                                [J-62-2016]
                  IN THE SUPREME COURT OF PENNSYLVANIA
                             EASTERN DISTRICT


JOHN J. DOUGHERTY,                         :   No. 6 EAP 2015
                                           :
                    Appellant              :   Appeal from the Judgment of the
                                           :   Superior Court entered on 8/14/14 at
             v.                            :   No. 1333 ESA 2012 affirming the order
                                           :   entered on 4/11/12 in the Court of
KAREN HELLER,                              :   Common Pleas, Civil Division,
                                           :   Philadelphia County at No. 00699
                    Appellee               :   December Term 2009
                                           :
                                           :   ARGUED: May 9, 2016

                    CONCURRING AND DISSENTING OPINION

SENIOR JUDGE COLINS                                          DECIDED: June 14, 2016
             I join in parts I, II, and III, and respectfully dissent from part IV of the

scholarly majority opinion. I conclude, as does Judge Brobson in his dissent, that this

Court should decide the two issues that were accepted for appellate review in the

February 4, 2015 Order granting allocatur. Due to the importance of these issues as

well as the First Amendment rights implicated by the questions presented, I would hold

that these issues are “too important to be denied review” under the collateral order

doctrine. See Rae v. Pennsylvania Funeral Directors Association, 977 A.2d 1121, 1124

(Pa. 2009). Furthermore, on the merits, I agree with the dissent from the Superior

Court’s en banc decision, Dougherty v. Heller, 97 A.3d 1257, 1268 (Pa. Super. 2014),

authored by Judge Mundy and joined by President Judge Emeritus Ford Elliot. The

Trial Court abused its discretion by denying the limited relief sought; accordingly, I

would reverse on the merits.
              Pennsylvania Rule of Civil Procedure 4012(a) governs the issuance of

protective orders and provides, in relevant part, that


              [u]pon motion by a party or by the person from whom
              discovery or deposition is sought, and for good cause
              shown, the court may make any order which justice requires
              to protect a party or person from unreasonable annoyance,
              embarrassment, oppression, burden or expense.


Pa. R.C.P. No. 4012(a). Use of the “good cause” standard to evaluate whether a court

should issue a protective order is near universal among our sister states and the

standard is likewise applied in the federal courts in accordance with Federal Rule of

Civil Procedure 26(c). Fed R. Civ. P. 26(c). John J. Dougherty (Appellant) and Karen

Heller (Appellee) have each offered an abundance of precedent applying the “good

cause” standard from myriad jurisdictions to support their respective arguments for and

against a protective order. Among the United States Courts of Appeals alone there are

varying tests and conflicting views on what constitutes “good cause” and the factors that

should be considered in making the determination to issue a protective order. See, e.g.,

Bond v. Utreras, 585 F.3d 1061 (7th Cir. 2009); Kamakana v. City and County of

Honolulu, 447 F.3d 1172 (9th Cir. 2006); Chicago Tribune Co. v. Bridgestone/Firestone,

Inc., 263 F.3d 1304 (11th Cir. 2001); U.S. v. Amodeo, 71 F.3d 1044 (2d Cir. 1995);

Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3rd Cir. 1994).

              Unifying these differing applications of the “good cause” standard is the

absence of bright lines. The standard exists on a continuum, from pre-trial to post-trial,

with each stage of the litigation raising competing interests and incongruent concerns.

Prior to trial, the public has no right of access to discovery materials. Seattle Times Co.

v. Rhinehart, 467 U.S. 20 (1984).       Yet, once that material is filed in support of a

dispositive motion or as a part of a party’s case in chief, it is fundamental to the public’s

                                             2
right of access to the courts that the evidence is open to view. Pa. Const., Art. I, §§ 7,

11; see also U.S. Const. Amends. I, XIV. 1

1
    Section 7 of Article I of the Pennsylvania Constitution provides, in relevant part:

                The printing press shall be free to every person who may
                undertake to examine the proceedings of the Legislature or
                any branch of government, and no law shall ever be made to
                restrain the right thereof. The free communication of
                thoughts and opinions is one of the invaluable rights of man,
                and every citizen may freely speak, write and print on any
                subject, being responsible for the abuse of that liberty.

Pa. Const., Art. I, § 7. Section 11 of Article of the Pennsylvania Constitution provides:

                All courts shall be open; and every man for an injury done
                him in his lands, goods, person or reputation shall have
                remedy by due course of law, and right and justice
                administered without sale, denial or delay. Suits may be
                brought against the Commonwealth in such manner, in such
                courts and in such cases as the Legislature may by law
                direct.

