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Stevens v. Brigham Young University-Idaho

United States District Court, D. Idaho

June 11, 2018

LORI STEVENS, Plaintiff,
BRIGHAM YOUNG UNIVERSITY-IDAHO d/b/a/ BYU-Idaho, a Utah corporation, Defendant.



         I. OVERVIEW

         This matter comes before the Court on ten Motions centered on different claims of privilege the parties to this case, and one third-party, have asserted.[1] In the order filed, those Motions are:

1. Brigham Young University-Idaho's (“BYU-I”) Motion Regarding Plaintiff's Waiver of the Priest-Penitent Privilege (Dkt. 46);
2. BYU-I's Motion to Seal its Motion Regarding Plaintiff's Waiver of the Priest-Penitent Privilege (Dkt. 45);
3. BYU-I's Motion to Compel Plaintiff's Compliance with Her Discovery Obligations (Dkt. 47);
4. The Church of Jesus Christ of Latter-day Saints' (the “LDS Church”) Motion to Intervene (Dkt. 49);
5. The LDS Church's Motion Regarding the Common Interest Privilege (Dkt. 51);
6. BYU-I's Motion Regarding Privilege Claims (Dkt. 52);
7. Plaintiff Lori Stevens' Motion for Protective Order (Dkt. 55);
8. BYU-I's Motion to Seal Exhibit 19 to the Declaration of Wade L. Woodard filed in support of the Motion to Compel Plaintiff's Compliance with Her Discovery Obligations (Dkt. 66);
9. BYU-I's Motion to Seal its Reply Brief and Supporting Declarations and Exhibits filed in Support of its Privilege Claims (Dkt. 69); and
10. Stevens' Motion to Strike Reply Declarations and References to Prior Settlement Discussions (Dkt. 76).

         The Court finds good cause to GRANT the Motions to Seal (Dkts. 45, 66, 69) and will not discuss those Motions further. As for the remainder of the Motions, the Court addresses each of them in turn.


         Stevens filed this case against BYU-I and Susan Stokes, as personal representative of the Estate of Stephen Stokes, [2] on December 9, 2016. Dkt. 1. Prior to any answer or appearance by Defendants in this matter, Stevens filed her Amended Complaint on March 3, 2017. Dkt. 4. In her Amended Complaint, Stevens, a former BYU-I student, alleges generally that Stokes, a former BYU-I professor, initiated an unwanted relationship with her while she was a student and Stokes was a professor at BYU-I. Stevens alleges that this relationship ultimately became sexually and emotionally abusive. Stevens further asserts that she, along with another student, reported Stokes' inappropriate and abusive behavior to several BYU-I professors and officials, who failed to take any action. The relationship ended when Stokes died on July 1, 2016, from complications during heart surgery.

         On January 26, 2018, the Court conducted an informal discovery dispute conference with the parties in this case. The parties indicated that both sides were claiming privileges to which the other side objected. After input from all parties, the Court directed the parties to formally brief the claims. While the parties were briefing the claims, the LDS Church also moved to intervene to assert its own privileges.

         On February 9, 2018, Susan Stokes, as Personal Representative of the Estate of Stephen Stokes, notified the Court that she and Lori Stevens had reached a settlement agreement. Dkt. 43. Thus, the Estate is no longer involved in this lawsuit.

         Shortly thereafter, the Court denied Stevens' Motion to Amend her Complaint to assert a negligence per se claim and a negligent supervision claim. Dkt. 54. This left the following claims pending against BYU-I: (1) teacher-on-student hostile environment/sexual harassment actionable under Title IX of the Education Amendments Act; (2) teacher-on-student quid pro quo sexual harassment; (3) hostile learning environment in violation of the Rehabilitation Act and the Americans with Disabilities Act; and (4) violation of the Idaho Human Rights Act.


         In this Motion, Stevens seeks a protective order regarding communications she had with Laurie Gaffney, her former attorney, and an individual named Hollie Anderson.

         A. Background

         Laurie Gaffney of Gaffney Law Office originally represented Stevens in this dispute. On October 22, 2016, Stevens fired Gaffney via a notarized Termination of Services letter that she and her friend, Hollie Anderson, drafted. The letter states, among other things, that Gaffney “sought remedies and methods to file a complaint against [Stevens'] wishes”; misrepresented who she is and what she stands for; “mistreated her, and “coerced and manipulated” her when she “was sick, on medication, and under extreme duress.” Dkt. 61-2.

