The state Superior Court has ruled in a case of first impression that Philadelphia union leader John Dougherty must sit for a videotaped deposition in his suit against Philadelphia Inquirer reporter Karen Heller, despite Dougherty's protests that there is strong potential for the video to be misused in the media before it's entered into evidence.

A three-judge panel ruled 2-1 to affirm Philadelphia Court of Common Pleas Judge Jacqueline F. Allen's ruling granting Heller's motion to compel the video deposition and denying Dougherty's motion for a protective order.

Writing for the majority in a 30-page unpublished memorandum, Senior Judge William H. Platt said Dougherty failed to prove good cause under Pa.R.C.P. 4012 for why he should not be required to sit for the video deposition.

In Dougherty v. Heller, Dougherty argued on appeal to the Superior Court that Heller's refusal to agree not to disseminate or use the video for nonlitigation purposes suggested an ulterior motive, but Platt called that inference "unwarranted."

"Appellant candidly concedes that once a video is 'entered into the public record,' there would be no restriction on its further dissemination," Platt said. "Neither appellee nor her counsel had any obligation to agree to additional restrictions as a precondition to videotaping appellant's deposition, especially after counsel confirmed her commitment to observing the Rules of Civil Procedure and the Rules of Professional Conduct."

Platt was joined by Judge Mary Jane Bowes.

President Judge Correale F. Stevens, however, penned a dissent, invoking language from the Commonwealth Court's May ruling in MarkWest Liberty Midstream & Resources v. Clean Air Council, in which that court held that "discovery is an open process among the parties to litigation, but it is not an open process between the parties to litigation and the public."

"This case involves protecting the privacy rights of an individual whose deposition is taken but not yet put in the public domain by introducing it at trial," Stevens said. "The possibility that the deposition can be disseminated prior to trial under the facts of this particular case is enough to show that harm (i.e., prejudice prior to trial) will result and that a protective order is reasonable."

Stevens added that recording the deposition through stenography rather than video would not have any adverse effect on Heller's case.

In Dougherty, according to Platt, Dougherty filed a defamation suit in December 2009 against Heller after she incorrectly wrote in a column that unions associated with Dougherty charged, and later waived, a $50,000 fee for setting up holiday lights in Philadelphia's Rittenhouse Square.

On February 15, 2012, Heller served Dougherty with a notice for his videotaped deposition March 16, 2012, but on the morning of the deposition, Dougherty demanded that Heller agree not to use the tape "'outside the litigation of this case,'" according to Platt.

Heller's attorney said Heller would comply with the Rules of Civil Procedure and the Rules of Professional Conduct but would not agree to any additional restrictions, leading to a stalemate between the parties that resulted in the deposition not being held, Platt said.

On March 19, 2012, Heller filed a motion to compel the video deposition and Dougherty responded with a cross-motion seeking a protective order either banning "'non-stenographic recording'" or banning copies of the tape from being made and requiring that the original be released into the custody of a third party, after which no one could view, edit, audit or copy it without a court order, according to Platt.

Following arguments April 4, 2012, Allen granted Heller's motion and denied Dougherty's cross-motion.

On appeal, according to Platt, Dougherty argued that his First Amendment right to privacy, the ethical obligations under Rule 3.6 of the Rules of Professional Conduct and the animosity between him and Heller and her employer was enough to show good cause for either limiting the use of the tape or prohibiting a videotaped deposition altogether.

But Platt said Dougherty waived his First Amendment defense by failing to develop the argument.
Platt also found that Dougherty's Rule 3.6 argument "misstates and overstates" the rule by claiming it bans lawyers from making or assisting others in making extrajudicial statements when they know or should know that the statements will prejudice the proceedings.

"Rule 3.6, Trial Publicity, speaks only to attorney conduct, and does not address 'assisting another person,'" Platt said. "Appellant's invocation of a potential attorney ethical violation is not only speculative, but plainly outside the scope of the rule, and, accordingly, gratuitous."

According to Platt, Dougherty also argued that there was a "'distinct possibility'" that the tape would be misused and that the "'potential for misuse'" was heightened because of the acrimony between him and Heller and the Inquirer that was brought on by "'a long history of defamation litigation'" between them.

Platt, however, said the argument was waived because it was "undeveloped" and, regardless, would not have merited relief.

"As appellant merely lists the lawsuits, with no favorable results, (in fact, no results at all), and he is the plaintiff in all the litigation, his history of bringing defamation litigation, without more, proves nothing about appellee," Platt said.

According to Platt, all of the grounds for relief Dougherty cited on appeal "amount to no more than his own speculation, beliefs, suggestions, and insinuation of potential misuse of a video."

But Stevens, in his dissent, said there was no good reason the deposition had to be videotaped and that Dougherty had shown the potential for harm.

"Specifically, in light of the relationship and history between the parties, the nature of the civil suit at issue, and most telling, appellee's counsel's inexplicable refusal to agree to protect the videotaped deposition from being used for nonlitigation purposes, appellant met his burden of proving a protective order is required," Stevens said. "Moreover, there is absolutely no reason of record why appellee needs to keep open the possibility the videotaped deposition will be disseminated prior to trial."

Counsel for Dougherty, Peter A. Greiner of Sprague & Sprague in Philadelphia, could not be reached for comment.

Counsel for Heller, Michael E. Baughman of Pepper Hamilton in Philadelphia, also could not be reached.

Zack Needles can be contacted at 215-557-2493 or zneedles@alm.com. Follow him on Twitter @ZNeedlesTLI.

(Copies of the 37-page opinion in Dougherty v. Heller, PICS No. 13-1477, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)