Pedreira, et al v. Sunrise Children's Services, et al
Filing
469
MEMORANDUM OPINION & ORDER by Judge Charles R. Simpson, III on 8/30/12; The Magistrate Judges order entered July 18,2007 will be MODIFIED as follows: the words intolerance or on page 2, paragraph a. of the order will be STRICKEN. In all other respects, the Magistrate Judges order will be AFFIRMED.cc:counsel (JBM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
ALICIA M. PEDREIRA, et al.
PLAINTIFFS
v.
CIVIL ACTION NO. 3:00-CV-00210
SUNRISE CHILDREN’S SERVICES f/k/a
KENTUCKY BAPTIST HOMES
FOR CHILDREN, INC., et al.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This matter is before the court pursuant to Defendants’ objection (DN 263) to an order of
the Magistrate Judge entered July 18, 2007.
I.
This case, as the parties are well aware, has had a lengthy history. Thus, the court will
provide only a brief factual and procedural summary as it relates to the instant matter.
The plaintiffs, Alicia M. Pedreira, et al. (“Plaintiffs”), have brought Establishment Clause
claims against Sunrise Children’s Services f/k/a Kentucky Baptist Homes for Children, Inc.
(“KBHC”), as well as two individuals in their official positions with the Commonwealth of
Kentucky: Janie Miller, the Secretary of the Cabinet for Health and Family Services, and J.
Michael Brown, the Secretary for the Justice and Public Safety Cabinet. Plaintiffs allege in their
second amended complaint (DN 439) that KBHC takes care of youths who are wards of the
Commonwealth and who have been placed at KBHC by state or county social workers. They
further allege that most of KBHC’s funds come from contracts with the Commonwealth of
Kentucky. According to Plaintiffs’ complaint, KBHC uses the government funds to finance staff
positions that are filled in accordance with religious tenets, and it seeks to instill Christian values
and teachings to the youth in its care. Plaintiffs contend that those practices violate the
Establishment Clause of the First Amendment.
On January 5, 2007, Plaintiffs moved for an extension of time for discovery, stating that a
number of “serious disputes about the scope of discovery” needed to be resolved before
discovery could continue. Of particular relevance here, the plaintiffs identified the following two
issues as necessitating resolution by the court: (1) “[w]hether Defendant KBHC must disclose
contact information for its former employees and whether Plaintiffs are free to contact such
individuals without Defendant KBHC’s consent”; and (2) “[w]hether Defendants must provide
information identifying prior residents of KBHC and their parents.” Thereafter, Magistrate Judge
James D. Moyer sought briefing regarding whether state law prohibited the disclosure by
Defendants of otherwise discoverable information.
On July 18, 2007, after the parties had briefed the issue, the Magistrate Judge entered an
order that, inter alia, resolved certain outstanding discovery issues, including the two issues
noted above. The relevant portions of the Magistrate Judge’s order are reproduced here:
a. On or before July 27, 2007, defendants shall produce the names and last
known addresses of all former KBHC residents who complained of religious
intolerance or proselytization either formally or informally (e.g., during exit
interviews or meetings with social workers or counselors) and who are currently
over eighteen years of age. While the court did not find persuasive defendants’
arguments regarding the impact of certain federal and state statutes, and state
evidentiary privileges, on plaintiffs’ requests for this information, the court did
find persuasive the defendants’ concerns regarding the potentially fragile
emotional health of these potential witnesses. Accordingly, plaintiffs shall be
appropriately mindful of these concerns when they attempt to interview any of the
persons identified, and they shall also be mindful that many may also be
uneducated or unsophisticated and, therefore, more apprehensive than most about
dealing with any member of the legal profession, much less lawyers, paralegals,
and investigators from large cities. The court will therefore require plaintiffs[] to
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submit for court approval their proposed initial contact letter and scripts for their
initial telephonic or in-person contact before plaintiffs contact any of the persons
identified by the defendants. Similarly, absent court approval of the notification,
defendants shall not notify any former KBHC residents that they may be
contacted by plaintiffs or their counsel.
b. KBHC must also, on or before July 27, 2007, disclose to plaintiffs the
previously requested names and last contact information regarding their former
employees. Neither the defendants, nor their counsel have any right to be present
at any interview of the identified employees, unless the employee specifically and
clearly so requests. The court will permit KBHC to offer its assistance to any
identified former employee, but it may not do so until it submits its proposed
notification (telephonic script or notice letter) to the court and the notification is
approved.
