IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CIVIL DIVISION

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1 Matthew H. Haverstick (No ) Joshua J. Voss (No ) KLEINBARD EEC One Liberty Place, 46th Floor 1650 Market Street Philadelphia, PA Ph: (215) Fax:(215) Eml: mhaversti einb ard. com ENTERED AND FILED PROTHONOTARY S OFFICE LANCASTER, PA ***Electronically Filed***** Oct :17PM Nathan Renkes Attorneys for Plaintiff William Murry IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CIVIL DIVISION WILLIAM MURRY, Plaintiff, No. Cl Judge David L. Ashworth LNP MEDIA GROUP, INC., BARBARA HOUGH ROD A, SUSAN BALDRIGE, KARA NEWHOUSE, and JOHN DOE(S), v. Defendants. PLAINTIFF S MOTION FOR LEAVE TO FILE REPLY IN FURTHER SUPPORT OF MOTION TO COMPEL DISCOVERY RESPONSE FROM THIRD-PARTY JOHN NODECKER In light of recent information, discussed below, Plaintiff William Murry files this Motion for Leave to File Reply in Further Support of Motion to Compel Discovery Response from Third-Party John Nodecker: 1. On September 28, 2017, Plaintiff Murry filed his Motion to Compel Discovery Response from John Nodecker (the Motion to Compel ). Compel. 2. On October 13, 2017, the Media Defendants filed a response to the Motion to

2 Cl Though not reflected on the official docket in this matter, it appears third-party John Nodecker also filed a response to the Motion to Compel on or about October 12, Since the filing of the responses, Plaintiff became aware of a recent wire-tapping incident at the courthouse, first reported on October 19, 2017, which incident, while directly unrelated to this case, underscores the importance of the issues at stake not only in the pending Motion to Compel but also in this case as a whole. See Lindsey Blest, Martic Township Man Charged with Using 'Pen' to Take Audio, Video Recordings at Courthouse, Lancaster Online (Oct. 19, 2017) (attached as Exhibit A to proposed Reply Brief). 5. In light of that recent event, Plaintiff respectfully requests leave to file the Reply Brief attached hereto as Exhibit 1 and requests that the Court consider it during its disposition of the pending Motion to Compel. WHEREFORE, for the reasons set forth above, Plaintiff William Murry respectfully requests the Court grant this Motion and consider the Reply Brief attached hereto during the Court s disposition of the pending Motion to Compel Discovery Response from Third Party John Nodecker. Respectfully submitted, Dated: October 27, 2017 atthew H. Haverstick (No ) Joshua J. Voss (No ) KLEINBARD EEC One Liberty Place, 46th Floor 1650 Market Street Philadelphia, PA Ph: (215) Fax: (215) Eml: mhaversti ck@kl einb ard. com ivoss@kleinbard.com Attorneys for Plaintiff William Murry 2

3 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CIVIL DIVISION WILLIAM MURRY, Plaintiff, No. Cl Judge David L. Ashworth LNP MEDIA GROUP, INC., BARBARA HOUGH ROD A, SUSAN B ALDRIGE, KARA NEWHOUSE, and JOHN DOE(S), v. Defendants. ORDER AND NOW, this day of, 2017, upon consideration of Plaintiffs Motion for Leave to File Reply in Further Support of Motion to Compel Discovery Response from Third-Party John Nodecker, and any response thereto, it is hereby ORDERED that the Motion is GRANTED. It is further ORDERED that the Reply Brief attached to Motion shall be considered by the Court in its disposition of the pending Motion to Compel. BY THE COURT:,J.

4 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CIVIL DIVISION WILLIAM MURRY, Plaintiff, v. No. Cl Judge David L. Ashworth LNP MEDIA GROUP, INC., BARBARA HOUGH ROD A; SUSAN B ALDRIGE, KARA NEWHOUSE, and JOHN DOE(S), Defendants. CERTIFICATE OF SERVICE I hereby certify that I caused the foregoing Motion for Leave to File Reply in Further Support of Motion to Compel Discovery Response From Third-Party John Nodecker to be served via U.S. Mail and on the following: Craig J. Staudenmaier, Esquire Benjamin C. Dunlap, Jr., Esquire Nathaniel J. Flandreau, Esquire NAUMAN, SMITH, SHISSLER & HALL, LLP 200 North Third Street, 18th Floor P.O. Box 840 Harrisburg, PA ci staud@nssh.com bdunlapir@nssh.com NJFlandreau@nssh.com Attorneys for Defendants Matthew R. Clayberger, Esquire THOMAS, THOMAS & HAFER P.O. Box 999 Harrisburg, PA mclavberger@tthlaw.com Attorney for John Nodecker Dated: October 27, 2017 KLEINBARD EEC One Liberty Place, 46th Floor 1650 Market Street Philadelphia, PA Ph: (215) /Fax: (215) Eml: ivoss@kleinbard.com Attorney for Plaintiff William Murry

