Doe I et al v. Boy Scouts of America et al

Filing 173

MEMORANDUM DECISION AND ORDER. IT IS ORDERED: BSA's Motion to Compel Response to Interrogatory No. 37 (Dkt. 165 ), joined by the LDS Church (Dkt. 167 ), is GRANTED. Plaintiffs shall, on or before May 15, 2017, produce responses to Interrogator y No. 27. The Court will DEFER RULING on the parties' Motions to Seal (Dkts. 160, 168). On or before May 3, 2017, Plaintiffs and BSA shall each file a supplemental brief, not to exceed 3 pages, in support of their respective Motions to Seal. The Anderson Declaration and accompanying exhibits (Dkt. 166) and Walton Declaration (Dkt. 171) shall remain under seal until further order of this Court. Signed by Judge B. Lynn Winmill. Motions terminated: 165 MOTION to Compel Response to Interrogatory No. 37 Re: Claim of Privilege filed by Boy Scouts of America. (km)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
JOHN DOES I-XIX, and JOHN
ELLIOTT,

Case No. 1:13-cv-00275-BLW

Plaintiffs,

MEMORANDUM DECISION AND
ORDER

v.
BOY SCOUTS OF AMERICA, a
congressionally chartered corporation
authorized to do business in Idaho;
CORPORATION OF THE PRESIDING
BISHOP OF THE CHURCH OF JESUS
CHRIST OF LATTER-DAY SAINTS, a
foreign corporation sole registered to do
business in Idaho; and CORPORATION
OF THE PRESIDENT OF THE
CHURCH OF JESUS CHRIST OF
LATTER-DAY SAINTS AND
SUCCESSORS, a foreign corporation
registered to do business in Idaho,
Defendants.

INTRODUCTION
Pending before the Court is a Motion to Compel filed by Defendant Boy Scouts of
America (“BSA”), Dkt. 165, and joined by Defendant Church of Jesus Christ of LatterDay Saints (“LDS Church”), Dkt. 167. Also before the Court are two unopposed Motions
to Seal. Dkts. 160, 168. For the reasons explained below, the Court will grant the Motion
to Compel and defer ruling on the Motions to Seal.
MEMORANDUM DECISION AND ORDER - 1

BACKGROUND
Plaintiffs in this case assert a single claim for constructive fraud against BSA and
the LDS Church arising from sexual abuse that occurred several decades ago. Defendants
assert a statute of limitations defense, pursuant to Idaho Code section 5-218(4), which
states that a cause of action for constructive fraud does not accrue “until the discovery, by
the aggrieved party, of the facts constituting the fraud or mistake.” The Idaho Supreme
Court, on certification from this Court, recently clarified that the statute begins to run
when the plaintiff “knew or reasonably should have known of the facts constituting the
fraud.” See Doe v. Boy Scouts of Am., 356 P.3d 1049, 1052 (Idaho 2015) (citing McCoy
v. Lyons, 820 P.2d 360 (Idaho 1991)).
In its first set of written interrogatories, BSA inquired about each Plaintiff’s first
contacts with counsel, purportedly to explore the facts supporting its statute of limitations
defense. All responding plaintiffs answered that interrogatory identically, objecting on
grounds of attorney-client privilege, work product, and relevance. Id. The interrogatories
and responses each read as follows:
INTERROGATORY NO. 37: For each Plaintiff who is asserting a claim against
the BSA, identify the date You first had contact with an agent, employee, or owner
of O’Donnell Clark & Crew, Dumas Law Group or Chasan & Walton, whether
You or counsel made the first contact, the Person with whom you had contact, and
the date You first retained O’Donnell Clark & Crew, Dumas Law Group or
Chasan & Walton to represent You in this matter.
RESPONSE: Plaintiff objects to this Interrogatory as blatantly seeking
information protected by the attorney-client privilege and work product doctrine,
and as not reasonably calculated to lead to admissible evidence. When Plaintiff
first contacted and retained his attorneys in this matter has no bearing on the
allegations in this case.
MEMORANDUM DECISION AND ORDER - 2

Id. After an unsuccessful meet and confer, pursuant to Local Rule 37.1, BSA filed the
present Motion to Compel responses to Interrogatory No. 37.
DISCUSSION
1.

Motion to Compel
Plaintiffs have withdrawn their original objections to Interrogatory No. 37 on

grounds of attorney-client and work product privilege. See Pl. Resp. at 2, Dkt. 169.
Accordingly, the Court considers only whether the information requested is relevant.
A.

