McFarland v. W. Congregation of Jehovah's Witnesses, Lorain, Oh, Inc., 15CA010740.

Citation60 N.E.3d 39
Decision Date22 August 2016
Docket NumberNo. 15CA010740.,15CA010740.
Parties Elizabeth McFARLAND, Appellee v. WEST CONGREGATION OF JEHOVAH'S WITNESSES, LORAIN, OH, INC., et al., Appellants.
CourtUnited States Court of Appeals (Ohio)

60 N.E.3d 39

Elizabeth McFARLAND, Appellee
v.
WEST CONGREGATION OF JEHOVAH'S WITNESSES, LORAIN, OH, INC., et al., Appellants.

No. 15CA010740.

Court of Appeals of Ohio, Ninth District, Lorain County.

Aug. 22, 2016.


60 N.E.3d 43

Amanda Martinsek and Marquettes D. Robinson, Attorneys at Law, Francis J. McNamara, Attorney at Law, for Appellants.

Konrad Kircher, Attorney at Law, Irwin M. Zalkin and Devin M. Storey, Attorneys at Law, for Appellee.

WHITMORE, Judge.

{¶ 1} Defendant–Appellants, West Congregation of Jehovah's Witnesses, Lorain, Ohio, Inc. (“West Congregation”), Watchtower Bible and Tract Society of New York, Inc. (“Watchtower”), and Christian Congregation of Jehovah's Witnesses (“Christian Congregation”) (collectively, “Appellants”), appeal from the order of the Lorain County Court of Common Pleas, granting a portion of Plaintiff–Appellee, Elizabeth McFarland's, motion to compel

60 N.E.3d 44

the production of certain documents. This Court affirms in part and reverses in part.

I

{¶ 2} West Congregation is one of many local Jehovah's Witnesses congregations throughout the country. Each local congregation has members who have been elevated to serve as elders for their particular congregation. The Bodies of Elders at each congregation have many responsibilities, including disciplining any members who have engaged in wrongful behavior. Additionally, the Bodies of Elders receive instructions from and communicate directly with several national entities the Jehovah's Witnesses operate to provide leadership and maintain consistency among the local congregations.

{¶ 3} Prior to 2001, Watchtower was responsible for disseminating literature to the Bodies of Elders at each local congregation. Christian Congregation usurped that responsibility in 2001 and, since then, has regularly distributed to the Bodies of Elders letters instructing the elders as to the appropriate way to address various issues within their respective congregations. Additionally, Christian Congregation maintains a Service Department that is staffed with elders who serve at the national level. Both members and elders of local congregations may call or write to elders in the Service Department to seek their guidance on a particular issue. Service Department elders then may respond in kind, by providing guidance either over the phone or through a letter.

{¶ 4} From 1997 to 2001, when she was between ten and fourteen years of age, McFarland was a member of West Congregation. Scott Silvasy was another member of the congregation during a portion of that time period. Appellants concede that Silvasy was disfellowshipped twice from the congregation: once between June 1995 and April 1996 and once between October 1998 and February 2000.1 They also concede that, at some point, “Silvasy informed an elder that, prior to his becoming one of Jehovah's Witnesses, he had a minor female touch him inappropriately.” According to McFarland, Silvasy molested her over a period of several years before she finally disclosed the abuse to her parents in 2001. McFarland alleges that her parents told the elders at West Congregation about the abuse, but they neglected to discipline Silvasy or to report the matter and discouraged her parents from doing so. Silvasy died in February 2003.

{¶ 5} In 2013, McFarland brought suit against Appellants for negligence, ratification, and fraud by omission/concealment. McFarland alleged that Appellants were aware that Silvasy had previously molested a minor and was a danger to her, but failed to take measures to protect her from his abuse and ratified his conduct by responding inappropriately once she reported the abuse. McFarland sought both compensatory and punitive damages from Appellants, alleging that they acted with intentional, malicious, and/or reckless disregard for her welfare.

{¶ 6} After discovery commenced, McFarland served Watchtower with a request for the production of certain documents. Included within that filing was a request that Watchtower produce “ALL DOCUMENTS received by YOU in response to the Body of Elders letter dated March 14, 1997.” There is no dispute that the letter in question was a letter from

60 N.E.3d 45

Watchtower to the Bodies of Elders at each local congregation, regarding child molestation, the identification of child molesters, and the steps local elders should take to protect children within the congregation from harm. The letter specifically asked the elders to supply Watchtower with reports “on anyone who is currently serving or who formerly served in a Society-appointed position in your congregation who is known to have been guilty of child molestation in the past.” In her discovery request, McFarland sought the reports Watchtower received in response to its letter.

{¶ 7} Watchtower raised several objections to McFarland's request. After the two were unable to resolve the matter themselves, Watchtower filed a motion for a protective order. Watchtower argued, among other things, that the reports McFarland sought would not advance her case against Appellants because Silvasy never served in a “Society-appointed position.” McFarland responded to Watchtower's motion, and Watchtower filed a reply. The court ultimately determined that McFarland's request was overbroad. It also wrote, however, that any reports that actually pertained to Silvasy were relevant. Consequently, the court granted Watchtower's motion in part, but also ordered it to provide McFarland with “unredacted copies of any and all reports by the body of elders at West Congregation to Defendant Watchtower concerning Scott Silvasy * * *.”