         Stevens provided a copy of this letter to a third party, Roland Blaser. See Dkt. 61-3. In addition, Stevens' current counsel voluntarily produced this letter to BYU-I's counsel at Blaser's deposition, allowed BYU-I to mark it as an exhibit, and allowed BYU-I's counsel to question Blaser about the letter. At the deposition, Blaser revealed information that Stevens had told him about her communications with Gaffney. Stevens told Blaser Gaffney was planning to sue BYU-I for a million dollars and that Gaffney had said “no one in the church was supposed to talk with [Stevens] except through Gaffney.” Id. at 11, 17. Stevens did not want either of these things. Id. Stevens also told Blaser she wanted to be compensated “for the year she was out of school.” Id. at 20. Stevens told Blaser about an incident in which someone, presumably from Gaffney's law firm, came to her home and forced her to sign a legal document when she was “throwing up” in her bathroom. Id. at 23.

         Stevens also disclosed the letter and additional information about her communications with Gaffney to Jon and Evona Beesley, who, in turn, and with Stevens' permission, shared that information with other third parties, including Brad Bowen, Randy Austin, Wilford Anderson, Nick Rammell, and Nate Reese (the parties describe these individuals as upper-level religious leaders). Based on these facts, BYU-I ask the Court to find:

That Stevens has waived the attorney-client privilege as to all communications she had with Gaffney relating to (a) her termination of Gaffney and the reasons for that termination; (b) the “facts” of the case as relayed by Stevens to Gaffney versus how Gaffney outlined them in the complaint; (c) Stevens' purpose for filing this lawsuit and what she hopes to gain from it, including the amount of any monetary award she seeks and what she authorized Gaffney to request; and (4) any agreement between Stevens and Gaffney for the payment of attorney's fees and costs.

Dkt. 61, at 21.

         While Gaffney was representing Stevens, she had Hollie Anderson enter into a contract entitled “CONFIDENTIALITY AGREEMENT RE: LORI STEVENS” (“Confidentiality Agreement”). This contract provided that “[d]ue to [Stevens'] disabling anxiety, a confidant [(Anderson)] is being trusted to assist the client in communications with the firm.” Dkt. 61-16. Stevens listed Anderson as a witness in her Initial Disclosures. As such, on January 2, 2018, BYU-I served a subpoena upon Anderson, in which it sought documents, including text messages, social media posts, emails, notes and journal entries, relevant to the matters at issue. In response, Stevens' counsel produced a few documents and stated that Stevens was claiming a privilege as to Stevens' communications with Anderson pursuant to the Confidentiality Agreement. Later, after BYU-I made multiple additional requests, Stevens' counsel produced 49 pages of partially redacted text messages and a privilege log. BYU-I now asks the Court to hold:

That Stevens' communications with Anderson are not protected by the attorney-client privilege and, as such, Anderson must produce all documents responsive to BYUI's subpoena without redactions. In the alternative, should this Court find that some of Stevens' communications with Anderson are potentially privileged, BYUI respectfully asks that this Court order Stevens to produce competent evidence sufficient to prove that the documents she has withheld are, in fact, protected by the attorney-client privilege.

Dkt. 61, at 21.

         B. Applicable Law

         Pursuant to Federal Rule of Evidence 501, “federal law governs the availability and scope of the attorney-client privilege in nondiversity actions.” Admiral Ins. Co. v. U.S. Dist. Court for Dist. of Ariz., 881 F.2d 1486, 1492 (9th Cir. 1989). “Ordinarily, the party asserting attorney-client privilege has the burden of establishing all of the elements of the privilege.” In re Excel Innovations, Inc., 502 F.3d 1086, 1099 (9th Cir. 2007). The essential elements of the attorney-client privilege are:

(1) . . . legal advice of any kind is sought
(2) from a professional legal adviser in his capacity as such,
(3) the communications relating to that purpose,
(4) made in confidence
(5) by the client,
(6) are at this instance permanently protected
(7) from disclosure by himself or by the legal adviser,
(8) unless the protection be waived.

