ROGERS CASTOR WINS PRECEDENT SETTING CASE

September 21, 2015

John and Jane Doe defendants in a defamation suit will have to appear for depositions, despite arguments that doing so would violate the Fifth Amendment privilege against self-incrimination, the state Superior Court has ruled.
A unanimous three-judge panel quashed the defendants' challenge to an order to compel discovery filed by Gary and Nancy Veloric, the plaintiffs in Veloric v. Doe. The ruling Monday upheld a decision from the Montgomery County Court of Common Pleas, which had granted the plaintiffs' order to compel discovery.
Although the Does had contended the order was an appealable collateral order since it involved their rights against self-incrimination, Judge Jacqueline O. Shogan said the Does were seeking to improperly apply that privilege.
"Appellants seek to use the Fifth Amendment privilege as a blanket protection allowing them to hide their identities and avoid appearance for a court-ordered deposition," Shogan said. "We cannot agree that such overarching protection is afforded by the Fifth Amendment."
The case stems from an anonymous phone call and two text messages that Nancy Veloric received claiming that her husband was having an extramarital affair. The call was from an unidentified woman claiming to be Gary Veloric's girlfriend, who was angry that he was having sexual relationships with another woman.
Nancy Veloric also received two emails claiming Gary Veloric was having sex with prostitutes, but he denied the allegations when his wife confronted him.
The Velorics filed suit against "John and Jane Doe," alleging defamation, slander, injurious falsehood and intentional infliction of emotional distress as a result of the messages.
Last month, the Superior Court ruled that third parties in the case, who had also argued their Fifth Amendment privilege precluded them from testifying at depositions, would also have to testify at depositions.
According to Shogan, the Does argued the court should grant their appeal because their rights would be irrevocably lost if they were compelled to appear for depositions, which could result in their identities being revealed. They also argued revealing their identities could result in them being prosecuted for unlawful use of a computer.
Shogan agreed the appeal met the first prong of a collateral appeal—that the issue is distinct from the merits of the case. However, she determined the issue did not involve "rights deeply rooted in public policy."
Shogan cited the state Supreme Court's 2012 decision in Commonwealth v. Knoble, and said the Fifth Amendment privilege is specific to the testimony being compelled. Since the Does are not objecting to any specific testimony, but "simply want to invoke the privilege so as to avoid providing any testimony ... there is no proposed testimony for a court to consider," Shogan said.
She also cited the Supreme Court's 2003 Commonwealth v. Duncan decision and the Superior Court's 2011 decision in Commonwealth v. Durr, and said individuals do not have a reasonable expectation of privacy to their name and address.
Shogan also pointed to the 1966 U.S. Supreme Court decision in Schmerber v. California, which held Fifth Amendment protections do not bar submitting to fingerprinting, photographing or appearing in court.
Shogan added that, at this point in the Velorics' civil litigation, it was questionable whether the Does' alleged computer activity could provide a basis for a criminal charge.
"There are no allegations that the Does, without authorization, accessed a computer or computer system or knowingly published a password of identifying information," Shogan said. "It is not clear that simply sending a defamatory email would constitute a violation of the statute."
The Superior Court's 2013 decision in AmerisourceBergen v. Does, which dealt with anonymous online commenters posing as a corporate executive who sought to have their identities secret under the Fifth Amendment, was applicable to the situation, Shogan said. In that case, the court held the commenters' rights did not outweigh the plaintiff's rights for legal redress. The Does, Shogan said, similarly failed to show that they had a sufficient right outweighing the Velorics' right to seek legal redress.
"Despite framing their claim as an invocation of their Fifth Amendment rights against self-incrimination, the protection appellants seek is not afforded by the Fifth Amendment nor is it 'deeply rooted in public policy,'" Shogan said.
Bruce L. Castor Jr. of Rogers Castor, who represented the Velorics, noted the court's discussion and reliance on criminal cases, and said that decision should have a big impact in the criminal arena. Castor added the opinion clarifies the Fifth Amendment does not apply to nontestimonial evidence, which he said often comes up in the criminal arena, when people object to appearing before grand juries or police lineups, or providing fingerprints or DNA swabs.
"You just don't see a civil case that clarifies a major point in the criminal law often," Castor said. "It's going to be of enormous value to prosecutors."
Marc Steinberg of Rubin, Glickman, Steinberg & Gifford, who represented the Does, did not return a call for comment.