Pa. Const., Art. I, § 11.       The First Amendment to the United States Constitution
provides:

                Congress shall make no law respecting an establishment of
                religion, or prohibiting the free exercise thereof; or abridging
                the freedom of speech, or of the press; or the right of the
                people peaceably to assemble, and to petition the
                Government for a redress of grievances.

U.S. Const. Amend. I. The Fourteenth Amendment to the United States Constitution
further provides:

                All persons born or naturalized in the United States, and
                subject to the jurisdiction thereof, are citizens of the United
                States and of the State wherein they reside. No State shall
                make or enforce any law which shall abridge the privileges
                or immunities of citizens of the United States; nor shall any
                State deprive any person of life, liberty, or property, without
                due process of law; nor deny to any person within its
                jurisdiction the equal protection of the laws.

U.S. Const. Amend. XIV.
                                                3
              The standard is fact-intensive: a factor that is determinative in one

instance may be entirely irrelevant in another. A deposition given in a defamation action

may implicate personal privacy rights, but it does not ordinarily lead to the disclosure of

trade secrets. Similarly, disclosure of documents produced in litigation arising from

tainted ground water may be necessary to protect the public health, safety and welfare

while such concerns would ordinarily have no place in evaluating whether a protective

order is warranted to seal from public view documents produced in litigation arising from

a boundary dispute between neighbors.

              A protective order is mutable; the circumstances necessitating a protective

order to prevent information from being disseminated for non-litigation purposes prior to

trial may no longer exist once trial has commenced or the litigation has been resolved. 2

Likewise, a party that seeks to intervene in litigation to have information subject to a

protective order made public may change the dynamics of the court’s “good cause”

analysis and result in rescission of the protective order. 3 Moreover, a court may not find

2
  See, e.g. Baxter International, Inc. v. Abbot Laboratories, 297 F.3d 544, 545 (7th Cir.
2002) (“Secrecy is fine at the discovery stage, before the material enters the judicial
record. But those documents, usually a small subset of all discovery, that influence or
underpin the judicial decision are open to public inspection unless they meet the
definition of trade secrets or other categories of bona fide long-term confidentiality.”)
(internal citations omitted); see also Rosado v. Bridgeport Roman Catholic Diocesan
Corp., 970 A.2d 656, 677, 684, 693 (Conn. 2009) (Rosado II) (granting in part request to
vacate sealing order shielding majority of documents filed in cases that had been settled
and withdrawn, which had alleged clergy sexual abuse of minors); Rosado v. Bridgeport
Roman Catholic Diocesan Corp., 884 A.2d 981, 1008 (Conn. 2005) (Rosado I); S.E.C.
v. TheStreet.Com, 273 F.3d 222, 227, 233-234 (2d Cir. 2001) (permitting media
intervenor access to depositions previously sealed); Poliquin v. Garden Way, Inc., 989
F.2d 527, 533-535 (1st Cir. 1993) (modifying protective order following settlement);
Felling v. Knight, 211 F.R.D. 552, 555 (S.D. Ind. 2003) (vacating protective order barring
release of video tape depositions following settlement).
3
  See, e.g., Rosado II; Rosado I; Republican Co. v. Appeals Court, 812 N.E.2d 887,
894-895 (Mass. 2004) (upon petition by civil plaintiff and newspaper, the court
employed a “good cause” analysis to vacate an impoundment order, which had
prevented disclosure of material submitted in support of a search warrant eleven years
                                            4
good cause where a party seeks a blanket order to shield all information gleaned during

discovery from view or possible dissemination, but find “good cause” where protection is

sought for a narrow subset of documents, such as personal identifying information of

non-parties. 4

                 In the instant matter, the relief sought by Appellant before the Court of

Common Pleas of Philadelphia County (Trial Court) was narrow in scope; Appellant did

not seek to place under seal the contents of the testimony given at his deposition;

rather, he sought merely to prevent the visual record from being disseminated prior to

trial for non-litigation purposes.

