Rowland v. Watchtower Bible & Tract Soc'y of N.Y., Inc.
| Decision Date | 08 July 2021 |
| Docket Number | Cause No. CV 20-59-BLG-SPW |
| Parties | ARIANE ROWLAND, and JAMIE SCHULZE, Plaintiffs, v. WATCHTOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC., and WATCH TOWER BIBLE AND TRACT SOCIETY OF PENNSYLVANIA, Defendants. |
| Court | U.S. District Court — District of Montana |
This matter comes before the Court on Plaintiffs Ariane Rowland and Jamie Schulze's Motion to Compel Re: Hardin Congregation of Jehovah's Witnesses ("Hardin Congregation") Subpoena, filed April 21, 2021. (Doc. 48). The Court granted the Hardin Congregation's Motion to Intervene (Doc. 55) and the Hardin Congregation filed a response to the Motion to Compel on May 5, 2021 (Doc. 56). Defendants Watch Tower Bible and Tract Society of Pennsylvania ("WTPA") and Watchtower Bible and Tract Society of New York, Inc. ("WTNY") joined in the Hardin Congregation's opposition. (Doc. 58). Plaintiffs filed their reply on May 14, 2021 (Doc. 59) and a hearing was held June 2, 2021. The matter is now deemed ripe for adjudication. For the following reasons, the Court grants Plaintiffs' motion.
At various times between 1973 and 1992, Plaintiffs allege that they endured serial child sexual abuse from members of the Hardin Congregation. Plaintiffs claim that the Defendants permitted and facilitated that sexual abuse, as the two named entities, Watchtower Bible and Tract Society of New York ("WTNY") and Watch Tower Bible and Tract Society of Pennsylvania ("WTPA"), "(1) were operating as alter egos of each other during the period in question; (2) were made aware of the abuse; and (3) chose to allow the abuse to continue by ignoring credible reports and directing congregational leaders in Hardin not to report the abuse to local authorities." (Doc. 49 at 2).
WTPA filed a motion to dismiss Plaintiffs' Complaint for lack of personal jurisdiction, arguing that WTPA does not have the necessary "continuous and systematic" contacts in the state necessary for general personal jurisdiction. WTPA also argues that it does not engage in any substantial interactions in the state that could have resulted in the claimed tort for specific personal jurisdiction. (Doc. 10 at 11).
The Court stayed ruling on the motion to dismiss after reviewing documents submitted by Plaintiffs in response. The Court found that "WTPA may have playeda greater role in the church's governance in the past" (Doc. 24 at 4) and allowed jurisdictional discovery to proceed. Pursuant to that discovery, Plaintiffs served a subpoena duces tecum on the Hardin Congregation on January 11, 2021. The Hardin Congregation produced 100 pages of documents in response but withheld ten documents and heavily redacted two more. The Hardin Congregation stated that these documents were privileged under Montana's statutory attorney-client privilege and statutory clergy-penitent privilege as well as third party privacy, elders expectation of confidentiality, and congregant expectation of confidentiality. (Doc. 49-3).
Plaintiffs filed the present motion to compel arguing that the Hardin Congregation's refusal to provide the withheld documents does not comply with Montana's privilege standards and asks the Court to find that the Hardin Congregation must provide more detail about the documents in order to better determine whether established privileges apply or for the Court to review the documents in camera and determine the applicability of the asserted privileges.
Federal Rule of Civil Procedure 45(e)(2)(A) states:
A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must: (i) expressly make the claim; and (ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.
Further, District of Montana Local Rule 26.3(c)(2) requires:
All motions to compel or limit discovery must: (A) set forth the basis for the motion; (B) certify that the parties complied with subsection (c)(1) or a description of the moving party's attempts to comply; and (C) attach, as an exhibit: (i) the full text of the discovery sought; and (ii) the full text of the response.
Subsection (c)(1) requires parties to confer through direct dialogue such as telephone or other detailed communication before a court grants any motion to compel discovery. See also Fed. R. Civ. P. 37(a)(3)(B).
