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 Hummel Farm Trust. 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
0.2022 ACRES IN MONROE
TOWNSHIP, SNYDER COUNTY,
PENNSYLVANIA TAX PARCEL
NO. 12-08-016A
HUMMEL FARM TRUST,
RUSELLA L. MOERSCHBACHER
AND RALPH MOERSCHBACHER,
CO-TRUSTEES
332 Stetler Avenue
Selinsgrove, PA 17870
C.E. BECK
32 National Transit Building
Oil City, PA 16301
AND ALL UNKNOWN OWNERS
Defendants.

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Case No. 3:16-CV-00805
(Judge Brann)

MEMORANDUM
December 7, 2016
Before the Court for disposition is Defendants Hummel Farm Trust, Russella
L. Moerschbacher and Ralph Moerscbacher, Co-Trustees’ (“Defendants”) Motion
for a Protective Order. For the following reasons, this Motion will be denied.
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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 ultimate determination of just compensation
for the condemned tract of land.
Following the filing of a Joint Case Management Plan, 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 subsequently briefed the issue, and, in the absence of a Reply Brief by
Defendants, the Motion became ripe on November 26, 2016.
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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.

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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 a second
deposition of Russella Moerschbacher. They specifically argue that, based on her

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.

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previous deposition in a related case,9 an additional deposition would be both
duplicative, and employed to annoy, embarrass, and otherwise seek privileged
information from Mrs. Moerschbacher. Following a review of the previous
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.
Moerschbacher 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 only use Mr. Moerschbacher’s

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.

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testimony at trial does not foreclose Plaintiff’s right to depose Mrs.
Moerschbacher, nor does it promote the finding of good cause. Furthermore, to the
extent Defendants argue that Mrs. Moerschbacher’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.
Moerschbacher’s knowledge as to the property at issue.12 While the previous
deposition of Mrs. Moerschbacher does not appear to have uncovered information
independent of that previously unearthed during her husband’s deposition, Plaintiff
is entitled to depose Mrs. Moerschbacher again to determine the extent of her
knowledge concerning a different property at issue in this specific case. 
Defendants further argue that good cause exists for the imposition of a
protective order because the deposition of Mrs. Moerschbacher would cause
annoyance, embarrassment, and seek otherwise privileged information. To support
this argument, Defendants again cite the previous deposition of Mrs.
Moerschbacher in the related civil case. As already noted, I have reviewed this
deposition together with that of Ralph Moerschbacher. I find this citation
unpersuasive as to the conclusion that the deposition would unduly annoy or
embarrass Mrs. Moerschbacher. Defendants’ reliance on conclusory allegations
within their briefing fails to alter this conclusion. “Good cause,” as previously

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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noted, cannot 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. Moerschbacher. While the previous questioning of
Mrs. Moerschbacher at times implicated privileged information, her counsel, Mr.
Faherty, rightly objected and the deposition was re-oriented the deposition to the
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

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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III.

CONCLUSION

Based on the above reasoning, Defendants Defendants Hummel Farm Trust,
Russella L. Moerschbacher and Ralph Moerscbacher, Co-Trustees’ 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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