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Home My WebLink About2006-4537 Civil CARLISLE CARRIER : IN THE COURT OF COMMON PLEAS CORPORATION, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : : : v. : : NO. 06-4537 CIVIL : BRITTANY FOX, : Defendant : CIVIL ACTION - LAW ORDER OF COURT th AND NOW , this 30 day of July, 2007, upon consideration of the Motion for Sanctions by Carlisle Carrier Corporation and Defendant’s Response thereto, IT IS HEREBY ORDERED AND DIRECTED that the Plaintiff’s Motion for DENIED. Sanctions is By the Court, M. L. Ebert, Jr., J. Douglas Marcello, Esquire Attorney for Plaintiff 1501 Commerce Avenue Carlisle, PA 17013 Jeffrey B. Rettig, Esquire Attorney for Defendant 126-128 Walnut Street Harrisburg, PA 17101 CARLISLE CARRIER : IN THE COURT OF COMMON PLEAS CORPORATION, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : : : v. : : NO. 06-4537 CIVIL : BRITTANY FOX, : Defendant : CIVIL ACTION - LAW IN RE: DEFENDANT’S MOTION FOR DISCOVERY SANCTIONS OPINION and ORDER OF COURT EBERT, J., July 30, 2007 - STATEMENT OF FACTS On or about July 19, 2006, David Rocek, an employee/driver for Plaintiff Carlisle Carrier Corp, was operating his employer’s vehicle on I-81 Northbound in Hampden Township, 12 Cumberland County, PA. Around 2:00 p.m. of the same day, another vehicle operated by Brittany Fox moved into the same lane as Plaintiff’s vehicle. Plaintiff’s vehicle was 34 subsequently forced off the road and eventually hit another car. Defendant admitted to the 5 State Police that she did not see Plaintiff’s vehicle when she began to make the lane change. 6 Due to Defendant’s actions, Plaintiff suffered damages and now seeks compensation in this negligence case. 1 Plaintiff’s Motion for Sanctions, filed March 5, 2007, (hereinafter, “Pl. Motion for Sanctions ¶ __”) ¶ 9; Defendant’s Reply to Plaintiff’s Motion For Sanctions, filed March 14, 2007, (hereinafter, “Def. Reply ¶ __”) ¶ 9 2 Plaintiff’s Complaint, filed Aug. 8, 2006, (hereinafter, “Compl. ¶ __”) ¶ 3 3 Pl. Motion for Sanctions ¶ 10; Def. Reply ¶ 10 4 Pl. Motion for Sanctions ¶ 10 5 Compl. ¶6; See also Def. Reply ¶ 10, (“It is admitted that the Defendant cut off Plaintiff’s truck.”) 6 Pl. Motion for Sanctions ¶ 11; Def. Reply ¶ 11 The current issue in this case stems from Plaintiff’s contention that Defense counsel did not conduct pre-trial discovery in accordance with the Rules of Civil Procedure and the Rules of Professional Conduct. Admittedly, Defense counsel took a sworn statement of Plaintiff’s driver 7 without giving notice to Plaintiff or its counsel. Plaintiff’s driver gave the sworn statement with his own personal attorney Gerard C. Kramer, Esquire, present. However, Kramer is the driver’s attorney for his own contemplated personal injury action and not the counsel for 8 Plaintiff in this case. Kramer claims he was unaware of Plaintiff’s action for damages to its 9 vehicle prior to completion of the sworn statement. Defendant’s counsel did not fully advise Plaintiff’s driver or his attorney of the matter pending with Carlisle Carrier or that his statement 10 could be used in this matter. Defendant did not reveal that he had interviewed Plaintiff’s 11 driver for a significant time after the statement. DISCUSSION Plaintiff has argued that the conduct of Defendant’s lawyer as described above violated both the Rules for Depositions and Discovery and the Rules of Professional Conduct. The Pennsylvania Rules of Civil Procedure outline the correct method for attorneys to conduct discovery – including rules pertaining to depositions and other information in possession of the opposing party. See Pa. R.C.P. 4001 et. seq. According to the Rules, “when the deposition is received by the party taking the deposition, the party shall promptly give notice thereof to all other parties.” Pa. R.C.P 4004(d). 7 Def. Reply ¶ 17 & 19 8 Def. Reply ¶ 23 9 Pl. Motion for Sanctions ¶ 25 10 Pl. Motion for Sanctions ¶ 26 11 Pl. Motion for Sanctions ¶ 32; Def. Reply ¶ 23 2 Sanctions resulting from Deposition and Discovery violations are governed by Rule 4019, which provides: (a)(1) The court may, on motion, make an appropriate order if (i)a party fails to serve answers, sufficient answers or objections to written interrogatories under Rule 4005; (ii) a corporation or other entity fails to make a designation under Rule 4004(a)(2) or 4007.1(e); (iii) a person, including a person designated under Rule 4004(a)(2) to be examined, fails to answer, answer sufficiently or object to written interrogatories under Rule 4004; (iv) a party or an officer, or managing agent of a party or a person designated under Rule 4007.1(e) to be examined, after notice under Rule 4007.1, fails to appear before the person who is to take the deposition; (v) a party or deponent, or an officer or managing agent of a party or deponent, induces a witness not to appear; (vi) a party or an officer, or managing agent of a party refuses or induces a person to refuse to obey an order of court made under subdivision (b) of this rule requiring such party or person to be sworn or to answer designated questions or an order of court made under Rule 4010; (vii) a party, in response to a request for production or inspection made under Rule 4009, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested; (viii)a party or person otherwise fails to make discovery or to obey an order of court respecting discovery. Pa. R.C.P. No. 4019(a)(1). An examination of the above Rule reveals that sanctions may, as a general proposition, be imposed for failing to provide discoverable information. The 1978 comments to the Rule indicate that the specific violations in the list “are only illustrations and do not limit the all 3 inclusive coverage of subsection (viii).” Pa.R.C.P. 4019, Explanatory Comment (1978). However, an examination of the text of the catch-all subparagraph (vii) implies that sanctions are allowed if, “a party or person otherwise fails to make discovery or to obey an order of court respecting discovery.” In the case at bar, the Defense attorney has not failed to make discovery nor