Doe, XX v. Holy See (State of the Vatican City) et al

Filing 18

RESPONSE in Opposition to 17 Joint MOTION to Quash Notice of Intention to Take Deposition by Written Questions and Subpoena for Records for the United States Catholic Conference of Bishops filed by John Doe, XX. (Attachments: # 1 Exhibit Exhibit "A", # 2 Exhibit Exhibit "B", # 3 Proposed Pleading; Proposed Order)(Peavy, Felecia)

THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF LOUISIANA

JOHN DOE XX

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VS.
HOLY SEE (State of the Vatican City), et al

CIVIL ACTION NO. 11-651-JJB-CN

PLAINTIFF’S RESPONSE TO JOINT MOTION TO QUASH NOTICE OF INTENTION
TO TAKE DEPOSITION BY WRITTEN QUESTIONS AND SUBPOENA FOR
RECORDS FOR UNITED STATES CATHOLIC CONFERENCE OF BISHOPS
JOHN DOE XX, Plaintiff in the above-styled and numbered cause, files this his response
to the Joint Motion to Quash Notice of Intention to Take Deposition by Written Questions and
Subpoena for Records for United States Catholic Conference of Bishops filed by Defendants and
would respectfully show the Court as follows:
INTRODUCTION
This suit stems from the violence and torture suffered by Plaintiff John Doe XX as a child
victim of clergy sex crimes committed by former Catholic priest Christopher Springer. In his
complaint, Plaintiff asserts liability in solido against all Defendants under the legal theory of
conspiracy. Plaintiff alleges that he has suffered damages as a proximate result of “[n]umerous overt
acts ... committed in furtherance of this civil conspiracy including overt acts prior to and after
September, 2010.” Plaintiff’s Original Complaint, ¶ 94. To establish the Defendants’ liability under
conspiracy, Plaintiff alleges:
“...at least by the mid 1960's, the Catholic superiors general, bishops
and archbishops of the United States, and The Provincial Superiors
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of the Redemptorists New Orleans and The Bishops of The Diocese
were well aware of the illegal sexual abuse of children by Catholic
Clerics and Priests and of the state statutes requiring the reporting of
sex crimes against children. These superiors general and bishops and
archbishops and The Provincial Superiors of the Redemptorists New
Orleans and The Bishops of The Diocese were also aware that
Catholic Clerics and Priests gained access to these children as the
direct result of their status and responsibilities as Clerics and Priests
who, as spiritual advisors and role models, exercised tremendous
power over these children and their families.”
Plaintiff’s Original Complaint, ¶ 56.
See also Plaintiff’s Original Complaint, ¶¶ 52 - 55. Regarding Defendants’ liability in solido,
Plaintiff further asserts:
“In Catholic Religious Orders and Dioceses and Archdioceses
throughout the United States, to include The Redemptorists New
Orleans and The Diocese of Baton Rouge, when cases of illegal rape
and molestation and sexual abuse and exploitation of minors by
Catholic Clerics and Priests have surfaced, these cases have been
handled in such a uniform fashion as to demonstrate a common plan
and scheme for concealing these crimes from the public, failing to
report and thus avoiding criminal prosecution of cleric and priest
perpetrators and the filing of civil claims by victims by covering them
up. This common plan and scheme was in existence before Plaintiff
John Doe XX was sexually abused and exploited and was followed
to conceal the crimes against children by Springer and other Clerics
and Priests in the Holy See, including the Clerics and Priests in The
Redemptorists New Orleans and The Diocese of Baton Rouge. The
members of this common plan and scheme included Holy See and its
official representatives and agents and The Provincial Superiors and
The Bishops and other official representatives and agents of The
Redemptorists New Orleans and The Diocese of Baton Rouge and
Springer, and others unknown to Plaintiff.”
Plaintiff’s Original Complaint, ¶ 58.
In addition, John Doe XX alleges:
“Defendant Holy See and the Religious Order Defendants failed to
properly report the illegal sexual abuse of children by Springer as
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required by law prior to 1972 and in 1972, 1981, 1984, 1985, 1994
and thereafter. Defendant Holy See and the Diocese Defendants
failed to properly report the illegal sexual abuse of children by
Springer as required by law in 1975, 1981 and 1984 and 1985 and
thereafter.
Specifically, “RAPE” under La. R.S. §14:41,
“INDECENT BEHAVIOR WITH JUVENILES” under La. R.S.
§14:81, “MOLESTATION OF A JUVENILE” under La. R.S.
§14:81.2 and “SEXUAL BATTERY” under La. R.S. §14:43.1.
Defendant Holy See and the Religious Order Defendants and the
Diocese Defendants further failed to report the illegal sexual abuse of
children by other priests as required by law in the 1960s and through
the present time.”
Plaintiff’s Original Complaint, ¶ 51.
The files and records of the Defendant parties are necessarily the primary source of evidence
to prove these allegations that refer to:
a) what the Defendants and the Catholic Church as an institution knew about clergy sex
crimes within its rank and file; and
b) how the Defendants and the Catholic Church responded to clergy sex crimes as an
institution.
Discovery request for documents have been served on both the Redemptorists Fathers and Roman
Catholic Diocese of Baton Rouge. The Redemptorists Fathers have responded in part. The Roman
Catholic Diocese of Baton Rouge, however, has not responded to-date.
A secondary source of evidence is the United States Conference of Catholic Bishops
(“USCCB”), which is the official governing body for the 195 archdioceses/dioceses in the United
States. See generally, http://usccb.org/about/bishops-and-dioceses/ In 2002, the USCCB created
a remedial committee and policies to confront the scandal and crisis caused by clergy sex crimes
committed within the Catholic ranks. See http://usccb.org/about/child-and-youth-protection/who-