5 EXHIBIT 1

6 Matthew H. Haverstick (No ) Joshua J. Voss (No ) KLEINBARD EEC One Liberty Place, 46th Floor 1650 Market Street Philadelphia, PA Ph: (215) Fax:(215) Eml: mhaversti einb ard. com Attorneys for Plaintiff William Murry IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CIVIL DIVISION WILLIAM MURRY, Plaintiff, No. Cl Judge David L. Ashworth LNP MEDIA GROUP, INC., BARBARA HOUGH ROD A, SUSAN BALDRIGE, KARA NEWHOUSE, and JOHN DOE(S), v. Defendants. PLAINTIFF S REPLY BRIEF IN FURTHER SUPPORT OF MOTION TO COMPEL DISCOVERY RESPONSE FROM THIRD-PARTY JOHN NODECKER Plaintiff William Murry files this reply in further support of the pending Motion to Compel Discovery Response from Third-Party John Nodecker to supply four additional points for the Court s consideration. First, the importance of the issues not just in the pending Motion but also in the pending case cannot be understated. As the Lancaster Court of Common Pleas just recently learned when the Court itself was subject to an unauthorized wiretap apparently using a device similar to the one potentially at issue in this case wiretapping is a real problem in today s Commonwealth.

7 Cl See Lindsey Blest, Martic Township Man Charged with Using 'Pen' to Take Audio, Video Recordings at Courthouse, Lancaster Online (Oct. 19, 2017) (Exhibit A).1 And that problem is one that is likely to grow given the ubiquity of recording devices (e.g., smart phones) absent meaningful responses by courts faced with actions, like this one, seeking to enforce existing wiretapping laws. Additional burdens (like the ones described below) should not be placed in the way of plaintiffs, like William Murry, facing the already uphill battle to find criminals violating Pennsylvania penal and civil laws. Second, neither the Media Defendants nor Mr. Nodecker were able to point to a single case that holds a party may not seek discovery from the purported source of a news story. This omission from their briefs is not surprising since the Pennsylvania Shield Law and the First Amendment only bar certain discovery from the reporter they absolutely do not bar discovery from the actual/potential source. See 42 Pa.C.S. 5942(a); U.S. v. Cuthbertson, 630 F.2d 139, 147 (3d. Cir. 1980). And as noted in Plaintiff Murry s opening brief, privileges under Pennsylvania law are to be construed narrowly, since they deny parties their right to seek admittedly relevant information, and such an appropriately narrow construction here leads to the inescapable conclusion that the various reporter s privileges do not apply. See PI. hr. at 6 (citing Octave ex rel. Octave v. Walker, 103 A.3d 1255, 1262 (Pa. 2014) and Joyner v. Southeastern Pa. Tramp. Auth., 736 A.2d 35, 38 (Pa. Cmwlth. 1999)). Further, if the Court were to credit the Media Defendants position about the purportedly extensive scope of the privileges, that would mean that Plaintiff Murry can never seek the recording at issue in this case from the alleged source, whoever he or she may be. To illustrate, if true that discovery cannot be had from a source regarding information transmitted to a reporter, then even if Plaintiff Murry is ever able to 1 Available at: 534dd4a8-b4e4-lle7-a92d-b725aa2a5a51.html. 2

8 Cl find the criminal wire-tapper in this case, presumably the Media Defendants would simply invoke a broad reporter s privilege over the recording in that person s possession, and bar its production, since it was source material transmitted to a reporter. This is an absurd result, but one that the Media Defendants are plainly advocating for in their brief. Third, whatever privilege that may have existed over the redacted s has been waived under the sword-shield doctrine. That doctrine, which typically arises in the attorney-client privilege context but should apply with equal force here, provides that a party is not permitted to use the attorney-client privilege as a sword and as a shield. Mueller v. Nationwide Mut. Ins. Co., 31 Pa. D. & C.4th 23, 32 (C.P. Allegheny Cty. 1996); see also Nationwide Mut. Ins. Co. v. Fleming, 992 A.2d 65, 69 (Pa. 2010) (opinion of Justices Eakin and Baer) (favorably discussing sword-shield doctrine). Here, either all of the communications between Mr. Nodecker and the Media Defendants were privileged, or none of them were. Yet both the Media Defendants and Mr. Nodecker were perfectly willing to let Plaintiff Murry see a select few communications between them in the context of two lengthy chains. This is classic sword-shield: the Media Defendants are invoking the privilege as a shield as it suits them (to hide the redacted s) and disregarding it as a sword as it does not (to show the un-redacted s). Hence, even if some kind of privilege ever existed in the redacted s (which it does not), it has been waived. Fourth and finally, the Media Defendants and Mr. Nodecker both allege that the s under redaction are somehow irrelevant to the pending claims in this matter. Plaintiff is largely unable to respond to that assertion, since only those two parties are privy to the communications (and now, so too, apparently is the Court since Mr. Nodecker alleged he submitted un-redacted versions of the s to the Court for review). Plaintiff Murry submits, however, it seems rather 3

