Chapter Four: Summary Of The Issues

Many issues were contested in the suit. Most were procedural, and decided when the judge ruled on motions. Church/state conflicts abounded, as one might expect. And yet some generic questions were raised, for example, how far a cooperation clause in an insurance policy should extend.

Although a trial never got underway, many of the issues that would have been aired at trial received a sort of dress rehearsal. By writing motions and counter-motions, several of them "emergency" motions, the litigants sought to gather their best evidence for the fight to come.

One might ask "since there was no trial resulting in a jury verdict and giving a sense of finality to the arguments, why study the pretrial conferences and all that overstuffed paperwork?"

I have two answers for that. One, in the land of diocesan lawyering, settlements are very much the rule. For example, in the last 85 or so civil cases involving the Springfield Diocese, in which they were the defendant perhaps 75 times, the record hardly mentions a trial. They almost never happen. In this context, settlements, for the very reason of their voluminous paperwork, are an opportunity for the laity to find out what is going on in their church and how it is being run, an opportunity rarely found elsewhere.

The other answer is that although there were no jury verdicts, there were many judicial verdicts, and they throw light on what the governance of the Roman Catholic Church looks like from the perspective of civil law. For example, both Judge Agostini and Judge Duffly had their say about the limits of the right of independence that churches claim for the "church autonomy" privilege based on the separation of church and state. Although a particular religious belief is usually not an issue in church/state conflicts, decision-making by the church may be, especially when it affects third parties in a harmful way.

In the suit, this decision-making was examined by the court. The question is whether this examination constitutes "interference" (as argued by the Diocese) or merely "fact-finding" (according to the insurers).

As noted earlier, the production of documents was contentious, and even seemed at times to be strategic (especially, the non-production of documents). Related controversies included which type of documents should be produced and under what conditions they should be seen. For example, "in camera" review of some documents became necessary. In this maneuver, the judge reviews potentially discoverable documents in his chambers and decides page by page which ones have to be produced.

In the category of contested documents the thousands of pages that the Diocese sought to protect were at center stage, but the insurers by no means had smooth sailing. They, too, objected strenuously to the discovery requests of the Diocese (in P.70, not online).

But, since so much time was spent on the insurers trying to extract documents, and since the arguments for and against the privileges claimed by the Diocese were so thorough, it seems best to start there.

In the first place, the Diocese conditioned the production of any requested documents on their General Objections, found in P.61. These were the first hurdles that any document had to pass in order to be handed over to the insurers, unless they were disqualified later by other objections. The original spelling is retained:


A. Insofar as any of these requests seek the production of confidential attorney/client communications, the Plaintiff objects and refuses to produce the requested documents.

B. Insofar as any of these requests seek the production of material which constitutes a confession, a communication seeking religious or spiritual advice or comfort, or advice given thereon by a member of the clergy which has not been waived by the person making the confession nor seeking the religious or spiritual advice, or comfort. The Plaintiff refuses to produce such materials.

C. Insofar as any of these requests seek the production of material which was prepared or obtained in anticipation of litigation or for trial by the Diocese or the Diocese's attorneys or representatives, the Plaintiff objects to that requests and refuses to produce those materials.

D. Insofar as any of these requests seek the production of information or material protected by the First Amendment or other ecclesiastical privilege or doctrine of religious autonomy, the Plaintiff objects to the request and, accept to the extent of voluntarily produced herein, the Plaintiff refuses to produce the requested material, which includes without limiting the foregoing the so-called "Laicization" and "Sacramentorum Sanctitatis Tutela (Safeguarding the Sanctity of the Sacraments)" documents.

E Insofar as any of these requests seek the production of information which is privileged pursuant to M.G.L. c. 112, §§ 135, 135A and 135B, or Chapter 233, §§ 20A and 20B and Chapter 214, § 1B, or other laws protecting physical or mental health records, the Plaintiff refuses to produce the requested material.

F. Insofar as the instructions set forth in the plaintiff's requests seek to impose an obligation on the defendant different or greater than that imposed by the applicable Massachusetts Rules of Civil Procedure, the defendant objects to the instruction and makes this response pursuant to the applicable Massachusetts Rules.


Some of these seem reasonable, and some, like F., even boilerplate. But, these were not the only objections that the Diocese registered to the requests of the insurers. They also objected to about two dozen requests on the grounds that the materials sought were immaterial or irrelevant to the case.

