Scope of Discovery at Issue in Same-Sex Marriage Case

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Tension between lawyers for the Corbett administration and the dozen couples challenging Pennsylvania's ban on same-sex marriage may be gathering over the scope of discovery.

U.S. District Judge John E. Jones III of the Middle District of Pennsylvania had encouraged lawyers on both sides at a status conference this fall to remain collegial and manage minor disputes without triggering court skirmishes.

An exchange of letters from lawyers on each side to Jones—prompting the judge to schedule a conference call and then cancel it—offers a sketch of the brewing dispute over discovery.

The administration has asked the plaintiffs to "state whether you were ever in a relationship with and/or married to a person of the opposite sex" as well as requesting the name, address, dates of the relationship, and, if any children were born, their names, dates of birth, and places of birth, according to a letter from Witold Walczak, legal director for the American Civil Liberties Union of Pennsylvania who is representing the plaintiffs with lawyers from Hangley Aronchick Segal Pudlin & Schiller.

According to the letter, the administration also sought the names and contact information for all the people with whom the plaintiffs have lived over the last 10 years and lists of "any and all health care providers from whom you have sought or received medical or psychological treatment or counseling for harm you have alleged to have suffered as a result of allegations."

The plaintiffs—same-sex couples who either want to be married in Pennsylvania or have their out-of-state marriages recognized in Pennsylvania along with a widow and the children of one couple—brought their suit in July under the due process and equal protection clauses of the 14th Amendment.

It was the first case to challenge Pennsylvania's ban following the U.S. Supreme Court's June decision in United States v. Windsor, striking down the definition of marriage as being between one man and one woman in the federal Defense of Marriage Act. Pennsylvania's law, sometimes called "mini DOMA," includes the same definition.

Also requested by the administration, which is defending the law and is represented by lawyers from Lamb McErlane, was the identity of the biological parents of the couples' children. "This would include sperm donors for some of our clients' children," Walczak wrote.

"Not only do these requests invade highly private and sensitive areas, none of them involve relevant information or are likely to lead to discovery of relevant information," he wrote.

Beginning in early November, according to email correspondence between lawyers from both sides attached to Walczak's letter, lawyers for the plaintiffs initiated scheduling for a meeting to discuss discovery issues.

Lawyers for the administration repeated in their emailed responses that it would be premature to meet before discovery was scheduled to be due, which was Monday.

"We do not understand the commonwealth defendants' position that a meet and confer would be premature. If anything, we think it is overdue," wrote John Stapleton, a lawyer at Hangley Aronchick representing the plaintiffs, in an email Dec. 2.

"Absent further explanation from you, many requests appear designed to accomplish no purpose other than harassment of plaintiffs and do not appear reasonably calculated to lead to the discovery of admissible evidence," Stapleton wrote. "We remain open to discussing with you these and other requests as to why the commonwealth defendants believe they are entitled to such information and documents, but without explanation, we otherwise see no basis for the requests. Rather than engage in costly letter-writing and motion practice, we would prefer to have a conversation with you to understand your position on these requests."

Maureen McBride, a Lamb McErlane lawyer representing the state, responded, "Please understand that we are not refusing to meet and confer with you about discovery; in fact, we also believe that a conversation regarding discovery may be useful." She explained that scheduling depositions would be more easily done after the written discovery was delivered Monday.

"While we appreciate your desire to move things along quickly, we believe our approach is consistent with traditional discovery timing, even on an expedited schedule," McBride said.

Following the letter with attached emails submitted to the court by Walczak on Monday, the judge issued an order scheduling a conference call with all the lawyers today.

He canceled the call after receiving a letter from William Lamb of Lamb McErlane, in which Lamb explained that "defendants had every intention of reaching out to plaintiffs to arrange for a meeting ... as early as tomorrow, to discuss the substance of discovery responses after those responses were submitted."

"This schedule, of course, would have allowed the parties the ability to discuss the matter in concrete, rather than theoretical, terms," he said.

The lawyers have now spent a combined three hours, over Tuesday and Wednesday, conferring over the phone, Walczak said Wednesday.

He described the conversations as cordial and said that the administration had agreed to narrow some of the issues. But, there remain some outstanding issues, including the questions about previous relationships, the identity of biological parents, and psychological evaluations.

"The ball's in their court," Walczak said.

Since the plaintiffs don't plan to divulge that information, the administration can take the issue to the judge or file a motion.

Lamb didn't return a call for comment.

The case is set for a June trial with a tight schedule until then.

Saranac Hale Spencer can be contacted at 215-557-2449 or sspencer@alm.com. Follow her on Twitter @SSpencerTLI.

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