In what some may construe as an effort by the Pennsylvania Superior Court to salvage something positive out of 2016, an Opinion was issued today which effectively opens Pennsylvania’s family courts to dissolve out-of-state civil unions

The matter of Neyman v. Buckley (No. 2203 EDA 2015) arose out of Philadelphia County.  The parties were attempting to have their 2002 Vermont civil union dissolved in the Philadelphia Family Court.  The trial court, however, dismissed the divorce complaint related to the civil union on the basis that it did not have jurisdiction over the action.  The trial court based its decision on statutory language which established the court’s jurisdiction to divorce parties from the “bonds of matrimony” and, therefore, could not issue a decree or order dissolving the out-of-state civil union.

The other problem in this case, was that Pennsylvania County examined the Vermont code and saw the procedural separation between dissolving civil unions and marriages. In short, Vermont retained a legal distinction between marriages and civil unions, though they gave them the same rights and access to the family courts. It was on this basis that the Philadelphia court dismissed the complaint to dissolve the civil union and noted that the action sounded more specifically in the civil trial division (i.e. address the civil union as a contract).

Neither party was contesting the dissolution of their civil union. They entered into the union in July 2002 before same-sex marriage was legal and began living separate and apart five months later in December. Since then, they have been living in legal limbo without having residency in a state to dissolve their union or access to the court’s due to Pennsylvania’s Defense of Marriage Act (DOMA).

Many family law practitioners, myself included, have successfully dissolved civil unions in some counties, but those courts which did so in some ways hindered the clarification of this issue. Despite the decisions legalizing same-sex marriage and invalidating Pennsylvania’s DOMA, the state legislature has not updated the marriage and divorce codes to account for the new law of the land. Without legislative action, it would be the appellate courts which would shape the law and offer some precedence to clarify the question as to what types of unions can be addressed by the family courts.

Within this context, the Philadelphia court, in denying the dissolution of an uncontested, no economic issue case, did Pennsylvania law a tremendous favor: it created a test case for which the Superior Court could weigh the argument offered by the trial court and conclude that, “the legal properties of a Vermont civil union weigh in favor of recognizing such unions as the legal equivalent of marriage for purposes of dissolution under the [Pennsylvania] Divorce Code.” Citing prior case law (Himmelberger), the civil union has a distinct “odor of marriage” and that the only substantive difference between a civil union and a marriage are “sexual orientation and semantics.”

The strong Pennsylvania public policy in favor of granting comity to another state’s laws so long as they do not contradict those of the Commonwealth was also cited by the Superior Court.  Pennsylvania family courts “must recognize their Vermont civil union as the legal equivalent of a marriage for the purpose of dissolution.”

Accordingly, the Superior Court reversed the Philadelphia County dismissal of the complaint and remanded it back to the Family Court to be addressed under Pennsylvania Divorce law. Practically speaking, this decision means issuing a Decree dissolving their civil union upon application by the parties and unambiguously establishing the Family Courts as a venue for dissolving civil unions.

 

 

Recently, a case came before the Superior Court addressing the question as to whether a party has the right to charge interest on unpaid portions of an equitable distribution award. In Raines v. Raines, 2016 PA 227 (Superior Court), the basic facts are that husband and wife divorced and the recommendation of the master requiring husband to refinance a property and pay out wife was entered as an Order of Court. Under the terms of the order, if husband had not paid the cash by a certain date, wife was entitled to 6% interest per year on the unpaid balance.

Suffice to say, husband didn’t pay his obligation. He could not refinance the property and was forced to try to sell it in order to pay out wife. Consequently, wife pursued contempt and to have the debt considered a judgment. She was not successful since the court found that husband was not in willful violation of the Order and was trying to mitigate the problem by selling the house.

