Chapter Six: Progress Of The Suit, Part 2

Oct. 3, 2006 - Jan. 3, 2007

Little happened in this period until the Jan. 3 decision and order, which was momentous indeed. First, a motion was made on Oct. 16 by the insurers for leave to file yet another paper in support of their motion to compel discovery. This was allowed by the judge.

On Jan. 3 in the new year the judge issued his long-awaited decision about the 7,700 or so documents held by the Diocese that the insurers wanted to see.

In this 11-page decision the judge first categorized the requests, considered a summary of the arguments advanced by the Diocese and insurers in turn for each category, and then made his decisions.

1. Attorney-Client Privilege

The first category, Attorney-Client privilege, was a big winner for the Diocese. The insurers had argued that the duty to cooperate trumped the usual deference paid to attorney-client confidentiality. Not so, said the judge. He found this argument weak because the insurers could point to no specific clauses which imposed a special duty, other than boilerplate contract language. Absent a specific clause, the judge cited case law showing that the duty to cooperate, though important, did not rise above the importance of client-lawyer cooperation and protection for the work-product doctrine.

However, there were a few problems with the documents that the Diocese was trying to shield under this rubric, because not all of them were bona fide attorney-related documents. The judge found that an undated newspaper article fell short of the definition, and that a file of notes summarizing the contents of two computer discs had to be either turned over to the insurers, or to the judge, to be viewed in private to determine admissibility. Otherwise, he ruled, documents in this category could be retained by the Diocese.

2. Priest-Penitent Privilege

Here, too, there was a split decision, but the judge ruled that the insurers should see the majority of these documents. In the first place he found no support in the statute or in case law to justify the "…sweeping assertion [of the Diocese] that any statements or acts transmitted from one individual to another…" were covered by the privilege, simply because one of them happened to be a priest.

In examining Exhibit C, a list of the documents withheld under this privilege, the judge found that a letter from Bishop Marshall to Richard Lavigne about unpaid bills obviously did not fit the description of "priest-penitent" privilege and ordered it released. It was not clear whether the other documents listed qualified or not, but since he considered it to be a question of fact, the judge ordered the entire file submitted to him for an in camera review.

3. First Amendment, Ecclesiastical Privilege, and Religious Autonomy

This is the longest of the 5 sections. He first points out that materials which are devoid of substance (such as a FedEx airbill), or those obviously not confidential (such as various newspaper articles) do not deserve protection and must be immediately handed over. He goes on to rule that the various privileges claimed by the Diocese due to religious freedom, autonomy or internal church policies do not apply to the case before him, and that all documents shielded under these defenses must be turned over.

The Diocese had sought to keep many documents, including laicization documents, citing the confidentiality requirements of the Apostolic Letter Sacramentorum Sanctatis Tutela (SST). The documents were said by Diocesan lawyers to "pertain to matters of church doctrine, discipline, faith, and internal organization" and, if examined, would "pose a substantial danger of a chilling effort [sic] upon religious decision-making."

Not so, ruled the judge. He wrote that the current case was not one in which the Court was being asked to interpret canon law or intervene in internal church affairs. Nor, he said, would production of the documents call for the Court to second-guess any employer-related functions of the clerical hierarchy.

The judge wrote that the defendants (the insurers) sought the protected documents in order to understand better what Diocesan leaders knew, and when they knew it, about sexual abuse within their ranks, and that the mere examination of the documents did not mean that the Court was infringing on decision-making, but only that the Court was allowing more to be known about those decisions.

The judge next considered the Diocesan claim that the free exercise of religion mandated some protection of church documents due to concerns over confidentiality. He did this by citing and assessing a balancing test.

The first part of the test is that the party claiming the privilege must show 1. a sincere religious belief which 2. is burdened by a state requirement. The judge found that the Diocese had proven neither. He explained further that even if the Court accepted as obvious that the SST rules required confidentiality on the part of the Diocese (because of fidelity to the Vatican), that that requirement of confidentiality would not transfer to a civil court, for the reason that civil courts are not bound by the privacy mandates of ecclesiastical authorities.

