied with Appellant’s demands, thereafter publishing a retraction and apology in The Philadelphia Inquirer.2 Nevertheless, an uncorrected version of the original column remained available on Appellee’s Facebook page for some brief period of 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 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.

Thereafter, Appellee filed a motion to compel Appellant’s videotaped 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 Ap-pellee from using the videotape for any [1261]*1261non-litigation purpose. Following argument, the trial court issued an interlocutory order, granting Appellee’s motion to compel; denying the motion for costs and fees; and denying Appellant’s motion for protective relief. Appellant timely appealed and filed a Pa.R.A.P. 1925(b) statement.3

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 Appellant’s Substituted Brief at 3.

Preliminarily, we examine our jurisdiction to entertain this appeal.4 “Generally, discovery orders are deemed interlocutory and not immediately appealable because they do not dispose of the litigation.” Pilchesky v. Gatelli, 12 A.3d 430, 435 (Pa.Super.2011) (quoting Leber v. Stretton, 928 A.2d 262, 265 (Pa.Super.2007)). However, “[a]n appeal may be taken as of right from a collateral order of ... a lower court.” Pa.R.A.P. 313(a); 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 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, 575 Pa. 264, 836 A.2d 42, 46-47 (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 his first issue, Appellant asserts a “compelling privacy interest! ] in preventing [his] pretrialf,] non-record testimony from being disseminated to the public.” Appellant’s Substituted Brief at 13. According to Appellant, this interest serves to protect from disclosure potentially embarrassing details of a litigant’s personal [1262]*1262life. This Court has previously granted collateral review of pretrial discovery orders in which an appellant’s privacy interests were at issue. See, e.g., J.S. v. Whetzel, 860 A.2d 1112, 1117 (Pa.Super.2004) (concluding that an expert witness’s privacy interest in his income was suitable for collateral review); Commonwealth v. Alston, 864 A.2d 539, 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 that Appellant’s assertion fails to meet any of the requirements of the collateral review doctrine. According to Appellee, it is impossible to review the trial court’s decision without addressing the merits of Appellant’s defamation claim. In particular, Ap-pellee 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 persuaded by Appel-lee’s arguments and conclude that this issue is suitable for collateral review.

Appellant’s assertion of a privacy interest in pretrial discovery is clearly 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 defendants and that such consideration was separate from the underlying defamation action).5

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Bluebook (online)
97 A.3d 1257, 2014 Pa. Super. 170, 2014 WL 3953953, 2014 Pa. Super. LEXIS 2330, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dougherty-v-heller-pasuperct-2014.