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Piveronas v. Franciscan Friars Assump.

Connecticut Superior Court Judicial District of Stamford-Norwalk, Complex Litigation Docket at Stamford
Aug 31, 2009
2009 Ct. Sup. 14681 (Conn. Super. Ct. 2009)

Opinion

No. X08CV07-5009962S

August 31, 2009


Memorandum of Decision on Defendant's Objection to Plaintiffs' Request for Production of Documents (No. 128)


On July 17, 2008 the plaintiffs' served upon Defendant Franciscan Friars Assumption B.V.M. Province, Inc. ("Defendant Province") a detailed twenty-six part request for production of documents covering the time frame 1965 to 1975. The plaintiffs allege that they were sexually assaulted by defendant John Doe in the period 1969-1971 by an unknown non-party person at the Holy Protection Monastery in New Canaan (the "Monastery"). Plaintiffs seek damages from the defendants under various theories of vicarious liability. Defendant Province has filed a timely objection pursuant to Practice Book § 13-10 to all twenty-six production requests, claiming, inter alia, that they are vague, overly broad, unduly burdensome, seek information that is not material to claims based on conduct occurring in 1969 to 1971, and are not reasonably calculated to lead to the discovery of admissible evidence. Other specific objections to certain requests include claims of privilege and work product, confidentiality of personnel files, and information involving entities and organizations not parties to this action that have nothing to do with the claims in the case.

On April 9, 2009 this court issued a Preliminary and Partial Order on Objections to Plaintiffs' Requests for Production of Documents Directed to Franciscan Friars Assumption BVM Province, Inc. ("Preliminary Ruling") in which the court laid down some general principles to guide the parties in their approach to resolving those objections including the holding of Rosado v. Bridgeport Roman Catholic Diocesan Corporation, Docket No. CV93-0300272S, Superior Court, Judicial District of Fairfield at Bridgeport (December 8, 1994, Levin, J.), 1994 Ct.Sup. 12422 that the contents of personnel files, though not immune from discovery, must only be disclosed in response to requests that directly relate to legitimate issues in the case material that is clearly material and relevant.

The April 9 order also directed counsel for both parties to meet and confer in person at the courthouse in a good faith effort to resolve their dispute over these production requests as required by Practice Book § 13-10(c). Counsel did meet and confer for several hours at the courthouse on May 4, 2009 and were able to reach agreements that resolved 18 of the 26 objections by limiting or refining the scope and time frame of the documents which the Defendant Province has agreed to produce. The court adopts those agreements (recited in detail in open court on May 4, 2009 and as recorded in the transcript on file) as its order on the objections to requests for production of documents nos. 1, 2, 3, 5, 7, 8, 9, 14, 16, 17, 18, 19, 20, 21, 22, 24, 25, and 26. The other eight objections (nos. 4, 6, 10, 11, 12, 13, 15, and 23) remain at issue. They have been briefed and argued. The following rulings are made on the contested objections. The Rosado rationale applies, since these contested requests seek much of the type of information that would typically be found in a personnel file.

Conn. Gen. Stat. § 31-128a defines a "Personnel file," in part, as ". . . papers, documents, and reports, including electronic mail and facsimiles, pertaining to a particular employee that are used or have been used by an employer to determine such employee's eligibility for employment, promotion, additional compensation, transfer, termination, disciplinary or other adverse personnel action including employee evaluations and reports relating to such employee's character, credit and work habits."

Request No. 4

Please provide any and all documents and/or materials related to any claims of physical, emotional, mental and/or sexual misconduct and/or molestation, including, but not limited to, pedophilia, by anyone affiliated with the Monastery, Assumption BVM province, the Custody, the Order of Friars Minor and/or the Roman Catholic Church, including, but not limited to, complaints, lawsuits, criminal charges and/or investigations, notes, memos, and/or any personnel records of accused, research documents, correspondence, or any other materials related to such allegations.