{¶ 8} Following the court's order, the parties once again found themselves in a discovery dispute. Of interest to this appeal, McFarland sought (1) all letters that Watchtower/Christian Congregation issued to the Bodies of Elders between January 1, 1980, and December 31, 2002, and (2) any documents Appellants had in their possession that related to Silvasy and/or herself. As to the latter, it was McFarland's position that the court, in ruling on Watchtower's motion for a protective order, had ordered Appellants to produce unredacted copies of any documents that related to Silvasy. Meanwhile, it was Appellants' position that the court had only ordered them to produce any reports that West Congregation had issued on Silvasy after receiving the March 14, 1997 letter from Watchtower. Because there were no such reports, Appellants argued that they had complied with the court's order. They opposed McFarland's discovery requests on the basis of clergy-penitent privilege, attorney-client privilege, and the First Amendment. Additionally, they challenged the scope of McFarland's requests, noting that they were not specifically tailored to the time period of her alleged abuse.

{¶ 9} McFarland ultimately filed a motion to compel the production of the documents she sought. Appellants opposed her motion, but also filed under seal all of the documents they identified as being at issue. McFarland then filed a reply brief. Following an in camera review of the sealed documents, the court issued its decision. The court granted McFarland's motion to compel in part and ordered Appellants to produce: (1) ten letters from the Service Department elders at Watchtower to the Bodies of Elders at the local congregations; and (2) fifteen other documents that Appellants described as either letters or memoranda sent, received, or transcribed by West Congregation elders, Service Department elders, and non-parties to the litigation. Appellants then immediately appealed from the trial court's order.

{¶ 10} Appellants have appealed from the court's order with respect to nineteen of the documents it ordered them to produce. Those nineteen documents are four of the ten letters from Service Department

60 N.E.3d 46

elders to the Bodies of Elders (“the Bodies of Elders letters”) and all fifteen of the remaining documents that Appellants described as either letters or memoranda. Appellants raise two assignments of error for our review.

II

Assignment of Error Number One

THE TRIAL COURT ERRED WHEN IT ORDERED PRODUCTION OF DOCUMENTS PROTECTED FROM DISCOVERY BY THE CLERGY–PENITENT PRIVILEGE AND THE FIRST AMENDMENT OF THE UNITED STATES CONSTITUTION.

{¶ 11} In their first assignment of error, Appellants argue that the trial court erred when it ordered them to produce nineteen documents for purposes of discovery. Specifically, they argue that the documents are protected from discovery by virtue of either the clergy-penitent privilege or the First Amendment.

{¶ 12} “In general, discovery orders are reviewed under an abuse-of-discretion standard.” Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13. That is because “courts have broad discretion over discovery matters.” State ex rel. Citizens for Open, Responsive & Accountable Govt. v. Register, 116 Ohio St.3d 88, 2007-Ohio-5542, 876 N.E.2d 913, ¶ 18. “However, the Supreme Court of Ohio has concluded that the issue of whether [ ] information sought is confidential and privileged from disclosure is a question of law that should be reviewed de novo.” Price v. Karatjas, 9th Dist. Summit No....

To continue reading

Request your trial
9 cases
  • Cincinnati Enquirer v. Hamilton Cnty. Bd. of Comm'rs
    • United States
    • Ohio Court of Claims
    • August 25, 2020
    ...a meeting is planned or has occurred does not constitute attorney-client communication. McFarland v. West Congregation of Jehovah's Witnesses, Lorain, OH, Inc., 2016-Ohio-5462, 60 N.E.3d 39, ¶ 70 (9th Dist.). {¶28} I find that the Board's assertions of attorney-client privilege are based so......
  • Tharp v. Hillcrest Baptist Church of Columbus
    • United States
    • Ohio Court of Appeals
    • December 27, 2022
    ...a confession or confidential communication made for religious counseling. See , e.g. , McFarland v. W. Congregation of Jehovah's Witnesses , Lorain , Ohio , Inc. , 9th Dist., 2016-Ohio-5462, 60 N.E.3d 39, ¶ 13, quoting Trammel v. United States , 445 U.S. 40, 51, 100 S.Ct. 906, 63 L.Ed.2d 18......
  • State v. Wisener
    • United States
    • Ohio Court of Appeals
    • December 15, 2022
    ...state constitution or specifically claim the order was unconstitutionally applied to him. See McFarland v. W. Congregation of Jehovah's Witnesses, Lorain, Ohio, Inc. , 2016-Ohio-5462, 60 N.E.3d 39, ¶ 60 (9th Dist.) (refusing to review a broader argument under the Ohio Constitution where the......
  • Hicks v. Union Twp.
    • United States
    • Ohio Court of Claims
    • April 21, 2022
    ... ... attorney-client privilege." McFarland v. West ... Congregation of Jehovah's Witnesses, Lorain, OH, ... Inc., 2016-Ohio-5462, 60 N.E.3d 39, ¶ ... ...
  • Request a trial to view additional results
1 books & journal articles
  • § 41.02 Clergy-Penitent Privilege
    • United States
    • Carolina Academic Press Understanding Evidence (2018) Title Chapter 41 Other Private Privileges
    • Invalid date
    ...or other counsel, advice, solace, absolution or ministration"); McFarland v. W. Congregation of Jehovah's Witnesses, Lorain, Ohio, Inc., 60 N.E.3d 39, ¶ 17 (Ohio App. 2016) ("Not every word authored or spoken by a cleric is privileged. It does not protect communications made for secular pur......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT