If you are a lay reader cruising the net for information about how to handle your divorce, return to your search engine now in pursuit of more fertile material. Interlocutory appeals of discovery orders can numb the minds of invertebrates. But real lawyers might be interested.

In 2008 the representative of an estate (ie., dead person) brought an action for the wrongful death of his son. The action was brought against three family members alleged to be responsible for causing the child’s death. The gravamen of the case was that the decedent at fourteen years of age had access to a handgun; the defendants owned it knew that he played with it as did their 16-year-old son. The 14-year old’s parents went away, the 14 and 16-year-old got possession of the gun and the following morning the 14-year-old was found dead of a gunshot to the head. It appears uncontested that the 14-year-old took his own life.

The defense of the gun owners was that their 16-year-old asked the 14-year-old if he had the gun before they went to bed the night before the shooting and the 14-year-old said he did not have it.

In the wrongful death and survival action, the plaintiffs issued interrogatories (written questions) asking whether the defendants had sought any mental health care following the shooting. The question was objected to by the defendants (including the 16-year-old) on the basis that this question would not lead to admissible evidence. Defendants were also asked to produce documents related to a criminal trial which appears to have been brought against the 16-year old’s father. This, also was objected to. The trial court granted a motion to compel the discovery requiring the 16-year old’s mother to reveal the identity of her mental health counselor. It sustained the objection to the 16-year old’s father having to produce any notes he provided to his attorney in a criminal trial. The 16-year old’s mother did provide the name of her therapist but objected to any further inquiry on the basis that her meetings with the licensed psychologist were privileged. Concerning the defendant father’s trial notes, a letter was produced by his criminal trial counsel that the notes were taken by father and provided solely to counsel as part of the criminal defense. The trial court ordered production of the notes and the psychological records or a privilege log explicitly setting forth the basis for the objections. Two logs were produced for the psychological records; one applicable to treatment by a psychologist and a second related to sessions with a social worker employed in the psychologist’s practice. Another log was produced asserting that the notes for trial and a related deposition were made by the defendant’s father solely to assist his attorney. A second motion to compel was filed and the trial court ordered production of the material to the court in camera for review. For any laypersons who have endeavored to read this far, in camera means that the Court would examine the documents and determine whether the psychologist-patient and attorney-client were validly claimed. The defendant’s appealed that March, 2015 order.

Was this order appealable? Clearly it did not dispose of the case. But the defendants relied on Pa.R.A.P. 313. The appellee response was that even if the matter was appealable as a collateral order, this was only an order for in camera review and, as such, it could be that the appeal might be moot if the trial court affirmed the claims of privilege.

The Superior Court panel opinion pointed to Yocabet v. UPMC Presbyterian, holding that even a purported claim of privilege subjects an order to produce to appellate review under Pa.R.A.P.313. 119 A.3d 1012 (2015). This decision relied upon Ben v. Schwartz, 729 A.2d 547 (Pa. 1999) which held that denial of a claim of privilege is appealable. The appeals court further noted that privileged materials are not subject to provisional release to a judge for review until it is determined that they are not subject to privilege. Com. v. Kyle, 533 A.2d 120,129 (Pa. S 1987); Com. v. Simmons, 719 A.2d. 336 (Pa. S. 1998). Accordingly, the orders to produce were appealable and the fact that they were to be produced to the court alone (in camera) was immaterial.

On the substantive questions, the court noted that its scope of review was plenary. Having so held, the Superior Court found no language in the trial court opinion addressing either the mental health or attorney client privilege. The opinion begins by noting that statutory privileges such as these are not to be disregarded.

In seeking to know what the defendant told her mental health professional, the plaintiff’s clearly crossed the privilege line inappropriately. The Court appears to open the door to discovery of what the therapist diagnosed, observed or opined, but the patient’s statements are out of bounds. (Opinion p. 22). On the subject of whether such declarations to a social worker fall within the ambit of the privilege the Court sidestepped the issue directly and ruled that any statement made to an agent who is part of a treatment team managed by a psychiatrist is protected. See Com v. Simmons, 719 A.2d. 336, 341 (Pa.S. 1998). Under Com v. Kyle, supra, the same principle appears to apply to a psychologist. This court however, did not extend this to social workers not working under a psychologist/psychiatrist. (Opinion 25)

On the subject of the notes taken by the defendant father in the context of the criminal proceeding at the specific request of his attorneys, these documents were also held to be attorney client privileged even though the defendant could not recall how they came about. The warranty of the attorneys representing him that they had asked their client to provide the notes (as reflected in their affidavits) was sufficient to uphold the privilege.

