Scope of Discovery at Issue in Same-Sex Marriage Case

, The Legal Intelligencer

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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.

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