Tag: Priest-Pentitent Privilege

CHURCH LITIGATION DISCOVERY: CONFESSIONAL PRIVILEGE AND DAUBERT SCREENING

The most expensive components of a lawsuit revolve around the briefing phases necessitated by motions, discovery and discovery disputes, and trial. Discovery, which includes written questions under oath in the form of interrogatories and written depositions, actual forensic depositions before court reporters, and document searches and production. In church litigation, due to First Amendment issues briefing is usually the predominate expense. Also, the matters at issue are often non-economic, or economically fragile, and the parties quickly reach financial exhaustion. Financial exhaustion can cause abandonment of even a good claim and certainly makes non-economic claims, battles over principal, increasingly less attractive. One of the cost elements may be that the money spent on an expert witness may not result in useable testimony. FRCP Rule 702, sometimes referred to as a Daubert challenge because of the case from which the modern application of the rule for the most part emerged, requires a court to act as a gatekeeper to preclude “junk science” and opinions without material basis from contaminating the trial.

In Stevens v Brigham Young University – Idaho, Memorandum Decision and Order (D. Idaho, September 24, 2019), the federal trial court issued another decision regarding discovery disputes. In our May 4, 2019 post we reported the court’s decision regarding certain discovery disputes which included: whether the denomination and the church university had a common interest attorney client privilege, the university’s demand for a psychiatric examination of the Plaintiff because of her claim of emotional injury, and the university’s demand the Plaintiff waive the priest – penitent privilege. In May the court did not find evidence of a common interest, permitted the psychiatric examination, and refused to abate the priest – penitent privilege. In the September order, the court held the denomination, which was a third-party intervenor and not the defendant, was still subject to discovery. In a role reversal, instead of protecting her priest – penitent privilege, the Plaintiff waived it to force “an ecclesiastical leader” of the denomination to answer deposition questions but the denomination sought to impose it to bar the deposition. The Court held the priest – penitent privilege in this situation could only be imposed by the penitent, the Plaintiff, and not the church denomination. The Plaintiff demanded to know the precise amount of financial support the university received from the denomination, but this request was denied by the Court because the university and the denomination stipulated the denomination would pay any judgment against the university making precise answers irrelevant. However, the Court did order the denomination to produce copies of notices to church members of the denomination’s financial support to the university. Also, a friend and confidant of the Plaintiff was prepared for deposition by the denomination and university and they also apparently selected and paid for the friend’s lawyer. The Plaintiff sought discovery of the engagement of the lawyer and the source of funds to pay the lawyer, both of which the Court permitted for whatever impeachment value it might have. Plaintiff’s expert was also vetted by the Court and the expert’s testimony limited to his studies of the denomination’s hierarchal structure. The expert was prohibited from issuing an opinion in Court testimony that the hierarchal structure of the denomination, or its religious teachings, caused the Plaintiff to be sexually manipulated and abused by a university professor. Though this is our second report on this case, it does not appear to be at an end.

The lesson for denominations is that intervention in litigation in which a subordinate church or parachurch organization is a party may subject the denomination to the broader discovery permitted against parties. Also, the Court was applying the newest version of the federal priest – penitent privilege, which can only be asserted by the priest on behalf of the penitent but not on behalf of the priest. Further clash with certain denominations can be expected. The last lesson is about expensive experts in church litigation. Even if they are allowed to report on studies the expert conducted or wrote about the denominational structure or polity, making the inferential leap to causation of the specific harm alleged will likely be deemed speculative or not within the scope of the expert’s credentials.

FEDERAL COURT CONFESSIONAL PRIVILEGE

The Priest-Penitent Privilege, or confessional privilege, has been a rule of law literally for thousands of years. Court decisions addressing it are rare and federal court decisions discussing it are of that tiny group the rarest. So, in the immortal words of Janine Melnitz, we can in this post say, “We got one!”

The case of Stevens v Brigham Young University-Idaho, Memorandum and Order (USDC Idaho, 2018) is an ongoing lawsuit about an alleged sexual predation upon a vulnerable student by a professor. The professor was deceased by the time the court proceedings reached the point at which the order discussed was issued and his estate settled with the plaintiff on undisclosed terms. The court’s opinion consumes fifty pages, mostly about attorney – client privilege and other discovery issues but starting on the thirteenth page was one of those rare discussions about the federal common law of priest – penitent privilege. The Court also allowed the parent denomination to intervene in the case to protect its claims of privilege because the church school defendant may not have been able to adequately assert the privileges. Another odd thing was that it was the defendant church school which was challenging Plaintiff’s assertion of the Priest-Penitent Privilege.

First, the court had to decide whether Idaho’s law on the privilege would apply or whether federal common law would apply because there is no federal statutory privilege for the confessional. The court held state law did not apply because the plaintiff’s theories of recovery raised federal question jurisdiction. Because state law was not the decisional framework for most of the claims in the case, state law privilege would not be applied as it might in a diversity jurisdiction case in which the federal court would be applying state law to the claims. Because of the lack of federal case law on the privilege, the federal court in this case relied on law from a circuit not its own. The court quoted the United States Court of Appeals in the Third Circuit’s opinion in In re Grand Jury Investigation, 918 F2d 374 (3rd Cir. 1990). From the Third Circuit came the “elements” of the privilege: “The privilege applies to protect communications made (1) to a clergyperson, (2) in his or her spiritual professional capacity (3) with a reasonable expectation of confidentiality.” The Third Circuit relied upon the 1973 Proposed Federal Rules of Evidence to define “clergyman,” “confidential,” and “who may claim the privilege.” However, those terms were not defined in any special way so for this post we will lighten the load by omitting them. However, the court did proceed to graft the Ninth Circuit’s (Idaho is in the 9th Circuit) “doctrine of implied waiver” onto the priest-penitent privilege. Implied waiver is a general doctrine that applies to all privileges and arises when the plaintiff’s claim necessarily puts the privileged information at issue in the case such that to deprive the other party of the information would result in an unfair trial. In bodily injury claims, for example, plaintiffs waive their right to medical record confidentiality although the extent of the waiver is often hotly contested.

In this case, because the Plaintiff was not trying to put forward a claim that implicated two instances of privileged confessional communication, the court enforced the privilege. Likewise, of course, the Plaintiff was foreclosed from putting forward the claim that would implicate the privileged confessional information. However, the Court applied the privilege on an instance by instance basis and ordered disclosure in the instance in which the Plaintiff “waived” the privilege by telling non-clergy third parties about the content details of the confessional conversation. In another instance the Court did not reach whether certain “lay ministers” qualified as clergy so that the privilege could be invoked because of waiver by disclosure to a third party.