Eventually the house sold and at settlement, wife presented husband with a settlement distribution which provided her interest under the order, plus interest under Section 8101 of the Pennsylvania Code which relates to interest attached to monetary judgments. That law exists so that a judgment holder is not prejudiced by any appeals which might delay the ultimate satisfaction of the judgment. Here, wife was trying to attach it to the money owed and increase her recovery from husband, even though the trial court rejected her request to do so.

Husband, under protest, paid the interest so to not delay settlement and filed to have the Section 8101 interest returned.

The trial court found, the Superior Court upheld, that an equitable distribution order is not a “judgment” as contemplated by Section 8101. A judgment is a “final determination” of a case and in the context of divorces, it is the decree which is the “final determination” and the equitable distribution order is an ““ancillary issue.” The court went on to identify that the entry of judgments against equitable distribution property is permitted under 23 Pa.C.S.A. 3502(e)(1) as an enforcement remedy and to accept Wife’s argument in favor of Section 8101 would effectively nullify a portion of Section 3502. The Court, understandably, declined to invalidate Pennsylvania law on this point.

So while Section 8101 is available to family law cases, it is only after someone has successfully had the equitable distribution order entered as a judgment under Section 3502(a)(1). The order, in and of itself, is not a judgment.

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty.

We’ve reported on the United States v. Elonis in the past. This case involved a Northampton County man who made a series of threats on his Facebook page directed at his estranged wife, his employer, and an FBI agent who came to investigate a threat he made to attack an elementary school. Elonis, in his defense, claimed that his posts were not, in fact, threats, but rap lyrics and forms of artistic expression.

He was nonetheless charged with under 18 U.S.C. 875(c) which prohibits transmitting in interstate commerce a communication containing a threat to injure the person of another. He was eventually convicted at trial of four out of the five charges against him and sentenced to forty-four (44) months in jail. He conviction was upheld by through the appellate system and eventually appealed to the U.S. Supreme Court who granted cert to hear his appeal. The Supreme Court overturned his conviction, but did not address any of the First Amendment claims or other issues raised on appeal except for what they viewed as an error in the jury instruction identifying the standard the jury was to apply to the offenses. Helpfully, however, Justice Samuel Alito articulated in a concurring/dissenting opinion a road map for the Third Circuit Court of Appeals – the court where the Supreme Court was remanding the case for further consideration – on how to have Elonis conviction upheld.

The Third Circuit did just that, finding that the jury instruction amounted to harmless error and he would have been convicted under either of the discussed standards since there was indisputable evidence in the record that Elonis intended his wife and others to perceive the statements as threats.

The reason this case is relevant to family law cases is that Elonis conviction proves that social media posts will be closely scrutinized by the courts to determine whether or not they can be construed as threats. There is no special First Amendment protection attached to them and context will have a huge affect on whether or not a statement will be interpreted as art or as a threat of harm. In this case, there can be little confusion that Elonis wanted to inflict fear and anxiety on his estranged wife and others around him. His threat to attack an elementary school with the intent to die in “blaze of glory” was concerning enough to prompt a visit from the FBI – an episode that prompted Elonis to “creatively write” and post shortly thereafter a scenario where he uses a knife to quickly slit the agent’s throat as she stood on his porch.

In short, even if Elonis had no intention of carrying out these acts, the trial court and Third Circuit found that he clearly intended them to be threats and whether that determination is made by a reasonable person or if his acts were interpreted as reckless was immaterial to the fact they were made and with a desired affect. Issues of the First Amendment and free speech were never considered and, frankly, I don’t think any court will be looking to carve out violent lyrics as being a protected class of speech. For every Eminem who wins Grammys for writing vividly violent verses about his ex-wife, there will be hundreds or thousands of people who try to circumvent their PFA Orders or try to intimidate an ex-partner through social media or other means and use the facade of “art” and “lyrics” to shield themselves from prosecution or being found to have violated a protective order.

What Court wants to define the line between art and threats? Quite simply, the courts – like many of us – don’t know how to define art, but know it when we see it. Similarly, we might not be able to define an easy catch-all definition of what constitutes a threat over social media, but we can discern context and content make those determinations on a case-by-case basis to ensure both the accused and accuser are protected under the law.