Although decided in a tort setting, the parsing of the extent of these privileges is worthy of consideration in both a custody and family law setting generally.

Farrell v. Regola, 2016 Pa. Super. 241 (J-A07021-16) 566 WDA 2015   Decided 11/8/16

Listen to the rhetoric of any political campaign and you will hear the familiar refrain. “Family business is the backbone of the American economy.”  Factually, true enough but history has taught us that families that play together don’t always stay together.  So here is the common scenario: a couple forms a business. They do it on the dining room table of their first apartment and without thinking about any consequence, husband takes 80% of the stock and gives wife 20% because she is going to do the books and scheduling the appointments. Or perhaps they do it 50/50.  But as time evolves one spouse clearly becomes the “active” manager and the other moves on to other things.  The business grows and today the board room of the business is 4x the size of the dining room it was started in.

You represent the “outsider” spouse. She owns 20% of the business and you ask for the tax returns and other related documents in modest proportion.  You are ignored.  You ask her to contact the family accountant who now does the accounting she once did and when she asks them for the same records, she is ignored.

You can always file motions to compel in family court. Sometimes effective; sometimes not. But there is another avenue worthy of consideration.  You not only represent a spouse, you also represent a minority shareholder who has statutory rights under Pennsylvania’s business corporation law.

That law does a better job of defining rights than anything we have in the Divorce Code, where the business involved is not already required to file disclosures under federal and state law with securities regulators. For example, every shareholder has the right to annual financial statements including income statements and balance sheets.  They are to be mailed to the shareholders 120 days after close of the fiscal year.  If independent analysis is done in the form of a compilation, review or audit, that report is also to be published once the accountant has completed the work. The applicable section is 1554 of the Business Corporation Law and the comment to it states that failure to comply is clear evidence of conduct sanctionable under 42 Pa. C.S. 2503(7).  These rights are not really subject to limitation by the shareholders agreement unless it was adopted prior to 1991 and even then it applies only to shareholders who had that status in 1991.

There is also the right to examine the books and records of the corporation. This includes, stock registers, shareholder address records and the bylaws and minute books.  The right is to be exercised at the place where the records are kept during normal business hours and includes the right to have copies made.  Section 1508.  There is a good faith standard here but that is intended to keep shareholders from essentially occupying the business with a limitless set of demands.

Failure to comply with a written request within five days invites a petition directed to the court to order the inspection. The burden falls on the corporation to show improper purpose in proffering the request.  Pennsylvania corporations are required to hold an annual meeting every 12 months. Section 1755.  If a meeting has not been held in 18 months any shareholder has the right to demand one.  In addition, special shareholder meetings can be called by any shareholder or group holding 20% or more of the voting stock.

Unless “written out” of the corporate documents, cumulative voting is permitted. This allows each shareholder to vote all of his shares for one director candidate even though there might be three open seats.  This allows minority shareholders to aggregate votes to assure that one of their candidates can secure a seat on the board.  So, in a setting where there are three board positions open and six candidates, a shareholder with 2,000 shares can cast 2,000 votes for one candidate.

Section 1791 allows for judicial supervision of corporate governance. One such right is to secure a summary order for a corporate meeting where the bylaws designate an annual meeting date but management fails to call the meeting.  Section 1793 allows anyone to raise issues of improper corporate conduct.

Majority shareholders have a fiduciary duty to act for the benefit of the corporation in contrast to their own individual benefit. Ford v. Ford, 878 A.2d 894,905 (Pa, S, 2005); Viener v. Jacobs, 834 A.2d 546,556 (Pa.S, 2003).  A majority that acts to its own benefit to the oppression of the minority may be liable in damages.  This can include conduct like refusal to pay dividends where there are profits and reasonable cash flow, appropriation of business assets or payment of unreasonable salaries.  It also includes withholding information from shareholders.  The same is true of officers and directors, Sections 1712(a)&(c).

Indeed, much of this disclosure is available through the divorce process. So why spend any time thinking about it?  To this writer’s mind, the rights and remedies are much more clearly articulated and not really subject to the “it’s just harassment” defense commonly seen in discover court.  Second, when attacked from a corporate governance viewpoint, you may find other shareholders of the business will rally to your cause or apply pressure to the uncooperative spouse to “get this solved, it’s costing the corporation money.”  These tools may open some doors to resolving not only the discovery but the case itself.

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)


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)


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 learned this week that former Secretary of State Hillary Clinton may have used personal email accounts to transact State Department business.  Chances are you may have read the article and quickly turned back to your office computer to confirm your Saturday night dinner plans or to email your attorney about filing a joint tax return for 2014.