In addition, the Magistrate Judge ordered that Defendants submit all putatively confidential
financial information that Plaintiffs had requested for in camera inspection, that plaintiff Vance
not engage in any discovery at that time, and that the parties were to agree upon a protective
order by July 27, 2007, after which Plaintiffs were required to provide to Defendants tax returns
that Defendants had requested.
Defendants filed objections to the Magistrate Judge’s order. Defendants stated that they
objected to the order “in its entirety,” but only addressed the two specific portions of the order
block-quoted above, namely the requirements that KBHC disclose the names of certain former
residents and of all former employees.
Shortly after filing objections to the Magistrate Judge’s order, Defendants filed renewed
motions to dismiss the Establishment Clause claims. Defendants had earlier moved to dismiss
the claims on the basis that Plaintiffs lacked standing, but the court denied that motion. In
Defendants’ renewed motions to dismiss, they argued that a recent Supreme Court opinion, Hein
v. Freedom From Religion Found., Inc., 551 U.S. 587 (2007), had narrowed taxpayer standing.
This court granted those renewed motions to dismiss, which fully resolved all the claims in the
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case. Therefore, the court never resolved Defendants’ objections to the discovery order.
However, the Sixth Circuit reversed the order dismissing the Establishment Clause claims.
Pedreira v. Kentucky Baptist Homes for Children, Inc., 579 F.3d 722 (2009). Thereafter,
Defendants’ objections to the Magistrate Judge’s discovery order were restored to this court’s
active docket for resolution.
II.
Rule 72(a) of the Federal Rules of Civil Procedure states that when a party objects to a
Magistrate Judge’s order in a nondispositive matter, the District Judge “must consider timely
objections and modify or set aside any part of the order that is clearly erroneous or is contrary to
law.” Here, Defendants argue that the Magistrate Judge’s order was “clearly erroneous.” Under
that standard:
[t]he question is not whether the finding is the best or only conclusion that can be
drawn from the evidence, or whether it is the one which the reviewing court
would draw. Rather, the test is whether there is evidence in the record to support
the lower court’s finding, and whether its construction of that evidence is a
reasonable one.
Heights Cmty. Cong. v. Hilltop Realty, Inc., 774 F.2d 135, 140 (6th Cir. 1985) (citing Anderson
v. City of Bessemer City, N.C., 470 U.S. 564, 573-574 (1985)). In other words, “[a] finding is
clearly erroneous when the reviewing court . . . is left with the definite and firm conviction that a
mistake has been committed.” Id.
The focal point of Defendants’ arguments is that the Magistrate Judge’s order will invade
the privacy of the former residents of KBHC. In support of that argument, Defendants cite
several state and federal statutes that, they argue, preclude them from disclosing the information
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sought by Plaintiffs. Defendants also contend that Plaintiffs are able to obtain the sought-after
information in less burdensome ways.
Federal Rule of Civil Procedure 26(b)(1) allows parties to obtain discovery of “any
nonprivileged matter that is relevant to any party’s claim or defense–including the . . . identity
and location of persons who know of any discoverable matter.” Moreover, Rule 26(b)(1) also
allows for courts to order discovery of “any matter relevant to the subject matter involved in the
action.” The scope of discovery under Rule 26(b)(1) is “quite broad,” and the test for relevance
under that rule “is whether the line of interrogation is reasonably calculated to lead to the
discovery of admissible evidence.” Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 402 (6th Cir.
1998).
However, discovery under Rule 26(b)(1) is “subject to the limitations imposed by Rule
26(b)(2)(C). Under Rule 26(b)(2)(C), a court “must limit the frequency or extent of discovery
otherwise allowed by these rules” if:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be
obtained from some other source that is more convenient, less burdensome, or
less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the
information by discovery in the action; or
(iii) the burden or expense of the proposed discovery outweighs its likely benefit,
considering the needs of the case, the amount in controversy, the parties’
resources, the importance of the issues at stake in the action, and the importance
of the discovery in resolving the issues.