He also pointed out that if the withheld documents did in fact contain information which supported the defendants contention that the insurance losses were intended or expected, that such information would have the beneficial effect of shielding the victims from the ordeal of testifying at trial.

4. Psychotherapist-Patient Privilege

The Diocese had argued that documents relating to the treatment of an accused priest could be protected from discovery if they were put in a special confidential file. The judge disagreed.

The purpose of the statute is to protect the privacy of people who seek psycho-therapeutic help. But, in his ruling, the judge drew a distinction between the rights of the patient (the priest) and the rights of a third party (the Diocese). The judge wrote that the privilege does not apply to communications made for the purposes of being conveyed to a third party. Evaluations and progress reports from St. Luke's Institute would likely be covered in this category of communications.

He noted that the Diocese lacked standing to assert this right (since it was not the patient) and further, that no accused priest, or other patients, had come forward to assert their own privacy rights "…despite ample opportunity to do so…" Additionally, according to the listings for section 4, he noted that there were documents in this section that were clearly not related to psychotherapy.

5. Relevancy and Materiality

By this time in the decision, the judge had already ruled on many documents that fell under other categories of privilege, such as the laicization documents which were listed under the Priest-Penitent and Ecclesiastical Privilege categories of the Diocesan defense.

In this section the judge reiterates that such documents will not be shielded from discovery simply because the Diocese contends they are irrelevant or immaterial. Instead, he reminds the parties that these documents may shed light on what Diocesan leaders knew and when they knew it, and rules that that possibility raises the documents to the necessary level of relevancy.

The same is true, he writes, for documents relating to the "Other Claims", those which are not directly tied to Exhibit A claims (current claims) and Exhibit B claims (those from the 2004 settlement). He therefore allows the discovery of documents about any aspect of the insurance policies of the defendants, including applications for, purchase of, and claims asserted under the policies.

The documents relating to insurance policies of companies other than the defendants were also sought by the defendants. Here the judge rules slightly differently. He still allows the defendants to discover documents about applications and purchases of policies, but limits the claim-related documents to those involving sexual abuse.

In his order at the end of this paper the judge also allows the insurers to see all documents listed in Exhibit A of the insurer's memorandum (a list of documents withheld without specification of objection by the Diocese).

Finally, the judge orders that the Diocese shall, within 7 days, provide a log and summary of "…any documents it has destroyed in the past thirty years and which relate to or arise out of allegations of sexual abuse by persons under the Diocese's supervision or control."


Jan. 3, 2007 - March 20, 2007

In this period the legal fireworks reach their highest arc.

After the Jan. 3 ruling, an appeal from both parties, two emergency motions from the Diocese (with responses to same) and other motions followed in quick succession. This section includes the following papers:

Paper 78 (Diocesan 1st Emergency Motion: To Enlarge Time to Fully Respond to the Jan. 3 Court Order), Jan. 18, 2007. [This motion was allowed.]

Paper 79 (Diocesan Status Report On Discovery Produced Under Court Order), Jan. 18 [The Diocese reports that it has turned over some papers to the insurers and Court and not others, and explains why.]

Paper 82 (Diocesan 2nd Emergency Motion: To Permit Discovery Under a Protective Order), Jan. 24 [The Diocese seeks to create a class of "protected responses" that, if approved by the judge, will treat the papers handed over during discovery much like impounded documents which must be given back to the Diocese or destroyed within 30 days, and the information within them not disclosed to anyone else. The text of the proposed Protective Order is part of P.82, under "Exhibit 1".]

Paper 83 (Insurers' Opposition To Diocesan Motion To Permit Discovery), Jan. 29 [The Insurers object to the proposed Protective Order.]

Paper 84 (Decision and Order After In Camera Review), Feb. 5 [Pursuant to his Jan. 3 order, Judge Agostini decides which documents must be produced under the "priest-penitent" privilege after viewing them privately. The Diocese sought to protect 107 documents.]

Paper 86 (Decision and Order on Motion of the Diocese for Protective Order), Feb. 13 [The judge declines to enforce the Protective Order sought by the Diocese.]

