Opinion
CIVIL ACTION Case No. 03-2150-KHV-DJW
March 9, 2004
MEMORANDUM AND ORDER
This matter is before the Court on the Motion for Protective Order (doc. 54) filed by Defendant Leawood Presbyterian Church ("Leawood Presbyterian"). In its motion, Defendant Leawood Presbyterian seeks to prevent Plaintiff from deposing its church members and inquiring into all aspects of its internal disciplinary proceedings, from initial compliant to judicatory board hearing. Counsel for Defendant Leawood Presbyterian is going to instruct these witnesses not to answer many questions based upon a First Amendment privilege. Specifically, Defendant Leawood Presbyterian objects to Plaintiff inquiring into its internal investigation and proceedings relating to Plaintiff's complaints of sexual harassment by a co-worker.
I. Procedural History of Case
Plaintiff Sue Ann Dolquist brings suit against Heartland Presbytery ("Heartland"), Leawood Presbyterian Church and John Miller alleging employment discrimination, harassment and retaliation on account of sex in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. as amended, and state law claims for intentional failure to supervise, negligent infliction of emotional distress, outrage, assault and battery. On August 25, 2003, Defendant Heartland filed its Motion to Dismiss, or in the Alternative for Summary Judgment, on Counts I, II, IV and V of Plaintiff's Claims Asserted Against Defendant Heartland Presbytery (doc. 26). In its motion, Defendant Heartland only moved to dismiss Plaintiff's negligent infliction of emotional distress claim (Count V) based upon the First Amendment barring this claim.
On January 15, 2004, the Court sustained the motion to dismiss as to Plaintiff's claim for negligent infliction of emotional distress (part of Court V). In sustaining the motion to dismiss the negligent infliction of emotion distress claim, the Court noted that Plaintiff did not oppose Defendant Heartland's argument that the First Amendment bars her claim for negligent infliction of emotional distress. Defendant Heartland's motion to dismiss was otherwise overruled, and the following claims remain pending against Heartland: sex discrimination (Count I); sexual harassment (Count If); retaliation (Count III); intentional failure to supervise clergy (Count IV); and outrage (part of Count V). All claims remain against Defendant Leawood Presbyterian.
Dolquist v. Heartland Presbytery, No. Civ. A. 03-2150-KHV, 2004 WL 74318 (D. Kan. Jan. 15, 2004).
II. General Discovery Standards
The decision whether to enter a protective order is within the court's discretion. Federal Rule of Civil Procedure 26(c) provides that upon a showing of good cause, a court "may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." The party seeking a protective order has the burden to demonstrate good cause.
Thomas v. Int'l Bus. Machs., 48 F.3d 478, 482 (10th Cir. 1995).
Sentry Ins. v. Shivers, 164 F.R.D. 255, 256 (D. Kan. 1996).
Federal Rule of Civil Procedure 26(b) provides the scope and limits of discovery, including depositions. It provides in general:
Parties may obtain discovery regarding any matter, not privileged, that is relevant to claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.
Fed.R.Civ.P. 26(b)(1) (emphasis added).
Defendant Leawood Presbyterian asserts that there is a First Amendment privilege, which can be claimed at the discovery phase of litigation, if the information sought to be discovered involves any religious belief, practice, or concern. Plaintiff argues that the alleged misconduct, sexual harassment, is neither a matter of church doctrine nor "rooted in religious belief," and, therefore, discovery into the church's investigation should not be barred by the First Amendment.
III. Discussion
Defendant Leawood Presbyterian has requested a general blanket protective order precluding Plaintiff from deposing church members and inquiring into the following general areas: (1) all communications received by Defendant Leawood Presbyterian in the nature of a complaint against John Miller, the church music directory and church elder, (2) all informationacquired or generated by the church during the investigation of Plaintiff's complaint against John Miller, as conducted pursuant to the canon law of the church as set out in the Book of Discipline, and (3) all information acquired or generated by the church during the church judicatory proceedings. It asserts the following two grounds for the protective order: (1) the church autonomy doctrine, and (2) priest-penitent privilege.
A. The Church Autonomy Doctrine
It is well established that the First Amendment prohibits secular courts from intervening in the internal affairs of hierarchical churches by deciding what, essentially, are religious matters. This principle is known as the "church autonomy doctrine." The Tenth Circuit, in Bryce v. Episcopal Church in the Diocese ofColo., has expressly recognized that the First Amendment protects the autonomy of churches to make decisions regarding their own internal affairs. Under this doctrine, the Court cannot review internal church disputes involving matters of faith, doctrine, church governance, and polity. The church autonomy doctrine, however, does not apply to purely secular decisions. The threshold inquiry is whether the alleged misconduct is "rooted in religious belief"
See, e.g., Serbian E. Orthodox Diocese for the United States an'd Canada v. Milivojevich, 426 U.S. 696, 708-10 (1976).
See Bryce v. Episcopal Church in the Diocese ofColo., 289 F.3d 648, 655 (10th Cir. 2002).
Id.
Id. at 657.
Id. (quoting Wisconsin v. Yoder, 406 U.S. 205, 215 (1972)).