Taken together, these objections were sharply criticized by the insurers (in P.69), who asserted that they had " merit in law or in fact…".

The Diocese countered that the insurers were going too far with their discovery requests, and that the insurers requests exceeded the standard for discovery, which is that a party should ask for that which appears "reasonably calculated to lead to the discovery of admissible evidence".

The Diocese also branded as "irrational" and "speculative" the implied argument by the insurers that they were entitled to discovery in the "Other Claims" category (claims not settled in 2004 or pending). The insurers wrote that examining these documents might lead to evidence of a Diocesan pattern or practice of ignoring actual knowledge that its priests were sexually abusing minors, an argument that the Diocese dismissed as "outrageous".


One of the lawyers, in a moment of despair, complained about the pace of the three-year suit as it plodded "…through the court accompanied by phalanxes of attorneys and tens of pounds of papers…". And how.

Another factor is that the Danny Croteau murder investigation files tied the suit in knots (as if it needed more complications) because the DA and State Police objected strenuously to their release. I've avoided this part of the suit, not because it's unimportant, but only because the scope of this project had to be limited to a "doable" amount.

I base this summary of issues largely on the volume of material available, in other words, issues that were argued the most tended to be better defined. Here are my choices for some of the more important issues:

- should all documents concerning Richard Lavigne be discoverable?

- how do "discoverable" documents differ from "admissible" documents?

- does the Diocese stand in relation to the Roman Catholic Church like a sub-part (like a corporation or member of a trade group), or is it a unique legal entity?

- should the claimants (the alleged victims, numbering over 100) be deposed? If not, how can their claims be validated?

- had the Diocese destroyed any documents relating to sexual abuse?

- should the written communications of the accused priests (who numbered around 60) be protected under any of the privileges asserted by the Diocese?

- what were the various "privilege" categories of the 7,686 documents that the Diocese sought to protect?

I base these choices on not only local significance, but also the possibility that arguments and decisions here may affect court cases elsewhere.

We need only pick up the daily newspaper to see fresh cases involving dioceses nationwide. It stands to reason that what is germane in a Catholic church lawsuit in Oregon today may be relevant in Ohio tomorrow. Insurers and the Diocese affirmed this outlook by citing recent cases involving religious disputes, often at great length.

The Talbot case (concerning criminal charges against a Jesuit priest), from 2004, was constantly coming up. The Jesuits and Rev. James Talbot, a former teacher at Boston College High School, sought to shield his personnel files from discovery by state prosecutors under a variety of "privilege" defenses, including church autonomy, privacy, and the like. There was a tug of war around these issues and eventually the appeal went to the Supreme Judicial Court of Massachusetts.

The more one reads about this case, the more it resembles the recent Springfield Diocese suit, at least as far as withheld documents goes. Talbots was only one of the Catholic church cases cited, others being the Boston abuse cases of Shanley and Geoghan, the Oregon bankruptcy trial, and suits pressed by the Boston Globe in their pursuit of church documents.

In all of these cases the role of the diocese as employer was crucial. But, even more interesting, the question of how dioceses share information among themselves and their lawyers became a flashpoint for a significant part of the Springfield suit. I am referring to Paper 50, where the Diocese asked to have opposing counsel dismissed because of a perceived conflict of interest.

They argued that since Nixon Peabody, the firm representing one of the insurers, also represented several dioceses, that the lawyers opposing the Diocese might come into confidential information from their colleagues that would undermine the Diocese's case. In other words (if you use words like a lawyer) the lawyers from Nixon Peabody might be guilty of practicing "simultaneous representation of adverse interests". Here I learned that one of the meanest things one lawyer can say to another, apparently, is "…you have no standing…", which was a retort from Mr. Tanski (representing Nixon Peabody) to Mr. Egan (representing the Diocese).

But, to back up his claim, Mr. Egan noted that both he and Mr. Tanski were members of the National Association of Diocesan Attorneys, and that the organization sponsored an e-mail list-serve to share information about combating common problems, one of which was insurance litigation in connection with sexual abuse. Egan stated in P.50 that "…given the magnitude of the claims underlying this action, Plaintiff will be hesitant to avail itself of the benefits provided by the NADA knowing that attorneys from the law firm representing one of its principal opponents in this case have access to that organization's information…"

There were other aspects in the Diocese's motion (P.50) of equal or greater interest, as we shall see.

