Hartford Roman Catholic Diocesan Corporation v. Interstate Fire & Casualty Company

Filing 43

RULING: granted in part with respect to Requests for Production Nos. 3-4, 14-16, 19, 34-36, 39, 41, 54-56, 59, 61, 66-67, and 74 to the extent that an in camera review by this Magistrate Judge, consistent with this Ruling, is ordered, with cop ies to be submitted to this Magistrate Judges Chambers on or before March 10, 2014; and denied without prejudice as moot with respect to Request for Production No. 21 34 Motion to Compel. Signed by Judge Joan G. Margolis on 2/19/2014. (Rodko, B.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
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:
HARTFORD ROMAN CATHOLIC DIOCESAN :
CORP.
:
:
V.
:
:
INTERSTATE FIRE & CASUALTY CO.
:
:
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3:12 CV 1641 (JBA)

DATE: FEBRUARY 19, 2014

RULING ON DEFENDANT’S MOTION TO COMPEL PRODUCTION
The factual and procedural history behind this litigation is set forth in this Magistrate
Judge’s Ruling on Plaintiff’s Motion to Compel, filed January 28, 2014 (Dkt. #39)[“January
2014 Ruling”] familiarity with which is presumed.1
On December 9, 2013, defendant filed the pending Motion to Compel Production of
Documents and brief in support. (Dkts. ##34-35).2 On January 29, 2014, plaintiff filed its
brief in opposition. (Dkt. #403; see also Dkts. ##36-37). On February 12, 2014, defendant
filed its reply brief. (Dkt. #42).4
This motion was referred to this Magistrate Judge by U.S. District Judge Janet Bond

1

The January 2014 Ruling concerned eleven discovery requests. On February 11, 2014,
defendant filed its Objection (Dkt. #41) with respect to six of those requests.
2

Attached to defendant’s brief is a declaration from defense counsel, sworn to December 9,
2013 (Exh. A)["Tobin Decl."], with two subexhibits, copy of Defendant's Requests for Production,
dated April 26, 2013 (Exh. 1); copy of Plaintiff’s Responses and Objections to Defendant’s Requests
for Production, dated July 25, 2013 (Exh. 2); along with copies of case law (Exh. B).
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The following exhibits are attached: affidavit of plaintiff’s counsel, sworn to January 29,
2014 (Exh. A)["Federico Aff't"]; copies of case law (Exh. B); affidavit of Attorney John W. Sitarz,
also sworn to January 29, 2014 (Exh. C)[“Sitarz Aff’t”]; affidavit of Monsignor John J. McCarthy,
also sworn to January 29, 2014 (Exh. D)[“McCarthy Aff’t”]; copies of Code of Canon Law (Exh. D).
4

Three exhibits are attached: copies of case law (Exh. A); additional copies of Code of
Canon Law (Exh. B); and copy of Fagelson & Kindseth, Insurance Law: Reaching Excess Layers of
Insurance, on www.ctlawtribune.com.

Arterton on November 5, 2013. (Dkt. #29).
For the reasons stated below, defendant's Motion to Compel Production (Dkt. #34)
is granted in part.
I. DISCUSSION
On April 26, 2013, defendant served ninety-five Requests for Production on plaintiff,
as to which plaintiff responded, with multiple objections, on July 25, 2013; despite its
objections, plaintiff produced approximately 14,000 documents. (Tobin Decl., ¶¶ 3-4 & Exhs.
1-2; Federico Aff’t, ¶¶ 4-5). Counsel conferred on September 11, 2013 and again on October
10, 2013, and were able to resolve their disputes with respect to all but twenty-one requests,
namely Requests Nos. 3, 4, 14, 15, 16, 19, 21, 34, 35, 36, 39, 41, 54, 55, 56, 59, 61, 66, 67,
73 and 74. (Tobin Decl., ¶¶ 5-12; Federico Aff’t, ¶¶ 6-22). Again, despite its objections,
plaintiff provided some non-privileged documents to defendant, and defendant already was
in possession of others. (Federico Aff’t, ¶¶ 10-13, 16, 18-22).
As described by defendant, the documents in dispute fall within three general
categories: (1) Personnel Files of Father Robert Ladamus, Father Stephen Crowley and
Father Ivan Ferguson (Nos. 19, 39, 59); (2) “Secret Archives” or Canon 489 Files regarding
these three priests and pertaining to claims of sexual abuse of a minor by personnel of
plaintiff (Nos. 21, 41, 61, 73, 74); and (3) documents reflecting communications between
plaintiff and its primary insurers concerning the underlying claims (Nos. 3, 4, 14, 15, 16, 34,
35, 36, 54, 55, 56, 66, 67). (Dkt. #35, at 3-5). Defendant argues that production of the
personnel files should be ordered under CONN. GEN. STAT. § 31-128f, as such documents are
relevant and any privacy concerns are “slight” as all three priests are deceased. (Id. at 610). Defendant further contends that the “Secret Archive” or “Canon 489" files are not