The Defendant Province objects that the request is overly broad and unduly burdensome and seeks documents that are not material to claims based on conduct occurring in 1969 to 1971 and is not reasonably calculated to lead to the discovery of admissible evidence. ("General Objection"). Specifically the defendant objects to production of documents regarding "emotional and mental" misconduct when sexual abuse is alleged; that the request seeks information about the misconduct proclivity of "anyone affiliated with" the defendant and others when the complaint alleges misconduct by a single "John Doe" defendant; that the request seeks information involving entities and organizations that are not parties to this action; that it seeks confidential privileged information from personnel files and documents protected by Conn. Gen. Stat. § 52-146f (patient/psychiatrist or clergyman communications), and that it seeks documents protected by the attorney work product doctrine.

The principles set forth in the court's April 9 Preliminary Ruling provide guidance in resolving these objections. Although there is authority that "proclivity evidence" is sometimes limited to the proclivity of a named defendant alleged to have perpetrated the abuse, and not any proclivity of third parties, because the identity of the actual perpetrator in this case is unknown and plaintiffs are entitled to attempt to discover his identity, and because there is a specific allegation here of failure to protect the plaintiffs from a foreseeable risk, the court has ruled that proclivity evidence of Monastery personnel in the relevant time period will be permitted. The court has also ruled, per Rosado, that personnel file documents are discoverable provided they are clearly material and relevant to the issues involved and not temporally remote. With these principles in mind the court overrules in part the objections of the defendant to the extent that defendant is ordered to produce: All documents including, but not limited to, complaints, lawsuits, criminal charges and/or investigations, notes, memos, and/or any personnel records of accused, research documents, or correspondence, related to any claims of sexual abuse, sexual molestation, sexual harassment, or acts of pedophilia at the Monastery during the period 1968 through 1972 by any person affiliated with the Monastery or with any defendant or with the Byzantine Custody of Mary of the Angels (the "Custody"); or pertaining to such acts after 1972 or at other places by such affiliated persons who were at the Monastery during the 1968 though 1972 period. As held in the Preliminary Ruling the Defendant Province is not obligated to create documents or to obtain documents from third parties not under its control. It must produce, however, records created by or directed against the named third parties if those records are presently in the custody or control of the Defendant Province. If there is a claim of privilege of any document, the Defendant Province shall follow the privilege log procedure set forth in Section 2 of the Preliminary Ruling.

Request No. 6

Please provide any and all written guidelines, handbooks, rules, instructions, or any other documents or materials related to governance of the behavior of those affiliated with the Monastery between January 1, 1965 and December 31, 1975, other than the Holy Bible, including, but not limited to the Rule and/or the Assumption BVM, the Monastery, the province, the custody, and/or the Roman Catholic Church Constitution and/or the Constitution of the Province.

Catholic Church have something called the rule that governs at least some of their behavior."

Counsel at oral argument also clarified that the words ". . . the Assumption BVM, the Monastery, the province, the custody, and/or the Roman Catholic Church" all modify the word "Constitution."

In addition to its General Objection the defendant specifically objects to this request because the time frame is too broad, and it calls for documents of the Defendant Province which had no connection at all with the Monastery or its personnel until 1998. (As to the latter point, counsel for the plaintiffs agreed at oral argument that the reference to the Defendant Province more accurately should have been a reference to Friars Minor of the Byzantine Slavonic Rite of North America, Inc. ("Friars Minor") which operated the Monastery in the 1669-1971 time frame.)

The court overrules in part the objections to the extent that the defendant is ordered to produce from the records within its possession and control all written guidelines, handbooks, rules, instructions, or any other documents or materials related to governance of the behavior of those affiliated with the Monastery between January 1, 1965 and December 31, 1975, other than the Holy Bible, including, but not limited to the relevant portions of the "Rule" or the constitutions (or other equivalent organic document) of the Monastery, the Defendant Province, the Friars Minor, the Custody and/or the Roman Catholic Church.

Request No. 10

Please provide complete personnel files, records, documents, and/or materials for each and every person affiliated with the Monastery between January 1, 1965 and December 31, 1975, including, but not limited to novices, students, brothers, friars, priests, employees, volunteers, agents, members and/or visitors, both clergy and non-clergy.