                 The column at the heart of this matter as written and published by

Appellee was egregiously false. (November 28, 2009 Philadelphia Inquirer Article by

prior for a priest alleged to have committed sexual abuse of children within his ministry);
Kamakana, 447 F.3d at 1175, 1179-1183, 1186 (affirming modification of a protective
order following settlement to unseal documents attached to dispositive and non-
dispositive motions upon motion of intervenor newspapers); Jepson, In. v. Makita
Electrical Works, Ltd, 30 F.3d 854, 860 (7th Cir. 1994) (holding that there was no “good
cause” for a protective order to prevent party from releasing pretrial deposition of
nonparty to the United States International Trade Commission); Pansy, 23 F.3d at 777,
791 (permitting intervention by newspapers and remanding to the district court to
determine if “good cause” existed to maintain protective order preventing release of
settlement agreement); United Nuclear Corp. v. Cranford Insurance Co., 905 F.2d 1424,
1428 (10th Cir. 1990) (modifying protective order to allow access to discovery materials
by intervening collateral litigants).
4
  See, e.g., Apple Inc. v. Samsung Electronics Co., Ltd., 727 F.3d 1214, 1226-1228
(Fed. Cir. 2013) (applying precedent from within the Ninth Circuit Court of Appeals as
the law of the regional circuit to permit a small subset of documents to remain
permanently sealed following trial); Foltz v. State Farm Mutual Insurance Co., 331 F.3d
1122, 1131 (9th Cir. 2003) (overturning blanket protective order and requiring defendant
to make a showing of “good cause” for each document for which it sought continuing
protection); Citizens First National Bank of Princeton v. Cincinnati Insurance, Co., 178
F.3d 943, 944-945 (7th Cir. 1999) (reversing the protective order issued by the district
court because “[t]he order is so loose that it amounts…to giving each party carte
blanche to decide what portions of the record shall be kept secret. Such an order is
invalid.”); Glenmeade Trust Co. v. Thompson, 56 F.3d 476, 479, 484 & n.13 (3d Cir.
1995) (holding that petitioners failed to demonstrate “good cause” for umbrella
protective order).
                                              5
Appellee, Reproduced Record (R.R.) at 39a.) Publishing such a defamatory piece,

relying solely on the unverified assertions of one individual, would certainly allow a

reasonable trier of fact to draw an inference of malice. (Appellee’s Deposition, R.R. at

66a.) The inference of a hostile intent is buttressed by the amount of time that Appellee

allowed her false statements to live on as links posted on her social media pages and

within her employer’s online archives. (Id. R.R. at 69a-70a.) Moreover, the existence of

animus finds further support in the litigious history between Appellant and Appellee’s

employer at the time of publishing, as well as between Appellant and Appellee’s

counsel. 5   This showing by Appellant—Appellee’s false statements, Appellee’s

continued publication of her false statements on social media, and the history of the

parties directly and indirectly involved in this action—coupled with Appellee’s counsel’s

refusal to agree that she would not use the visual record of Appellant’s deposition for

purposes other than this litigation, 6 lead this jurist to conclude that Appellant produced

5
  See Dougherty v. Philadelphia Newspapers, LLC, (Phila. CCP, July Term 2009, No.
004224); Dougherty v. Philadelphia Newspapers, LLC, (Phila. CCP, June Term 2009,
No. 00325); Dougherty v. Philadelphia Newspapers, LLC, (Phila. CCP, March Term
2009, No. 004790); see also Dougherty v. Philadelphia Newspapers, LLC, 85 A.3d 1082
(Pa. Super. 2014) (holding that the Pennsylvania Rules of Professional Conduct barred
Pepper Hamilton, LLP (Pepper), from representing Philadelphia Newspapers, LLC, and
related defendants in a defamation action filed by Appellant due to a conflict of interest,
which Appellant did not waive, stemming from Pepper’s prior representation of
Appellant).
6
  Appellant and Appellant’s counsel appeared on March 16, 2012 for his noticed
deposition. Prior to the start of questioning, while Appellant’s and Appellee’s counsel
were making stipulations for the record, the following exchange took place:

              [Appellant’s counsel]: Since this is being videotaped, we
              have some concerns since it involves the media that
              perhaps this could go beyond use for court filings or court
              proceedings. We’re perfectly fine [proceeding with the
              videotaped deposition] with the understanding that it's going
              to be used just for that purpose, but we are not comfortable if
              it goes to a third party, any portions of this videotape. And
              we'd like assurances that that will not be the case.
                                            6
....
I'm not trying to handcuff your use. We[ ] just want[ ] to make
sure that we're not going to be watching the news and all of
a sudden a clip of today's deposition appears and [is used]
for purposes outside of this litigation. And that's all we want
assurances, that that's not going to be the case.

[Appellee’s counsel]: That's not the intent, yes.