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protected under the First Amendment. (Id. at 11-14). And last, defendant maintains that
the documents pertaining to communications with plaintiff’s primary insurers regarding
payment of the underlying claims are relevant, because defendant’s excess general liability
indemnity coverage is “not triggered” until “the relevant underlying layers of coverage are
exhausted.” (Id. at 14-19).
Plaintiff has responded that the priests’ personnel files cannot be disclosed absent a
court order under CONN. GEN. STAT. § 31-128f, an in camera review is required to isolate the
non-relevant materials, defendant already has copies of the relevant documents from the
R.M., Matthew Doe and Jacob Doe cases, and defendant already is in possession of relevant
documents from Father Ferguson’s personnel file and Canon 489 file and Father Crowley’s
personnel file. (Dkt. #40, at 3-13). Plaintiff further argues that the Canon 489 files contain
privileged and irrelevant information, some of which may be protected from disclosure under
CONN. GEN. STAT. § 52-146b, so that an in camera review is also required. (Id. at 13-19).
Plaintiff also asserts that defendant has not established relevance or need for confidential
settlement communications with other insurers. (Id. at 19-23). And last, plaintiff contends
that it has provided all responsive, non-privileged documents to eleven of the requests,
namely Nos. 4, 15, 16, 35, 36, 55, 56, 66, 67, 73, 74. (Id. at 24-25).5
In its reply brief, defendant argues that the personnel files should be produced in
their entirety without an in camera review (Dkt. #42, at 1-5); that the “secret
archive”/"Canon 489 Files” should also be produced and “the record is devoid of any support”
that the priest-penitent privilege applies (id. at 5-7); and that the documents reflecting
communications between plaintiff and its primary insurers concerning the underlying claims

5

Plaintiff concedes that it is holding documents to which it asserts a privilege with respect
to Nos. 16, 36 and 56. (Dkt. #40, at 24-25; see also Dkt. #42, at 8, n.5). See Section I.C infra.

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are “directly relevant[,]” as reflected by a recent article written by plaintiff’s counsel. (Id. at
7-10).
A. PERSONNEL FILES OF FATHER ROBERT LADAMUS, FATHER STEPHEN CROWLEY
AND FATHER IVAN FERGUSON (NOS. 19, 39, 59)
The four outstanding issues are whether in the context of this case, CONN. GEN. STAT.
§ 31-128f requires a court order before plaintiff can produce the personnel records of these
three priests, whether an in camera review is required or warranted prior to any production,
whether there are temporal limits upon what materials could be relevant, and whether
defendant already is in possession of some of these materials. (Dkt.#35, at 6-10; Dkt. #40,
at 3-13; Dkt. #42, at 1-5).
Contrary to defendant’s argument, employers in Connecticut would place themselves
at risk by disclosing personnel files without a court order under CONN. GEN. STAT. § 31-128f,6
particularly in the context of priests who have been accused of the sexual abuse of minors.
See, e.g., Dotson v. Hartford Roman Catholic Diocesan Corp., CV 106012742S, 2011 WL
1021745, at *5-7 (Conn. Super. Ct. Feb. 17, 2011); Rosado v. Bridgeport Roman Catholic
Diocesan Corp., No. CV 93 0300272S, 1994 WL 700344, at *1-3 (Conn. Super. Ct. Dec. 8,
1994)[“Rosado I”]. See also Rosado v. Bridgeport Roman Catholic Diocesan Corp., No. X06
CV 930157085S, 2006 WL 3756521, at *1, 9-10 (Conn. Super. Ct. Dec. 6, 2006)[“Rosado

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CONN. GEN. STAT. § 31-128f provides in relevant part:

No individually identifiable information contained in the personnel file . . . of any
employee shall be disclosed by an employer to any person or entity not employed
by or affiliated with the employer without the written authorization of such
employee except . . . where the disclosure is made . . . (2) pursuant to a lawfully
issued . . . judicial order. . . .