In addition to the General Objection defendant objects that this request seeks material which is private, confidential, and privileged as personnel file material and under Conn. Gen. Stat. § 52-146f (communications between patient and psychiatrist or psychologist). Defendant also objects that the request should be limited to the records of the alleged perpetrator, and not of "each and every person affiliated with the Monastery." Both of these specific objections have been addressed in the Preliminary Ruling. Personnel files are not per-se exempt from discovery if this court orders the material disclosed as material and relevant information. And any claim of privilege cannot be exercised in a blanket fashion but must follow the privilege log procedure of the Preliminary Ruling.

During oral argument of the objections to this request, the parties both referred to and followed a list of specific items sought by the plaintiffs from the personnel files which they had used during their "meet and confer" session. This resulted in several areas of agreement. The court will follow that list in ruling on the objections and will incorporate in its ruling the areas of agreement.

The court orders the defendant to produce from the materials in its possession or control the following categories of documents or records for the period January 1, 1965 through December 31, 1975 from the personnel files of each and every person affiliated with the Monastery during that period, including, but not limited to, novices, students, brothers, friars, priests, employees, and, to the extent that there are such personnel files, volunteers, agents, members and/or visitors, both clergy and non-clergy:

information identifying people who were at the Monastery from 1969-1971, including real names

information identifying the positions held by each person and the specific responsibilities of each person — job description

information about training and education received at the Monastery or before coming to the Monastery with regard to prevention of sexual harassment, sexual abuse, or sexual molestation or predatory behavior of any kind

disciplinary information relating to any acts or verbal abuse or threatened or attempted acts or verbal abuse involving another person

any accusations of misconduct involving any acts or verbal abuse or threatened or attempted acts or verbal abuse involving another person

anything about sexual misconduct

anything related to plaintiffs or their families photographs

information about current whereabouts: current addresses, other addresses since leaving the Monastery, telephone numbers, e-mail addresses, and contact persons

Information indicating whether or not any person at the Monastery in a program leading to ordination as a priest actually became a priest

Any documents withheld on the ground of privilege shall be listed in the privilege log per Section 2 of the Preliminary Ruling.

To the extent that the court has not ordered disclosure of other personnel file items on plaintiffs' list (orientation material, health reports or documents relating to sexual activity, or mental health counseling records, screening records, reason(s) why a person did not become a priest, etc.) the objections thereto are sustained on the authority of Rosado without prejudice to renewal at a later time if plaintiffs can make the requisite showing of a direct relationship to the issues in the case.

Request No. 11

Please provide any and all documents and/or materials related to efforts made by Assumption BVM, the Monastery, the province, the custody, and/or the Roman Catholic Church to ensure that physical, emotional, mental, and/or sexual misconduct and/or molestation, including, but limited to, pedophilia, would not occur at the Monastery.

The objections are that this request is totally unlimited as to time frame, applies to records of efforts made by others who are not parties to this action, and is not limited to sexual misconduct. The plaintiffs claim that records of remedial actions taken by anyone connected to the Monastery — provided the records are now in the possession and control of the Defendant Province — even if they may be inadmissible at trial, are reasonably likely to lead to the discovery of admissible evidence such as references to past events causing the need for a remediation program. The plaintiffs' also claim that these records would be relevant to the issue of feasibility of prevention. The court agrees with the plaintiffs' position except that the request should be limited to post-1971 efforts (and in the case of the Defendant Province, post-1997 efforts) and should be limited to sexual misconduct.

The objections are sustained to the extent that the court limits the request and orders the defendant to produce documents and/or materials related to efforts after December 31, 1971 (and in the case of the Defendant Province, after December 31, 1997) to prevent the occurrence of sexual misconduct or molestation at the Monastery. The objections are otherwise overruled.

