In re Roman Catholic Archbishop of Portland in or.

Citation335 B.R. 815
Decision Date23 December 2005
Docket NumberNo. 04-37154-ELP11.,04-37154-ELP11.
PartiesIn re ROMAN CATHOLIC ARCHBISHOP OF PORTLAND IN OREGON, and Successors, A Corporation Sole, dba the Archdiocese of Portland In Oregon, Debtor.
CourtUnited States Bankruptcy Courts. Ninth Circuit. U.S. Bankruptcy Court — District of Oregon

Thomas V. Dulcich, Susan Stevens Ford, Margaret Hoffman, Teresa H. Pearson, Thomas C. Sand, Thomas W. Stilley, Portland, OR, L. Martin Nussbaum, Colorado Springs, CO, James L. Phillips, Seattle, WA, for Debtor.

MEMORANDUM OPINION

ELIZABETH PERRIS, Bankruptcy Judge.

In this chapter 111 case filed by the Archbishop of Portland in Oregon, and Successors, a Corporation Sole, dba the Archdiocese of Portland in Oregon, the tort claimants have submitted a list of topics for depositions of four witnesses regarding debtor's patterns, practices, and policies with regard to allegations of sexual misconduct with a minor by any priest while working in an Archdiocesan ministry assignment. The witnesses designated by the tort claimants, including Archbishop William J. Levada, object to some of the topics. This matter came before the court for resolution of the objections in advance of the depositions.

Debtor and Archbishop Levada have raised numerous objections to the lists of topics for pattern and practice depositions provided by the tort claimants.2 Some of the objections apply to all witnesses; some apply only to the questions proposed to be put to Archbishop Levada. I will address the common objections together, and those specific to Archbishop Levada separately.

In federal court, a party is entitled to discovery of

any matter, not privileged, that is relevant to the claim or defense of any party . . . . For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

Fed. R. Civ. P. 26(b)(1), made applicable to the adversary proceedings by Fed. R. Bankr. P. 7026. "The burden is on the party objecting to discovery to show that discovery should not be allowed." Mueller v. Walker, 124 F.R.D. 654, 656 (D. Or. 1989).

These depositions are being taken pursuant to the January 14, 2005 Order Regarding Premediation Discovery by Tort Claimants, in which the court concluded that evidence regarding debtor's "`patterns, practices, and policies' in regards to allegations of sexual misconduct with a minor by any priest while working in an Archdiocesan ministry assignment is relevant for discovery purposes to the negligence claims of various tort claimants. " Order Regarding Premediation Discovery by Tort Claimants at p. 1, ¶ 1. That is because the defendant's knowledge of sexual misconduct of priests with minors, and knowledge about whether priests who engage in such behavior may safely be returned to ministry involving children, bears upon whether debtor was negligent in how it handled allegations of abuse, and because the extended statute of limitations for child abuse cases set out in ORS 12.117(1) provides that the statute is extended with regard to "an action based on conduct that constitutes child abuse or conduct knowingly allowing, permitting or encouraging child abuse[.]" The order provided that "Tort claimants may depose up to four witnesses, to be chosen jointly by the tort claimants, for purposes of discovering Debtor's `patterns, practices, and policies' in regard to the abuse or molestation of minors by priests." Order Regarding Premediation Discovery by Tort Claimants at p. 3, ¶ 2.

COMMON OBJECTIONS
1. Evidence of clergy sexual misconduct

In a number of the topics included on the tort claimants' list, they seek various types of information about clergy "sexual misconduct." Debtor objects, arguing that questions should be limited to sexual misconduct with minors by a priest working in an Archdiocesan ministry assignment, because the claims at issue involve minors, and the court's order holds that evidence of debtor's patterns and practices with regard to "allegations of sexual misconduct with a minor by any priest while working in an Archdiocesan ministry assignment" is relevant to these claims. The tort claimants respond that they do not intend to ask questions about clergy sexual contact with adults, "unless it is in a context in which there is clear relevance." Tort Claimants' Reply to Debtor's Responses and Objections to Topic Listing for Pattern and Practice Witnesses (Non-Levada) at 11. As an example, the tort claimants indicate they might want to question witnesses "about a prison chaplain's sexual contact with inmates, be they adolescent boys at MacLaren or young men at Oregon State Correctional Institution." Id.

The order allowing these pattern and practice depositions was limited to debtor's patterns and practices with regard to sexual abuse of minors. The tort claimants may inquire into debtor's practices and policies with regard to priest sexual misconduct with minors, not with adults. If debtor had patterns, practices, or policies with regard to sexual abuse by priests in general, which applied to abuse of both minors and adults, that information would be discoverable. Information about patterns, practices, or policies relating to sexual abuse of adults is not discoverable, unless the patterns, practices, or policies applied to minors as well.

