T.S. v. Boy Scouts of America

• Decision Date: 27 July 2006
• Docket Number: No. 76726-2.,76726-2.
• Parties: T.S., M.S. and K.S., Respondents, v. BOY SCOUTS OF AMERICA, a congressionally chartered corporation, authorized to do business in Washington, Petitioner, and Pacific Harbors Council, Boy Scouts of America, formerly known as Mount Rainier Council, a Washington public benefit corporation; Chief Seattle Council, Boy Scouts of America, a Washington public benefit corporation; and Bruce Phelps, an individual, Defendants.
• Court: Washington Supreme Court

Page 1053

138 P.3d 1053

157 Wn.2d 416

T.S., M.S. and K.S., Respondents, v. BOY SCOUTS OF AMERICA, a congressionally chartered corporation, authorized to do business in Washington, Petitioner, and Pacific Harbors Council, Boy Scouts of America, formerly known as Mount Rainier Council, a Washington public benefit corporation; Chief Seattle Council, Boy Scouts of America, a Washington public benefit corporation; and Bruce Phelps, an individual, Defendants.

No. 76726-2.

Supreme Court of Washington, En Banc.

Argued October 11, 2005.

Decided July 27, 2006.

D. Michael Reilly, Steven Douglas Jensen, Michael Barr King, Laura Therese Morse, Lane Powell PC, Michael Thomas Pfau, Mark Gregory Honeywell, Joan C. Foley, Timothy David Kosnoff, Gordon Thomas Honeywell, Seattle, for Petitioner/Appellant.

Mary Colleen Kinerk, Cable Langenbach Kinerk Bauer LLP, Kenneth Scott Kagan, Carney Badley Spellman, Seattle, for Appellee/Respondents.

OWENS, J.

¶ 1 T.S., M.S., and K.S. filed suit against the Boy Scouts of America (BSA), two local BSA councils, and former scoutmaster Bruce Phelps, seeking damages for sexual abuse allegedly committed by Phelps in the 1970s and 1980s when plaintiffs were scouts. BSA seeks reversal of a discovery order requiring production of its "Ineligible Volunteer Files" (the Files), a compilation of reports that BSA received over a period of decades regarding, primarily, allegations of the sexual abuse of minors by adult men. Clerk's Papers (CP) at 76. Asserting the privacy rights of third parties named in the Files, BSA contends that the trial court abused its discretion when it failed to follow the balancing test that this court had previously prescribed for weighing a political party's "First Amendment associational privilege" against a discovery request for disclosure of the party's minutes. Snedigar v. Hodderson, 114 Wash.2d 153, 158, 786 P.2d 781 (1990).

¶ 2 We conclude that the trial court was not required to apply the Snedigar balancing test when considering BSA's claim that disclosure of the Files would violate a constitutional right to privacy. Finding no abuse of discretion in the trial court's denial of BSA's motion for a protective order, we affirm the trial court.

FACTS

¶ 3 Plaintiffs T.S. and M.S. filed a complaint for damages in November 2003 against BSA, two local BSA councils, and former scoutmaster Bruce Phelps,¹ alleging that for the 12-year period from 1971 to 1983, Phelps repeatedly sexually abused them. Plaintiffs' complaint states a cause of action against all defendants for negligent infliction of emotional distress.² The complaint also asserts that the BSA defendants negligently retained and supervised Phelps and breached their fiduciary duty. Specifically, plaintiffs contend that the BSA defendants were negligent in "[f]ailing to timely adopt policies and procedures to protect children." CP at 34. Pursuant to an additional cause of action for estoppel and fraudulent concealment, plaintiffs claim that the BSA defendants "engaged in a plan of action to cover up incidents of the sexual abuse of minors by scout leaders and prevent disclosure, prosecution and civil litigation including, but not limited to: failure to report incidents of abuse to law enforcement or child protection agencies, concealment of abuse it had substantiated and failure to seek out and redress the injuries its scout leaders had caused." Id. at 35.

¶ 4 During the course of discovery, plaintiffs sought production of "copies of all `Ineligible Volunteer Files' or similar documents or files regarding sexual abuse or abuse kept or maintained by BSA," along with "all documents which describe or explain the `Ineligible Volunteer Files.'" Id. at 57. According to the declaration of BSA's director of registration "[s]ince the beginning of the scouting movement," BSA has collected and maintained the Files "regarding individuals who do not meet the membership requirements of BSA." Id. at 76. The stated purpose of the system is "to collect information in an attempt to prevent any individual that does not meet the high standards of BSA from being able to register within any scouting organization elsewhere." Id. at 77. When BSA receives a complaint, "a file is immediately set up." Id. The director of registration acknowledges that a file could be initiated "by nothing more than unsubstantiated rumors, hearsay, or news items" and that the "BSA conducts no internal investigation." Id. BSA has confirmed that, "prior to plaintiffs' complaint, there was no Ineligible Volunteer File relating to Bruce Phelps." Id. at 78. While the director of registration estimated that the total number of files in existence exceeded 2,000, BSA has elsewhere suggested that the number may be closer to 10,000. Plaintiffs' counsel has acquired access from a California attorney to approximately 1,900 files initiated between 1971 and 1990 and not protected by a court order in the prior civil litigation.