Admiral Ins., 881 F.2d at 1492 (citation omitted). “The privilege may be waived by the client either implicitly, by placing privileged matters in controversy, or explicitly, by turning over privileged documents [to a third party]. Inadvertent disclosure can also result in a waiver of the privilege.” Gomez v. Vernon, 255 F.3d 1118, 1131 (9th Cir. 2001). In addition, “[t]he attorney-client privilege is [usually] waived when the communication between the attorney and client is made in the presence of a third party.” In re Mortg. & Realty Tr., 212 B.R. 649, 652 (Bankr. C.D. Cal. 1997) (citing United States v. Landof, 591 F.2d 36 (9th Cir. 1978)). Moreover, “it has been widely held that voluntary disclosure of the content of a privileged attorney communication constitutes waiver of the privilege as to all other such communications on the same subject.” Weil v. Inv./Indicators, Research & Mgmt., Inc., 647 F.2d 18, 24 (9th Cir. 1981). Such a waiver is often referred to as a “subject matter waiver.” Significantly, “the Ninth Circuit [has] (1) limited the breadth of subject matter privilege to the matters actually disclosed (rather than general questions) and (2) found a waiver of subject matter only when attorney client communications were used as both a sword and a shield.” Truckstop.Net, L.L.C. v. Sprint Commc'ns Co., L.P., No. CV-04-561-S-NRS, 2007 WL 2480001, at *5 (D. Idaho Aug. 29, 2007).

         C. Analysis

         1. Communications with Anderson

         Stevens argues her communications with Anderson and her communications with Gaffney during which Anderson was present are protected by the attorney-client privilege. In support of this assertion, Stevens first points to Rule 1.14 of the Idaho Rules of Professional Conduct.[3] This Rule provides that when a “lawyer reasonably believes that the client has diminished capacity, . . . and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client . . . .” I.R.P.C. 1.14(b). Comment 3 to this Rule further provides that “[t]he client may wish to have family members or other persons participate in discussions with the lawyer. When necessary to assist in the representation, the presence of such persons generally does not affect the applicability of the attorney-client evidentiary privilege.” I.R.P.C. 1.14 cmt. 3.

         Some other authorities have acknowledged such an exception to the general rule that the presence of a third-party destroys the attorney-client privilege. For such an exception to apply, the Court examines “whether the client reasonably understood the conference to be confidential” despite the presence of the third party and “whether the presence of the relative or friend was reasonably necessary for the protection of the client's interests in the particular circumstances.” 1 McCormick On Evid. § 91 (7th ed.); see also People v. Doss, 161 Ill.App.3d 258, 261-62, 514 N.E.2d 502, 505 (1987) (finding presence of third party, who was present to provide “moral support” caused waiver of attorney-client privilege where, despite evidence of client's “possibly low intelligence level, ” the third party testified that the client “needed no help in getting across what was important to their attorney”).

         BYU-I argues that the presence of Anderson was not reasonably necessary for the protection of Stevens' interest. In particular, BYU-I points to Stevens' letter terminating Gaffney, in which she stated she was “of sound mind, ” and Stevens graduation from BYU-in December of 2017 with a bachelor of science in social work with a 3.043 grade point average. Stevens argues these facts are not evidence that she did not need Anderson's assistance in communicating with legal counsel. She asserts that she needed Anderson's assistance in drafting the termination letter, BYU-I gave her many accommodations due to her multiple disabilities, and she needed the assistance of friends and family to interact with BYU-I as she completed her degree, primarily from home.

         With little precedence to bind the Court, the Court finds the best course of action is to rely on the “reasonably believes” standard from Rule 1.14 of the Idaho Rule of Professional Conduct. Based on the Confidentiality Agreement Anderson signed and the evidence of Stevens' disabilities and need for accommodation, Gaffney could reasonably believe Anderson's presence was necessary because Stevens' could not adequately act in her own interest.

         That being said, Rule 1.14 does not protect all of Stevens' communications with Anderson. Rule 1.14 only protects Stevens' communications with Gaffney while Anderson was present. The commentary to Rule 1.14 only states that the assistant's “participat[ion] in discussions with the lawyer . . . generally does not affect the applicability of the attorney-client evidentiary privilege.” The commentary does not say all communications with the assistant are then cloaked with the protections of the attorney-client relationship. To hold otherwise would violate the clearly established policy of “strictly constru[ing]” the attorney-client privilege in order to facilitate the “full and free discovery of the truth.” Weil, 647 F.2d at 24. Therefore, the Court finds Stevens' communications with Anderson outside of the presence of her attorney are not privileged.