Debtor also argues that questions should be limited to debtor's patterns and practices regarding misconduct of clergy working within the Portland Archdiocese. The claims against debtor are based on alleged misconduct by Archdiocesan clergy or non-Archdiocesan clergy who were working in an Archdiocesan ministry, and debtor's response to that conduct. Evidence of debtor's response to allegations of sexual misconduct with minors by clergy who were either Archdiocesan clergy or were working in the ministry of the Archdiocese is discoverable. Inquiry is not limited to clergy who were directly employed by the Archdiocese. That means that debtor's patterns and practices with regard to Archdiocesan clergy and clergy who were part of a non-diocesan order but who were working in the Archdiocese's ministry are discoverable. Evidence of debtor's response to allegations of sexual misconduct by clergy outside the Portland Archdiocese (unless the clergy remained priests of the Archdiocese of Portland when working outside the Archdiocese) is not relevant, nor is it likely to lead to relevant evidence, of patterns and practice with regard to allegations of abuse by Archdiocesan priests or other priests working with an Archdiocesan ministry.

2. Evidence of debtor's patterns, practices, and policies after the last alleged date of abuse

Debtor seeks a time limitation on questions, arguing that debtor's patterns, practices, and policies after the last date of alleged abuse are irrelevant to its liability for the alleged abuse. The tort claimants respond that evidence of continued concealment after the alleged abuse shows that the concealment was not an accident.

The tort claimants rely on Rader v. Gibbons & Reed Co., 261 Ore. 354, 359, 494 P.2d 412 (1972), which holds that "[e]vidence of prior similar occurrences is admissible under some circumstances in a negligence action." The Oregon Supreme Court held that, although evidence of prior acts of negligence are generally not admissible to prove a specific act of negligence, "such evidence is, however, admissible to prove the existence of . . . a continuing course of negligent conduct, and that the . . . course of conduct is in fact dangerous or that the defendant had notice of its dangerous character." Id.

They further argue that conduct that occurs after the alleged misconduct can also be relevant to show state of mind, because concealment of misconduct can indicate knowledge that the conduct was negligent. They cite two Oregon cases that upheld the admission of evidence of the defendant's conduct after the alleged negligent conduct. In Joachim v. Crater Lake Lodge, Inc., 48 Or.App. 379, 617 P.2d 632 (1980), the Oregon Court of Appeals concluded that evidence that, after the plaintiff became sick from drinking the water at Crater Lake Lodge, the manager of the lodge removed notices that water at the lodge was contaminated provided some evidence that the manager's conduct in failing to warn the public about the contamination was in deliberate disregard of the rights of others. The Court of Appeals held in Stephens v. Bohlman, 138 Or.App. 381, 909 P.2d 208 (1996), that evidence that a tortfeasor participated in covering up the true cause of the injury was circumstantial evidence that he believed he had acted negligently.

I will not limit the time frame for questions about debtor's patterns, practices, and policies with regard to dealing with allegations of clergy sexual misconduct with minors. This is discovery. The test is whether the information obtained would be admissible at trial; it is whether the information sought "appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). Although the relevant time frame for these claims is the time of the alleged misconduct, evidence of debtor's later policies could possibly lead to evidence that would be relevant to the claims of negligence or to establishing debtor's knowledge for purposes of extending the statute of limitations under ORS 12.117(1). If, for example, evidence shows that debtor continued to reassign known pedophile priests to new parishes even after it knew that child molesters are likely to re-offend, that fact would provide some evidence that debtor's earlier reassignment was not merely a mistake or accident. Further, changes in policies after alleged abuse occurred could shed light on what the policies were at the time of the abuse.

Debtor argues that evidence of...

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2 cases
  • Lopez v. Watchtower Bible & Tract Soc'y of N.Y., Inc.
    • United States
    • California Court of Appeals Court of Appeals
    • April 14, 2016
    ...78 Cal.App.2d 522, 524, 178 P.2d 65 ; see Foley v. Lowell (1st Cir. 1991) 948 F.2d 10, 14 ; see also In re Roman Catholic Archbishop of Portland (Bankr.D.Or.2005) 335 B.R. 815, 823 ["Although the relevant time frame for these [clergy sexual abuse] claims is the time of the alleged misconduc......
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    • United States
    • Court of Appeal of Michigan — District of US
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    ...spoke with the bishop as part of the church's repentance process. Id. at 235, 221 P.3d 1045. In In re Roman Catholic Archbishop of Portland, 335 B.R. 815, 829 (Bankr.D.Or.2005), a bankruptcy judge found the phrase “professional character” to be ambiguous. Noting that the purpose of the priv......

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