Legal Standard

Federal Rule of Civil Procedure 26(b)(1), as amended effective December 1, 2015,
provides that “[p]arties may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense and proportional to the needs of the case.” If a
party served with discovery fails to adequately respond, the serving party may file a
motion to compel pursuant to Federal Rule of Civil Procedure 37(a). The Court has broad
discretion in deciding whether to compel discovery. Phillips ex rel. Estates of Byrd v.
General Motors Corp., 307 F.3d 1206, 1211 (9th Cir. 2002).
B.

Analysis

BSA argues that Interrogatory No. 37 seeks relevant information because the
timing of attorney representation will help establish what and when Plaintiffs (and
perhaps their attorneys) knew of the alleged constructive fraud, evidence necessary to
support BSA’s statute of limitations defense.

MEMORANDUM DECISION AND ORDER - 3

Numerous courts have held that the nature and timing of a plaintiff’s initial
contacts with counsel are relevant to a statute of limitations defense, and therefore
generally discoverable. See, e.g., Montgomery v. NLR Co., No. 2:05-CV-251, 2007 WL
3171961, at *3 (D. Vt. Oct. 26, 2007) (concluding that the timing and scope of attorney
representation are “directly related to the statute of limitations defense”); Condon v.
Petacque, 90 F.R.D. 53, 55 (N.D. Ill. 1981) (allowing discovery of the dates of plaintiff’s
initial and subsequent contacts with attorney, as relevant to statute of limitations
defense); see also Doe v. Soc'y of Missionaries of Sacred Heart, No. 11-CV-02518, 2014
WL 1715376, at *2 (N.D. Ill. May 1, 2014) (timing and content of communications with
litigation financing company discoverable on similar grounds); American Standard, Inc.
v. Bendix Corp., 80 F.R.D. 706, 708 (W.D. Mo. 1978) (allowing discovery into the
attorney investigation of plaintiff’s claim); Bird v. Penn Central Co., 61 F.R.D. 43, 47
(E.D.Pa.1973) (same).
The Court agrees that the information sought in Interrogatory No. 37 is relevant to
BSA’s statute of limitations defense. Interrogatory No. 37 seeks the following facts: (1)
the date the plaintiff first had contact with counsel or an agent of counsel; (2) whether the
plaintiff or counsel made first contact; (3) the identity of the person with whom the
plaintiff had first contact, and (4) the date the plaintiff first retained counsel.
Both (1) the date of first contact and (2) who initiated contact may provide insight
into the timing of a plaintiff’s knowledge of the facts constituting the alleged constructive
fraud. If a plaintiff initiated contact, the attorney conferral might indicate that the plaintiff

MEMORANDUM DECISION AND ORDER - 4

already had knowledge of his or her potential claims. Conversely, where counsel initiated
contact, the meeting might correspond to the date on which the plaintiff first learned of
his or her potential claims. Question (3), regarding the date the plaintiff first retained
counsel, is relevant for similar reasons. It is reasonable to assume that more fact-specific
communications and investigation regarding a plaintiff’s constructive fraud claim began
once counsel was retained. Finally, question (4) is likely to identify potential witnesses
with information pertinent to the statute of limitations defense.
For the reasons set forth above, the Court concludes that the interrogatory seeks
evidence that is “relevant to any party’s claim or defense,” Fed. R. Civ. P. 26(b)(1), and
will grant the Motion to Compel.
2.

Motions to Seal
A.

Legal Standard

“[C]ourts of this country recognize a general right to inspect and copy public
records and documents, including judicial records and documents.” Nixon v. Warner
Commc'ns, Inc., 435 U.S. 589, 597 (1978). Parties must “overcome[] this strong
presumption” of public access when seeking to maintain the confidentiality of judicial
files and records. Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178 (9th
Cir. 2006). A party seeking to seal documents attached to a dispositive motion has the
burden of demonstrating “compelling reasons” for protection that outweigh the public
interest. Id. at 1178–79. A lesser “good cause” standard applies to documents attached to