In civil cases, "state law governs privilege regarding a claim or defense for which state law supplies the rule of decision." Fed. R. Evid. 501. Montana Code Annotated § 26-1-804 provides that "[a] member of the clergy or priest may not, without the consent of the person making the confession, be examined as to any confession made to the individual in the individual's professional character in the course of discipline enjoined by the church to which the individual belongs."
As an initial matter, the Court finds that the parties have sufficiently complied with D. Mont. L.R. 26.3(c) as demonstrated by Plaintiffs' Notice of Written Discovery and Associated Conferral Efforts. (Doc. 44). Therefore, the Court shall proceed to address the merits of the Hardin Congregation's privilege arguments.
The first issue before the Court is whether the Hardin Congregation's attempts to withhold documents as privileged due to the asserted third-party's, congregants', and elders' expectations of privacy are valid under Montana law. The Hardin Congregation argues that, although these privacy expectations are not codified as privileged under any Montana statute, they nonetheless constitute privileged communications under the Montana Supreme Court's holding in Nunez v. Watchtower Bible and Tract Society, 455 P.3d 829 (2018). Plaintiffs oppose this position and argue that the Nunez decision concerned an entirely separate statute from Montana's privilege statues and the Montana Supreme Court did not discuss privileges anywhere in the opinion. Therefore, according to Plaintiffs, Nunez has no bearing on the scope of Montana's privilege law and did not expand privilege protection to the asserted privacy expectations.
It is a fundamental principle that "the public . . . has a right to every man's evidence." Trammel v. U.S., 445 U.S. 40, 50 (1980) (quoting United States v. Bryan, 339 U.S. 323, 331 (1950)). Courts are afforded the power to craft new evidentiary privileges when necessary, however, the United States Supreme Court has cautioned that courts should not exercise the authority expansively unless it "promotes sufficiently important interests to outweigh the need for probative evidence." Univ. of Pa. v. E.E.O.C., 493 U.S. 182, 189 (1990) (quoting Trammel, 445 U.S. at 51). Testimonial privileges directly contradict this fundamental principle and, "[a]s such,they must be strictly construed and accepted 'only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.'" Trammel, 445 U.S. at 50. (quoting Elkins v. United States, 364 U.S. 206, 234 (1960)).
The Hardin Congregation asserts that the Montana Supreme Court, in the Nunez case, expanded the scope of the clergy-penitent testimonial privilege to encompass three new privileges: Third-Party Privacy, Elders Expectation of Confidentiality, and Congregant Expectation of Privacy. Specially, the Congregation argues:
[T]he [Nunez] Court took recognized [sic] that basic tenets specific to the Jehovah's Witnesses' faith put an "emphasis on confidentiality particularly in handling communications and reports of" what the Court described as serious sin. This emphasis on confidentiality expressly applied to: 1) promises to congregants that what they discussed with elders would remain strictly confidential; 2) that the requirement that elders keep such communications strictly confidential was based on Scripture; 3) that congregation members must trust elders to keep all scriptural communications strictly confidential; 4) that the premise the confidential treatment of such communications applied to all members and not just those accused of or confessing serious sin; 5) that an elder's disclosure of confidential communications to those not entitled to hear such communications could call into question an elder's qualifications and result in an elder's removal; 6) that a local elder's communications with experienced elders in New York are likewise strictly confidential; and 7) that all spiritual communications taking place during investigations were strictly confidential.
(Doc. 56 at 5-6). According to the Congregation, these communications are now protected under the umbrella of privilege making the documents described in the Privilege Log appropriately withheld as communications between congregants and clergy and between clergy and clergy.
The Court finds this argument insufficient to warrant the expansion of the testimonial privilege to such an encompassing degree. In Nunez, the Montana Supreme Court examined the interplay between Montana's mandatory child abuse reporter statute and the Jehovah's Witness faith's practice of strict confidentiality in handling reports of child abuse within the church. The Nunez Court ultimately decided that the reporter statute did not apply to communications made during the Jehovah's Witness congregation's investigation of alleged child sexual abuse based on an exception contained within that statute exempting clergy members from reporting information recognized as confidential under church doctrine. 455 P.3d at 836.
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