________________________________________________
RACHEL ESTHER, Individually and as : PHILADELPHIA COUNTY
Administratrix of the Estate of Dana Esther, Deceased : COURT OF COMMON PLEAS
Plaintiff :
: JANUARY TERM, 2022
- : No. 000084
:
GOOD TIMES PUB, INC. d/b/a GOOD TIMES PUB; :
DYLAN ROLLING; SUSAN ROCK, :
Defendants :
__________________________________________
ORDER
AND NOW, this ………….. upon consideration of the prayer of the Defendants to compel Mr. Stingo’s deposition for the limited purpose of ascertaining the identities of all persons, it is hereby ORDERED that the Defendants’ motion is GRANTED.
It is further ordered that deposition shall be limited to the following lines of inquiry:
1) the number names of all witnesses he interviewed;
2) whether he recorded notes and memoranda during the course of the investigation;
3) whether his entire investigative file has been turned over to defendant.
The plaintiff shall produce her investigators entire investigative file for inspection and copying at the time of the deposition.
BY THE COURT:
___________________________________
,J.
Temple Made, P.C.
….., Esquire
Identification No.: 300530
1725 North Broad Street
Philadelphia, PA 19122
(215) 555-1084
attorney@templemadepc.com
Attorneys for Defendants
________________________________________________
RACHEL ESTHER, Individually and as : PHILADELPHIA COUNTY
Administratrix of the Estate of Dana Esther, Deceased : COURT OF COMMON PLEAS
Plaintiff :
: JANUARY TERM, 2022
- : No. 000084
:
GOOD TIMES PUB, INC. d/b/a GOOD TIMES PUB; :
DYLAN ROLLING; SUSAN ROCK, :
Defendants :
MOTION FOR COMPELLING THE DEPOSITION OF THE PLAINTIFF’S INVESTIGATOR ON THE DEFENDANTS’ BEHALF
Defendants hereby move this court to compel the deposition of the plaintiff’s investigator on the defendants’ behalf. In support of this motion, the defendant seeks to enumerate the following facts:
- BACKGROUND
- Before the commencement of this lawsuit, the Plaintiff’s counsel hired an investigator, Tony Stingo, to investigate the circumstances surrounding the decedent death.
- Upon the Plaintiff filing the lawsuit, and during discovery, the defendants sought information and documents regarding investigations conducted by the Plaintiff and her representatives. Compl. ¶ 33
- Despite several requests by the Defendant, the plaintiff adamantly refused to identify her investigator until after certifying to the court that the case was ready for trial.
- Notwithstanding the Plaintiff’s counsel ultimately provided what they characterized as the “entire investigative file” of Tony Stingo, they were not initially forthcoming as to the identity of the Plaintiff’s investigator.
- The Defendants were also served with incomplete documents that did not contain the memoranda or notes prepared by Mr. Stingo.
- The Defendants have the legal right to discover this information pursuant to Pennsylvania Rules of Civil Procedure 4001(d), 4003.1, and 4003.3.
- LEGAL STANDARD
- Pennsylvania Rules of Civil Procedure 4001 (d) provides any party may obtain discovery by one or more of the following methods: depositions upon oral examination (Rule 4007.1 ) or written interrogatories (Rule 4004); written interrogatories to a party (Rule 4005); production of documents and things and entry for inspection and other purposes (Rule 4009); physical and mental examinations (Rule 4010); and requests for admission (Rule 4014).
- Accordingly, the Defendant has the right to obtain discovery of the information through a deposition on wither oral examination or written interrogatories of the information held by the Plaintiffs investigator.
- Rule 4003.1 provides for the scope of discovery and provides that a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, content, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable. Also, the discovery extends to information that is not a ground for objection or inadmissible.
- The information held by the Plaintiff’s investigator does not fall under of the preceding category hence the Defendant is entitled to the discovery of the same to defend himself against the allegations of negligence alleged by the Plaintiff. Compl. ¶ 32.
- ARGUMENT
- Subject to the provisions of rules 4003.4 and 4003.5, a party may obtain discovery of any matter discoverable under rule 4003. This is even though prepared in anticipation of litigation or trial by or for another party or by or for that other party’s representative, including his attorney, consultant, surety, indemnitor, insurer or agent.
- Although the rule protects the mental impressions, conclusions and opinions of a party’s representative in anticipation of litigation, it is not clear from a reading of the rule whether the protection is limited to the litigation of the claim for which the impressions, conclusions and opinions were made or whether it extends to the litigation of claims which the impressions, conclusions or opinions do not address.” Little, 16 Pa. D. & C.3d at 112. See Yohe v. Nationwide Mut. Life Ins. Co., 1990 WL 303098 (1990)
- Moreover, rule 4003.3’s protections against discovery of impressions, conclusions or opinions prepared in anticipation of litigation did not extend to subsequent litigation in which such matters were relevant. See Harvey v. Whatley, 2 Philadelphia Rep. 443 (1979)
- Application of the foregoing principles to the case at bar compels the conclusion that the court should grant the defendant’s prayer of compelling the deposition of the plaintiff’s investigator. Compl. ¶ 40.
- Moreover, the Plaintiff is only entitled to withhold the records of the investigator if they are privileged and confidential. See Edwards v. Grumman Allied Industries Inc., 1988 WL 193219 (1988)
- Nonetheless, the Plaintiff has not specifically pleaded that the investigator records are private and confidential hence the court ought to compel the deposition of the same in favor of the defendant to enable the latter ventilate their case adequately.
- Further, opinions have severally been held to be proper subjects of discovery under rule 4003.1, unless protected therefrom by some other rule, a statute or our state or federal constitution. 10 Goodrich Amram 2d, 4003.1:24. See Tate v. Philadelphia Sav. Fund Society, 1987 WL 61298 (1987)
- The question in the current case is thus whether the expert opinion expressed by the investigator can be reasonably interpreted as falling within one or more of the protected categories specified by rule 4003.3.
- The answer to the preceding inquiry is in the negative. Mr. Stingo’s notes and memoranda have not been pleaded to fall under any protected category, despite the invocation of the work product doctrine, hence the Defendant is entitled to discover the information to defend the allegations lodged against him. Coml.¶ 40
WHEREFORE, premises considered, Defendants respectfully request this Honorable Court to compel the Plaintiff to produce the investigator’s entire investigative file for inspection and copying at the time of the deposition to aid him ventilate the case against him.
SUMMARY CONCLUSION
The information held by the plaintiff, thus the investigators memoranda and notes, neither falls under any category of private and confidential documents nor any protected category. The plaintiff has also not presented any evidence proving the same. Therefore, this honorable court should direct the plaintiff to produce her investigator for a deposition at defendant’s law offices within 10 days of the date of this order.
Dated this 18th day of June, 2022.
Respectfully Submitted,
___________________________________
Temple Made, P.C.
…., Esquire
Identification No.: 300530
1725 North Broad Street
Philadelphia, PA 19122
(215) 555-1084
attorney@templemadepc.com
Attorneys for Defendants