UGI Sunbury LLC v A Permanent Easement
Filing
36
MEMORANDUM (Order to follow as separate docket entry) re 30 MOTION for Protective Order filed by Zdenek A. Tusek, Alena M. Tusek.Signed by Honorable Matthew W. Brann on 12/7/2016. (ch1)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
UGI SUNBURY LLC,
:
:
Plaintiff,
:
:
v.
:
:
A PERMANENT EASEMENT FOR :
0.0933 ACRES IN MONROE
:
TOWNSHIP, SNYDER COUNTY, :
PENNSYLVANIA TAX PARCEL :
NOS. 12-08-070 AND 12-08-016
:
:
ZDENEK A. TUSEK
:
359 Stetler Avenue
:
Selinsgrove, PA 17870
:
:
ALENA M. TUSEK
:
359 Stetler Avenue
:
Selinsgrove, PA 17870
:
:
AND ALL UNKNOWN OWNERS :
:
Defendants.
:
Case No. 3:16-CV-00790
(Judge Brann)
MEMORANDUM
December 7, 2016
Before the Court for disposition is Defendants Zdenek A. and Alena M.
Tusek’s (“Defendants”) Motion for a Protective Order. For the following reasons,
this Motion will be denied.
1
I.
BACKGROUND
On May 9, 2016, Plaintiff UGI Sunbury LLC (“Plaintiff”) initiated the
current action by filing a Complaint in this Court seeking the condemnation of a
tract of land owned by Defendants which was needed to construct the Sunbury
Pipeline Project. Following the filing of an Answer by Defendants, Plaintiff
moved for (1) a Preliminary Injunction, (2) Partial Summary Judgment, and (3) a
Hearing concerning both pending Motions. In a Memorandum Opinion and Order
issued on August 2, 2016, I granted Plaintiff’s Motions for Preliminary Injunction
and for Partial Summary Judgment. In so doing, I held that Plaintiff has a
substantive right to condemnation and was in immediate possession of the rights of
way sought through the action. Plaintiff was then directed to post a surety bond
with the Clerk of Court pending the determination of just compensation for the
condemned land.
Following the filing of a Joint Case Management Plan by the parties, the
Court held an Initial Case Management Conference on October 27, 2016. In this
conference, the Court set numerous litigation deadlines later memorialized in a
Case Management Order of that same date. Defendants had previously moved for
the imposition of a protective order barring the deposition of Defendant
wife/property owner. The parties have briefed the issue, and, in the absence of a
Reply Brief by Defendants, the Motion became ripe on November 26, 2016.
2
II.
DISCUSSION
A. Legal Standard
Federal Rule of Civil Procedure 26(b)(1) provides that a party “may obtain
discovery regarding any nonprivileged matter that is relevant to any party's claim
or defense and proportional to the needs of the case.”1 Although all relevant
material is discoverable unless an applicable evidentiary privilege is asserted,
Federal Rule of Civil Procedure 26(c) establishes that a “court may, for good
cause, issue an order to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense . . . ”2 The burden of showing “good
cause” rests with the party seeking the protective order.3 The moving party must
show with specificity that “disclosure will work a clearly defined and serious
injury to the party.”4 “Good cause” cannot simply rest on “[b]road allegations of
harm, unsubstantiated by specific examples or articulated reasoning.”5
Furthermore, even when the moving party has met its burden for a protective order,
1
Fed.R.Civ.P. 26(b)(1).
2
Fed.R.Civ.P. 26(c).
3
Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1122 (3d Cir. 1986).
4
Pansy v. Borough of Stroudsburg, 23 F.3d 772, 787 (3d Cir. 1994) (citing Publicker Indus.,
Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984)).
5
Cipollone, 785 F.2d at 1121.
3
such an order “must be narrowly drawn as to not constitute an abuse of
discretion.”6
Within the United States Court of Appeals for the Third Circuit, seven
factors have been recognized in evaluating where “good cause” exists:
(1) whether disclosure will violate any privacy interests; (2) whether
the information is being sought for a legitimate purpose or for an
improper purpose; (3) whether disclosure of the information will
cause a party embarrassment; (4) whether confidentiality is being
sought over information important to public health and safety; (5)
whether the sharing of information among litigants will promote
fairness and efficiency; (6) whether a party benefitting from the order
of confidentiality is a public entity or official; and (7) whether the
case involves issues important to the public.7
The District Court is best positioned to decide which factors are relevant to the
dispute at issue, and thus to “prevent both the overly broad use of [confidentiality]
orders and the unnecessary denial of confidentiality for information that deserves
it.”8
B. Analysis
In the instant matter, Defendants seek a protective order barring the
deposition of Alena M. Tusek. They specifically argue that, based on the
6
Zenith Radio Corp. v. Matsushita Elec. Indus. Co., Ltd., 529 F.Supp. 866, 892 (E.D.Pa. 1981).