Rule 26(c) allows for courts to issue protective orders limiting discovery in order “to protect a
party or person from annoyance, embarrassment, oppression, or undue burden or expense.” In
the words of the Third Circuit, “Rule 26(c) provides district courts with the power to formulate a
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detailed solution that reflects the concerns of particular individual disputes.” Pearson v. Miller,
211 F.3d 57, 73 (3rd Cir. 2000).
As an initial matter, the court finds that there is no federal privilege protecting disclosure
by Defendants of the identities of certain former KBHC residents and all former employees.
Defendants argue that state confidentiality statutes protect disclosure of the information that they
were ordered to turn over to Plaintiffs. See (DN 263-2 at 10-13). However, Rule 501 of the
Federal Rules of Evidence provides that “[t]he common law–as interpreted by United States
courts in the light of reason and experience–governs a claim of privilege unless” the United
States Constitution, a federal statute, or rules prescribed by the Supreme Court provide
otherwise.1 Moreover, “federal courts have generally declined to grant requests for new
privileges.” Seales v. Macomb County, 226 F.R.D. 572, 577 (E.D.Mich. 2005) (quoting Pearson,
211 F.3d at 67). The court has reviewed the statutes cited by Defendants and has found no
language in them indicating that they are creating an absolute evidentiary privilege. Indeed,
Defendants “concede[] that many courts have held that state confidentiality statutes do not create
a federal evidentiary privilege which absolutely protects such information from discovery in a
federal action” (DN 263-2 at 14). In short, the court finds no basis to conclude that the
information at issue was privileged due to state confidentiality statutes.2
1
The exception to Rule 501's statement concerning the sources of federal privileges is that
in a civil case, state law governs privilege regarding a claim or defense for which state law supplies
the rule of decision. Fed. R. Evid. 501. Here, Plaintiff’s claim is not premised on state law, but upon
the First Amendment to the United States Constitution. Thus, the exception does not apply here.
2
Defendants also cite several federal statutes that they state “arguably protect” the identities
of the former KBHC residents. However, Defendants do not suggest that those federal statutes create
an absolute privilege protecting the children’s identities from discovery. Further, the court has
reviewed the federal statutes cited by Defendants and finds that none of them preclude the discovery
of the information that the Magistrate Judge ordered Defendants to provide to Plaintiffs.
continue...
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Even though the confidentiality statutes identified by Defendants do not create absolute
evidentiary privileges in this action, federal courts have realized that considerations of comity
dictate that confidentiality statutes be allotted “some weight along with other factors in deciding
which materials should be discoverable.” Seales v. Macomb County, 226 F.R.D. at 577. In other
words, the court must conduct a balancing test, weighing the Commonwealth’s interest in the
privacy of the former residents against Plaintiff’s interest in discovery. Id.
It is obvious from the Magistrate Judge’s order that he considered the appropriate
factors. Indeed, the Magistrate Judge explicitly stated that he “f[ou]nd persuasive the defendants’
concerns regarding the potentially fragile emotional health” of the former KBHC residents.
Having recognized that the Magistrate Judge took account of the appropriate factors in
the balancing test, the court turns to the question of whether the Magistrate Judge’s ultimate
conclusion as to the outcome of the balancing test was clearly erroneous. But for one tweak to
the Magistrate Judge’s order, the court is not left with the “definite and firm conviction” that the
Magistrate Judge’s resolution of the balancing test was erroneous. For reasons that will be
explained below, the change the court will make to the Magistrate Judge’s order is to further
limit which of the former KBHC residents Defendants will be required to identify to include only
those former residents who complained of religious proselytization, not those who complained
solely of religious “intolerance.”
2
...continue
Specifically, Defendants point to provisions of the Health Insurance Portability and Accountability
Act (“HIPAA”), the Family Educational Rights and Privacy Act (“FERPA”), the Individuals with
Disabilities Education Act (“IDEA”), and the Social Security Act (“SSA”), as being “relevant to the
privacy issues at bar.” But, while each of those Acts contains provisions relating to the
confidentiality of certain information, the Magistrate Judge’s order did not require disclosure of any
information deemed confidential by those Acts.