Request No. 12

Please provide any and all documents and materials you have that reference, discuss, mention, relate to and/or are about physical, emotional, mental, and or sexual misconduct and/or molestation, including, but not limited to, acts of pedophilia, in Assumption BVM, the Monastery, the province, the custody, and/or the Roman Catholic Church, including, but not limited to, complaints, lawsuits, criminal actions, allegations, reports, studies, concerns, and/or other such documentations.

The parties' arguments on request No. 12 mirror their positions on request No 11. The court's ruling does likewise. The pre-1971 period is covered by earlier requests. This request should be limited to post-1971 events and should be limited to sexual misconduct. The objections are sustained to the extent that the court limits the request and orders the defendant to produce documents and materials that reference or discuss sexual misconduct or molestation in the period after December 31, 1971 (and in the case of the defendant Province, after December 31, 1997). The objections are otherwise overruled.

Request No. 13

Please provide any and all documents and materials related to, regarding or explaining the relationships between the hierarchy of Assumption BVM, Custody of the Our Lady of the Angels, Friars Minor of the Byzantine-Slavonic Rite of North America, Inc., Holy Dominion Monastery, Byzantine Franciscan Custody of Saint Mary of the Angels, Holy Dominion Friary, and the Roman Catholic Church, including but not limited to, mergers between any and all of the entities.

The only objection goes to the words "related to, regarding . . ." which the defendant would delete, just leaving the word "explaining." But that would unduly narrow the request. "Relate to" and "regarding" are terms commonly used in requesting production of documents. The objection is overruled.

CT Page 14688

Request No. 15

Please provide any and all documents and materials relating to, regarding or identifying the superior(s) of the Monastery and/or the Province.

The objection again goes to the words "relate to, regarding . . ." which the defendant claims to be overbroad. The defendant's position is that documents that "identify" the superior should be sufficient for present purposes of developing witnesses to be deposed, and that, in any event the identity of any superior of the Monastery after the time frame of the alleged abuse (1969-1971) would be irrelevant. The plaintiffs claim they are also seeking documents that list credentials and background of the superiors, and have offered to limit the request to documents that identify plus any professional biographies, curricula vitae ("CV") or similar documents. That seems to the court to be a reasonable position. As to the time frame, the court feels that any superior of the Monastery at any time from 1965 to date, as the person in charge of the place where the alleged abuse allegedly occurred, might very likely possess knowledge of events in the 1969-1971 era.

This would not be the case, however, for a superior of the Province, which did not get involved until 1998 when it accepted some former residents of the Monastery.

The objections are sustained to the extent that the court limits the request and orders the defendant to produce documents that identify those who are or were superiors of the Monastery at any time since January 1, 1965 and/or superiors of the Province at any time since January 1, 1998, plus any professional biographies, CV or similar documents of those persons. The objections are otherwise overruled.

Request No. 23

Please provide any and all documents and/or materials regarding, relating to, or referencing any and all investigations and/or disciplinary actions relating to physical, emotional, mental and/or sexual abuse, including, but limited to pedophilia, about or against anyone affiliated with the Monastery, Assumption BVM, the province, the custody, the Order of Friars Minor, and/or the Roman Catholic Church, including, but limited to leave, relocation, re-assignment, transfer, resignations, and/or any and all other disciplinary actions.

This request asks for virtually the same documents as Requests Nos. 4 and 12. The defendant's objections are sustained.

So Ordered.


Summaries of

Piveronas v. Franciscan Friars Assump.

Connecticut Superior Court Judicial District of Stamford-Norwalk, Complex Litigation Docket at Stamford
Aug 31, 2009
2009 Ct. Sup. 14681 (Conn. Super. Ct. 2009)
Case details for

Piveronas v. Franciscan Friars Assump.

Case Details

Full title:MICHAEL PIVERONAS ET AL. v. FRANCISCAN FRIARS ASSUMPTION B.V.M. PROVINCE…

Court:Connecticut Superior Court Judicial District of Stamford-Norwalk, Complex Litigation Docket at Stamford

Date published: Aug 31, 2009

Citations

2009 Ct. Sup. 14681 (Conn. Super. Ct. 2009)