         2. Waiver of Privilege Through Disclosure to Third-Parties

         BYU-I next argues that the letter terminating Gaffney is not privileged and that Stevens' disclosure of the letter to third parties constituted a subject matter waiver of all subjects discussed therein. Stevens does not claim that the letter is privileged, but argues that her waiver of the attorney-client privilege ends with the letter.[4]

         As to Stevens disclosures to Blaser, Stevens waived her attorney-client privilege with regard to the topics she directly discussed with Blaser. These topics include: (1) that Gaffney was suing for and/or demanded $1 million from BYU-I to help Stevens become financially stable but that Stevens did not want to sue BYU-I for that amount; (2) that Gaffney told the LDS Church that nobody was to speak with Stevens except through Gaffney herself; and (3) that Gaffney mistreated Stevens by physically forcing her to sign papers while she was sick. Blaser directly stated in his deposition that Stevens discussed these topics with him.

         Whether these discussions or Stevens' disclosure of the termination letter lead to a “subject matter waiver” is a more complicated question. BYU-I argues a subject matter waiver has occurred because Stevens is trying to use her privileged communications with Gaffney as both a sword and a shield. See Truckstop.Net, 2007 WL 2480001, at *5 (citing Chevron v. Pennzoil Co., 974 F.2d 1156, 1162 (9th Cir. 1992). Chevron is instructive here. In Chevron, the Ninth Circuit found Pennzoil was using its privileged communications as a sword when it asserted, as part of its defense, that it complied with certain disclosure requirements imposed by federal securities law and that it had relied on its tax attorney's declaration that its tax position in these disclosures was reasonable. 974 F.2d at 1162. Pennzoil was also using those communications as a shield when it contended that the communications with its tax attorney regarding these disclosures were “privileged and thus not subject to disclosure.” Id.

         BYU-I asserts Stevens is trying to use her privileged communications as a sword by using them to “(1) to pressure BYUI into settling; (2) to rehabilitate her image by painting herself as a reasonable and good person; and (3) to counteract the evidence that contradicts her allegations and supports a finding that she fabricated her claims and manipulated the situation and Stokes to secure a huge payday.” BYU-I explains, Stevens first “does this by using those portions of the privileged communications she has elected to disclose to claim that Gaffney disregarded and misrepresented her wishes and factual account by filing a complaint with fabricated facts to make the situation look worse than it actually was and demanding an exorbitant settlement that is contrary to her wishes.” BYU-I further explains that she “does this by sharing the privileged communications with people she knows will pass it on, and to whom she gave permission to pass it on, to others within the LDS Church in an attempt to force BYUI to settle because Stevens is allegedly suffering anxiety at the thought that the litigation ‘would be damaging to the LDS Church and BYUI.'”

         These allegations are a far cry from what occurred in Chevron, where Pennzoil used privileged communications as a direct part of its defense. In contrast, here, Stevens does not try to use her privileged communications with Gaffney to support an element of her claims. Rather, BYU-I asserts a story of manipulation that, at this point, the Court finds very little support for in the record. The Court is more troubled by BYU-I's lack of case precedence to support a finding that a party's use of privileged communications outside of direct litigation (for example, to pressure the other party to settle) is considered use “as a sword” for the purposes of the subject matter waiver. Thus, without the necessary factual or legal support, the Court find Stevens has not waived her attorney-client privilege as to all communications regarding subjects discussed in the termination letter or discussed with Blaser. Stevens only waived her privilege regarding the narrow set of topics she discussed with Blaser that Blaser specifically identified in his deposition.


         In this Motion, BYU-I asks the Court to compel Stevens to comply with her discovery obligations under Rule 26. Specifically, BYU-I seeks additional medical records and information on Stevens' history of abuses and trauma. At oral argument, Stevens' counsel indicated that they were in the process of providing additional material to BYU-I that would meet this request. Accordingly, the Court will not address this Motion to Compel at this time. However, if any of the parties find it necessary, they may bring this issue before the Court again. Before renewing this Motion, or otherwise reraising this issue, the parties should contact the Court so that it may set an appropriate briefing schedule, if one is necessary.


