01 APR 2014 04:47 pm K.

KALOGRIAS

LISA RAPAPORT and SEAMUS McCAFFERY, v.

Plaintiffs,

COURT OF COMMON PLEAS PHILADELPHIA COUNTY FEBRUARY TERM, 2014 No. 3044

INTERTRUST GCN, LP, INTERSTATE GENERAL MEDIA, LLC, WILLIAM MARIMOW, CRAIG McCOY, SIGNE WILKINSON, and MICHAEL DAYS, Defendants. ORDER

AND NOW, this ____________day of ______, 2014, upon consideration of Defendants Marimow, McCoy, Wilkinson, and Days Motion to Stay Proceedings Pending Resolution of Motions, and any response thereto, it is hereby ORDERED that the Motion is GRANTED and the proceedings, including discovery, are stayed until after the pending motions and preliminary objections are decided. BY THE COURT:

________________________ , J.

Case ID: 140203044 Control No.: 14040194

Amy B. Ginensky, Esquire, Attorney I.D. No. 26233 Michael A. Schwartz, Esquire, Attorney I.D. No. 60234 Michael E. Baughman, Esquire, Attorney I.D. No. 78690 Kaitlin M. Gurney, Esquire, Attorney I.D. No. 309581 PEPPER HAMILTON LLP 3000 Two Logan Square Eighteenth and Arch Streets Philadelphia, PA 19103-2799 (215) 981-4000 LISA RAPAPORT and SEAMUS McCAFFERY, v. COURT OF COMMON PLEAS PHILADELPHIA COUNTY FEBRUARY TERM, 2014 No. 3044

Plaintiffs,

INTERTRUST GCN, LP, INTERSTATE GENERAL MEDIA, LLC, WILLIAM MARIMOW, CRAIG McCOY, SIGNE WILKINSON, and MICHAEL DAYS, Defendants.

DEFENDANTS MARIMOW, MCCOY, WILKINSON, AND DAYS MOTION TO STAY PROCEEDINGS PENDING RESOLUTION OF MOTIONS Defendants William Marimow, Craig McCoy, Signe Wilkinson, and Michael Days, by and through their undersigned counsel, respectfully move for a protective order instituting a stay of discovery pursuant to Rule 4012 of the Pennsylvania Rules of Civil Procedure until this Court has ruled on these Defendants Motion to the President Judge for Appointment of an Out-of-County Judge and their preliminary objections to Plaintiffs Complaint, which are due on April 15, 2014, as well as Defendant Intertrust GCN, LPs Motion for Recusal of the Entire Bench of the First Judicial District, which these Defendants supported. In support of this Motion to Stay Proceedings Pending Resolution of Motions, Defendants Marimow, McCoy, Wilkinson, and Days aver as follows:

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1.

Plaintiffs in this matter, Supreme Court Justice Seamus McCaffery and his

wife and chief judicial aide, Lise Rapaport, initiated this matter by a Writ of Summons filed on February 27, 2014, shortly before the one-year statute of limitations ran on their claim. 2. On March 14, 2014, Defendant Intertrust GCN, LP filed its Motion for

Recusal of the Entire Bench of the First Judicial District and Request for an Out-of-County Judge. 3. On March 26, 2014, Plaintiffs served Defendants with a six-count

Complaint in this matter alleging claims of false light invasion of privacy and defamation. 4. On March 28, 2014, Defendants received a notice of deposition of

Defendant Signe Wilkinson for an April 11, 2014 deposition, a notice of deposition for Robert J. Hall, CEO and Publisher of Philadelphia Media Network, LLC, for an April 14, 2014 deposition, and a request for documents from Defendant Intertrust GCN, LP. 5. On March 31, 2014, Defendants Marimow, McCoy, Wilkinson, and Days

filed a Motion to the President Judge for Appointment of an Out-of-County Judge and a Response in Support of Defendant Intertrust GCN, LPs Motion for Recusal of the Entire Bench of the First Judicial District. 6. Defendants have not yet responded to the Complaint, and their response is

not even due until April 15, 2014. Defendants Marimow, McCoy, Wilkinson, and Days intend to file preliminary objections seeking dismissal of the Complaint. 7. General Media, LLC. No counsel has yet even entered an appearance for Defendant Interstate

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8.

