There probably is nothing more confusing to a church than demands for documents or information from courts or government.  Confusion arises because smart people that are not lawyers, relying on some anecdotal past personal experience, believe the church will have the same experience they had.  This is usually wrong.

In Templeton v Bishop of Charleston, Order Denying Motion to Quash, United States District Court, Western District of Washington, No. C20-1578, the trial court denied the motion to quash a subpoena.  The subpoena was served on a priest to testify by deposition in discovery in a molestation tort case.  The priest was not a party to the lawsuit but a mere witness.  The priest requested that the subpoena be quashed alleging that the Ecclesiastical Abstention Doctrine precluded inquiries into church administration.  The priest further argued that a state statute made privileged his communication with his bishop.  The priest lastly argued that the priest had a confidentiality agreement between himself and the bishop which precluded his testimony.  The Court dismissed the Ecclesiastical Abstention Doctrine claim as too broad.  It might apply to a particular question but it would not apply to others the Court held.  The priest also argued he was a “canon lawyer” and a “judge of the ecclesiastical court” and entitled to privilege.  The court denied the claim because the priest was not an attorney at law.  Further, even if there was such a privilege, it might apply to a particular question and not apply to others.  The state statute rendered “confidential communication” necessary for the priest to do his job privileged.  But, the court held such an agreement might immunize a particular question but not others.  The allegation of the confidentiality agreement between the priest and the bishop was generally swept aside because the court doubted such an agreement could override a court order to testify.

Churches that receive a court subpoena, or any other order from a court or government to produce documents, information or testimony, should immediately engage counsel to respond or object on their behalf.  The church insurance carrier should immediately also be notified in writing.  While the insurer may not undertake the representation by retaining outside counsel to represent the church, that is not always true.  It may depend on whether the information sought might related to a future or anticipated lawsuit.  Lastly, the word “immediately” should not be ignored.

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