Perhaps your electronic musings don’t have the importance of communications from the Secretary of State, but you should know that the law is clear.  You are entitled to no expectation of privacy if you use an office computer to carry your personal mail.  Zero.  Now some offices do not retain emails that have been sent/received using private accounts such as msn, Comcast or AOL.  But that appears to be a function of how the server works rather than office policy.

Chances are, your employer really doesn’t care if you plan your next vacation on the office computer.  But, there are folks out there who do want to know these things.  People like a former or estranged spouse.  If he or she should decide to subpoena your email account either at the office or otherwise, there is a reasonable chance that the information will be published.  Under Pennsylvania law, if the material is sought pre-trial you will get notice of the request and a chance to object.  But if the information is subpoenaed for trial, you may be learning about this stuff in the courtroom.

Another thing.  Clients commonly email us from office servers (i.e. brendak@bigcompany.com) with information they probably intend to be confidential.  If you are using your office email address, it probably has no protection from discovery in your family law case. On the other hand if sent or received on a personal account, you have a strong basis to contend that this was as private as a telephone conversation and therefore protected from discovery.

So be aware of what account you are using when you email. Don’t permit Ms. Clinton’s problem to become yours.

 We live in an age when both people and transactions cross state borders more and more often. Evidence concerning what occurred in Pennsylvania is often located outside of the four corners of the Commonwealth and thus, beyond the subpoena power of Pennsylvania Courts.  This is true for all forms of litigation, not just family law.


In the past, if you needed to secure documents or depose a witness outside our borders, you had to secure something called a foreign commission.  Essentially, one filed a motion in the Pennsylvania case to be permitted to conduct discovery outside of the Commonwealth.  Your opposing parties could contest the motion here, typically on the basis that the evidence was not relevant or a mere fishing expedition.  If your relief was granted, you next hired counsel in the jurisdiction where the evidence or witness was located.  That attorney would file a miscellaneous action in the foreign court (“foreign” meaning outside Pennsylvania) specifying the needed discovery, indicating that Pennsylvania had approved pursuit of it and asking for leave to proceed in the other state.  This action would be served on the witness or records custodian outside Pennsylvania.  That person or entity had its own right to ask that the relief be denied. Again, most often that would be because they denied relevance.


Effective December 24, 2012 Pennsylvania adopted the Uniform Interstate Depositions and Discovery Act (Act No. 183 of 212: SB 79 of the 2011 Session).  This act has been adopted by 28 states (including (DE, MD, NY, VA).  The purpose is to streamline the old cumbersome procedure by making it a one-step process.  If you the litigant in Pennsylvania need evidence in New York, you will need to follow the New York statute and engage counsel in New York to actually take the discovery.  But the “permission” part of the old foreign commission rules has been abandoned as far as the Commonwealth is concerned.  Similarly, if a New York litigant wants to take discovery here the New York litigant issues a New York subpoena to the Prothonotary in the county where the witness or evidence is located.  The Prothonotary is to “promptly issue a subpoena for service upon the person to whom the foreign subpoena is directed.” 42 Pa. C.S. 5335(b). The Pennsylvania subpoena is to conform to the foreign subpoena in content and have the identity of all parties and/or counsel, if represented. The statute expressly adopts Pa. R.C.P. 4009.21-.27.


Pennsylvania parties served with such a subpoena must file for a Protective Order under Rule 4012 if they wish to oppose the request discovery.  Otherwise, the re-issued foreign subpoena (now in its Pennsylvania form) is subject to the same powers as any other Pennsylvania subpoena including the right to enforce through contempt. 42 Pa. C.S. 5337.


The statute makes clear that parties in Pennsylvania may informally comply.  The remedy is limited to subpeonae issued by any of the United States, Puerto Rico, the US Virgin Islands and the District of Columbia.



(Image: http://www.opencms.org/en/)


The practice of family law has seen a shift in discovery in recent years with the increased use of social networking sites by clients. There are increasingly easy ways to access and download the histories of websites like Facebook; the implications to clients is what they thought were private comments to “friends” do not evaporate into the ether of the internet, but are, instead, discoverable and producible information which may be used at trial. I discussed this issue before on our blog and how family law lawyers are reporting a major increase in the use of online evidence at trial.


Facebook’s ability to download the entire history of the account undoubtedly offers the largest trove of discoverable information, but Twitter recently announced that they are providing a method for downloading account histories, as well. Since people often discuss every aspect of their personal life with their private – and not so private – “friends” online, these account histories are proving to be important sources of information, particularly with many Pennsylvania courts emphasizing the importance of parties fostering positive relationships between the child and other parent. Consequently, long strings of negative comments about their ex-spouse (for example) could have an adverse impact on a parent later on in a custody trial when those comments are introduced into evidence.


