Fishing Expeditions Not Allowed in Discovery

In the case of Rotella v. Community Medical Center, No. 22-CV-3943 (C.P. Lacka. Co. June 9, 2023 Nealon, J.), the court addressed the proper breadth and scope of subpoenas for a Plaintiff’s prior medical records in a medical malpractice action.

In this case, the Plaintiffs confirmed to the court that they had no objection to the Defendants seeking records regarding the injured Plaintiff’s condition at issue. It was also noted that the Defendants had already secured records on the Plaintiff dating back over twenty (20) years before the treatment which was the subject of this lawsuit.

The Plaintiff challenged additional subpoenas issued by the Defendants that sought any and all records from the time the Plaintiff’s birth for any and all conditions and illnesses.

It was the Plaintiff’s contention that the Defendants did not have good faith basis to request records of this magnitude. The Plaintiffs otherwise indicated that they did not object to any request of discovery for some reasonable prior time period, such as 3-5 years.

After reviewing the Rules of Civil Procedure and related case law on the responsibility of the trial court to oversee discovery between the parties, Judge Nealon noted that it is within the court’s broad discretion to determine the appropriate measures to ensure adequate and prompt discovery of information in a lawsuit. 

The court noted that, generally, discovery is to be liberally allowed with respect to any matter, not privileged, which is relevant to the case being tried. The court also noted that the relevancy standard applicable to discovery is broader than the standard used at trial for the admission of evidence. 

However, the court also noted that discovery requests must be reasonable, which is to be judged based upon the facts and circumstances of the case. The court is granted with authority to prohibit any discovery of matters which has been stated too broadly. Judge Nealon noted that, although discovery is to be liberally allowed as a general rule, “fishing expeditions” are not authorized under the Pennsylvania Rules of Civil Procedure.

Judge Terrence R. Nealon
Lackawanna County 

In colorful language, Judge Nealon noted that, as the court has observed with increasing frequency, “[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 a hook or a harpoon.’” [citations omitted]. Applying the above law to this case, the court ruled that the subpoena served by the Defendants, as presented, were too broad.

The court did allow the Defendants to request records and materials for the period of ten (10) years prior a relevant date up to the present.

Anyone wishing to review a copy of this decision may click this LINK.

Source of top image:  Photo by Chris F on www.pexels.com.

Federal Court Addresses Discovery of Store Surveillance Videos in Premises Liability Case

In the premises liability case of Dietzel v. Costco Wholesale, No. 22-CV-0035 (E.D. Pa. July 12, 2022 Sitarski, J.), the court ruled that an incident report in a slip and fall matter was not privileged where it was a standard incident form prepared in the ordinary course of business and where there was no evidence that legal counsel ordered the preparation of the report or was involved in its preparation. As such, the Plaintiff’s Motion to Compel Discovery was granted in this regard.

According to the Opinion, the Plaintiff allegedly tripped and fell on a sidewalk as he entered the Defendants’ store.

In this matter, the Plaintiff also moved to compel the Defendant to produce surveillance footage.

The Defendants asserted that the fall was not captured on video because there were no nearby cameras. However, claim notes produced during discovery confirmed instructions to the Defendant to preserve footage from the nearest camera.

During the course of discovery, the Plaintiff requested the surveillance and, when it was refused, filed a Motion to Compel the Defendants to produce any footage from the property or to confirm that they failed to preserve footage as directed.

The court found that the Plaintiff’s request for all security footage from the store to be an overbroad request. Instead, the court ruled that a more reasonable scope would be to allow for footage from thirty (30) minutes before and after the subject incident and/or to require the Defendant to certify that they had no such footage.

In its Opinion, the court also ordered the Defendant to provide more specific Responses to the Plaintiff’s Interrogatories. However, the court denied the Plaintiff’s request for the identity of all employees working anywhere on the property on the date of the incident. The court found no basis for the Plaintiff to need to know the identity of the more than 100 workers who were working at the store on the date of the incident.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 12, 2022). 

