For exclusive use of MLRC members and other parties specifically authorized by MLRC. © 2014 Media Law Resource Center, Inc.
Page 22
September 2014
MLRC MediaLawLetter
Camera-Shy Public-Figure Defamation
Plaintiff Must Sit for His Video Deposition
No First Amendment Right to Keep
Private Information Provided Through Discovery
Background
By Amy B. Ginensky, Kaitlin M. Gurney, and Eli Segal
A prominent Philadelphia union leader and camera-shy
At issue in the defamation case is a November 28, 2009
defamation plaintiff must sit for his videotaped deposition, an
opinion column by Heller that criticized Plaintiff and his
en banc panel of the Pennsylvania Superior Court has held –
Philadelphia union, the International Brotherhood of
even though the defendant is a newspaper columnist who the
Electrical Workers Local 98, for overcharging for a holiday
plaintiff alleged might use the video to embarrass him in
lights display in a public park. The column contained a
subsequent news stories. Dougherty v. Heller, No. 2014 PA
mistake that was corrected —with an apology—as soon as
Super. (Aug. 14, 2014).
Heller learned about it.
In a wide-ranging opinion explaining that pre-trial
Discovery in the case was nearly complete in March 2012
discovery should be considered public barring a protective
when Dougherty arrived for his deposition at
order making it private, the Court soundly
the law offices of Pepper Hamilton LLP but
dismissed Plaintiff John Dougherty’s
left almost immediately, refusing to have his
argument that a so-called First Amendment
“Appellant does not
deposition videotaped without agreement to
privacy interest provided good cause to
identify expressly for
his counsel’s on-the-spot demand not to
shield him from Philadelphia Inquirer
the Court the origin of
disseminate the video to any third party
columnist Karen Heller’s attempt to take his
this privacy interest; he
absent court permission. Heller’s counsel
video deposition. Heller argued that parties
does not define its
responded that she had no present intention
associated with the media had a right to be
nature or limits; and he
to use the videotape for purposes outside of
accorded the same rights as any other party
fails to suggest a
the litigation and that she would, of course,
in a lawsuit to take a videotaped deposition.
meaningful way of
comply with any obligations imposed by the
Dougherty relied on the United States
examining any potential
Rules of Civil Procedure and Professional
Supreme Court’s decision in Seattle Times v.
intrusion upon it.”
Conduct.
Rhinehart, 467 U.S. 20 (1984), which held
After Dougherty’s aborted deposition,
that there was no First Amendment right of
Heller moved to compel Dougherty to appear
access to information gained through the
for his videotaped deposition without any limitations on the
discovery process, as well as Pennsylvania cases adopting the
video’s dissemination beyond what the Rules themselves
decision, and suggested they stood for a constitutional right to
impose. Dougherty moved for a protective order, asking the
keep private information provided through discovery.
trial court to either bar Heller from videotaping his deposition
The Superior Court disagreed: “[T]hese cases do not
or prohibit Heller from using the video for any non-litigation
recognize a ‘compelling privacy interest’ of any origin,
purpose. After oral argument, the trial court granted Heller’s
certainly not one of constitutional strength, and we are aware
motion and denied Dougherty’s because he had failed to
of no authority suggesting a litigant’s privacy interest
establish “good cause” for a protective order, and ordered
warrants protection, absolute or independent of other relevant
him to sit for a rescheduled deposition. Dougherty refused to
interests,” the six-judge majority opinion stated. “Rather, the
comply and appealed to the Pennsylvania Superior Court.
decision whether a litigant’s privacy interest is afforded
protection rests upon a showing of good cause.”
(Continued on page 23)
For exclusive use of MLRC members and other parties specifically authorized by MLRC. © 2014 Media Law Resource Center, Inc.
MLRC MediaLawLetter
September 2014
(Continued from page 22)
In a July 1, 2013 decision, a three-member Superior Court
panel affirmed the trial court’s decision, rejecting
Dougherty’s allegations that good cause for a protective order
was established by the fact that Heller was a journalist or
because of the alleged animosity between the parties—which
the Panel found unsupported by the record—and finding the
trial court acted within its discretion. However, Dougherty
requested reargument before an en banc panel, which the
Court granted.
The parties submitted new briefs and oral argument
before a nine-judge panel of the Court was held in April. Six
judges joined the majority opinion upholding the trial court
opinion and the original panel decision that Dougherty had
failed to establish good cause for a protective order, one
judge concurred in the result, and two judges dissented.
En Banc Decision
With respect to Dougherty’s principal argument that were
was a constitutional privacy right protecting him from a video
deposition that might easily be modified and disseminated to
the public, the Court rejected Dougherty’s position,
emphasizing that “Appellant does not identify expressly for
the Court the origin of this privacy interest; he does not
define its nature or limits; and he fails to suggest a meaningful
way of examining any potential intrusion upon it.”
In addition, the Court noted that a case cited by
Dougherty, Baker v. Buffenbarger, 2004 WL 2124787 (N.D.
Ill. 2004), rather than standing for the proposition that pretrial
discovery was exclusively private, relied on authority finding
Page 23
the opposite. In that case, Jepson, Inc. v. Makita Elec. Works,
Ltd., 30 F.3d 854, 858 (7th Cir. 1994), the court established
that “[a]s a general proposition, pretrial discovery must take
in . . . public unless compelling reasons exist for denying the
public access to the proceedings.”
With respect to Dougherty’s second argument that the
trial court abused its discretion by failing to find good cause
for a protective order, both parties offered the Court examples
of federal and state court video deposition decisions from
across the country, some in which the courts found good
cause for a protective order curtailing a party’s right to
disseminate a video deposition, and some in which the courts
did not. The majority decision held that these cases were of
no importance, as Dougherty failed to establish good cause
for a protective order on the facts of the case, and the trial
court did not abuse its discretion.
The two-judge dissent, in contrast, found that Dougherty
had established good cause for a protective order because of a
history of defamation litigation between Dougherty and The
Philadelphia Inquirer and the fact that Heller’s counsel
refused to agree not to disseminate the deposition tape “allow
for an inference that Appellee sought his videotaped
deposition for an improper purpose.”
A petition for allowance of appeal with the Pennsylvania
Supreme Court was filed on September 12, 2014, meaning
Dougherty’s deposition will not take place until at least 2015.
Amy B. Ginensky, Michael E. Baughman, Eli Segal, and
Kaitlin M. Gurney of Pepper Hamilton LLP, Philadelphia,
PA, represented defendants. Plaintiff was represented by
Richard A. Sprague and Joseph R. Podraza, Jr. of Sprague &
Sprague.