Paper 89 (Appeals Court Order Affirming Orders of Jan. 3, and Feb. 13), March 20 [Judge Fernande Duffly from the Court of Appeals upholds Judge Agostini's Jan. 3 (Paper 77) and Feb. 13 (Paper 86) rulings.


P.79, the Diocesan status report on the judge's court order to produce documents, shows some compliance, but it also shows defiance, because it announces that the Diocese refuses to produce certain documents. This refusal anticipates P.82 (a proposed Protective Order) under which Diocesan documents would remain secret despite being subject to discovery. The Diocese ascribes the refusal to produce the "laicization" documents to the fact that the Diocese has just filed a motion to extend time (P.78, also filed on Jan. 18).

P.79 also contains the Dioceses's refusal to produce other documents. Documents about claims of ecclesiastical privilege and religious autonomy are being withheld "…pending the court's decision on the motion [presumably, the motion to enlarge time] and plaintiff's decision to seek appellate relief and/or a protective, non-waiver order, all as set forth in Plaintiff's Emergency Motion to Enlarge Time which is being filed and served herewith." This last reference to "appellate relief" refers to the Appeals court, a course which the Diocese did in fact pursue, along with the defendants, who filed a cross-appeal; both appeals were decided on March 20.

The Diocese also announces in P.79 that they refuse to answer interrogatories #7, 8 and 11, pending their appeal, request for protective order, and request for more time.

The last point in P. 79 is that "…with respect to the Court's Order that plaintiff produce a log of destroyed documents relating to allegations of dispute [sic] within the last 30 years, plaintiff has made further inquiry and responds that no such documents were destroyed."

Summing up, P.79, while ostensibly reporting on the Diocese's compliance with the court's order to produce documents, is equally clear on which documents it will not produce, a point not lost on the insurers, who take it up in subsequent motions.

The next motion by the Diocese (P.82) seeks to create a class of "protected responses" that will replace the in camera reviews mandated by the judge on Jan. 3 and that will also replace the Dioceses's own appeal of the Jan. 3 decision. In this paper the Diocese argues that the Jan. 3 ruling is at odds with an impounded finding and order from 2004 of another Superior Court judge pertaining to the same documents (presumably, laicization, ecclesiastical privilege and religious autonomy documents). They also point out that the appeal of the Jan. 3 ruling, coupled with further in camera reviews of disputed documents, will only slow the case down, which all parties are opposed to.

The Diocese asserts that the "…documents in question contain highly personal and sensitive information, including sexual abuse descriptions by individuals who requested that all such information be kept strictly confidential and have not been made public. Some of the documents contain counseling or psychiatric information, some involve claims against deceased individuals who have never had the opportunity to respond, and some contain confidential statements by individual members of the plaintiff Church on these matters."

The Diocesan solution to these perceived problems is the Protective Order (part of P.82), which they say will "..allow immediate access and review by defendants of all the documents in question without the need for in camera review and any appellate review of the Jan. 3rd order." Also, the proposed protective order would " no way impede the legitimate use of the documents for discovery purposes ...while preserving the defendants right to seek relief from the protective order's provision for any particular document."

It must have been shortly after the filing of P.82 that Attorney McDonough of the Diocesan legal team sent a letter to Judge Duffly (the Appeals Court judge) alerting her that a motion to institute the proposed Protective Order was pending, and that if it were approved by Judge Agostini, the appeal of the Jan. 3 ruling would be moot. Because of this letter, she stayed her consideration of the appeal until March 15.


The insurers' and court's reaction to the proposed Protective Order.


Jan. 3, 2007 - March 20, 2007 (contd.)

We left off last time with the Diocese's proposed Protective Order, part of P. 82, filed on Jan. 24, 2007. Almost immediately, the insurers filed their opposition, P.83.

In it, the insurers deny that they would ever disclose information obtained during discovery about the identity of victims of sexual abuse, which disclosure they interpret as the focus of the proposed Order. They object to the proposed Order, predicting that it would result in the imposition of a procedural mechanism which is "…inappropriate, unwieldy and entirely unnecessary."

