PROCEDURE-DISCOVERY-BAD FAITH

Butler v. Scranton Manufacturing Company, Pa. No. 18 CV 5167 (C.P. Lackawanna January 28, 2022) (Nealon, J.)  A Dunmore Borough refuse collector, who was riding a garbage truck on its rear “riding step” that allegedly snapped and detached from the truck while moving and caused him to suffer serious head injuries, commenced this products liability action against the manufacturers and distributors of the garbage truck and riding step.  A defendant-manufacturer subpoenaed several borough employees for depositions, and pursuant to Pa.R.Civ.P. 234.1(b)(2), also demanded the production of eleven categories of documents.  Contending that the borough manager acted in bad faith by failing to produce the requested records at his deposition, the manufacturer has filed a motion to compel a second deposition of the borough manager and to impose monetary sanctions upon the borough under Pa.R.Civ.P. 234.5(b).  It also seeks to depose the borough counsel president who happens to be a member of the law firm that represents plaintiff in this matter. The record submitted by the parties reflects that (a) the borough council president contacted plaintiff’s father shortly after this incident to advise him of his son’s injury, and (b) certain truck maintenance decisions before and after this incident were made by borough council.  In light of the liberal discovery standard applicable in civil litigation, the manufacturer may depose the borough council president regarding his post-accident conversation with plaintiff’s father and his knowledge of borough council’s garbage truck maintenance decisions, although there is no current basis for finding that the borough council president is likely to be a necessary witness concerning a contested issue in this case.  No other discovery from the borough is warranted under the circumstances, and the manufacturer’s request for sanctions under Rule 234.5(b) is wholly without merit.  Consequently, the manufacturer’s discovery motion will be granted with respect to the limited deposition of the borough council president, but denied in all other respects.  Attorney Dempsey’s conversation with Butler’s father on January 18, 2018 has, at best, marginal relevance.  It is theoretically conceivable, but unlikely, that the substance of that communication could concern the manner in which the incident occurred or how the injuries were sustained.  In light of the liberal relevance test for purposes of discovery, as opposed to admissibility at trial, and remaining mindful that any doubts regarding relevancy must be resolved in favor of discovery, SMC will be permitted to depose Attorney Dempsey concerning his telephone conversation with Butler’s father on January 18, 2018.  Attorney Dempsey will be directed to appear for a deposition within the next 30 days in order to be questioned regarding his conversation with Butler’s father and his knowledge of the garbage truck maintenance decisions made by Borough Council.  Defense counsel is cautioned to limit any inquiry to information obtained or developed by Attorney Dempsey in his capacity as a Borough Council member, rather than as a lawyer with Lenahan and Dempsey.  All counsel who question Attorney Dempsey during his deposition are to refrain from posing any questions that seek to solicit information protected from discovery by the attorney-client privilege. Ford-Bey v. Professional Anesthesia Services of North America, LLC, 229 A.3d 984, 990-991 (Pa. Super. 2020), app. denied, 242 A.3d 1251 (Pa. 2020), or the work product doctrine.  Brown v. Greyhound Lines, Inc., 142 A.3d 1, 9-10 (Pa. Super. 2016), stay denied, 636 Pa. 99, 101, 141 A.3d 436, 438 (2016).  Even assuming arguendo that Rule 234.5(b) or Rule 4019 authorized the imposition of monetary sanctions upon a non-party, the record does not provide a basis for compelling Dunmore to pay SMC for the counsel fees and expenses it has incurred in serving subpoenas and seeking discovery relief.  As a result, its request for the assessment of monetary sanctions will be denied.  An appropriate Order follows.