¶ 5 BSA moved the trial court for a protective order confirming that BSA was not required to make any further response to production requests concerning the Files. BSA argued that it should not be required to comply with plaintiffs' requests because the Files were irrelevant (in that none pertained to Phelps or to any individual connected to a fact at issue), compliance would be unduly burdensome, and "most importantly . . . the files and related information are highly confidential." Id. at 54. As to the last point, BSA asserted that production of the information would violate the "privacy rights" of third parties, including "(1) the scout leaders accused of sexual wrongdoing, (2) the complainants, (3) the witnesses, and (4) the alleged victims." Id. at 63. Of particular concern were "the alleged victims of sexual abuse (many of whom are minors) and the scout volunteers accused, but not convicted, of sexual misconduct." Id. at 54. The director of registration stated that BSA considered the Files "confidential, both with regard to persons outside of BSA as well as with regard to persons inside the organization":

BSA recognizes the sensitive nature of the information within these files, and a file is only made available to persons within the organization on a need-to-know basis. The reasons for the strong confidentiality restrictions are the privacy interest of any victims, the privacy interests of the accused individuals, and the privacy interests of other persons who may be involved as witnesses or reporters of the event.

Id. at 77-78. In addition to expressing concern for the violation of the privacy rights of third parties, the director of registration confirmed that "BSA [was] concerned that divulging this information under any circumstances [would] inhibit future reports of misconduct." Id. at 78.

¶ 6 Responding to BSA's motion, plaintiffs defined the issue as not whether BSA had prior knowledge that Phelps himself posed a risk or whether BSA now acknowledges that other scoutmasters have sexually abused scouts, but rather whether BSA was aware (or should have been aware) of the extent of the pedophilia threat during the period at issue here (1971 to 1983) and whether BSA's policies and procedures were timely and effective responses to the threat. Because BSA's "Youth Protection Program," which aimed at educating parents and scouts of the pedophilia threat, postdates the events giving rise to plaintiffs' claims here, plaintiffs maintain that the Files are essential to defining the severity of the known pedophilia threat in the 1970s and early 1980s and to evaluating the degree of care that BSA exercised in meeting it. Juarez v. Boy Scouts of Am., Inc., 81 Cal.App. 4th 377, 392, 97 Cal.Rptr.2d 12 (2000) (stating that implementation of BSA's "Youth Protection Program" occurred in 1987). Plaintiffs therefore asked the court to deny BSA's motion for a protective order and instead require BSA to produce the requested documents, redacting information identifying the victims.

¶ 7 The trial court signed an order on September 27, 2004, denying BSA's motion and imposing the following requirements:

BSA is ordered to forthwith produce those files (not already in plaintiffs' counsel's possession and identified in plaintiffs' response) for inspection and copying by plaintiffs' counsel, and all alleged victims' names shall be redacted from the documents copied. Alleged perpetrators' names shall also be redacted, and identifying numbers or codes may be substituted for such names. Identifying numbers or codes shall be individual to each alleged perpetrator, so that any alleged multiple offenders can be identified.

....

... Counsel shall cooperate in drafting an appropriate protective order limiting the viewing of these documents to counsel and their designated assistants, identifying all such individuals, and prohibiting the distribution or publication of all such documents.

CP at 669-70. BSA moved for reconsideration or, pursuant to RAP 2.3(b)(4), certification of the issue for discretionary review. The trial court denied both reconsideration and certification.

¶ 8 BSA filed a motion for discretionary review in Division One of the Court of Appeals, contending that the trial court's order requiring disclosure of the Files constituted "probable error" under RAP 2.3(b)(2). Renewing its argument that the trial court's order violated the privacy rights of third parties, BSA cited the protection afforded in article I, section 7 of the Washington State Constitution.³ In response, plaintiffs raised the threshold issue of BSA's standing to assert the rights of third parties and disputed the notion that the state constitutional privacy protection should preclude civil discovery of the Files. Commissioner Neel heard argument on December 3, 2004, and on December 8 entered an order granting discretionary review and setting a briefing schedule. Plaintiffs timely filed a motion to modify Commissioner Neel's ruling. While awaiting a decision on that motion,...