9 Cl elementary that when two parties are exchanging communications in a single chain (on two different occasions) that the communications antecedent to the ones that are admittedly relevant to a dispute, as is the case here, are necessarily related and material to the entire string of communications. Thus, Plaintiff submits, the entire chain is material, if nothing else, to explain why the two sides are suddenly discussing the subject matter at the heart of this case. For the reasons set forth above, and those in Plaintiffs initial brief, Plaintiff William Murry respectfully requests the Court grant the pending Motion and enter an order compelling the full production of the original versions of the chains represented in Motion Exhibits D & E, before such chains were forwarded to counsel. Respectfully submitted, Dated: October 27, 2017 mhew H. bhfverstick (No ) Joshua J. Voss (No ) KLEINBARD EEC One Liberty Place, 46th Floor 1650 Market Street Philadelphia, PA Ph: (215) /Fax: (215) Eml: mhaversti ck@kl einb ard. com ivoss@kleinbard.com Attorneys for Plaintiff William Murry 4

10 EXHIBIT A

http://lancasteronline.com/news/local/martic-township-man-charged-with-using-pen-to-take-audio/article_534dd4a8-b4e4-ne7-a92d-b725aa2a5a51.

11 Martic Township man charged with using 'pen' to take audio, video recordings at courthouse LINDSEY BLEST I Staff Writer Oct 19,2017 CHARGED I A Martic Township man is charged with using a device that looked like a pen to take illegal recordings in the Lancaster County Courthouse last month. Melvin C. Hartman, 52, of 65 Nissley Lane, recorded audio and video while at the courthouse for a juvenile hearing Sept. 21, according to the Lancaster County district attorney's office. When Hartman was going through security, deputy sheriffs asked him to show them a pen he had attached to a portfolio. Hartman said it was a gift, according to a criminal complaint. A few minutes later, the sheriffs noticed circuit boards inside the pen after enlarging the scanned images and alerted their supervisor. Detective Joanne Resh met with Hartman, who said he was at the courthouse to attend a juvenile hearing on the fourth floor in Judge Christopher Hackman's courtroom, the complaint states.

12 Hartman admitted the pen was a recording device he bought on Amazon for $200, according to the complaint. He said he didn't know if he had recorded anything in the courthouse and wouldn't let Resh take a look, according to the complaint. Detectives examined the device the next day after getting a search warrant. On it were recordings of a bailiff and other people on the fourth floor of the courthouse, where courtrooms are located, according to the complaint. Hartman faces felony charges of interception of communications and criminal attempt to intercept communications filed by Resh Oct. 10, according to court documents. "Surreptitious recording of any conversation is a violation of The Wiretap Act and is punishable criminally," said President Judge Dennis Reinaker in an Thursday. Under an administrative order from Reinaker enacted in January, audio-video recording devices and cellphones are banned from the courthouse at 50 N. Duke St. Hartman was arraigned Oct. 12, in front of District Judge Janice Jimenez and committed to Lancaster County Prison on $20,000 bail. More Headlines Major gambling state Pennsylvania poised for big expansion With a frost advisory forecast tonight, protect your plants Comcast lost 125,000 video subscribers in the third quarter as customers switch to streaming Crazy Tomato Grill closes in Centerville; owners concentrating on smaller York locations Man charged with kidnapping 21-year-old man from Columbia home Historic Preservation Trust honors 6 projects, 3 individuals, for their work saving and highlighting significant local sites For King & Country, Matthew West, Natalie Grant and more to perform at 'The Roadshow1 in Hershey Antique Toolbox; Can we stump you with October's quiz? Michael lamanis and Frances Veri to get spooky in the key of C at Lancaster Catholic High School 0 insider The Scribbler; Lancaster-manufactured WWII naval shell returns to Armstrong archive ^insider Lancaster County community calendar; Oct. 26,2017

13 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CIVIL DIVISION WILLIAM MURRY, Plaintiff v. No. Cl Judge David L. Ashworth LNP MEDIA GROUP, INC., BARBARA HOUGH ROD A; SUSAN B ALDRIGE, KARA NEWHOUSE, and JOHN DOE(S), Defendants. CERTIFICATE OF SERVICE I hereby certify that I caused the foregoing Reply Brief in Further Support of Motion to Compel Discovery Response From Third-Party John Nodecker to be served via U.S. Mail and on the following: Craig J. Staudenmaier, Esquire Benjamin C. Dunlap, Jr., Esquire Nathaniel J. Flandreau, Esquire NAUMAN, SMITH, SHIS SEER & HALL, LLP 200 North Third Street, 18th Floor P.O. Box 840 Harrisburg, PA ci staud@nssh.com bdunlapir@nssh.com NJFlandreau@nssh.com Attorneys for Defendants Matthew R. Clayberger, Esquire THOMAS, THOMAS & HAFER P.O. Box 999 Harrisburg, PA mclavberger@tthlaw.com Attorney for John Nodecker Dated: October 27, 2017 KLEINBARD EEC One Liberty Place, 46th Floor 1650 Market Street Philadelphia, PA Ph: (215) Fax: (215) Eml: ivoss@kleinbard.com Attorney for Plaintiff William Murry

In the Supreme Court of the United States

NOS. 22O145 & 22O146, Original (Consolidated) In the Supreme Court of the United States DELAWARE, v. Plaintiff, PENNSYLVANIA AND WISCONSIN, Defendants. ARKANSAS, et al., v. DELAWARE, Plaintiffs, Defendant.