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HomeMy WebLinkAbout2011-2994 SCHOOL BOARDS INSURANCE : IN THE COURT OF COMMON PLEAS COMPANY OF PENNSYLVANIA : OF CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF : : V. : : COZEN O’CONNOR AND : LINDA KAISER CONLEY, ESQ., : DEFENDANTS : 11-2994 CIVIL TERM IN RE: PLAINTIFF’S MOTIONS TO COMPEL DEFENDANTS’ RESPONSES TO PRE-COMPLAINT DISCOVERY AND FOR EXTENSION OF TIME TO FILE COMPLAINT BEFORE MASLAND, J. OPINION AND ORDER OF COURT Masland, J., June 2, 2011:-- Before the court are two motions to compel pre-complaint discovery and a motion for an extension of time to file complaint filed by the Plaintiff, School Boards Insurance Company of Pennsylvania, Inc. For the following reasons, the motions to compel will be granted in part and denied in part, while the motion for an extension will be granted. This is a legal malpractice action brought by the Plaintiff against its former counsel Cozen O'Connor and Linda Kaiser Conley, Esq. Plaintiff provides workers' compensation insurance policies to Pennsylvania school districts. Plaintiff alleges it sent an email to Defendant Conley asking her to review material relating to increasing Plaintiff's workers' compensation premium rates and to file an application to do so with the Pennsylvania Insurance Department. Plaintiff contends Defendant Conley took no action on the request. Despite receiving no response from Defendant Conley, Plaintiff imposed the rate increase. Later, the Insurance Department required Plaintiff to disgorge the costs. Plaintiff seeks to recoup these costs from Defendant. Plaintiff now moves to compel Defendants' responses to pre-complaint discovery. 11-2994 CIVIL TERM Plaintiff makes two sets of requests: (1) a request for entry upon property for inspection and other purposes; and (2) a request for production of documents. Plaintiff also asks for an extension of time for filing a complaint. For the following reasons, the court grants the first set of discovery requests and denies the second. The court also grants the Plaintiff a 60 day extension of time for filing a complaint. Our Supreme Court has held "pre-complaint discovery should be restrictively allowed, narrowly drafted, and permitted only when a complaint capable of surviving preliminary objections cannot be filed without aid of the requested discovery." McNeil v. Jordan, 894 A.2d 1260, 1274 (Pa. 2006). In determining the propriety of such a request this court enjoys broad authority to weigh the relative importance of the pre-complaint discovery request and the burden, if any, that may be imposed on the responding party. Id. at 1278-79. Plaintiff's first request seeks permission to have a forensic expert inspect computers and other electronic communication devices issued to Defendant Conley by the Defendant law firm and access to the law firm's server and email data storage system. The goal of the inspection would be to determine whether Defendant Conley ever received the alleged email wherein Plaintiff sought legal counsel. Plaintiff maintains that without this information it cannot proceed. We agree. Unless Plaintiff can plead Defendant Conley's actual receipt of the email and acceptance of the assignment, its complaint cannot survive a demurrer. As such, the first request of access for the sole purpose of discovering the alleged email engaging Defendant Conley's services will be granted. The court does not believe providing the requested access to Plaintiff's forensic expert will cause prejudice or cause undue hardship to the Defendants. Further, Defendants' concerns regarding the discovery of privileged information or breaching client confidentiality can be assuaged by the court's strict limitation on the scope of Plaintiff's -2- 11-2994 CIVIL TERM forensic investigation. Plaintiff's second pre-complaint request for production of documents is far broader than its first and will be denied. Plaintiff has failed to articulate a clear reason why such a broad discovery request will materially advance the filing of its complaint. Instead, the request for production of documents appears to be more of "fishing expedition" than a narrowly drafted attempt to materially advance the filing of an adequate complaint. See id. at 1278. In light of the court's grant of limited pre-complaint discovery, it will also grant Plaintiff's request for an extension of time for filing a complaint. However, Plaintiff's requested 90 day extension is excessive, in light of the court's narrow grant of pre-complaint discovery, Plaintiff shall file a complaint within 60 days of the entry of this opinion and order. ORDER OF COURT AND NOW, this day of June, 2011, upon consideration of Plaintiff's motions to compel pre-complaint discovery and Defendants' responses thereto, the court reaches the following conclusions: (1) Plaintiff's request for entry upon property for inspection and other GRANTED purposes is subject to the limitations forth in the foregoing opinion; (2) Plaintiff's DENIEDGRANTED request for production of documents is ; (3) Plaintiff is sixty (60) days to file a complaint. By the Court, Albert H. Masland, J. Allison S. Petersen, Esquire For Plaintiff Thomas G. Wilkinson, Esquire For Defendants :saa -3- SCHOOL BOARDS INSURANCE : IN THE COURT OF COMMON PLEAS COMPANY OF PENNSYLVANIA : OF CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF : : V. : : COZEN O’CONNOR AND : LINDA KAISER CONLEY, ESQ., : DEFENDANTS : 11-2994 CIVIL TERM IN RE: PLAINTIFF’S MOTIONS TO COMPEL DEFENDANTS’ RESPONSES TO PRE-COMPLAINT DISCOVERY AND FOR EXTENSION OF TIME TO FILE COMPLAINT BEFORE MASLAND, J. ORDER OF COURT AND NOW, this day of June, 2011, upon consideration of Plaintiff's motions to compel pre-complaint discovery and Defendants' responses thereto, the court reaches the following conclusions: (1) Plaintiff's request for entry upon property for inspection and other GRANTED purposes is subject to the limitations forth in the foregoing opinion; (2) Plaintiff's DENIEDGRANTED request for production of documents is ; (3) Plaintiff is sixty (60) days to file a complaint. By the Court, Albert H. Masland, J. Allison S. Petersen, Esquire For Plaintiff Thomas G. Wilkinson, Esquire For Defendants :saa