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II”]7, aff’d in part & rev’d in part, 292 Conn. 1, cert. denied sub nom. Bridgeport Roman
Catholic Diocesan Corp. v. New York Times Co., 558 U.S. 991 (2009). See also Ruran v. Beth
El Temple of W. Hartford, Inc., 226 F.R.D. 165, 169 (D. Conn. 2005); Culkin v. Pitney Bowes,
Inc., 225 F.R.D. 69, 73 (D. Conn. 2004).
Bearing in mind the sensitive nature of employment files in this context, as well as
the requirement the documents produced are relevant to any party’s claim or defense, courts
have held that “[t]he proper procedure for the court to follow in making a determination on
the discovery of documents contained in [an accused priest’s] personnel file is to conduct an
in camera inspection of the documents involved.” Dotson, 2011 WL 1021745, at *7. See
also Rosado I, 1994 WL 700344, at *2 (“In camera review by the court reasonably satisfies
the plaintiff’s need for information necessary to establish his case while respecting a civil
defendant’s limited expectation of privacy in his personnel files as reflected in the implicit
policy of . . . § 31-128f that the documents in such files not be cavalierly divulged by an
employer.”).

While defendant is correct that CONN. GEN. STAT.

§ 31-128f does not

automatically require an in camera review in every case prior to disclosure of employment
records, the case law in Connecticut, as set forth in Dotson and Rosado I, has established
that an in camera review is “[t]he proper procedure” in the context of religious leaders
accused of sexual abuse of minors. Contrary to defendant’s argument (see Dkt. #42, at 2),
the deaths of these three priests does not entirely eradicate the concerns expressed in these
two decisions.
Plaintiff seeks to place temporal restrictions upon production, limiting the production

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In Rosado II, the trial judge concluded that “under the circumstances presented by these
cases, the public’s right to access to documents filed with the court outweighs the employees’
interest in the confidentiality of the personnel files[]” under CONN. GEN. STAT. § 31-128f. 2006 WL
3756521, at *9-10.

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of the time period before or during allegations of abuse – for Father Ferguson’s file, prior to
October 1978 with respect to R.M. (who alleged abuse from November 1977 through October
1978)8 and prior to Fall 1982 with respect to Matthew Doe (who alleged abuse from Summer
1981 through Fall 1982); for Father Crowley’s file, prior to Spring 1982 with respect to K.S.
(who alleged abuse from Fall 1981 to Spring 1982); and no production at all with respect to
Father Ladamus, for which plaintiff claims it was first put on notice by a demand letter sent
by J.A.’s attorney on May 30, 2008, and the only other allegation against Father Ladamus
occurred after the J.A. claim and outside defendant’s policy period. (Dkt. #40, at 8-9;
Federico Aff’t ¶ 14; Sitarz Aff’t, ¶ 4). Defendant is correct that documents that post-date
these periods of abuse “may lead to the discovery of admissible evidence, such as references
to time periods and/or events indicating knowledge of the part of [plaintiff] and
demonstrating how [plaintiff] responded to and handled abuse claims.” (Dkt. #42, at 2-3).
Thus, there will be no temporal restrictions placed upon the in camera review.
Lastly, plaintiff argues that defendant already is in possession of portions of Father
Ferguson’s files produced in the R.M., Matthew Doe, and Jacob Doe cases, constituting
approximately 160 pages, and of Father Crowley’s personnel file produced in another case
in April 2004, and Father Ladamus’ personnel file contains no relevant information. (Dkt.
#40, at 10-12; Federico Aff’t ¶¶ 10-14; Sitarz Aff’t ¶¶ 4-8).

Defendant argues that

production should not be limited to what documents were produced before. (Dkt. #41, at
3-4). This issue will be addressed after the Court’s in camera review.
Accordingly, on or before March 10, 2014, plaintiff will produce copies of the
entire personnel files for Fathers Ferguson, Crowley and Ladamus for the Magistrate Judge’s

8

Although plaintiff's brief mentions November 1977 (Dkt. #40, at 8), it should be the
terminal date, not the beginning date, that matters, consistent with the two other victims.