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty.

 

A recent criminal case addressed, in part, an issue we saw in the case of Elonis v. United StatesThe Elonis case went to the U.S. Supreme Court which ultimately reversed the criminal conviction of a man based on statutory construction grounds that his Facebook postings did not offer the requisite mental intent to threaten the victim(s). The Supreme Court’s opinion did not  address any First Amendment rights, however.

The case of Commonwealth v. Lambert, involved a Protection from Abuse Order entered against Lambert, the victim’s ex-boyfriend.  Interestingly, and likely an insight into the voluminous use of social media by Lambert, was the specific PFA Order instruction that he shall refrain from posting “any remark(s) and/or images regarding Plaintiff, on any social network(s), including, but [not] limited to, Facebook, Myspace, Twitter, or any other electronic networks.” In other words, he was not permitted to post anything to social media pertaining to his ex-girlfriend. It should be noted that a Protection from Abuse Order restricts a perpetrator from having direct or indirect contact with a victim. If they do have contact, they could be subject to an Indirect Criminal Contempt.  PFA Orders are civil restraining orders to protect a victim, but they have criminal repercussions: a violation – either verbally, in writing, or physically – will land someone in jail.

With that context in mind, we look at what Lambert did to violate the PFA Order. A day after the Order was entered, he posted a series of Facebook comments in which he does not name his ex-girlfriend, but that she was clearly the subject of the posts. As the Superior Court points out, Trial Courts need to consider the context of the violation and “temporal proximity” of the statements. Perhaps if Lambert had not made his posts a day after he was found to have abused his ex-girlfriend, the context and temporal proximity would have led the court to a different interpretation. The posts were not actually threatening or outwardly menacing (though the victim could certainly feel otherwise), but, as the Court considered, the posts were about the victimThey were discovered by the ex-girlfriend when she went to his Facebook page – she testified that she regularly checks the page for her own knowledge since he is such a voracious social media user that if he was angry or having mental health issues she would have notice of them before risking an interaction with him.

The victim let her local police know about the postings; they contacted the District Attorney’s office, who then initiated the contempt action. He was subsequently found guilty of contempt. That conviction led to the appeal by Lambert as to whether his indirect criminal contempt conviction was a violation of his First Amendment rights to free speech and whether the lack of wrongful intent (i.e. the posts were not threats) should have led to acquittal.

The main issue the Superior Court considered was the First Amendment claim. The Court’s opinion on that issue can be summarized with concept that the PFA Order is contact-based not content-based.  In other words, the PFA does not restrict speech so much as it restricts who the speech is directed at.  This is an important distinctions since restrictions on content must be strictly scrutinized.  Here, however, the contact was – directly or indirectly – made to the victim through Lambert’s public (likely another factor) Facebook profile. By making statements about the victim on a public profile where she could reasonably be exposed to them, Lambert was, effectively, attempting to contact the victim.

As a consequence, his conviction was upheld. His mental intent argument – which successfully led to the overturning of the Elonis conviction – was unsuccessful, as well, since his mental intent to threaten was not at issue; merely the attempt to contact mattered – whether it was to threaten or say he was sorry is immaterial. It should also be noted that the standard of proof for Elonis was the criminal justice system’s “beyond a reasonable doubt,” whereas the standard for finding abuse occurred is the lower “preponderance of the evidence” standard, though an indirect criminal contempt carries the “beyond a reasonable doubt” standard.

The broader implication is that Facebook and social media can be and will be considered forms of communication with the victim of a PFA. Shouting into the void of social media is not without consequences and, as Lambert demonstrates, the intent is secondary to the act of communicating.

