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Stevens v. Brigham Young University

United States District Court, D. Idaho

September 24, 2019

LORI STEVENS Plaintiff,
v.
BRIGHAM YOUNG UNIVERSITY – IDAHO dba BYU-Idaho, a Utah corporation and SUSAN STOKES, personal representative of the Estate of Stephan Stokes, Defendants.

          MEMORANDUM DECISION AND ORDER

          B. LYNN WINMILL U.S. DISTRICT COURT JUDGE.

         INTRODUCTION

         The Court has before it a motion for sanctions, a motion to compel a response to discovery, a motion regarding a Rule 30(b)(6) deposition request, and a motion to exclude the expert testimony of Ryan Cragun. The Court held oral argument on the motions and took them under advisement. For the reasons expressed below, the Court will (1) schedule an evidentiary hearing on the motion for sanctions; (2) grant in part and deny in part the motion to compel, (3) grant in part and deny in part the Rule 30(b)(6) request, and (4) grant in part and deny in part the motion to exclude the testimony of Ryan Cragun.

         LITIGATION BACKGROUND

         Plaintiff Stevens, a former BYU-I student, alleges that Robert 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. She further asserts that she, along with another student, Danielle Spencer, 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.

         Stevens originally sued BYU-I and the Stokes estate. She later settled her claims against the Stokes estate. The LDS Church intervened for “the limited purpose of protecting its claims of privilege. . . .” See Order (Dkt. No. 89).

         There are now four claims in this case 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.

         Motion to Compel

         Stevens seeks to compel the LDS Church to answer certain discovery requests concerning (1) the LDS Church’s appointment and payment of counsel for Danielle Spencer; (2) information related to Christopher Moore’s employment and his discussion with third parties; and (3) tithing contributions funding BYU-I.

         With regard to Moore, Stevens wants to question him about (1) whether he was an employee of BYU-I and the scope of that employment, and (2) his communications with third parties while investigating Steven’s request for an ecclesiastical recommend to continue attending BYU-I.

         The LDS Church argues that as a limited intervenor it cannot be compelled to answer any discovery. It cites no authority so holding and the Court can find none. Certainly, the Court can put limitations on an intervenor’s discovery obligations but there is no blanket rule absolving them from discovery. See Southern v. Plumb Tools, 696 F.2d 1321, 1323 (11th Cir. 1983) (“imposing certain conditions on either type of intervention [by right or permissive] poses no problem in the federal court”).

         The LDS Church argues next that Moore – an ecclesiastical leader within the LDS Church known as a Stake President – was acting in his ecclesiastical capacity when he questioned the third parties and therefore is entitled to the clergy/communicant privilege. In an earlier decision, the Court relied on the non-binding but helpful Rule of Evidence 506 (proposed) to govern the clergy/communicant issues in this case. See 2018 WL 2974388 (D.Id. June 11, 2018) at *7. In defining the scope of that privilege, Rule 506(c) states that “[t]he privilege may be claimed by the [communicant] . . . . The clergyman may claim the privilege on behalf of the [communicant].” This language, according to the Advisory Committee Notes, “makes clear that the privilege belongs to the communicating person.” During the debate over the Rule, a faction within the Committee proposed giving the cleric more control – either making the cleric the sole holder of the privilege or making the cleric and penitent joint holders of the privilege, noting that some states had adopted this approach. See 26 Wright and Graham, Federal Practice & Procedure, § 5624 at pp. 212-214. But the Committee ultimately rejected that approach and made the communicant the sole holder of the privilege. Id. at p. 214.

         Making the communicant to be the sole holder of the privilege is the better approach here where Stevens seeks to question Moore about his conversations with third parties in investigating Stevens’ request for an ecclesiastical recommend. The third parties had no ecclesiastical relationship to Moore and his discussions with them were prompted by a request from Stevens. Under those circumstances, the Court finds that Rule 506(c)’s approach – granting the privilege to the communicant but not the cleric – should govern the outcome of this issue. The Court expresses no opinion on whether if faced with a different factual situation, the Court might deviate from Rule 506(c)’s approach.

         Thus, Stevens holds the privilege, and Moore’s right to claim the privilege is entirely derivative of Stevens’ rights. Here, Stevens is not asserting any privilege in Moore’s communications with third parties – indeed Stevens wants Moore to divulge those communications. Moore has no independent privilege and thus must ...


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