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in camera review.
B. “SECRET ARCHIVE” OR “CANON 489" FILES (NOS. 21, 41, 61, 74)
The four issues raised are whether these documents are relevant, whether production
is precluded by the First Amendment, whether disclosure is barred under CONN. GEN. STAT.
§ 52-146b, and whether disclosure is prohibited by virtue of the attorney-client privilege
and/or work product doctrine. (Dkt. #35, at 11-14; Dkt. #40, at 13-19 & Exh. E; Dkt. #42,
at 5-7 & Exh. B). The parties agree that there is no Canon 489 File for Father Ladamus.
(Dkt. #35, at 11; Tobin Decl. ¶ 9; Dkt. #40, at 14; McCarthy Aff’t ¶ 4).
With respect to these requests, defendant correctly argues that “it is difficult to image
a category of documents more relevant to a case centering on an institution’s knowledge of,
and response to, claims of sexual abuse by three of its employees, than files that exist to
chronicle the moral crimes of those employees.” (Dkt. #42, at 5). As plaintiff acknowledges,
its First Amendment argument was soundly rejected in Dotson, where the Connecticut
Superior Court held that “it is difficult for the court to imagine that the compelled disclosure
of certain documents that are maintained pursuant to canon law would result in an
entanglement of the court in church matters sufficient to result in a violation of the diocese’s
first amendment rights.” 2011 WL 1021745, at *8-9 (citations omitted). As the court held
in Dotson with respect to personnel files, the defendant-diocese was permitted to present
these documents to the court for an in camera review. Id. at *9. See also Thopsey v.
Bridgeport Roman Catholic Diocesan Corp., No. NNH CV 106009360S, 2012 WL 695624, at
*8-9, 10-16 (Conn. Super. Ct. Feb. 15, 2012)(reaching same conclusion).
Protection from disclosure under CONN. GEN. STAT. § 52-146b in the context of
allegations of sex abuse against minors by members of the clergy has been addressed in

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Thopsey, 2012 WL 695624, at *9-10 (following in camera review, some documents found
“in some fashion [to] seek religious or spiritual advice, aid or comfort[]” held to be protected
from disclosure under the statute), and in Hethcote v. Norwich Roman Catholic Diocesan
Corp., No. X04 CV 54003450S, 2007 WL 1121361, at *1 (Conn. Super. Ct. Apr. 3,
2007)(same conclusion reached after in camera review). See also Rosado v. Bridgeport
Roman Catholic Diocesan Corp., No. CV 93 302072, 1995 WL 348181, at *10-15 (Conn.
Super. Ct. May 31, 1995)(with respect to questions posed to defendant-priest during his
deposition, finding common law “priest-penitent” privilege). Plaintiff has represented that
once an in camera review has been ordered, it will submit a privilege log that identifies the
documents it maintains are protected by the priest-penitent privilege. (Dkt. #40, at 18).
Plaintiff similarly represents that it will provide a privilege log with respect to the attorneyclient and/or work-product doctrine, in conjunction with the Court’s in camera review.
Therefore, on or before March 10, 2014, plaintiff shall submit copies of the “secret
archives” or “Canon 489" files of Fathers Ferguson and Crowley for this Magistrate Judge’s
in camera review, along with a privilege log that identifies the documents it maintains are
protected by the priest-penitent privilege and another privilege log that identifies the
documents that it maintains are protected by the attorney-client and/or work-product
doctrine.
Insofar as the parties agree that there is no Canon 489 File for Father Ladamus,
plaintiff's motion is denied without prejudice as moot with respect to No. 21. And as
previously indicated, plaintiff asserts that it has provided all responsive, non-privileged
documents for No. 74. (Dkt. #40, at 24-25; Federico Aff’t ¶¶ 20-21; see also Dkt. #42, at
8, n.5). With respect to No. 74, plaintiff shall include for an in camera review copies of any

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documents withheld from production on the basis of priest-penitent privilege, attorney-client
privilege, or work-product doctrine.
C. DOCUMENTS PERTAINING TO COMMUNICATIONS WITH PLAINTIFF’S PRIMARY
INSURERS REGARDING PAYMENT OF THE UNDERLYING CLAIMS (NOS. 3-4, 14-16,
34-36, 54-56, 66-67) 9
The two issues raised are whether these document are relevant and if so, are they
privileged as confidential, as asserted by plaintiff. (Dkt. #35, at 14-19; Dkt. #40, at 19-23;
Federico Aff’t ¶¶ 16-19, 22; Sitarz Aff’t ¶¶ 10-12; Dkt. #42, at 7-10 & Exh. C). Both sides
acknowledge that the considerable substantive issues, including whether defendant’s excess
policies have been triggered here, are to be addressed once discovery has been completed,
and not in the midst of discovery. (Dkt. #35, at 17-19; Dkt. #40, at 20-22; Dkt. #42, at
9). Plaintiff asserts that despite its objections, it has “produced all non-privileged
communications with other insurers, including all updates on the Underlying Claims that
defense counsel routinely sent to the carriers, and documents evidencing communications
with other carriers regarding the ultimate settlement.” (Dkt. #40, at 19-20; Federico Aff’t
¶ 16).
There is little doubt that the documents sought are relevant to the issues raised in
this litigation. As U.S. Magistrate Judge William I. Garfinkel recognized in Lamoureux v.
Anazaohealth Corp., No. 03 CV 1382 (WIG), 2009 WL 813977, at *2 (D. Conn. Mar. 26,
2009), with respect to a discovery request for “confidential, ongoing, unconsummated
settlement discussions[,]” a “substantial need and . . . [a] particularized showing [is]
necessary to override the strong policy against production of these materials because of the
chilling effect that their production could have on the ongoing settlement negotiations.” In

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Defendant inadvertently failed to list No. 34 in this section (Dkt. #35, at 14), even though
it is included in this category earlier. (Id. at 4-5).