[Appellant’s counsel]: Well I want assurances that that's not
going to be the case.

[Appellee’s counsel]: I am not going to give you an
assurance that that's not going to be the case. That's not the
intent. I plan on using this in connection with the litigation. I
have never not used a transcript and a video deposition not
in connection with litigation.
...
[Appellant’s co-counsel]: Well, no, no [counsel], we want to
make, so it’s very clear, we want [an] agreement that this will
be used by you just for litigation. You're not going to turn it
over to like the news media, television for anything like that.
That's all we want.

[Appellee’s counsel]: … I never had an intent of doing that,
and I'm not planning on doing it....

[Appellant’s co-counsel]: We want [an] agreement that you
won't do it.

[Appellee’s counsel]: Well, I don't think that I'm obligated not
to and I don't want to be put to agreeing to that—

[Appellant’s co-counsel]: You're obligated if we're having this
televised that you’re not using it for other purposes in the
litigation and you’re not going to turn it over to television
stations or the media in general just to broadcast it. You are
obligated to do that.

[Appellee’s counsel]: I am obligated by whatever my
obligations are under the rules.

[Appellant’s counsel]: See, this is a problem for us, [counsel],
because ... we need to assess that any more damage than
already has been done, from our vantage point, is not going
                               7
to occur. Now, we recognize you have a right to do a
videotaped deposition, and we're not disputing that.

[Appellant’s co-counsel]: For purposes of litigation.

[Appellant’s counsel]: That's exactly right. And we need to
know that assurance because then we have to assess
whether perhaps there's a need to have a [Trial Court] step
in and decide that the videotape option that you otherwise
would be entitled to is not going to occur without that
assurance. You certainly would help us put that issue aside
if you will right now represent to us that besides this
litigation, the videotape will 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. I
think it's a simple request. And as [counsel] said, it’s really
the professional responsibility and duty you owe.
....
[Appellee’s counsel]: ... I don’t have the authority. All I have
the authority to say to you is I abide by the rules, and I will
abide by the rules. And if the ethical rules put constraints on
what lawyers can do with materials in discovery, I abide by
those rules.

[Appellant's co-counsel]: Well, [counsel], we're not going to
go ahead with... videotaping [this deposition] if you are not in
a position to tell us that you will not turn it over to the media
to have it broadcast[ed].
...
[Appellee’s counsel]: I’m not saying that I am going to give it
to some TV station to just broadcast. But I don't know who
might ask it of me, I don't know—I certainly am not calling up
anybody and asking them to take this videotape. But I am
not in the position to assure you that under all circumstances
I would not provide the videotape to someone else if it
seemed appropriate.
...
[Appellant’s counsel]: [ ] I think it’s significant to [Appellant],
given his history, that we have a very, very solid agreement
as to how we're going to handle this tape. Because, you
know, you are the media and we're here because of what we
contend to be malicious conduct by the media of a public
figure. And we think that without giving us this assurance, it
raises a great deal of doubt of what the intentions are here.
....
                                8
sufficient evidence to establish a substantial risk that his pre-trial video tape deposition

would be used for non-litigation purposes, and that a protective order was warranted.

              Appellant’s request for a protective order focused on the form in which and

the purposes for which information disclosed in pre-trial discovery may be disseminated.

Appellant’s request was made in the embryonic stage of litigation, prior to rulings on

admissibility, prior to filings of post-discovery dispositive motions, and prior to trial. Had

Appellant sought broader relief or sought protection to prevent disclosure of information

during trial, Appellant would have needed to satisfy a more stringent evidentiary burden;

however, on this record, at the pre-trial stage of the litigation process, the Trial Court

abused its discretion in determining that Appellant had not established “good cause”

and denying a protective order preventing dissemination of the visual record of

Appellant’s deposition for non-litigation purposes.


Senior Judge Friedman joins this concurring and dissenting opinion.




              [Appellant's counsel]: [A]ll we want[ ] [are] assurances that if
              somebody on the outside requested the tape or if you were
              inclined to think of releasing it that we would get advance
              notice so we could then have a [trial c]ourt decide whether
              that's appropriate or not. The fact that we can't have that
              basic agreement again raises strong flags in our mind. We
              are not going to go forward with the videotaping. You can
              choose to go forward with just having the transcript.
              Otherwise, we're going to seek the protective relief and we'll
              let the [Trial Court] decide how we're going to proceed with
              the videotaped portion of this.

(Appellant’s Deposition, R.R. at 89a-96a.)
                                              9