My colleague, Mark Ashton, reported on the case of D.P. & B.P. v. G.J.P. & A.P., and identified how the Court’s opinion addressed on a limited basis how Section 3525(2) was, in part, unconstitutional by placing an unreasonable restriction on the parents to raise the children as they deem appropriate, including restricting the children’s exposure to their grandparents.  This decision left open many questions about what happens in circumstances other than separation of six months or more which will likely need to be addressed in the future as grandparents seeking custody re-frame their arguments based on this decision.

One point that I found compelling was that this decision articulated a rejection of the implicit idea that separation, in of itself, equated an unfitness of the parents. As the statute was written, if parties were separated by six months or more then grandparents have standing to bring a custody action. The Court recognized that the statute basically treated separation as a “flaw” and “implicit presumption of unfitness” of the parent when in reality there are numerous parents who parent very effectively while separated and/or divorced, while there are couples in intact marriages who are terrible parents. The Court felt that being separated did not justify a third party needing to step in for the children’s best interests or for the state to exercise parens patrie powers. Separation does not equate abuse, neglect, or an inability to perform parental duties.

Finally, the court reiterated prior case law that when a custody dispute arises between parents and a third party, “the evidentiary scale is tipped, and tipped hard, to the parents’ side.” So, as pointed out in Mark’s blog on this case, the door has been cracked for dealing with grandparents’ standing in cases, there is no doubt that the desire of the parents will create a significant hurdle for the grandparents to overcome even if they establish standing.

123rd.com ostillThe Discovery Rules account for all manner of need for obtaining evidence. Many of these rules are seldom, if ever, utilized by family law attorneys because either they are not germane to a family law case; not permitted by the Divorce Code (i.e. prohibition against discovery in simple support cases), or; family court cases have their own procedure for obtaining the information. One example would be Discovery Rule 4010 which provides for the examination of a party where their mental or physical condition  has been called into question. As demonstrated by the case below, you will commonly see this Rule used in a personal injury case. This rule would not necessarily come into play in the Family Court since the Custody Code and associated Rules of Civil Procedure, for instance, outline how and when a custody or psychological evaluation will occur.

Still, though this rule may not crop up often, if at all, in a family law case, it is still a rule and understanding it may help an attorney whose client is undergoing some form of physical or mental evaluation to be familiar with the Court’s holding in Shearer v. Hafer, 2016 WL 910146.  At issue was whether the trial court erred in granting Hafer’s request for protective order which prevented Shearer from having counsel present during Hafer’s neuropsychological evaluation pursuant to Discovery Rule 4010.

The background to the case is that Hafer was sued by Shearer for injuries sustained in an automobile accident. Shearer underwent a neuropsychological evaluation and the defendant in the case, Hafer, sought to have an independent evaluation conducted setting up a case of dueling experts. Shearer, as the plaintiff and party seeking damages, did not generally oppose the request, but insisted on having their counsel present for the test.  This demand was objected to by the independent physician hired by Hafer on, among other reasons, professional ethics grounds. Hafer filed for a protective order to keep Shearer’s attorney out of the evaluation. Their justification for the exclusion was that Shearer’s attorney, through observation, could create areas of cross-examination of the expert’s eventual report, particularly when viewed against the doctor’s written statements. The concern, it would seem, is that in watching how the sausage is made that counsel attacking pieces of the process on cross-examination could unfairly invalidate a conclusion by focusing on one of numerous elements which in isolation may not lend themselves to that outcome. Having an adverse audience, it was argued, could lead to invalid or biased results.

So while the party being examined under the rule can have counsel present – for, among other reasons, to avoid any self-incrimination – the rule is silent as to the access of the opposing counsel.  The Superior Court’s decision established the prohibition against the presence of outside observers during a neuropsychological evaluation and found good cause for the protective order.  The Trial Court made a careful consideration of the issues and opinions and ethical issues of the governing bodies for neuropsychology professional associations and potential for an invalid or biased outcome.  The Trial Court also expressed a concern that the doctor’s written statements could be used for impeachment purposes if the examination were conducted in the presence of a third party.