As explained more fully in the attached memorandum of law, Pa. R. Civ.

P. 4012(a) provides that [u]pon motion by a party or by the person from whom discovery or deposition is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from unreasonable annoyance, embarrassment, oppression, burden or expense. 9. The interests of justice are furthered by a court order barring discovery

until the motions seeking assignment of a judge from outside the First Judicial District are resolved and preliminary objections a dispositive motion are decided. See Luckett v. Blaine, 850 A.2d 811, 819 (Pa. Commw. Ct. 2004); Potts v. Consolidated Rail Corp., 37 Pa. D&C. 4th 196 (Allegheny C.P. 1988) (Wettick, J.). 10. These Defendants will be subjected to unreasonable annoyance,

oppression, burden and expense if required to engage in discovery while the out-of-county motions and preliminary objections are pending, as they may not be required to engage in discovery at all. WHEREFORE, Defendants respectfully request that this Court enter a protective order staying discovery until after the pending Motions seeking an out-of-county judge are resolved and preliminary objections are decided.

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Date: April 1, 2014

Respectfully submitted,

____________________________________ Amy B. Ginensky, Esquire Michael A. Schwartz, Esquire Michael E. Baughman, Esquire Kaitlin M. Gurney, Esquire PEPPER HAMILTON LLP 3000 Two Logan Square Eighteenth & Arch Streets Philadelphia, PA 19103-2799 (215) 981-4000 Attorneys for Defendants William Marimow, Craig McCoy, Signe Wilkinson, and Michael Days

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Case ID: 140203044 Control No.: 14040194

Amy B. Ginensky, Esquire, Attorney I.D. No. 26233 Michael A. Schwartz, Esquire, Attorney I.D. No. 60234 Michael E. Baughman, Esquire, Attorney I.D. No. 78690 Kaitlin M. Gurney, Esquire, Attorney I.D. No. 309581 PEPPER HAMILTON LLP 3000 Two Logan Square Eighteenth and Arch Streets Philadelphia, PA 19103-2799 (215) 981-4000 LISA RAPAPORT and SEAMUS McCAFFERY, v. COURT OF COMMON PLEAS PHILADELPHIA COUNTY FEBRUARY TERM, 2014 No. 3044

Plaintiffs,

INTERTRUST GCN, LP, INTERSTATE GENERAL MEDIA, LLC, WILLIAM MARIMOW, CRAIG McCOY, SIGNE WILKINSON, and MICHAEL DAYS, Defendants.

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS MARIMOW, MCCOY, WILKINSON, AND DAYS MOTION TO STAY PROCEEDINGS PENDING RESOLUTION OF MOTIONS The matter before the Court is a Motion by Defendants William Marimow, Craig McCoy, Signe Wilkinson, and Michael Days for a protective order staying discovery pursuant to Pennsylvania Rule of Civil Procedure 4012 until after the determination of Defendants motions requesting assignment of an out-of-county judge and preliminary objections seeking dismissal of Plaintiffs six-count Complaint alleging claims of false light invasion of privacy and defamation. I. FACTS Although this matter was initiated via writ of summons on February 27, 2014, a Complaint was not served until March 26, 2014, after both Defendant Interstate GCN, LP, and Defendants Marimow, McCoy, Wilkinson, and Days filed Rules requiring the filing of a