Their main reason for urging the court to deny the Order is that the Diocese is already under an existing court order to produce documents without a protective order, and that nothing had changed since the Jan. 3 ruling to relieve the Diocese of that obligation.

While the insurers had not opposed the 1st emergency motion of the Diocese to enlarge time, they made it clear in P.83 that they did oppose the parts of the 1st emergency motion that sought to place the disputed laicization documents into a special "protected" class. They also noted that despite being asked to do so in the 1st emergency order, the judge had not made any exception to his Jan. 3 ruling mandating discovery of the disputed documents.

In their opposition to the 2nd emergency motion the insurers again state their opposition to the proposed Diocesan protective order, noting that "…the Diocese's proposed order contains inappropriate references to "privileged" materials, notwithstanding that the Court has already ruled that those materials are not privileged" (emphasis in original).

Paper 84

In the next paper, P.84, we leave for a moment the controversy over the Protective Order and return to the implementation of the Jan. 3 ruling. Here the judge announces his findings after reviewing 107 documents that the Diocese had sought to protect under the "priest-penitent" privilege.

He first divides them into two classes, (1) Misconduct Commission Documents and (2) Correspondence Between Bishops and Priests Accused of Misconduct. The Misconduct Commission Documents recorded its administrative work, which consisted of lay people dealing with allegations of sexual abuse brought against Diocesan personnel. Since these documents did not give or solicit spiritual advice, the judge found that they were not privileged.

There was, however, one exception, which was a 13 page letter complaint against Father A. James Thompson containing the phrase "…please accept this letter as my personal confession…" This letter was allowed to be kept secret.

In the other class of documents, the judge found that, for the most part, the letters to the bishops were administrative in nature, consisting of information about progress in therapy, support systems (friends), changes in address, queries about future employment, or financial matters. The bishop's responses mostly updated the priests about events in the diocese. The judge found that none of the priest's letters amounted to a confession.

However, there were eight letters of Richard Lavigne to Bishops Marshall and Dupre which contained repeated spiritual references, seeking their advice and reflection. These the judge ordered to be kept secret. But he found that secrecy was not necessary for most of the bishop's responses to Lavigne. This is because they were largely administrative in nature.

Paper 86

In P. 86, the judge rules on the proposed Protective Order. He notes that the Diocese does not seek a protective order to limit the scope of discovery, but only "…to protect this discovery from being revealed to persons who, it believes, have no reason to know this information…" He quotes the text of Mass. R. Civ. P. 26(c), the law under which the Diocese is presumably seeking the protection: the law states that a court may make "…any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense…"

He then explains why the Diocese is not entitled to such an order, stating that while the insurers and claimants have agreed to protective orders that protect the names of victims, they oppose global orders that seek protection of all documents. According to the claimants and insurers, not only would such protective orders create practical problems requiring court intervention (motions and counter-motions, closing the courtroom, and so on), they would also result in the withholding of information from the public. The claimants also assert that the Diocese's reasons for impoundment boil down to a desire to protect themselves from embarrassment.

The judge notes that the opposing parties are free to enter any confidentiality agreement that limits disclosure of documents. However, this limit or control needs to be tempered by the protection of the public interest, which responsibility belongs to the judge.

He states that "Given the strong presumption of openness, the litigants will face an uphill battle if they seek to impound documents that are relevant to this litigation." As an example, he notes that he has already examined many documents that the Diocese had wanted to protect, and found very few that deserved protection.

Summing up, he states that "…if the motion is allowed, it would essentially allow the Diocese to prevent court personnel and the parties, including claimants, from disclosing any material to third parties and also prevent the public from having any access to documents submitted in court. This is an impoundment order dressed as a protective order. More importantly, it is accomplished without an affidavit, hearing and showing of 'good cause'…"

These last three items are requirements of the Uniform Rules on Impoundment.


Judge Duffly's Appeals Court Decision of March 20 on the Jan. 3 Decision of Judge Agostini