Judge Nealon of Lackawanna County Reaffirms Rule that Fishing Expeditions Are Not Permitted in Discovery

In the case of The Pennsylvania Trust Co. v. Wilkes-Barre Hospital Company, LLC, No. 17-CV-465 (C.P. Lacka.  Co. Jan. 3, 2019 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed objections to records subpoenas in a medical malpractice action.  

The Plaintiff objected to subpoenas that a Defendant hospital wanted to serve on various non-parties for the production of medical, education, and employment records of the minor Plaintiff’s parents.  The Plaintiff was attempting to avoid a fishing expedition by the defense in terms of discovery information.  

The court noted that the parents of the minor were not asserting any claims seeking damages in their own right.  The court also noted that the Complaint only demanded economic and non-economic damages on behalf of the minor Plaintiff under allegations of medical malpractice related to the birth of the minor.  

In terms of the subpoena for medical records, the court also confirmed that genetic testing of the minor following her birth as well as DNA testing for any genetic disorder were within normal limits.   The parents also both testified at their depositions that they themselves had not undergone any genetic testing and that they had no family history of any genetic disorders.   

With respect to the subpoenas for employment records of the parents, the court noted that the parents were questioned during their depositions regarding their educational and employment backgrounds.

In this matter, the Defendant hospital was seeking educational records for the father’s educational history as well as employment records and medical records over a 43-year history.   The court also noted that the Defendant hospital was seeking medical records and employment records on the mother relative to a 37-year period of her history.  

The Plaintiffs objected on the grounds that the proposed subpoenas were unlimited in scope and timeframe and were therefore overly broad and were requesting information that was entirely irrelevant to the subject matter of this action.  

 The Defendant hospital countered that the subpoenas were necessary to discover whether or not the parents had any medical history of any genetic disorders, in order to secure more information on the mother’s smoking history, and that the employment records were relevant to the Plaintiff’s claims that the minor had suffered a loss of future earning capacity.  

In ruling on the discovery dispute before him, Judge Nealon noted that discovery is liberally to be allowed with respect to any matter which is relevant and not privileged.  He also noted that the trial court is granted with broad discretion in overseeing discovery between the parties.   The judge also noted that any doubts regarding the relevancy of information requested in discovery are generally to be resolved in favor of allowing discovery.   Here, the court granted in part and denied in part the Plaintiff’s objections to the subpoenas.  

The court held that, although discovery should liberally be allowed as a general rule, “fishing expeditions” are not permitted under the guise of discovery.   Judge Nealon returned to his previous quoting of the late Judge John J. McDevitt, III, in noting “[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.’”  [citation omitted].  

The court more specifically ruled in this case that, since the parents were not advancing any individual claims, such as a claim for negligent infliction of emotional distress, their medical records dating back many years were found to be irrelevant.   Discovery requests for these medical records were also found not to be narrowly tailored to request genetic testing information as desired by the hospital. Rather, the overly broad subpoenas as worded would require the production of information that was entirely irrelevant and privileged.   Accordingly, this portion of the subpoena was not allowed.  

The court also held that the hospital’s desire to explore a possible connection between the mother’s smoking history and the issues present in this case did not justify cart blanche access to her lifetime of medical records.  

Therefore, the request for 37 years of medical records on the Plaintiff’s mother from a dozen different healthcare providers was found to be unreasonable and was not allowed.   

However, the court did allow the Defendants to request by subpoena any genetic testing information that may be contained in the medical records of each parent.  

With regards to the employment records of the parents, the court also found the subpoenas for any and all records over the entire work history of the parents to be unreasonable, particularly where the Defendants had obtained the earnings histories from the parents from the Social Security Administration.   The court noted that request for production for each parents’ employment and educational records, including disciplinary actions, incident reports, attendance records, and worker’s compensation claims, were unreasonable and tantamount to an unbridled fishing expedition.   As such, the subpoena was not allowed in this respect.  

Anyone wishing to review this detailed Order online may click this LINK.