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Complaint. Plaintiffs six-count Complaint alleging false light invasion of privacy and defamation relates to three articles written by Craig McCoy published in The Philadelphia Inquirer in March, June, and August 2013, and a political cartoon by Signe Wilkinson published in the Daily News in June 2013. All four publications focus on referral fees that Plaintiff Rapaport received from law firms while serving as Justice McCafferys chief judicial aide. After waiting until the eve of the running of the statute of limitations to file this claim, two days after filing their Complaint, Plaintiffs noticed the depositions of Defendant Signe Wilkinson and Robert J. Hall, CEO and Publisher of Philadelphia Media Network, LLC, for April 11 and 14, 2014, respectively, and sought documents from Defendant Intertrust GCN, LP. On March 14, 2014, Defendant Intertrust GCN, LP. filed a Motion for Recusal of the Entire Bench of the First Judicial District and Request for an Out-of-County Judge. On March 31, 2014, Defendants Marimow, McCoy, Wilkinson, and Days filed a Response in Support of Defendant Intertrust GCN, LPs Motion, as well as a Motion to the President Judge to Request Appointment of an Out-of-County Judge by the Administrative Office of Pennsylvania Courts Pursuant to Pennsylvania Rule of Judicial Administration 701(c). Plaintiffs are seeking discovery before those motions are decided motions that arise because (1) one of the Plaintiffs in this case, Pennsylvania Supreme Court Justice Seamus McCaffery, is a former judge of the First Judicial District of Philadelphia who has exercised an oversight role over his former colleagues as part of his current role on the Supreme Court; (2) his brother, the Honorable Daniel D. McCaffery, sits on the First Judicial Districts Court of Common Pleas; and (3) discovery in this case will require inquiry of judges and lawyers in the First Judicial District.

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Plaintiffs are also seeking discovery before Defendants responses to the Complaint are even due, and before a ruling on preliminary objections seeking dismissal of the Complaint. Responses to Plaintiffs Complaint are presently due on April 15, 2014, and Defendants Marimow, McCoy, Wilkinson, and Days intend to file preliminary objections seeking dismissal of the Complaint, which they believe to be without merit. Further, no counsel has yet entered an appearance for Interstate General Media, LLC. Since the Complaint was filed less than a week ago, this Court has not yet held a scheduling conference to set any deadlines in this matter. II. ARGUMENT Courts in Pennsylvania have the inherent power to stay discovery proceedings in the interests of justice and for the convenience of the parties. See Pa. R. Civ. P. 4012(a) (Upon motion by a party or by the person from whom discovery or deposition is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from unreasonable annoyance, embarrassment, oppression, burden or expense.); see also McNeil v. Jordan, 894 A.2d 1260, 1279 (Pa. 2006) (trial court has broad discretion to craft appropriate orders concerning discovery). A protective order instituting a stay is appropriate here. Plaintiffs have issued discovery requests weeks before Defendants responsive pleadings are even due. And it is not yet clear whether a judge from the First Judicial District will even preside over this matter. These matters should be resolved before discovery is taken. First, all proceedings should be stayed until it is determined whether a judge from this judicial district should hear the case, or whether the case will be specially assigned to an outof-county judge. If the case is assigned to an out-of-county judge, that judge should decide all

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discovery issues, as well as these Defendants forthcoming dispositive motion. See Luckett v. Blaine, 850 A.2d 811, 819 (Pa. Commw. Ct. 2004): Every court has inherent power to schedule disposition of the cases on its docket to advance a fair and efficient adjudication. Incidental to this power is the power to stay proceedings, including discovery. How this can best be done is a decision properly within the discretion of the trial court. It simply would make no sense to allow this case to proceed in earnest until it is first determined who will preside over the case. Once that is decided, that judge appropriately should set the schedule. Second, staying discovery until after the out-of-county motions are decided is particularly appropriate because Defendants have not even responded to the Complaint. In general, the interests of justice are furthered by a court order barring discovery for the preparation and trial of the case until the plaintiffs Complaint has been filed, the defendants Preliminary Objections to the plaintiffs Complaint have been resolved, and the defendant has filed an Answer to the Complaint. Potts v. Consolidated Rail Corp., 37 Pa.D.&C.4th 196, 199 (Allegheny Comm. Pl. 1998) (Wettick, J.); see also Luckett, 850 A.2d at 819 (sustaining an order staying discovery pending preliminary objections). This is because a defendant should have the opportunity to show the claims raised in the complaint fail to state a cause of action before responding to discovery involving these claims. Potts at 200. Moreover, [w]here the defendant has demurred to the complaint, it cannot be determined whether the discovery sought by the plaintiff is even relevant. Luckett, 850 A.2d at 819; accord Potts, 37 Pa.D.&C.4th at 200. 1

