Monday, April 13, 2015

Fishing Allowed With Written Discovery Requests -- But Only With a Hook or Harpoon (Not a Net)

In his recent Order of March 16, 2015, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the common issue of the allowance of liberal discovery efforts as compared to fishing expeditions in the case of Bandru v. Fawzen, No. 2013-CV-3959 (C.P. Lacka. Co. March 16, 2015 Nealon, J.).

This matter arose out of a motor vehicle accident.   More specifically, in this case, the court addressed a Motion by the Defendant to strike the Plaintiff’s objections to records subpoenas that the Defendant had addressed to the Plaintiff’s healthcare providers as well as to two (2) automobile insurance carriers.  

The gist of the Plaintiff’s objections is that the Defendant sought medical records dating back to the Plaintiff’s date of birth which was more than 52 years before.   As such, the Plaintiff asserted that the records requests were overly broad and sought information that is not relevant and not likely to lead to the discovery of admissible evidence.   The Plaintiff further stated that he would not object to subpoenas which were reasonably limited in time and scope.  

The defense countered with an argument that the Plaintiff had admitted during his deposition that he had had extensive dental work performed in the mid-1980s (in this matter, the Plaintiff was alleging a TMJ injury), that the Plaintiff had been injured in previous motor vehicle accidents.   The Defendant generally asserted that she was entitled to secured documentation relevant to the Plaintiff’s past medical history and any and all documents pertaining to the Plaintiff’s past medical care and treatment in order to ascertain whether any of the injuries alleged by the Plaintiff existed prior to the accident and/or whether or not the Plaintiff was involved in any other prior incidents as a result of which he sustained personal injuries.  

The Plaintiff acknowledged that he was involved in prior motor vehicle accidents in 1991, 1993, and 1998.  However, the Plaintiff also stated that, for years before the subject collision, he worked as a personal trainer and ran multiple marathons, along with ultramarathons of greater than 50 miles every year.   The Plaintiff also described during his discovery responses that any prior treatment he had in the mid-1980s as well as in the 1990s were for unrelated conditions that had no bearing on the issues presented following the subject accident.  

The Plaintiff additionally asserted that the Defendant’s request for medical records and the files of the automobile insurance carriers relative to the Plaintiff’s 1991, 1993, and 1998 accidents were "fishing expeditions." 

Judge Terrence R. Nealon
Lackawanna County
In his Opinion, Judge Nealon set forth the current status of the discovery standards pursuant to Pa. R.C.P. 4003.1 and confirm that discovery is to be liberally permitted with respect to any matters that were not privileged, and which were relevant to the case being tried.   The court also noted that any doubts regarding relevance should be resolved in favoring of allowing the requested discovery.  

However, Judge Nealon also stated that it is the responsibility of the trial court to oversee discovery between the parties and to determine, within the court’s broad discretion, any appropriate measures to ensure adequate and prompt discovery of matters allowed by the Pennsylvania Rules of Civil Procedure.   The court reaffirmed the general rule that, while discovery should be liberally permitted, discovery requests must also be reasonable.  Judge Nealon noted that the courts of Pennsylvania have repeatedly held that trial courts can prohibit the discovery of matters which would amount to a fishing expedition.  

Judge Nealon emphasized that while the courts have repeatedly indicated that, “[w]hile a limited degree of ‘fishing’ is to be expected with certain discovery requests, parties are not permitted ‘to fish with a net rather than with a hook or a harpoon.’”   See Bandru at p. 6.  

Applying this law to the case before him, Judge Nealon ruled that some of the information requested by the defense was indeed discoverable and other information was not.  As such, the matter before the court was granted in part and denied in part.  

Anyone wishing to review a copy of this detailed Order issued by Judge Nealon may contact me at  

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