Lackawanna County Common Pleas Court Orders the Hiring of an Outside Expert to Assist the Court in Determining an RTKL Issue Involving Electronic Records

Judge Nealon of the Lackwanna County Court of Common Pleas issued an Order on October 29, 2014 ordering the retention of an outside expert to assist the Court in determining the ability to retrieve emails in order to properly decide the issue raised in this Right-to-Know request. The case, Government Study Commission v. The Scranton Times L.P. and Seidel Investigations and Consulting, Inc., 2014 WL 5784151 involves a Right-to-Know request made to the Lackawanna County Government Study Commission for unredacted copies of documents relating to an investigation or performance audit of Seidel performed for the Commission. The focus of this most recent Order deals with the ability to retrieve emails sent between various parties during the course of the investigation or audit. During an evidentiary hearing, Seidel testified that he received various emails but that he had computer issues and that, in the process of fixing those issues, he lost data including emails. The County, an intervenor along with Seidel, argued that the emails could be retrieved from his hard drive. This was disputed by Seidel.

The Court indicated that the technical issues were beyond the expertise of the Court and that, as in similar matters, the Court had the authority to retain an expert in the field to examine the computers at issue and advise the Court as to whether such records could be retrieved despite the earlier issues encountered.

It is believed this is the first time in a case involving the RTKL, that the Court has ordered the retention of such an expert. There have been cases where the parties themselves have retained experts, see Fort Cherry School District v. Acton, 2012 WL 8681602 (Pa. Cmwlth. 2012) to examine electronic records. The author is unaware of any other trial or appellate court which has, sua sponte, ordered the retention of an expert to assist the court itself. As the ultimate fact-finder, the Order by Judge Nealon is well founded as the Court points out this is done in other areas of law. There is no good reason why it cannot be done in RTKL cases as well. As access to electronic records will be an ever increasing issue under RTK cases, let’s hope that this solution by Judge Nealon will be followed by other courts as those issues arise.

Disclaimer:  This blog is maintained by the members of Nauman Smith’s Media and Right-to-Know Law practice group.  The members of this practice group represent both: 1) media entities, individuals and corporations seeking access to public records, and 2) local municipalities seeking to comply with the law.  THIS BLOG IS NOT MEANT TO BE USED AS LEGAL ADVICE.  The purpose of this blog is to provide educational material for individuals interested in Pennsylvania’s open records law, commonly referred to as the “Right-to-Know Law” or “RTKL”.  The opinions expressed by the individual members of the practice group are solely their own, and do not reflect the opinions of Nauman, Smith, Shissler & Hall, LLP, or the practice group as a whole.

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