Getting back to the list I cited, let's go through these one by one:

- should all documents concerning Richard Lavigne be discoverable?

The former Rev. Richard Lavigne, who was placed on administrative leave by the Diocese in 1992, shortly after his conviction on child molestation, was the subject of a large settlement with alleged victims announced in 1994, and was finally defrocked in 2003.

But Lavigne cast a long shadow. More alleged victims were part of the 2004 settlement, and yet more are some of the underlying claimants in the 2008 insurance settlement.

Lavigne is important because some of the publicity surrounding his earlier appearances in court implicated his superiors, suggesting a cover-up. Since the insurers were combing the books for as much evidence as possible, they wanted to know as much as possible about Lavigne – specifically, what his superiors in the Diocese knew about abuse allegations, when they knew it, and how they responded.

But, the Diocese asserted that information about "other claims" (other than the Exhibit A and Exhibit B claims) was irrelevant. In court documents, the pending claimants are Exhibit A Abuse Claims, and the 2004 claimants are known as the Exhibit B Abuse Claims. The Diocese tried to confine evidence, and discovery, to these 108 claims.

In P.69 the insurers complained that "…conspicuously absent from the Exhibit A and Exhibit B Abuse Claims, for example, are the 17 Abuse Claims that were asserted against Lavigne and which were settled for $1.4 million in 1994." [Diocesan documents released in 2004 state that the actual amount was $1.7 million, and that the settlement took place in 1993.]

The Diocese countered in P.73 that they did, indeed, provide information about this material and other material relating to claims involving Richard Lavigne. However, their focus was not on the 17 Abuse Claims from 1994, but rather on the connection between the A and B Claims, and the earlier ones:

"The material not produced by Plaintiff is material relating to claims by a person other than an Exhibit A and B claimant who alleges that he or she was abused by someone other than an alleged abuser named by an Exhibit A or B claimant. (For convenience, Plaintiff refers hereafter to these claims as "Other Claims.") If either the claimant or the alleged abuser was a person named in an Exhibit A or B claim, then Plaintiff produced the requested material, subject to Plaintiff's other objections based on privilege or lack of relevance. With regard to the Other Claims, Plaintiff refused to produce the material on the grounds that it was not relevant to the issues raised in this action."

It seems from this defense that materials relating to alleged victims or alleged abusers other than the A or B claims were retained by the Diocese. This material the insurers wanted to see. It also seems from this defense that the Diocese retained parts of the Lavigne materials, if the Diocese considered them falling under their general objections. The insurers wanted to see these materials as well.

This reluctance to part with the Lavigne material (not specified, but likely including his laicization documents) was one of the many issues that set the stage for the Decision and Order of Jan. 3, 2007 (P.77), in which the judge ruled on the matter of privileged documents.

- how do "discoverable" documents differ from "admissible" documents? P. 30, P.69

The insurers asserted that since the case was about coverage which started in 1968, extending to 1986, that they had a right to discover all documents and information concerning coverage for sex abuse during this time.

The Diocese countered that many of these documents might be inadmissible in court due to various privilege defenses, and refused to turn them over.

In P.69, the insurers stated their suspicions that the Diocese may have documents related to claims that were not a part of the Diocese's demand for insurance coverage, but that pre-dated the insurers coverage, and were never disclosed to the insurers by the Diocese at the time that the Diocese applied for coverage.

Further, that these documents (if they exist) may contain information about claims made by people who reported sexual abuse by a priest, but who never sought compensation. Also, that other documents (if they exist) might contain information related to abuse claims already settled by the Diocese, but for which the Diocese had not sought reimbursement. The insurers wrote that this information, though valuable, "…would not necessarily be among the Abuse Claims that are the subject of the present action…"

In support, the insurers quote from a ruling in the bankruptcy case of the Portland Archdiocese "…This is discovery. The test is [not] whether the information obtained would be admissible at trial[sic]: it is whether the information sought 'appears reasonably calculated to lead to the discovery of admissible evidence'. Fed.R.Civ.P. 26(b)(1)."

The Diocese countered that the insurers' arguments went too far. Although they granted that the scope of permissible discovery was broader than what is admissible at trial, they argued that it should be limited to what "appears reasonably calculated to lead to the discovery of admissible evidence", citing Mass. Rule of Civil Procedure 26 (b)(1).