This argument carries heavy weight where, as here, the case involves the First Amendment. The U.S. Supreme Court has outlined the First Amendments expansive protections for the press against defamation lawsuits brought by public officials, including judges, explaining that the purpose of the actual malice standard is to lift from the press the chilling effect of defending against these cases. N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964). The Pennsylvania Supreme Court mandated that these strict requirements be met at the pleading stage to proceed against the media. Tucker v. Phila. Daily News, 848

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Plaintiffs will suffer no prejudice from postponing the depositions and other discovery until after the court decides who will hear this case and after the dispositive motion is resolved. The case has just begun, and there is no emergency here. The witnesses will be available to depose after the motion is resolved, and waiting a short time for the pending out-ofcounty motions and preliminary objections to be resolved will in no way harm the Plaintiffs case; unless, of course, it is determined that they have no case. And if that is so, they have no right to discovery at all. III. RELIEF REQUESTED For all of the foregoing reasons, Defendants William Marimow, Craig McCoy, Signe Wilkinson, and Michael Days respectfully request that this Court issue a protective order instituting a stay of discovery until the pending motions for an out-of-county judge are resolved and preliminary objections are decided. Date: April 1, 2014 Respectfully submitted,

___________________________ Amy B. Ginensky, Esquire Michael A. Schwartz, Esquire Michael E. Baughman, Esquire Kaitlin M. Gurney, Esquire PEPPER HAMILTON LLP 3000 Two Logan Square Eighteenth & Arch Streets Philadelphia, PA 19103
A.2d 113, 136 (Pa. 2004). Indeed, this Court has recognized the importance of these procedures to avoid the needless expense of litigation. Sprague v. Porter, No. 02930, 2013 Phila. Ct. Com. Pl. LEXIS 368, at *21 (Phila. C.P. 2013) (If the press is constrained to the point of timidity out of fear of constant litigation, and if courts fail to step in when the claims obviously lack a basis, then society and democracy suffer greatly.). Defendants should be entitled to test Plaintiffs Complaint on preliminary objections before they are subjected to discovery.

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CERTIFICATE OF SERVICE I do hereby certify that on April 1, 2014, a true and correct copy of the foregoing Motion to Stay Proceedings Pending Resolution of Motions and an accompanying Memorandum of Law was served upon the parties below via the Electronic Case Filing System (ECF) of the Philadelphia County Court of Common Pleas and first class mail: Dion G. Rassias, Esquire The Beasley Firm 1125 Walnut Street Philadelphia, PA 19107 Attorney for Plaintiffs Richard A. Sprague, Esquire Joseph R. Podraza, Esquire Brooke Spigler Cohen, Esquire Alan Starker, Esquire Neal R. Troum, Esquire Christopher P. Spina, Esquire Sprague & Sprague 135 S. 19th Street, Suite 400 Philadelphia, PA 19103 Attorneys for Defendant Intertrust GCN, LP Interstate General Media, LLC 801 Market Street, Suite 300 Philadelphia, PA 19107 Defendant

Dated: April 1, 2014

_______________________ Amy B. Ginensky Michael A. Schwartz Michael E. Baughman Kaitlin M. Gurney PEPPER HAMILTON LLP 3000 Two Logan Square Eighteenth and Arch Streets Philadelphia, PA 19103 (215) 981-4000

Case ID: 140203044 Control No.: 14040194