Those concerns led to the conclusion that having the “requesting” party’s attorney in the room carries more risk to the process than reward and for that, counsel is excluded and left wait until the report is issued and wait to cross-examine the physician at trial.

(Photo Credit: 123rf.com / ostill)

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter@AaronWeemsAtty.

Tools of the TradeSince the child custody statute was updated in 2010, a considerable about of time and effort on the part of the Superior Court has been spent clarifying various aspects of the law. Among the more pertinent issues related to how the statute was to function is the trial court’s obligation to consider and opine on all of the custody factors. Previous appellate cases have shaped this requirement (or, conversely, the absence of the requirement) where “discrete” issues of custody are being considered or where a substantive change to the custody schedule is occurring.

It is the latter where the Superior Court has recently remanded a case back to the Trial Court with an order for it to fully explore and articulate how they have addressed the custody factors in a given case. In that case, C.A.J. v. D.S.M., 2016 WL 685169, Father filed a contempt petition on the parties 2013 agreed custody order. Within that petition, he sought a significant modification of the custody schedule to award him primary custody.

Their original 2013 agreement provided that Mother had primary physical custody during the school year, and the parties had 50/50 custody from May until September on a week on/week off basis.  Eventually issues arose and Mother relocated without judicial or Father’s approval as required by the Custody statute.  Father filed for contempt of the 2013 custody order and sought to modify custody to have primary physical custody. He did not file a separate modification petition. A 2015 Order was entered by the trial court after a hearing whereby the parties were to share physical custody on a two week on/two week off schedule.

Mother appealed on the basis that the trial court did not consider all of the custody factors, nor did she have notice sufficient to satisfy the due process clause of the Constitution. Her theory was essentially that whether or not the Trial Court can modify a custody order during a contempt hearing rests on the responding party having sufficient notice of a request for modification.  When modifying custody, due process rights attach to the responsive party.  Without sufficient notice, modification cannot occur.  In this case, Father’s contempt petition included a request to modify physical custody of the child.  The Court directed the parties to custody conciliation which both parties participated in and which, by extension, demonstrated mother’s constructive knowledge that the custody order was at issue. Essentially, mother knew that within the contempt the underlying custody order was in contest and potentially subject to change. Accordingly, the Superior Court upheld the Trial Court’s ability to modify the custody order within the contempt action. The Superior Court also relied on case law and Rule 1915.15 which allows for modification of custody/visitation Orders where it is in the best interests of the child.

So while the Superior Court would not disturb the Trial Court’s ability to modify the order, it did take exception with how it addressed the custody factors. The Superior Court found that the Trial Court’s truncated list of custody factors identified in its opinion was insufficient, citing Pennsylvania case law for the requirement that all custody factors be considered.  On that basis, the Superior Court remanded the case back to the trial court for the limited purpose of issuing an opinion addressing all custody factors.

This case does establish that a contempt action with sufficiently pled averments for a modification of custody will be sufficient to establish notice for due process purposes and avoid having to file two petitions or pursue custody and modification on two separate procedural tracts.

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter@AaronWeemsAtty.

 

Potential Gold Mine? (No)
Potential Gold Mine? (Answer: No)

Leslie Spoltore, a partner in our Wilmington, Delaware office, recently wrote a post on our Delaware Family Law Blog about a uniquely unusual to Delaware “asset:” license plates.

Unlike every other state in the Union, there seems to be an dedicated, obsessed, and well heeled local market for low number Delaware license plates. According to the article written by Adam Duvernay of The News Journal, a couple recently paid $325,000.00 for license plate number 14. In Delaware, you can reuse the license numbers and even transfer them to other people (either through sale, will, or auction). Consequently, enthusiasts will bid to own low plate numbers. For perspective, the Governor, Lieutenant Governor, and Secretary of State have license plate numbers 1, 2, and 3, respectively. Number 6 sold in 2008 for $675,000.00.