         Stevens claims a privilege in her communications with several members of the LDS Church, namely: (1) her prior Bishop and Stake President, Christopher Moore (“President Moore”); (2) current Bishop, Robert Garrett (“Bishop Garrett”); (3) prior Bishop Lovell (“Bishop Lovell”)[5]; and (4) Jon and Evona Beesley (the “Beesleys”). BYU-I objects to this claim of privilege.

         A. The Applicable Law

         Federal Rule of Evidence 501 provides as follows:

         The common law-as interpreted by United States courts in the light of reason and experience-governs a claim of privilege unless any of the following provides otherwise:

• the United States Constitution;
• a federal statute; or
• rules prescribed by the Supreme Court.
But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.

Fed. R. Evid. 501 (emphasis added). Based on this last sentence, Stevens asserts that in this case Idaho state law governs the issue of privilege. The Court does not agree. Stevens asserts three federal claims against BYU-I. State law does not supply the rule of decision on these claims. Moreover, Stevens clearly states in her Amended Complaint that this Court has federal question jurisdiction over this case. Thus, because state law does not supply the rule of decision on the federal claims, state law does not govern this issue of privilege with regard to the federal claims. Rather, federal common law governs the issue (unless any of the three enumerated sources of federal law provided otherwise). See id.

         The Court acknowledges that Stevens has filed one state claim against BYU-I. Few courts have addressed the question of which law, state or federal common law, governs a privilege issue when the plaintiff has asserted both state and federal claims. The Southern District of California has fully evaluated this question and concluded as follows:

In the absence of Ninth Circuit case law, the court follows the well-reasoned decisions of the Second, Third, Fourth and Eleventh Circuits and holds that where state law provides the rule of decision with respect to a state law claim but federal law provides the rule of decision with respect to a claim over which the court has federal subject matter jurisdiction, federal privilege law is to be applied with respect to both claims.

Crowe v. Cty. of San Diego, 242 F.Supp.2d 740, 749-50 (S.D. Cal. 2003). It appears that the Ninth Circuit still has not addressed this issue. The Court adopts the Crowe court's approach and finds federal common law applies to this claim of privilege.

         Federal courts have recognized the “priest-penitent privilege” before, but there are very few cases that have closely analyzed or fully explained the privilege. The Supreme Court has only recognized the privilege in dicta. See Trammel v. United States, 445 U.S. 40, 51 (1980) (“The priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return.”); Totten v. United States, 92 U.S. 105, 107 (1875) (“[S]uits cannot be maintained which would require a disclosure of the confidences of the confessional, or those between husband and wife.”). The Ninth Circuit has broadly described the privilege as “embracing any ‘confession by a penitent to a minister in his capacity as such to obtain such spiritual aid as was sought and held out in this instance.'” Mockaitis v. Harcleroad, 104 F.3d 1522, 1532 (9th Cir. 1997) (quoting Mullen v. United States, 263 F.2d 275, 277 (D.C. Cir. 1958) (applying privilege to reverse a criminal conviction where a Lutheran communicant had confessed her crime to a minister as a condition for receiving communion and his testimony had been used to convict her), overruled on other grounds by City of Boerne v. Flores, 521 U.S. 507 (1997).

         However, “[t]he Third Circuit has provided the most detailed guidance in applying the privilege.” United States v. Burgess, No. 1:14-CR-2022-TOR, 2015 WL 13674174, at *2 (E.D. Wash. Mar. 4, 2015) (citing In re Grand Jury Investigation, 918 F.2d 374 (3d Cir. 1990)). According to the Third Circuit, “[t]he privilege applies to protect communications made (1) to a clergyperson, (2) in his or her spiritual professional capacity (3) with a reasonable expectation of confidentiality.” Fabricant v. United States, No. CR 03-01257-RSWL-1, 2015 WL 5923481, at *12 (C.D. Cal. Oct. 8, 2015). See United States v. Webb, 615 F.2d 828 (9th Cir. 1980) (holding that communications between prisoner and clergyman were not confidential, and therefore would not be protected). The Third Circuit, in recognizing the privilege, drew on the 1973 Proposed Federal Rules of Evidence. These proposed rules set forth the following definitions and tenets:

(a) Definitions. As used in this rule:
(1) A “clergyman” is a minister, priest, rabbi, or other similar functionary of a religious organization, or an individual reasonably believed so ...

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