They dismissed as pure speculation the implication that the Diocese had a "…pattern or practice of ignoring actual knowledge that its priests were sexually abusing minors…". The Diocese wrote (in P.73) that "…permitting discovery on the basis of such pure speculation in the absence of any supporting evidence would undermine any practical limit on discovery in every case".

They cited Mass. law to show that in ruling on discovery requests, a judge may take into account considerations of efficiency and economy, an obvious reference to the burden of producing yet more documents on top of the already thousands of documents in the hopper.

The Diocese also asserted that "what the Plaintiff knew about abuse committed by some other person to some other claimant" has no bearing on the real issue before the court, which they claimed was the negligent supervision charges made by the Exhibit A and Exhibit B claimants.

- does the Diocese stand in relation to the Roman Catholic Church like a sub-part (like a corporation or member of a trade group), or is it a unique legal entity?

This one was mainly argued in P.50 (Diocesan Motion To Strike Appearance of Nixon Peabody). Mr. Egan, representing the Diocese, had sought to find out during discovery if the other diocesan clients of Nixon Peabody had given their consent to Nixon Peabody taking on the job of defending the insurance company (the MIIF, Massachusetts Insolvency Insurance Fund, stepping in for Home Insurance). It was his contention that this consent was required by Mass. law. This request for discovery was denied by the judge, leading to motion P.50. But, consent from their diocesan clients was only one prong of Egan's difficulties with Nixon Peabody.

Well before litigation began, Mr. Egan had complained in a letter to Nixon Peabody that Diocesan interests in the case were being "held hostage", in effect, because he suspected that the opposition had access to an inside track of closely held information shared by dioceses.

In the motion itself, Egan stated that the bishops of all dioceses in the U.S. were members of the United States Conference of Catholic Bishops (USCCB). He claimed that "…a decision unfavorable to the Diocese of Springfield would negatively effect the legal position of those other dioceses in their efforts to obtain insurance coverage for the abuse claims asserted against them…"

Egan granted that the Diocese operated through a different corporate entity than dioceses elsewhere in the U.S. But, in other rulings, he pointed out, attorneys had been barred from representing the adverse interests of parties when the parties are closely related. He gave as examples (1) trade associations and (2) separate subsidiaries of a corporation.

- should the claimants (the alleged victims, numbering over 100) be deposed?

No one in the suit seemed eager to depose the alleged victims, least of all the judge. However, it was often discussed. It would not be too much to describe it as a bargaining chip. It became contentious partly because of the reach. Not only would the current claimants have to testify about their allegations and submit to cross-examination, but also, those who had had their cases settled in 2004. And even those from long ago, whose cases were never settled, might be dragged in, if the rules of discovery would allow it.

The insurers were roundly chastised in the early going by insisting on victim depositions, and in fact their proposed order of discovery placed alleged victims first, and clergy last. This order was reversed by the judge in P.63, "Scheduling Order for Discovery".

On at least one other occasion, the insurers were said to have pressed for depositions. However, it's not clear from the court papers exactly when and under what conditions the insurers renewed their call.

Eventually, the insurers agreed to a set of written questions; and this set of Q and A was part of the final plan for arbitration agreed to by all parties (Diocese, Insurers, and Claimants). Even though the underlying claimants were not party to the suit, they had agreed to stay their claims until the suit was completed, and this agreement apparently gave them some type of standing to participate in the negotiations toward the end of the suit, leading to its dismissal.

- had the Diocese destroyed any documents relating to sexual abuse?

In P.77 the judge ordered that "…the Diocese shall, within seven days of entry of this order, provide a log listing and describing to the extent possible any documents it has destroyed within the last thirty years and which relate to or arise out of allegations of sexual abuse by persons under the Diocese's supervision or control".

In P.79 the Diocese reported that it had "…made further inquiry and responds that no such documents were destroyed."

On the face of it this is a simple yes-or-no inquiry. And yet this exchange implicates not only canon law but also "pontifical secret" and even touches on diplomatic immunity of a foreign state (the Vatican).

The insurers had pointed out in P.69 that according to canon law "…records of criminal cases were to be retained in the secret archive of a diocese for ten (10) years, after which time those records were to be destroyed (although a summary was required to be kept)". The insurers were interested in the summaries.