7
Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995) (citing Pansy, 23 F.3d at
787–91).
8
Pansy, 23 F.3d at 789.
4
depositions of Ralph and Rusella Moerschbacher in a related civil action,9 the
deposition would be both duplicative, and employed to annoy, embarrass, and
otherwise seek privileged information from Mrs. Tusek. Following a review of the
Moerschbacher depositions and the parties’ briefing, I find that Defendants have
not shown “good cause” justifying the imposition of a protective order. I will
therefore deny the instant Motion.
Federal Rule of Civil Procedure 30(a)(1) stipulates that “[a] party may, by
oral questions, depose any person, including a party, without leave of court.”
Although the reach of this rule may nevertheless be avoided by attaining a
protective order, a party seeking such an order “bears a heavy burden” in showing
“good cause.” 10 It is therefore “rare for a court to issue a protective order that
prohibits a deposition.”11 In the instant matter, Defendants argue that they have
met this “heavy burden” and have shown that “good cause” exists justifying the
issuance of such an order. I disagree.
First, Defendants argue that depositions of both Mr. and Mrs. Tusek would
be duplicative and thus would cause “undue burden or expense.” I am
unpersuaded by this argument. Specifically, I find that the representation of
Defendants’ counsel that he will use only Mr. Tusek’s testimony at trial does not
9
Docket No. 3:16-CV-00789.
10
United States v. Mariani, 178 F.R.D. 447, 448 (M.D.Pa. 1998)(Vanaskie, J.).
11
Id.
5
foreclose Plaintiff’s right to depose Mrs. Tusek, nor does it promote a finding of
good cause. Furthermore, to the extent Defendants argue that Mrs. Tusek’s
testimony will be duplicative or without value due to her supposed lack of
knowledge, the Court holds that Plaintiff is entitled through deposition to ascertain
for itself the extent of Mrs. Tusek’s knowledge.12 While the deposition of Russella
Moerschbacher does not appear to have uncovered information independent of that
previously unearthed during her husband’s deposition, there is no reason to think
this symmetrical knowledge of information would apply to all married persons.
The Court would therefore be remiss to assume the general applicability of this
proposition, as advanced by Defendants.
Defendants further argue that good cause exists for the imposition of a
protective order because the deposition of Mrs. Tusek would cause annoyance,
embarrassment, and seek otherwise privileged information. To support this
argument, Defendants again cite the deposition of Russella Moerschbacher in the
related civil case. As previously noted, I have reviewed the deposition of Mrs.
Moerschbacher together with that of her husband. I find this citation unpersuasive
as to the conclusion that the deposition would unduly annoy or embarrass Mrs.
Tusek. Defendants’ reliance on mere conclusory allegations of harm within their
briefing fails to alter this conclusion. “Good cause,” as previously noted, cannot
12
See, e.g., Malat v. Potak, Civil Action No. 79-3138, 1999 WL 395119 at *1 (E.D.Pa. May 21,
1999).
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simply rest on broad allegations of harm, but rather must be supported by specific
reasoning or examples.13 Defendants’ lack of specificity concerning the causes of
annoyance or embarrassment is therefore fatal to their entitlement to relief.
Finally, I am unconvinced that Plaintiff is seeking privileged information
through the deposition of Mrs. Tusek. While the questioning of Russella
Moerschbacher at times implicated privileged information, her counsel, Mr.
Faherty, rightly objected and the deposition was re-oriented to relevant14 issues of
(1) property use, (2) Defendants’ affirmative defenses to Plaintiff’s condemnation
action, and (3) just compensation. There is no indication that privileged
information was revealed, and counsel for both parties amicably resolved many
disputes. I am confident that they can do this again. It is therefore my conclusion
that the mere potential that questioning within a deposition may compel an
evidentiary objection does not justify the imposition of an outright bar on the
deposition.15
III.
CONCLUSION
13
Cipollone, 785 F.2d at 1121.
14
Fed. R. Civ. P. 401 (“Evidence is relevant if: (a) it has any tendency to make a fact more or
less probable than it would be without the evidence; and (b) that fact is of consequence in
determining the action.”).
15
Musko v. McCandless, Civil Action No. 94-3938, 1995 WL 580275 at *1 (E.D.Pa. Sept. 29,
1995) (denying a motion for a protective order where “an oral deposition could pose some
difficulty in this case, in light of the attorney-client privilege.”).
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Based on the above reasoning, Defendants Zdenek A. and Alena M. Tusek’s
Motion for Protective Order is denied.
An appropriate Order follows.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
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