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In considering the propriety of the Magistrate Judge’s weighing of the factors, the court
initially notes that the identities of former residents and employees are relevant, within the
meaning of Rule 26(b)(1), to the Establishment Clause claims brought by Plaintiffs. The former
residents of KBHC that complained of religious proselytization would have relevant knowledge
of whether and to what extent KBHC sought to instill Christian values and teachings to the
youth. And, former employees of KBHC are persons who would be expected to have information
about KBHC’s practices and policies at the time of their employment by KBHC, including the
extent to which those practices and policies were drawn from or related to religion. Regarding
the disclosure of witnesses with relevant knowledge, a leading treatise on federal practice has
stated, “The court always has discretion under what is now Rule 26(c) to limit discovery if there
is a good reason to do so. But the occasions in which there is reason to bar discovery of the
names and addresses of witnesses are few indeed and ordinarily this kind of discovery should be
regarded as a matter of right.” 8 CHARLES ALAN WRIGHT, ARTHUR R. MILLER, RICHARD L.
MARCUS, FEDERAL PRACTICE AND PROCEDURE § 2013 (3d ed. 2010).
Defendants argue that the Magistrate Judge’s order requiring Defendants to turn over the
names and addresses of former residents did not give enough credence to the privacy interests of
those residents, and that the discovery order will “jeopardize[] the necessary bonds of trust that
must be established between any child care provider and its current, former, and future
residents.” But, generally speaking, the Magistrate Judge’s order to disclose the names and last
known addresses of former KBHC residents is tailored to address the concerns raised by
Defendants.
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The Magistrate Judge’s order placed two limits on which of the former KBHC residents
Defendants would have to identify. First, the Magistrate Judge limited discovery only to those
residents who are currently over eighteen years of age. Second, the Magistrate Judge required
Defendants to identify only those residents who had complained of religious intolerance or
proselytization. Thus, the Magistrate Judge attempted to limit any potential invasions of the
privacy of former residents to those residents who were both very likely to have relevant
information for Plaintiffs and who were no longer minors.
That said, the court finds it appropriate, in light of the concerns voiced by Defendants, to
circumscribe as tightly as possible the class of former KBHC residents Defendants will be
required to identify. Plaintiffs’ allegations in this case are focused on KBHC’s supposed
indoctrination of the children in its care into Christianity, as well as the fulfillment of staff
positions in accordance with religious tenets (see Second Am. Compl. ¶¶ 52-53). The allegations
do not claim that KBHC was intolerant toward other religions, only that KBHC sought to instill
Christian values and teachings to the youth in its care. Thus, while complaints of religious
proselytization are very relevant to Plaintiff’s claims, complaints of intolerance directed at nonChristians are more attenuated from Plaintiff’s allegations. Therefore, the court sees fit to further
limit the class of former KBHC residents whose names and last known addresses Defendants
must disclose to only those who have complained about religious proselytization, and not those
who have complained solely of religious intolerance.
Having thus limited the class of former residents that Defendants will be required to
disclose to only those who will have the most relevant information to Plaintiff’s claims and who
are over the age of eighteen, the court next notes that the Magistrate Judge’s order also sought to
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protect the privacy of the former residents by requiring Plaintiffs to submit for court approval
their proposed initial contact letter and scripts for initial telephonic and in-person contact. Thus,
the Magistrate Judge would be able to retain control over what topics Plaintiffs’ attorneys would
initially speak to those former residents about and thus ensure that the initial conversation
focused only on issues relevant to the allegations of religious indoctrination without any
prodding into other areas of the former residents’ backgrounds. That the Magistrate Judge’s
order provided the opportunity for him to control Plaintiffs’ initial conversations with the nowadult former residents further shows that he carefully weighed the concerns of Defendants in
crafting the order. Similarly, it must be noted that the only information that Defendants are
required to disclose is the name and last known address of the former residents, not any
information concerning their health or background, and that the disclosure is being made only to
Plaintiff’s lawyers, not the general public. In short, besides disallowing Plaintiffs to contact
former residents who complained of religious intolerance, the court sees no basis for finding any
other part of the Magistrate Judge’s order requiring Defendants to disclose the names and last
known addresses of certain former KBHC residents to be clearly erroneous.
