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Tom Doe, An Individual Proceeding Under A Pseudonym v. Disputes Corporation of the Presiding Bishop of the Church of Jesus

June 7, 2012

TOM DOE, AN INDIVIDUAL PROCEEDING UNDER A PSEUDONYM,
PLAINTIFF,
v.
DISPUTES CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, A FOREIGN CORPORATION SOLE REGISTERED TO DO BUSINESS IN THE STATE OF OREGON; CORPORATION OF THE PRESIDENT OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS AND SUCCESSORS, A FOREIGN CORPORATION SOLE REGISTERED TO DO BUSINESS IN THE STATE OF OREGON; THE BOY SCOUTS OF AMERICA, A CONGRESSIONALLY CHARTERED CORPORATION, AUTHORIZED TO DO BUSINESS IN OREGON; AND ORE-IDA COUNCIL, INC., BOY SCOUTS OF AMERICA, AN IDAHO NON-PROFIT CORPORATION DOING BUSINESS IN OREGON, DEFENDANTS.



The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge

MEMORANDUM DECISION AND ORDER ON DISCOVERY

INTRODUCTION

Four discovery motions are pending before the Court. Plaintiff filed two motions to compel production of documents -- one aimed at the Boy Scout Defendants (Dkt. 160) and the other at the LDS Church Defendants (Dkt. 163). Defendants responded with motions for protective orders that address largely the same issues. (Dkts. 166, 170). The Court heard oral argument on June 4, 2012 and now issues its decision.

BACKGROUND

Plaintiff Tom Doe alleges that his scout leader sexually abused him from 1967 through 1970, beginning when plaintiff was around 13 years old. He says the Boy Scouts of America and the LDS Church jointly ran his scout troop, and that both organizations "knew that the Scouting program itself posed a danger to adolescent boys because the Scouting program had shown a concrete, longstanding, consistent, and widespread problem with sexual abuse by Scout leaders and adult volunteers." Second Am. Compl., Dkt. 110, ¶ 24. Doe asserts various claims against the Boy Scouts and the Church, including fraud by omission.

THE LEGAL STANDARD

The Federal Rules of Civil Procedure create a "broad right of discovery" because "wide access to relevant facts serves the integrity and fairness of the judicial process by promoting the search for the truth." Epstein v. MCA, Inc., 54 F.3d 1422, 1423 (9th Cir.1995) (quotations omitted). Litigants "may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party." Fed. R. Civ. P. 26(b)(1). Relevant information -- for purposes of discovery -- is broadly defined to include all information "reasonably calculated to lead to the discovery of admissible evidence." Id.

But there are limits to what a party may properly seek in discovery. "District courts need not condone the use of discovery to engage in 'fishing expeditions.'" Rivera

v. NIBCO, 364 F.3d 1057, 1072 (9th Cir. 2004) (citation omitted). Further, even if a district court determines that a party is seeking relevant information, it may, upon a showing of good cause, enter any protective order that "justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, . . . ." Fed. R. Civ. P. 26(c). "For good cause to exist, the party seeking protection bears the burden of showing what specific prejudice or harm will result if no protective order is granted." Phillips v. General Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002).

MOTION TO COMPEL AIMED AT THE BOY SCOUT DEFENDANTS

The motion to compel aimed at the Boy Scouts addresses eight document requests: Nos. 3, 5, 23-26, 28, and 33. Before discussing each individual request, the Court will address objections applicable to multiple requests.

A. General Objections

At the threshold, the Boy Scouts argue that plaintiff's fraud claim will not withstand summary judgment. So they urge the Court to put off deciding the discovery motions because they believe any effort expended in producing documents will ultimately be wasted. The Court rejects this argument for a number of reasons.

First, this is an aging case and it has already been stayed twice in the past. The Court is not persuaded to further delay the case based on a discovery dispute.

Second, plaintiff's fraud claim withstood an attack on the pleadings. Thus, it makes sense to press forward with discovery.

Third, the Court is not persuaded that plaintiff's claim will obviously and necessarily fail on summary judgment. The Court will of course reserve judgment on this point until the parties have briefed the issues in the summary judgment motion. In the meantime, however, the Court preliminarily reviewed the relevant law and determined that while plaintiff will face an uphill battle, he has a chance of surviving the motion. Cf., e,g., Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409 (2d Cir. 1999) (court upheld jury's determination that a fiduciary relationship existed between the diocese and a child parishioner who had been sexually abused by a priest).

The Court is also not persuaded by the Boy Scouts' relevance objection, which is raised in response to several requests for production. For example, in responding to a request for the Boy Scouts' internal "perversion files,"*fn1 the Boy Scouts argue that the only relevant file is the one for the perpetrator in this case -- Larren Arnold. But plaintiff wishes to demonstrate that the Boy Scouts should have warned him of pedophile scoutmasters based on their decades-old knowledge of child sex abuse within scouting. In the discovery setting, files other than Arnold's are relevant to this broader issue.

The Boy Scouts' related argument that the time frame should be narrowed is somewhat more persuasive, since plaintiff is, in many instances, asking for documents reaching back to 1910. As detailed below, the Court will limit the time period to 1950 through 1972 (seventeen years before the first alleged abuse and two years after the last) for requests seeking documents that could show defendants' alleged knowledge regarding child sex abuse within scouting. The Court will typically use a more restrictive time period -- 1962 to 1972 -- for requests seeking documents that could show what the defendants did with this knowledge.

Finally, the Boy Scout Defendants generally argue that producing many of the requested documents would violate the privacy rights of third parties. See generally Nation v. Idaho Dept. of Corr., 158 P.3d 953 (Idaho 2007) (discussing tort of invasion of privacy, which encompasses a claim for public disclosure of private facts; indicating that the matter made public must be "offensive and objectionable" to a person of "ordinary sensibilities"). These privacy rights, however, do not justify a wholesale denial of the motions to compel. Instead, the Court will order production of certain documents subject to a protective order.

With these rulings in place, the Court will address the requests individually. For ease of reference, each request is set out verbatim, with the Court's ruling immediately following.

B. Requests Seeking "Claims Documents"*fn2 Request No. 26 -- Perversion Files Request No. 26 asks for:

All "Perversion" category IV [Ineligible Volunteer] Files -- including "Red Files," "Confidential Files," or any other prior appellation for the IV Files, created between 1910 and the [sic] 1972.

The Boy Scouts Defendants are ordered to produce responsive documents for the time period 1950 to 1972, subject to a protective order. The parties are ordered to meet and confer to work out the precise terms of the protective order, but, at a minimum, the protective order should provide that the following names be redacted before the documents are produced: (1) the alleged victim; (2) the alleged perpetrator; and (3) the people who reported the alleged abuse.

During oral argument, the Boy Scouts offered to create a roster showing how many perversion files were created in any given year. The Boy Scouts also directed the Court to Sanchez v. City of Santa Ana, 936 F.2d 1027 (9th Cir. 1990) for the proposition that statistical evidence -- rather than the details of any given ...


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