MEMORANDUM DECISION AND ORDER - 5

non-dispositive motions. Id. (citing Phillips ex rel. Estates of Byrd v. Gen. Motors Corp.,
307 F.3d 1206, 1213 (9th Cir. 2002)).1
The Ninth Circuit Court of Appeals has carved out an exception to the
presumption of public access for materials attached to a non-dispositive motion and filed
pursuant to a valid protective order. See Phillips, 307 F.3d at 1213. In such a case, “the
party seeking disclosure must present sufficiently compelling reasons why the sealed
discovery document should be released.” Id. (emphasis added). However, if the parties
stipulate to a protective order without making a good cause showing, the burden of
establishing “good cause” remains with the party seeking protection. See id. at 1211 n.1.
“For good cause to exist, the party seeking protection bears the burden of showing
specific prejudice or harm will result” if the motion is denied. Id. at 1210–11 (internal
citation omitted). “If a court finds particularized harm will result from disclosure of
information to the public, then it balances the public and private interests to decide
whether [sealing] is necessary.” Id. (internal citation omitted). This balancing test should
consider the following non-exhaustive factors:
(1) whether disclosure will violate any privacy interests; (2) whether the
information is being sought for a legitimate purpose or for an improper purpose;
(3) whether disclosure of the information will cause a party embarrassment; (4)
whether confidentiality is being sought over information important to public health
and safety; (5) whether the sharing of information among litigants will promote

1

“The ‘good cause’ language comes from Rule 26(c)(1), which governs the issuance of
protective orders in the discovery process: ‘The court may, for good cause, issue an order to protect a
party or person from annoyance, embarrassment, oppression, or undue burden or expense . . . .’” Ctr. for
Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1097 (9th Cir.) (quoting Fed. R. Civ. P. 26(c)), cert.
denied sub nom. FCA U.S. LLC v. Ctr. for Auto Safety, 137 S. Ct. 38 (2016)).

MEMORANDUM DECISION AND ORDER - 6

fairness and efficiency; (6) whether a party benefitting from the order of
confidentiality is a public entity or official; and (7) whether the case involves
issues important to the public.
Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995)) (as adopted by the
Ninth Circuit in Phillips, 307 F.3d at 1211). Finally, “even when the factors in this twopart test weigh in favor of protecting the discovery material . . . , a court must still
consider whether redacting portions of the discovery material will nevertheless allow
disclosure.” In re Roman Catholic Archbishop of Portland in Oregon, 661 F.3d 417,
424–25 (9th Cir. 2011) (internal citation omitted).
B.

Analysis

Plaintiffs and BSA have each filed a Motion to Seal seeking to protect discovery
materials filed in connection with BSA’s Motion to Compel, a non-dispositive motion.
Dkts. 160, 168. Specifically, BSA seeks to seal the Declaration of Tyler J. Anderson and
accompanying exhibits, Dkt. 166, which contain excerpts of deposition transcripts and
responses to interrogatories. Plaintiffs seek to seal the Declaration of Timothy C. Walton,
Dkt. 171, which contains responses to interrogatories. Although the materials were
appropriately filed under seal pursuant to a Stipulated Protective Order, Dkt. 149, that
order was approved without any particularized showing or finding of good cause.
Accordingly, the burden remains on the moving parties—BSA and Plaintiffs—to
establish good cause to keep the documents under seal. See Phillips, 307 F.3d at 1211
n.1.

MEMORANDUM DECISION AND ORDER - 7

The parties have not adequately established such good cause. There is undoubtedly
a compelling interest in keeping private any identifying information regarding the Doe
plaintiffs. However, the Court is mindful of the Ninth Circuit’s admonition to consider
less drastic alternatives to sealing documents. See In re Roman Catholic Archbishop of
Portland in Oregon, 661 F.3d at 424–25. Here, it appears that the confidential
information can be easily redacted to remove the names and identifying information of
Doe plaintiffs, such that the documents can be unsealed. Before ruling on the present
motions, however, the Court will permit the parties to provide additional justification for
their request to file the documents entirely under seal.
ORDER
IT IS ORDERED:
1.

BSA’s Motion to Compel Response to Interrogatory No. 37 (Dkt. 165),
joined by the LDS Church (Dkt. 167), is GRANTED.

2.

Plaintiffs shall, on or before May 15, 2017, produce responses to
Interrogatory No. 37.

3.

The Court will DEFER RULING on the parties’ Motions to Seal (Dkts.
160, 168). On or before May 3, 2017, Plaintiffs and BSA shall each file a
supplemental brief, not to exceed 3 pages, in support of their respective
Motions to Seal. The briefing should (1) take into account this circuit’s
“good cause” standard and (2) explain why redaction is not a viable

MEMORANDUM DECISION AND ORDER - 8

alternative to sealing. In the alternative, Plaintiffs and BSA may submit
proposed redacted exhibits for the review of the Court and all parties.
4.

The Anderson Declaration and accompanying exhibits (Dkt. 166) and
Walton Declaration (Dkt. 171) shall remain under seal until further order of
this Court.

DATED: April 20, 2017
_________________________
B. Lynn Winmill
Chief Judge
United States District Court

MEMORANDUM DECISION AND ORDER - 9