Non-Party Ordered to Participate in Discovery Without Subpoena

             A recent decision by the Court of Common Pleas of Philadelphia County held that non-parties could be subject to document production where the non-party is not a separate entity for the purposes of discovery.

            After filing a judgment by confession against the Defendants, John J. Martucci and Washington Abstract, LLC, the Plaintiff TD Bank sought to compel document production and deposition attendance of a non-party.  See TD Bank v. Wash. Abstract, LLC, No. 1584, 2012 Phila. Ct. Com. Pl. LEXIS 67 (Feb. 21, 2012).  In response, Defendants argued that requiring Martucci Law Offices, LLC, a non-party, to produce documents was in error.  

            Defendants based their argument on Leonard v. Latrobe Area Hosp., 379 Pa. Super. 243, 247 (Pa. Super. Ct. 1988) which held that plaintiffs should have directly subpoenaed non-parties for document production rather than have the defendants retrieve documents.  

            The Defendants’ argument was found to be without merit in this case because unlike in Leonard, the court reasoned that:

Although Martucci Law Offices might have a legal existence separate from Defendant for some legal and business purpose, it is not a separate entity for the purpose of discovery. . . Pennsylvania courts have treated corporations and their agents as identical for discovery purposes under some circumstances.  TD Bank at *6.   

            Thus, where a non-party and party both have authorization to documents and records, a motion to compel the non-party to produce documents may be proper.