Divorce and Discovery: Superior Court Rejects Privacy Interest to Justify Protective Order

Pennsylvania residents who are getting divorced may face the daunting task of answering discovery: interrogatories and document requests. Some may wonder why they must produce personal information, such as checking account records that show purchases made long after a marital separation, or tax returns that include the income of a new spouse. Will the Pennsylvania courts enter a protective order to prohibit the discovery of personal information?

A recent en banc decision of the Superior Court may shed light on this question. Typically, discovery issues cannot be appealed, so there is little guidance for lawyers and judges who disagree over the limits of permissible discovery. A new decision, Dougherty v. Heller, 2014 PA Super 170  (August 14, 2014) is not a family law case, but may guide lawyers and judges on discovery issues in family law. Dougherty is a defamation case, in which a union leader sued a newspaper reporter who wrote a op-ed story that was critical of him.  During the discovery process, the reporter scheduled a videotaped deposition of the union leader (presumably, to prove the truth of the story she published). The union leader demanded that the reporter sign an agreement that the videotape would not be published or disseminated to third parties without leave of court. The reporter refused, and presented a motion to compel the deposition. The trial court granted the motion and ordered the union leader to submit to his deposition. The union leader appealed the decision, which was heard by an en banc panel of nine Superior Court judges.

The Superior Court first examined its jurisdiction to hear a discovery issue on appeal. Generally, the appellate courts will not hear appeals until the final order is issued (in this case, a decision as to whether the reporter defamed the union leader).  Under the “collateral order” doctrine, however, the appellate court may hear issues that can be decided without affecting the main issue in the case, if the collateral issue is a matter of public importance, and the issue would be moot if deferred until the final decision.  The union leader raised two interrelated issues in his appeal, and the Superior Court agreed to hear only one of them: whether the deposition would invade the privacy rights of the deponent.

In its opinion, the en banc panel found that the union leader did not articulate the source or nature of his privacy rights. The Court made reference to Stenger v. Lehigh Valley Hospital, 530 Pa. 426, 609 A.2d 796  (1992), in which the Supreme Court compelled a hospital to identify the names of blood donors who had inadvertently supplied contaminated blood, which the hospital negligently administered to healthy patients.  In Stenger, the hospital specifically identified the privacy rights of the donors: their right to keep health matters confidential, their right to avoid stigma, their right to be let alone.  The Supreme Court permitted the discovery upon the condition that the donors would be interviewed anonymously about the screening procedures that were used when their blood was drawn. No names or addresses would be recorded or associated with the data.

In Dougherty, the plaintiff identified his First Amendment right to privacy, citing several cases without articulating the specific nature of his privacy rights. The Superior Court examined those cases to determine the nature of his privacy rights, and whether discovery might invade them. In Seattle Times, a cult leader refused to produce financial records showing the names of donors, which the newspaper claimed a right to discovery and publish. The U.S. Supreme Court held that there is no First Amendment right to disseminate information derived from the discovery process.  On the other hand, the Superior Court held, Seattle Times did not hold that citizens have a First Amendment right to keep private the information disclosed in discovery.  In MarkWest, the Commonwealth Court considered a motion to prohibit the discovery of trade secrets and confidential business information. The Superior Court was not persuaded by a footnote in that case, expressing that litigants have no right to disseminate information obtained through the discovery process.

The Superior Court in this case concluded that the union leader did not articulate a constitutional privacy interest warranting protection from discovery or dissemination of the information garnered through discovery. The Court also examined Rule 4012, which provides grounds for a protective order. That Rules vests a broad measure of discretion in the trial court to determine whether “good cause” is shown. The Court refused to second-guess the trial court’s exercise of discretion, and affirmed the ruling.

Two judges dissented from the majority opinion, finding that the union leader had shown good cause for the issuance of a protective order. Their opinion cited a Third Circuit case, Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786-787 (3d Cir. 1994), which set forth a list of criteria to be considered when judging whether “good cause” is shown for a protective order in discovery. The dissenting judges cited extensive evidence from the certified record, applying the Pansy criteria, to demonstrate that good cause was shown. Among other things, there was a long history of litigation between the union leader and the newspaper for whom the reporter worked, giving the union leader every reason to believe that his deposition would be misused.  The dissenting judges found that it would not be unreasonable to prohibit the reporter from sharing the deposition with third parties.