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A recent opinion by the Honorable Philip A. Ignelzi of the Allegheny County Court of Common Pleas will have a profound effect on the way discovery is handled in all civil cases in Allegheny County. The case, Lau v. Allegheny Health Network, et al.<\/em>, touches on several issues that should be of interest to any party engaged in civil litigation in the County, as well as the lawyers who practice there every day.<\/p>\n Judge Ignelzi\u2019s stated goal in Lau<\/em> is to bring Allegheny County discovery disputes more in line with the approach of the Federal Courts. Judge Ignelzi believes that the Special Motions (\u201cHappy Hour\u201d) process is lax and has been abused by lawyers who seek Court intervention to \u201cmediate issues related to counsel\u2019s behavior, counsel\u2019s (in)ability to properly ascertain the governing Rules of Discovery Procedure, to compel counsel to professionally confer and consult with opposing counsel to resolve issues, or to compel counsel to make reasonable efforts to expedite litigation consistent with the interests of the client.\u201d<\/p>\n In Judge Ignelzi\u2019s opinion, lawyers use access to \u201cHappy Hour\u201d as an \u201copportunity for informal continuing legal education, such as requiring the court to sift through voluminous and\/or excessive poorly drafted interrogatories, answers, requests for admission\/production, and\/or responses.\u201d<\/p>\n Consequently, Judge Ignelzi has determined that \u201ccontinuing acceptance of informal \u2018Happy Hour\u2019 norms undermines judicial economy by compelling a party to seek court intervention to, in effect, have the Court examine and edit a party\u2019s lax work product.\u00a0\u2018Happy Hour\u2019 motion practice is not a substitute for meeting and conferring beforehand to resolve issues.\u201d<\/p>\n To remedy this issue, the Judge proposes an amendment to Allegheny Local Rule 208.3(a)(4)(b), creating a formal requirement that parties \u201cmeet and confer\u201d prior to presentation of any contested motion. The opinion makes clear that what the Judge characterizes as previous \u201cHappy Hour\u201d norms are \u201cno longer acceptable and offending counsel will be sanctioned for egregious conduct.\u201d<\/p>\n The gravamen of Judge Ignelzi\u2019s reform of the discovery process is a direction to attorneys to know the discovery rules, to follow those rules, and not to attempt to use \u201cHappy Hour\u201d motions to referee disputes for which there is clear guidance in the rules.\u00a0The Judge\u2019s stated goal is to \u201cconvert \u2018Happy Hour\u2019 into \u2018Happy Minute\u2019\u201d by requiring lawyers to police themselves through the \u201cmeet and confer\u201d process.<\/p>\n In addition to reforming the process for handling discovery disputes, the Lau<\/em> opinion places renewed emphasis on limitations to deposition objections, as well as upon an attorney\u2019s ability to instruct his witness not to answer a question during a deposition. While the Lau<\/em> case itself is a medical malpractice\/birth injury case, Judge Ignelzi\u2019s guidance with respect to deposition objections has broad applicability.<\/p>\n During the deposition at issue in the case, defense counsel made frequent \u201cspeaking\u201d objections, and instructed his witness not to answer a number of questions on the basis of 1) the witness being asked for his opinion as to the standard of care, despite not being offered (or intending to be offered) as an expert witness at trial; 2) the witness being asked to engage in \u201cretrospective review\u201d despite not having participated in the delivery of the baby, and only having treated and advised the mother in the days before the delivery; 3) being asked questions about medical records despite not being designated as a \u201crecords custodian;\u201d and 4) being asked \u201crepetitive questions\u201d during the deposition.<\/p>\n In each instance, Judge Ignelzi held that this was not a valid basis for instructing a witness not to answer a deposition question.\u00a0Moreover, Judge Ignelzi extensively discussed the inappropriateness of \u201cspeaking\u201d objections, as they can be used to coach a witness. He ultimately directs that appropriate objections in a deposition merely include the word \u201cobjection,\u201d followed by a brief statement of the legal basis for the objection.\u00a0Judge Ignelzi further holds that most of the issues raised by defense counsel address admissibility at trial, and that information can be discoverable even if it may not ultimately be admissible (and that a court is not in a position to make that determination while the discovery process is ongoing).<\/p>\n While Judge Ignelzi believes that virtually all deposition objections other than objections to form are preserved under PA.R.C.P. 4016, he advises attorneys to state as much as is necessary on the record at the beginning of a deposition to remove the need to raise most objections during the deposition, much less discuss them in detail.<\/p>\n While nothing in the Lau<\/em> opinion breaks any new ground with respect to deposition objections, it is a powerful tool for an attorney to keep in their back pocket when conducting depositions in an Allegheny County case. If opposing counsel is running afoul of these rules, a reference to the Lau<\/em> opinion may resolve a dispute without need for court intervention.<\/p>\n Inherently, discovery is a collaborative process between clients and the lawyers who represent them. Frequently, the client must play an active role in producing information, documents, and testimony sought by an opposing party through a valid discovery request. With the new dispute resolution process outlined in Lau<\/em>, as well as the emphasis on existing discovery rules articulated by Judge Ignelzi, it is more important than ever that clients and attorneys work together to produce complete discovery responses in a timely manner, and that information only be withheld based upon valid objections supported by the applicable discovery rules.<\/p>\n With the move away from the relaxed, somewhat informal \u201cHappy Hour\u201d rules, parties have effectively lost a \u201cmulligan\u201d in the discovery process. Instead, Allegheny County Judges will expect that parties have met and conferred about any discovery dispute, and judges will be prepared to levy monetary sanctions against a party whose refusal to produce information or testimony is a clear violation of Pennsylvania\u2019s liberal discovery rules.<\/p>\n James McGraw<\/a> is a partner and litigation attorney at The Lynch Law Group. For more information on this change and how it may apply to your current or future matters in the Allegheny County Court of Common Pleas, contact James at jmcgraw@archive-lynchlaw.pfgsandbox.com<\/a> or by phone at (724) 776-8000.<\/p>\n","protected":false},"excerpt":{"rendered":" A recent opinion by the Honorable Philip A. Ignelzi of the Allegheny County Court of Common Pleas will have a profound effect on the way discovery is handled in all civil cases in Allegheny County. The case, Lau v. Allegheny … Changes to Special Motions (\u201cHappy Hour\u201d)<\/h3>\n
Deposition Objections<\/h3>\n
Effect on Clients and Their Lawyers<\/h3>\n
Pittsburgh \u00ad\u00ad\u00ad\u00ad\u00ad\u00adLitigation Attorneys<\/h4>\n