The advice most attorneys give to their clients using social networking sites during a case is simple: STOP. Their next advice should be not to delete anything since the Court could take an adverse view on a party destroying discoverable information. Social networking is a double-edged sword of providing a community of support to people, but also becoming a forum to defame, insult, or criticize the other side. Knowing Twitter is joining Facebook and other sites in making accounts so easily produced should give people further pause about what they say online about the other party.

As lawyers we are commonly asked to forecast judicial outcomes.  What will a court do given a stated set of facts?  Of course, it is rare for facts to be the same in the eyes of two adverse parties but even when the facts are agreed, lawyers and judges sometimes cannot agree on the law.  Thus begins the story of Carl Barrack and his suit against Sodexho and the hospital that treated him.

This is not a family law case but the November 23 ruling of the Superior Court has implications for family law and all other forms of civil (non criminal litigation).  In this decision the Superior Court reversed itself and a prior ruling by a trial court in Cumberland County.


Carl Barrack sustains injuries when a chair he was sitting in suddenly collapsed.  He sued the business where the chair was located and the physicians who treated him.  Under rules regulating pre-trial discovery it is fairly common and understood that the defendants he sued for his injuries are entitled to secure copies of his medical records.  In this case the defendants did precisely that. The rules allows Mr. Barrack and his attorney to object any subpoena issued by other parties to the case.  In this case the demand was for all records relating to Mr. Barrack.  It was directed to the treating physician’s employer, a hospital.  Because this was fairly routine and otherwise not the subject of objection by Barrack, the hospital produced the records of the treating physicians to the extent they reflected what was Mr. Barrack’s course of treatment from the time of admission.


When it published these records in accordance with the subpoena the hospital noted that Barrack’s physician had been identified as Mr. Barrack’s expert witness concerning his injuries and that records of reports and correspondence generated between the treating physician and Barrack’s lawyer were not being produced because they were not medical records concerning treatment but expert opinions related to either the nature or extent of Barrack’s injuries.


The defendant’s were not content with this answer.  No objection to the subpoena had been filed.  Therefore, they asserted that any objection was waived and that the trial court should compel production of all records including correspondence between the expert and Barrack’s attorney.

The trial court agreed despite the argument made by Barrack’s attorney that communications between a lawyer and his client’s expert were not permitted under the law.  The matter was appealed to the Superior Court which heard the case because it involved an assertion of privilege which, if not heard could forever harm the Plaintiff’s case.


A three judge panel of the Superior Court agreed with the trial court largely on the basis that the interests of justice should permit open discovery of how expert opinions had been formed.  This was contra to wide held understandings in the legal community and certainly many lawyers and experts held candid correspondence in their files concerning how an expert opinion was received.

Because this was so controversial, the parties sought immediate review by a nine judge panel of the Superior Court.  That request was granted in November, 2010 approximately sixty days after the three judge panel of the same court affirmed the trial court.


This panel decision prompted tremendous controversy.  The prevailing view had been that communications between a lawyer and the expert witness were not subject to inspection or inquiry. Many litigation attorneys trembled in fear that communications that they had made in pending cases with experts would now be subject to scrutiny.  These letters had been written before Barrack I was decided.


The case was complicated by the fact that the expert was also the treating physician.  It is clear that the physician’s treatment records are subject to review in a case for personal injuries.  But the use of the same physician as the expert witness is more the exception than the rule in this area of practice.


The decision is Barrack II reversed the panel decision and is a strict construction of Pennsylvania Rule of Civil Procedure 4003.5. That rule strictly limits what access a party to litigation gets to another party’s expert. The entitlement set forth in the rule is to either answers to interrogatories regarding who the expert is and what is the substance of the expert’s findings or a copy of the expert’s report. Anything beyond that is secured either by agreement or through a separate court order based upon cause shown. Pa. R.C.P. 4003.5 (a)(3). Had the Supreme Court intended for litigants to secure more by right, they would have made the rule more permissive.


The argument was asserted by the defense attorneys that the plaintiff’s failure to object to the subpoena was waiver of the rights set forth under the rule. The Superior Court rejected this as well noting that when the subpoena was issued it was not clear to the party issuing it that the physician had a dual role as both treating physician and expert witness. The plaintiff was within his rights to assume that the discovery material would be limited to treatment records.


The decision is in a civil case but it has direct bearing on family law cases involving experts of all stripes. An expert report in family law is governed by the same rule as in personal injury cases.