In this case, the Court finds that the information sought to be discovered, information regarding Defendant Leawood Presbyterian's internal investigation and disciplinary proceedings resulting from Plaintiff's sexual harassment claims, does not involves any religious belief, practice, or concern. Nor does this information appear to be rooted in religious beliefs. The Court, therefore, holds that the church autonomy doctrine does not justify a blanket protective order precluding Plaintiff from deposing Defendant Leawood Presbyterian's church members. The Court further holds that the church autonomy doctrine does not preclude Plaintiff from inquiring into Defendant Leawood Presbyterian's internal investigation and actions directly resulting from Plaintiff's sexual harassment complaints. Defendant Leawood Presbyterian has not shown that conducting discovery into its investigation of Plaintiff's sexual harassment claims would involve any real danger to First Amendment religious freedom-excessive government entanglement in religious affairs or in the evaluation of religious beliefs. The discovery sought would not intrude upon the spiritual functions of Defendant Leawood Presbyterian or require inquiry into intrinsically ecclesiastical concerns. Furthermore, contrary to Defendant Leawood Presbyterian's contention, the Court finds no evidence that permitting Plaintiff to depose church members regarding the investigation of Plaintiff's sexual harassment claims would "chill" the rights of church officials in the conduct of their religious affairs or would inhibit their church parishioners from engaging freely in the practice of their religious beliefs and activities.
See In re The Bible Speaks, 69 B.R. 643, 646 (Bankr. D. Mass. 1981) (citing Ambassador College v. Geotzke, 675 F.2d 662, 663-65 (5th Cir. 1982); Pagano v. Hadley, 100 F.R.D. 758, 761 (D. Del. 1984); In re Contemporary Missions, Inc., 44 B.R. 940, 942-43 (Bankr. D. Conn. 1984)).
See Smith v. Raleigh Dist. of the N.C. Conf. of the United Methodist Church, 63 F. Supp.2d 694, 711 (E.D.N.C. 1999) (citing Van Osdol v. Vogt, 908 P.2d 1122, 1134 (Colo. 1996))
Hutchison v. Luddy, 606 A.2d 905, 912 (Pa.Super. 1992).
This holding does not bar Defendant Leawood Presbyterian from asserting individual objections to specific deposition questions that it believes infringes upon its First Amendment rights. The Court recognizes that there may be certain questions that would call for a privileged response under the First Amendment. Rather than granting a blanket protective order as requested by Defendant Leawood Presbyterian, the Court concludes that any analysis of the privilege objections must be made on a question-by-question basis.
B. Clergy-Communicant Privilege
Defendant Leawood Presbyterian also contends that clergy-communicant communications received during its investigation and disciplinary hearings are privileged as provided in K.S.A. 60-429.
The Court notes that the law is unclear on whether the clergy-communicant privilege would be governed by federal common law or state law, K.S.A. 60-429, in this case where Plaintiff has federal, as well as state law claims. The Court need not decide this issue because the Court does not have sufficient information before it to decide whether the church members Plaintiff seeks to depose could assert a clergy-communicant privilege under either federal common law or under K.S.A. 60-429. Because the Court lacks sufficient information to determine whether the church members could arguably assert a clergy-communicant privilege, it declines to address this issue at this time.
This holding again does not bar Defendant Leawood Presbyterian from asserting individual clergy-communicant privilege objections to specific deposition questions that would call for a privileged response. Rather than granting a blanket protective order as requested by Defendant Leawood Presbyterian, the Court concludes that any analysis of the clergy-communicant privilege objections must be made on a question-by-question basis.
Because a question-by-question analysis requires knowledge of the deposition questions Plaintiff intends to pose, as well as the identity of the deponents, the Court cannot determine whether the questions Plaintiff may ask would infringe upon Defendant Leawood Presbyterian's First Amendment rights or would seek information protected by the clergy-communicant privilege. The Court, therefore, must deny Defendant Leawood Presbyterian's Motion for Protective Order.
Defendant Leawood Presbyterian's Motion for Protective Order (doc. 54) is hereby DENIED without prejudice. Plaintiff may proceed with the depositions of Defendant Leawood Presbyterian's church members. During the depositions, Plaintiff is instructed to pose all questions she intends to ask. Based upon the guidance set forth in this Order, Defendant Leawood Presbyterian may assert objections to those questions that require an answer that is privileged, under the First Amendment or as a clergy-communicant communication, and instruct the witness not to answer such questions. At the conclusion of the depositions, Plaintiff may file a motion to compel answers to those deposition questions that she believes are not privileged. Counsel are cautioned that objecting and instructing a witness not to answer without a good faith basis to do so, or filing a motion to compel without a good faith basis to do so may result in the imposition of sanctions.
The parties are hereby granted an extension of time, up to and including March 22. 2004 , to complete the depositions referenced in this motion. At the conclusion of those depositions, Plaintiff may file a motion to compel the deponents to answer particular deposition questions that were objected to at the deposition. Any motion to compel shall be filed no later than March 26, 2004 . Any response in opposition to the motion to compel shall be filed no later than April 2, 2004 . Any reply in support of the motion to compel shall be filed no later than April 7, 2004 .
Extending the deadline for the parties to complete the depositions necessitates that the Court extend the discovery and dispositive motion deadlines in this case. The discovery deadline in this case is hereby extended to April 15, 2004 . The dispositive motion deadline is hereby extended to April 22, 2004 .
IT IS THEREFORE ORDERED THAT Defendant Leawood Presbyterian's Motion for Protective Order (doc. 54) is denied without prejudice.
IT IS SO ORDERED.