The court also sees no basis for finding that the portion of the Magistrate Judge’s order
requiring Defendants to disclose the name and last known addresses of former KBHC employees
is clearly erroneous. Defendant’s objection to this portion of the Magistrate Judge’s order is
premised on Defendants’ belief that Plaintiffs will use their questioning of the former employees
as a “backdoor strategy to obtaining the contact information that was denied through the Order.”
Defendants also note that the former employees were privy to confidential information
concerning the residents of KBHC that, Defendants speculate, the former employees may share
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with Plaintiffs’ lawyers. However, contrary to Defendants arguments, there is no indication that
Plaintiffs have any intention of asking the former employees for contact information of residents
or for information concerning aspects of the residents’ stay at KBHC other than that which
would be relevant to the claims of religious proselytization. First, the court notes that there is an
entirely proper reason for Plaintiffs to contact the former KBHC employees: they are reasonably
likely to have personal knowledge of information relevant to Plaintiffs First Amendment claims,
specifically regarding KBHC’s general practices and procedures. Moreover, there is little need
for Plaintiffs to attempt to gain information concerning KBHC residents since Defendants are
also required to disclose to Plaintiffs the names and last known addresses of former residents
who have complained about religious proselytization. Finally, Plaintiffs have represented to this
court (DN 274 at 15) that they are willing to agree to a restriction that they will not ask former
employees the identities of any current or former residents without express approval of the
Magistrate Judge.
This court is also not moved by Defendants argument that they should be allowed to be
present when Plaintiffs interview former KBHC employees. Defendants cite no law for the
proposition that they are entitled to be present at those interviews. Thus, Defendants have not
shown that the Magistrate Judge’s order allowing the interviews without Defendants’ presence
was clear error.
Further, the court rejects Defendants’ argument that the Magistrate Judge was wrong to
order Defendants to turn over the names and last known addresses of former KBHC employees
and certain former residents because Plaintiffs have other means of obtaining relevant
information concerning their claims. Defendants’ suggestions of other means for Plaintiffs to use
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to obtain information about their claims are less than convincing, and do not leave this court with
the “definite and firm conviction that a mistake has been committed.” Heights Cmty. Cong., 774
F.2d at 140.
For instance, Defendants state that Plaintiffs have access through the media to any
current or former KBHC resident and any former employee that wishes to come forward.
Defendants point out that a user-posted comment on a forum located on the website of the
Louisville Courier Journal provided the contact information for Plaintiffs’ lawyers. But, relying
on the chance that a potential witness will run across that user-posted comment in a website
forum is hardly an adequate substitute for the disclosure of the identities of witnesses who will
clearly have knowledge relevant to the case.
Defendants also argue that disclosure of the identities of former KBHC residents and
employees is unnecessary because Plaintiffs have already been permitted to interview current
employees. Defendants state that these employees have a better knowledge of KBHC than
residents or former employees, and further argue that former employees may be less credible
because they may harbor a grudge against KBHC. But, as Plaintiffs point out, there is reason to
believe that current KBHC employees may be less than credible when discussing their current
employer, and the court sees no reason to limit Plaintiffs to talking only to the group of persons
that Defendants deem the most credible.
In short, the Magistrate Judge considered the appropriate factors and entered an order
that was generally tailored to address the concerns of Defendants and the needs of Plaintiffs.
While this court believes it is appropriate to modify the Magistrate Judge’s order to further limit
which former KBHC residents Defendants will be required to disclose to include only those
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former residents who complained of religious proselytization, and not those who complained
solely of religious intolerance, there is no clear error in any other portion of the Magistrate
Judge’s order.3
III.
For all the reasons stated above and the court being otherwise sufficiently advised, IT IS
HEREBY ORDERED AND ADJUDGED that the Magistrate Judge’s order entered July 18,
2007 will be MODIFIED as follows: the words “intolerance or” on page 2, paragraph “a.”
of the order will be STRICKEN. In all other respects, the Magistrate Judge’s order will be
AFFIRMED.
IT IS SO ORDERED.
August 30, 2012
D03
3
Although Defendants state that they object to the Magistrate Judge’s order in its entirety,
they raise no arguments concerning any portions of the order other than the the requirements that
they provide to Plaintiffs the names and last known addresses of certain former residents and all
former employees of KBHC. Having resolved those arguments, the court also perceives no clear
error as to any other portion of the Magistrate Judge’s order.
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