Capitol Commission Inc. v. Capitol Ministries

Filing 19

ORDER signed by Magistrate Judge Carolyn K. Delaney on 2/8/13 VACATING hearing date of 2/20/13 on defendant's motion to compel and GRANTING 15 Motion to Compel. The documents identified in the revised privilege log, dated 2/4/13, shall be produced within 14 days from the date of this order. Documents produced pursuant to this order shall be used solely for purposes of the underlying litigation. (Meuleman, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CAPITOL COMMISSION INC.,

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Plaintiff,

No. 2:12-mc-0093 GEB CKD

vs.

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CAPITOL MINISTRIES,

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Defendant.

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ORDER

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Defendant’s motion to compel production of documents withheld on the basis of

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privilege by subpoenaed non-party David Duran is pending before the court. The motion is

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noticed for hearing on February 20, 2013. Because oral argument is not of material assistance,

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this matter is submitted on the briefs. E.D. Cal. L.R. 230(g). Upon review of the joint statement

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regarding the discovery disagreement, declarations, and in camera review of the documents in

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dispute, THE COURT FINDS AS FOLLOWS:

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The underlying action, venued in the Eastern District of North Carolina, asserts

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claims under the Lanham Act, 15 U.S.C. § 1125 et seq. Defendant has alleged counterclaims for

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violation of the California Computer Data Access and Fraud Act, Cal. Penal Code § 502(e)(1),

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and the California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200. A subpoena duces

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tecum was served on non-party David Duran. Objection to the production of 91 responsive
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documents was made on the basis of the clergy-congregant privilege. The subpoenaed non-party

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also raised an objection to production based on privacy rights conferred under the California

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Constitution, Article I, Section 1.

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The parties dispute whether federal law or state law governs the privilege claims

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asserted here. Defendant contends California Evidence Code § 1033, which provides for a

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penitential privilege, applies in this action; the subpoenaed non-party contends the federal clergy-

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congregant privilege is determinative. Because this action is predicated on federal question

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jurisdiction, the federal law of privilege applies. Fed. R. Evid. 501; Agster v. Maricopa County,

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422 F.3d 836, 839 (9th Cir. 2005). Upon in camera review of the documents, however, the court

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concludes that whether state or federal privilege law is applied, the objection based on clergy-

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congregant privilege is not well taken. See generally In re Grand Jury Investigation, 918 F.2d

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374, 377 (clergy-communicant privilege protects communications to member of clergy, in his or

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her spiritual or professional capacity, by persons who seek spiritual counseling and who

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reasonably expect that their words will be kept in confidence; presence of third parties does not

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vitiate privilege if essential to and in furtherance of the communication).

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As noted above, federal privilege governs the objections raised here. The

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subpoenaed non-party has also raised an objection under the California Constitution. Although

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federal courts are not required to apply state privileges, the court may do so as a matter of comity.

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See Kelly v. City of San Jose, 114 F.R.D. 653, 656 (N.D.Cal.1987). Under California law, the

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right of privacy is not absolute and may be abridged by a compelling and opposing state interest.

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Kahn v. Superior Court, 188 Cal. App. 3d 752, 765 (1987) (court must conduct “careful

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balancing” in determining whether right to privacy should be abridged). Although discovery of

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the documents at issue necessarily intrudes into some minimal privacy interests of non-parties to

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the litigation, the court concludes that those interests are outweighed by disclosure of the

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information contained in the documents which appears to be directly relevant to the claims

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asserted in the underlying litigation.
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Accordingly, IT IS HEREBY ORDERED that:

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1. The hearing date of February 20, 2013 on defendant’s motion to compel is

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vacated; and

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2. Defendant’s motion to compel (dkt. no. 15) is granted. The documents

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identified in the revised privilege log, dated February 4, 2013, shall be produced within fourteen

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days from the date of this order. Documents produced pursuant to this order shall be used solely

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for purposes of the underlying litigation (Eastern District of North Carolina, case no.

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5:11-cv-0214-BO).

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Dated: February 8, 2013

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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capitolcomm.icr.sub

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