This issue is linked to the document "Sacramentorum Sanctitatis Tutela" (Safeguarding the Sanctity of the Sacraments), an apostolic letter issued in 2001, which gave new guidelines for the disposition of abuse documents. Previously, abuse allegations were to be resolved by the local bishop, but the SST directive put the Vatican in charge of the documents and indeed, in direct charge of the discipline of the accused priest (although dioceses were supposed to keep a copy of the original documents).

This raised a lot of issues for the insurers. They worried that documents that found their way into State of the Vatican City might not come out (i.e., might not be discoverable). It was unclear to them whether the SST advice was supposed to be retroactive, and equally unclear what type of documents the Diocese was trying to shield under SST. But they were sure that the Diocese was claiming the privilege for certain documents, because it was part of their general objections, number D.

- should the written communications of the accused priests (who numbered about 60) be protected under any of the privileges asserted by the Diocese?

This question will be answered in the next session, where we look more closely at the 5 categories of documents that the Diocese sought to protect from discovery. The total of documents were 7,686. Sounds like a lot, doesn’t it? This impression is mitigated somewhat when we learn that a 20-page report apparently consists of 20 "documents" or perhaps a better word would be "pages". Still, over 7,000 pages is a lot of pages. The categories these privileged documents fell into are the following:

1. Attorney-Client Privilege and Work Product Doctrine
2. Priest-Penitent and Related Privileges
3. First Amendment, Ecclesiastical Privilege, and Religious Autonomy
4. Psychotherapist-Patient Privilege
5. Relevancy and Materiality


In this installment we talk about the various "privilege" categories which the Diocese claimed for around 7,700 documents.

It will be recalled that on Oct. 18, 2005, the insurers had sent the Diocese their list of requests for discovery. They had a long wait. The Diocese prefaced their preliminary response with a list of preconditions called "general objections".

The list of asserted privileges below is not exactly the same as the general objections, but it is similar, and the most concise version of the privileges. This list is the one used by the judge on Jan. 3, 2007, in deciding whether the documents were privileged, or would have to be produced for discovery.

1. Attorney-Client Privilege and Work Product Doctrine
2. Priest-Penitent and Related Privileges
3. First Amendment, Ecclesiastical Privilege, and Religious Autonomy
4. Psychotherapist-Patient Privilege
5. Relevancy and Materiality


1. Attorney-Client Privilege and Work Product Doctrine

The Diocese had objected to releasing any documents containing confidential attorney/client communications (General Objection A) and also any documents prepared in anticipation of litigation or trial (General Objection C).

The insurers responded by first noting that they did not seek any attorney/client or work product material relating to the present action (the 2005 lawsuit brought by the Diocese) but rather only for material relating to the underlying claims.

They went on to frame the issue as one in which two duties collided. The duty of an insured to cooperate with their insurer, particularly with respect to investigating claims, and the duty of both lawyers and clients to keep their discussions and written communications confidential. In the insurers view, the duty to cooperate required a policy holder: to (1) submit proof of loss; (2) be examined under oath; (3) produce documents; (4) avoid voluntary assumption of obligations; and (5) to mitigate damages. If these examples sound like they were drawn from an authoritative textbook, it's because they were: Couch on Insurance 3d.

Next, the insurers asserted that under Mass. law, an insurer may disclaim liability if a policyholder fails to cooperate, and that as a general rule, a plaintiff's refusal to provide documents constitutes a breach of the duty to cooperate.

The Diocese responded that the insurers were failing to distinguish between (1) their right to obtain information about claims, and (2) their right to obtain information in the form of confidential attorney/client communications. They pointed out that the main reason for the cooperation clause was to avoid collusion between the insured and claimants. They maintained that lawyers for the Diocese had separate obligations to the insurer and the insured, and that the first one (duty to cooperate) did not supercede the second one (duty of confidentiality).

2. Priest-Penitent and Related Privileges

This privilege, under which the Diocese sought to shield 107 documents, is based on the following statue:

M.G.L. Chapter 233: Section 20A. Privileged communications; communications with clergymen.

Section 20A. A priest… shall not, without the consent of the person making the confession, be allowed to disclose a confession made to him in his professional character, in the course of discipline enjoined by the rules or practice of the religious body to which he belongs; nor shall a priest… testify as to any communication made to him by any person in seeking religious or spiritual advice or comfort, or as to his advice given thereon in the course of his professional duties or in his professional character, without the consent of such person.