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that defendant had failed to meet this high threshold, plaintiffs’ motion for protective order
was granted and defendant’s motion to compel production of these documents was denied.
Id.
U.S. Magistrate Judge Holly B. Fitzsimmons reached the same conclusion in Bradley
v. Fontaine Trailer Co., Inc., No. 06 CV 62 (WWE), 2007 WL 2028115, at *5 (D. Conn. July
10, 2007). In Bradley, as in this case, plaintiffs did not object to the production of the
executed releases and settlement agreements that were the product of the confidential
mediation, pursuant to a protective order. Id. at *4. Analogous to the situation here,
plaintiffs did object to production of the ex parte settlement statements and materials
provided to the mediator. Id. Judge Fitzsimmons had engaged in an in camera review of
copious mediation documents before concluding that production was not required under
CONN. GEN. STAT. § 52-235d. Id. at *2-5.

With respect to FED. R. EVID. 408, Judge

Fitzsimmons held that “[t]his rule . . . only applies to the admissibility of evidence at trial, not
to discovery.” Id. at *6 (citations & internal quotations omitted). Judge Fitzsimmons also
engaged in an in camera review of settlement documents in Valiante v. VCA Animal Hosps.,
Inc., 09 CV 2115 (WWE), 2011 WL 219672, at *1-2 (D. Conn. Jan. 20, 2011), in which she
denied defendant production of a settlement agreement between plaintiff and an unrelated
third-party, but permitted defendant to inquire from plaintiff at her deposition a description
of the injuries that the settlement was intended to redress and any breakdown or allocation
of the settlement proceeds to specific injuries or expenses. Id. at *2.
In a similar vein, it would appear, consistent with Bradley and Valiante, that an in
camera review of these “confidential” documents would be appropriate. Accordingly, on or
before March 10, 2014, plaintiff shall provide copies of these documents to this Magistrate

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Judge’s Chambers for her in camera review.
As previously indicated, plaintiff asserts that it has provided all responsive, nonprivileged documents to Nos. 4, 15-16, 35-36, 55-56, 66-67, and 73. (Dkt. #40, at 24-25;
Federico Aff’t ¶¶ 20-21; see also Dkt. #42, at 8, n.5).10

With respect to these requests,

plaintiff shall include for an in camera review copies of any documents withheld from
production on the basis of “confidential” settlement negotiations.
II. CONCLUSION
Accordingly, for the reasons stated above, defendant’s Motion to Compel Production
(Dkt. #34) is:
granted in part with respect to Requests for Production Nos. 3-4, 14-16, 19, 34-36,
39, 41, 54-56, 59, 61, 66-67, and 74 to the extent that an in camera review by this
Magistrate Judge, consistent with this Ruling, is ordered, with copies to be submitted to this
Magistrate Judge’s Chambers on or before March 10, 2014; and
denied without prejudice as moot with respect to Request for Production No. 21.
This is not a Recommended Ruling, but a ruling on a non-dispositive motion, the
standard of review of which is specified in 28 U.S.C. § 636; FED. R. CIV. P. 6(a), 6(e) & 72;
and Rule 72.2 of the Local Rules for United States Magistrate Judges. As such, it is an order
of the Court unless reversed or modified by the District Judge upon timely made objection.
See 28 U.S.C. § 636(b)(written objections to ruling must be filed within
fourteen calendar days after service of same); FED. R. CIV. P. 6(a), 6(e) & 72; Rule
72.2 of the Local Rules for United States Magistrate Judges, United States District Court for
the District of Connecticut; Small v. Secretary, H&HS, 892 F.2d. 15, 16 (2d Cir. 1989)(failure

10

See note 5 supra.

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to file timely objection to Magistrate Judge’s recommended ruling may preclude
further appeal to Second Circuit).
Dated at New Haven, Connecticut, this 19th day of February, 2014.

/s/ Joan G. Margolis, USMJ
Joan Glazer Margolis
United States Magistrate Judge

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