The larger point behind this unique bit of Americana is that the value of a marital estate may take many forms. We’ve written about the million dollar shoe collection, but there could be any number of unusual collectibles or pieces of personal property that are more than the norm and, in fact, justify their own consideration, appraisal, and identification as marital assets. I have had a case where our claim for antique carnival games was countered (unsuccessfully) by a claim for value in a Longaberger basket collection (apparently the secondary market had dropped out at the time of the case).

You simply never know where the value may appear and it is important for clients and lawyers to fully explore every potential source of value.

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// Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter@AaronWeemsAtty.

Welcome Gift for Coming to PA and Violating a Restraining Order
(Photo Credit: www.wisegeek.com)

 

Back in December an interesting news report appeared out of Arkansas involving two Pennsylvania brothers who robbed a bank in Arkansas while their companion waited in the getaway car with her two children.

What happened next was an excellent example of how the Uniform Child Custody Jurisdiction and Enforcement Act can operate to expeditiously reach the right outcome for an interstate custody issue.

The children’s father in Pennsylvania, who had been in a three year legal battle with the children’s mother, immediately traveled to Arkansas after learning of the incident. A few weeks earlier, Mother had left Pennsylvania with the children with the children and two men intending to go to Arizona.  When he arrived in Arkansas, the children were in the custody of the local Department of Human Services and could not be released to him. Presumably due to the circumstances, they were in the initial stages of Arkansas dependency process to determine whether they should be placed in foster care until a determination as to what their long-term placement would be.

Fortunately, it would appear that the UCCJEA operated as intended and the judges presiding over the custody case in Pennsylvania and the dependency judge in Arkansas, respectively, spoke and determined that Pennsylvania had jurisdiction over the children and the right to determine who may take custody of the children. Fortunately, having already arrived in Arkansas, their father was there to take custody and return to Pennsylvania.

No other reports have surfaced as to what happened to the mother. She was in the vehicle, so it is unclear whether she is being charged as an accomplice to the robbery. What is clear, however, is that after having absconded with the children and placed them in imminent danger, even if she is released and returns to Pennsylvania she has severely jeopardized her custodial rights.

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter@AaronWeemsAtty.

6874479-3d-rendering-of-a-server-room-with-white-serversIn nearly every facet of litigation, the issue of electronic discovery and how to manage its production and review is becoming an important issue. This is no different in family law cases. Increasingly, individuals, businesses, and financial institutions are producing discovery via PDFs, hyperlinks to shared databases, and hard drives or cloud access.  The collection of data and record retention policy gives us access to millions of megabytes of data to download, sift through, and produce. The size of discovery productions in family law cases can at times rival or exceed that of more “traditional” litigation.

The pressure to handle these productions in a secure and ethical way has grown so great that my firm took the affirmative step some time ago to select my partner, Joshua Hummel, to chair our Electronic Discovery Practice Group. Josh’s group is tasked with planning and managing Fox Rothschild’s e-discovery compliance. Thanks to Josh and his staff, our firm is extremely capable of handling large scale e-discovery cases which might otherwise drown a litigation department.

The burden is not just on the attorneys and clients, either. The courts have become overrun with electronic discovery issues.  It is with this in mind that Courts throughout Pennsylvania have begun to set up special discovery master programs to deal with e-discovery and complex discovery cases.  As highlighted in an article in The Legal Intelligencer, many of the local Philadelphia courts, both state and federal, have adopted special masters.  Montgomery County has had private attorneys working as discovery masters for some time with Wendy Rothstein from my office serving as a master, while in Berks County, J. Benjamin Nevius of our Exton (Chester Co.) office appointed as a discovery master last fall.

The ultimate intent of a special master program – like with any court reform – is to speed up the litigation process and to deal with discovery issues efficiently and effectively.  As cases become increasingly based on e-discovery and the laws and rules regarding their production evolve, it will be up to the attorneys to help their clients manage the information and ensure a production compliant with the Discovery Rules is made.

(Photo Credit: 123rf.com; zentilia)

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter@AaronWeemsAtty.