One may wonder why this is invoked at all, since confessions are ordinarily face-to-face events. However, courts have found that documents and even some actions (such as showing a priest a gun, in one example) could be protected under the statue.

The insurers pointed out that the mere fact that one party to a conversation was a priest was not enough to protect the communication or document; the communication must rise to the level of "religious or spiritual advice or comfort" in order to qualify for the privilege.

To support their desire to see as many of the Priest-Penitent documents as possible, the insurers cited the Mass. Rules of Evidence as well as Federal law which they said required protected documents to be confidential, i.e., never disclosed to any one else at all, in order to qualify for the privilege. They also cited state law (Penn.) limiting the "confessional" privilege to those things showing religious motivation on the part of the penitent, and those alone.

In their defense the Diocese noted that the spiritual counseling privilege is not limited to a person-to-person confession (though it is grounded there), that it may be extended to all acts by which ideas may be transmitted (citing Mass. law), and that the protection extends not only to the communication from the individual seeking counsel, but also, to the advice given. For example, there were letters exchanged between bishops and priests which touched on theological matters, forgiveness, and rehabilitation, and these were thought by the Diocese to be fit for exclusion from discovery.

3. First Amendment, Ecclesiastical Privilege, and Religious Autonomy

The First Amendment prohibits a state-established religion, as well as state interference with religious belief. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…"

The Diocese invoked this clause seeking to shield documents from discovery that they felt were purely ecclesiastical in nature (relating to Canon Law or to internal affairs of the Diocese), or, relating to laicization (the ultimate disciplinary penalty for priests).

To back up this claim they described the Diocese as a "…purely ecclesiastical entity of the Roman Catholic church, having no separate legal existence…"(citing the Wheeler case of 1979).

They said that the special constitutional protections afforded to religion are recognized by Mass. law, as well as Federal law. Indeed, they asserted that a 1994 case heard by the Supreme Judicial Court established an even higher degree of protection for religion under the Mass. constitution than that found under the Federal Constitution.

The Diocese also cited a recent Mass. decision by the Supreme Judicial Court which found that "…the assessment of an individual's fitness to serve as a priest is a particular ecclesiastical matter entitled to…constitutional protection." (Hiles v. Episcopal Diocese of Mass. 437 Mass. (2002).

The Yoder decision from 1972 had famously found that "[t]o have the protection of the Religion Clauses, the claims must be rooted in religious belief." The insurers cited Yoder and declared that the present lawsuit was really all about secular matters, namely, disputes regarding the insurers' rights and obligations with respect to claims of sexual abuse alleged to be covered under liability insurance. They found no implication of the First Amendment (since they were not seeking documents about the beliefs of the Diocese, but rather about its actions) and asked the court to order the Diocese to produce all documents for which a First Amendment right was claimed.

Ecclesiastical arguments also involved a duty to confidentiality that the Diocese asserted it felt toward its communications with the Vatican.

The process of laicization, or defrocking, is a last resort for handling a troubled cleric – it is put into play only after every other method of correction has failed. Because of this, the paper trail about laicization in chancery archives and from diocese to Vatican (which must rule on the matter) can involve many documents. The insurers wanted them, and the Diocese refused.

Almost certainly, documents concerning Mr. Lavigne (the former Rev. Richard Lavigne) were part of this tug-of-war. It's probable that documents concerning Mr. Meehan (the former Rev. Richard Meehan, defrocked in 2006) and Mr. Malboeuf (the former Rev. Ronald Malboeuf, defrocked in 1988) were also involved, since accusations against them were part of the 2004 settlement (the Exhibit B group). The laicization documents concerning two other troubled clerics, the former Rev. Alfred Graves and Edward Kennedy, both defrocked in 2006, also relate.

In the church autonomy area, probably the most germane point is whether the documents sought could fairly be described as "administrative" in nature (relating to, for example, a re-evaluation of a priest's fitness for employment) or whether documents were subject to limitations because they involved strictly ecclesiastical church matters.