has he failed to obey an order of court respecting discovery. Also important is the fact that the party, i.e. the Defendant, herself has not failed to make discovery or disobeyed an order of court; rather the actual complaint before this Court is the manner in which the Defendant’s attorney conducted discovery. Thus, the alleged violating behavior of Defendant’s counsel is not listed within the proscribed impermissible actions. The sanctions section of the Rule 4019 of the Rules of Civil Procedure are aimed at dissuading counsel from wrongly influencing witnesses, delaying permissible discovery, disobeying a court order or not answering requests for discovery. The true issue at bar is not whether Defendant’s counsel violated discovery rules in a manner akin to those violations listed in Rule 4019, in which case the discovery sanctions may be appropriate. Instead, the key question before us is whether it was improper for Defense counsel to conduct a deposition without the presence of Plaintiff’s attorney. Put another way, the lateness of the Defense counsel’s delivery of this information is not what brings Plaintiff into our courtroom, rather it is the fact that the taking of the statement occurred without Plaintiff’s counsel’s knowledge. We are therefore of the opinion that this is an issue of professional conduct, rather than an issue pertaining to a direct violation of discovery rules. The Pennsylvania Rules of Professional Conduct 4.2 states: In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. 4 While the language of Rule 4.2 is easily applied when the parties are individuals, matters involving an organization party, such as the Plaintiff in this case, present a more difficult problem because organizations can only act through individuals. However, the black letter text of the rule does not specify which individuals related to an organization are covered by the rule. Based on Comment 7 of Rule 4.2, there are three categories of persons related to an organization who are considered to be a represented party and with whom ex parte communications are forbidden absent consent of opposing counsel or authorization by law: 1) persons "having a managerial responsibility on behalf of the organization;" 2) persons "whose act or omission in connection with [the matter in suit] may be imputed to the organization … ;" 3) persons "whose statement may constitute an admission on the part of the organization." In this case, Rocek likely falls within the second and/or third categories – persons whose act or omission in connection with the matter may be imputed to the organization or whose statement may constitute an admission on the part of the organization. Even though Defense counsel claims that the interviews of Fox and Rocek were related to Rocek’s potential claim for personal injuries, and that he did consult with Rocek’s personal lawyer, the sworn statement could still be used against Plaintiff in this case and any statement by Rocek could imply liability to the organization or constitute an admission on the part of the organization. Defense counsel argues that nothing was said in the sworn statement which was not already subject to discovery and served on Carlisle Carrier’s attorney. While such a position may mitigate the situation, the argument misses the mark and dismisses the gravity of the ethical matter. Rocek’s statements could undoubtedly affect the Plaintiff’s case and therefore Plaintiff’s counsel should have been present for the statements. 5 Despite the gravity of Defense counsel’s actions, we are hesitant to impose the requested sanctions, which include a request for entry of default judgment against Defendant Fox, sealing and precluding driver Rocek’s statement, and disqualifying the Defendant’s attorney. The specific language of the rule contains sufficient ambiguity, in this Court’s opinion, to support a reasonable attorney’s belief that if the person he is interviewing is represented by his own lawyer, he has complied with the rule. While the question of whether Rocek’s statement caused any substantial damage to the Plaintiff’s case is a matter of opinion, it appears clear that his statements would have inevitably been revealed in later discovery proceedings. Most important to this decision is the stated policy of the Rules of Professional Conduct that they are not to be used as a tactical weapon which may affect the outcome of litigation. Plaintiff has requested that this Court impose procedural sanctions, the net result of which will punish the Defendant in her individual capacity. We see such actions as contrary to the purpose of the Rules. The Preamble and Scope of the Rules reveal that the Rules of Professional Conduct are meant to, “define proper conduct for purposes of professional discipline.” Later in the same section we take specific note that, “the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons.” Rules of Prof. Conduct, Scope [19], 42 P.S.C.A. Clearly, the rules are meant to regulate the conduct of lawyers and not punish individual clients. We will not punish the client for her attorney’s ethical choices, especially when the language of the governing rule may be subject to some interpretation. We will leave the decision as to whether Defense counsel’s actions violated the Rules of Professional Conduct to the Disciplinary Board of the Pennsylvania Supreme Court. Should Defense counsel’s conduct 6 prove to be in violation of the Rules, then a proper sanction for him may include payment of the Plaintiff’s attorney’s fees in regard to litigating this matter. Accordingly, the following order shall be entered: ORDER OF COURT th AND NOW , this 30 day of July, 2007, upon consideration of the Motion for Sanctions by Carlisle Carrier Corporation and Defendant’s Response thereto, IT IS HEREBY ORDERED AND DIRECTED that the Plaintiff’s Motion for DENIED Sanctions is . By the Court, M. L. Ebert, Jr., J. Douglas Marcello, Esquire Attorney for Plaintiff 1501 Commerce Avenue Carlisle, PA 17013 Jeffrey B. Rettig, Esquire Attorney for Defendant 126-128 Walnut Street Harrisburg, PA 17101 7