What, exactly, constitutes the church autonomy doctrine was summarized by Judge Duffly during the lawsuit in her appeals ruling of March 20, 2007 (P.89):

"[T]he First Amendment prohibits civil courts from intervening in disputes concerning religious doctrine, discipline, faith, or internal organization." Alberts v. Devine, 395 Mass. 59, 72 (1985). It "permits hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters." Wheeler v. Roman Catholic Archdiocese of Boston, 378 Mass. 58, 61 (1979). "State governments . . . are required to refrain from involving themselves in ecclesiastical affairs or controversies." Id. at 61-62. As a result, courts lack jurisdiction to adjudicate "church disputes touching on matters of doctrine, canon law, polity, discipline, and ministerial relationships." Williams v. Episcopal Diocese of Mass., 436 Mass. 574, 579 (2002).

4. Psychotherapist-Patient Privilege

The Diocese was at pains to point out that "…its relationship with its priests is different than that of an ordinary employer. Priests are not ordinary employees…the relationship between the Bishop and the priests is a sacred one.." Therefore, the Diocese objected to the insurers' argument that the Diocese was merely obtaining evaluations for employment. The Diocese felt that this interpretation "…misstates the nature of the relationship…"

Furthermore, the psychotherapy evaluations were not placed in the priests ordinary personnel file, but rather in a special file. The Diocese felt that this elevated the contents of the second file to a higher, confidential context which should not be breached by discovery. In all of their arguments they relied on confidentiality and privacy rights that they asserted should be inviolate in any psychotherapy issue.

Against these claims by the Diocese, the insurers asserted that the Diocese was not the client – therefore, it had no claim to confidentiality of records, which claim could only be asserted by the client. Indeed, because the Diocese had commissioned the evaluations (hired a third party), the documents were no longer confidential and were also not for the purposes of "diagnosis and treatment", and thus did not meet the test for exclusion from discovery.

In a similar way the insurers attacked the Diocese's assertions of the right to privacy. Again, it was a question of standing. The insurers pointed out that only the person directly involved (the priest himself) could assert his right of privacy and protect his documents. The Diocese could not assert this right for him, in order to protect his documents that happened to be in the possession of the Diocese.

The Talbot case came in for heavy rotation during the psychotherapist-patient privilege debate because it dealt with personnel records, and some of those were psychotherapy evaluations. Talbot's was cited by both parties, though of course in different ways.

5. Relevancy and Materiality

This seems to have been a rather large category.

The Diocese sought to limit discovery to either priests or accusers of the Exhibit A claims (those still pending) and the Exhibit B claims (those settled in 2004).

As the insurers pointed out, this grouping, though large (108 claims) obviously did not constitute the universe of abuse claims made against the Diocese. The insurers were dogged in their attempts to extend discovery to these other claims. In an outburst of agreement, the claims were called, logically enough, "Other Claims" by both sides.

The Diocese granted that discovery requests could be broader than evidence in court, but they interpreted the language of Mass. Civil Procedure ("reasonably calculated to lead to the discovery of admissible evidence") to mean that the Diocese had some leeway in deciding what was "reasonably calculated". Not surprisingly, they felt that many of the insurers requests were not reasonable at all.

They objected to the implications of the insurers' search for a "pattern and practice" of willful ignorance on the part of the Diocese about priestly abuse: "…an outrageous claim which is pure speculation and there is no rational basis for the argument…"

The Diocese also asserted that what it knew about some other claims (other than the 108), or claims committed by some other person (other than the 60 or so accused priests), had no relation to the issues at hand; this assertion proved, in their view, that the requested discovery was not reasonably calculated to lead to admissible evidence.

Against these arguments the insurers' claimed they had a right to find out if a given claim was a covered result of an "occurrence" or whether it should be excluded from coverage because it was "expected or intended". And, one way to judge the validity of claims was to establish the pattern and practice of the Diocese over time, i.e., to learn about how the Diocese handled complaints in a broad time frame.

Since one of the insurers' defenses was that, if they had known of abuse, they would not have written subsequent coverage, they also sought to find out if the Diocese had concealed such abuse from the insurers' at the point when they were writing a new policy. Such concealment would void the coverage. This explains why the insurers were anxious to examine as many documents as possible that related to insurance claims, whether or not they were part of the 108 claims that were part of the suit proper.


Now that we have the preliminaries out of the way, we next follow the progress of the suit, starting with June 14, 2005, when the Diocese filed suit in Hampden Superior Court against their insurers, and ending around three years later, on or about (as a lawyer would say) June 14, 2008, when a settlement was reached.