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we-are.cfm As the USCCB’s website indicates, the Secretariat on Child and Youth Protection
prepares an annual report that describes in general the overall compliance of archdioceses/dioceses
to the policies adopted by the USCCB in its “Charter for the Protection of Children and Young
People”. Id. Beginning in 2002, the annual report is prepared from information collected either
through an on-site audit of the archdiocese/diocese or compiled by the archdiocese/diocese and
provided to the Secretariat on Child and Youth Protection.

See “Annual Report on the

Implementation of the Charter for the Protection of Children and Young People - 2010”, Preface by
Archbishop Timothy M. Dolan, Letter from Ms. Teresa Kettlekamp, Letter from Mr. William A.
Gavin, Letter from Fr. Thomas P. Gaunt, SJ, Appendix B: CARA Questionnaire for Dioceses and
Eparchies, Appendix C: CARA Questionnaire for Religious Institutes at http://usccb.org/issuesandaction/child-and-youth-protection/reports-and-research.cfm While the USCCB is now collecting
and reporting the data in real time (2002 to the present), the information from the
archdioceses/dioceses is retrospective, dating back to 1954 or earlier to the present time. Id. at
Appendix B: CARA Questionnaire for Dioceses and Eparchies, Appendix C: CARA Questionnaire
for Religious Institutes.
To discover the raw data and information USCCB received from Defendant The Roman
Catholic Church of the Diocese of Baton Rouge for the “Annual Report on the Implementation of
the Charter for the Protection of Children and Young People” - 2002 to present, Plaintiff served a
subpoena on the USCCB.1 All institutional Defendants contend the subpoena should be quashed.
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It is not known whether the Redemptorists Fathers, a Catholic Religious Order,
participated in the Annual Report. The Conference of Major Superiors of Men is the governing
body for Catholic religious institutes and orders. The members of the Conference of Major
Superiors of Men were invited to complete a survey for their congregations, provinces or
monasteries for the 2010 Annual Report.
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However, considering all of the objective and subjective requirements under Rule 45 and the
discovery boundaries under Rule 26, the Plaintiff’s subpoena is valid and the Defendants motion to
quash must be denied.
ARGUMENT AND AUTHORITY
A.

The Subpoena Complies With All Objective Requirements Under Rule 45.
In all respects, the subpoena served on the U.S. Conference of Catholic Bishops, a nonparty,

complies with Rule 45. Under Rule 45(a)(2)(B), only the district in which the deposition is to be
taken has the power to issue a subpoena. FED. R. CIV. P. 45(a)(2)(B). The USCCB resides in
Washington, D.C. and the records sought vis a vis a deposition by written questions and its custodian
for these records are also located in Washington, D.C. As Rule 45 requires, the deposition by written
questions of the USCCB are to take place in Washington, DC under a subpoena issued by the
District Court for the District of Columbia. See “Subpoena in a Civil Case To: Custodian of Records
for: U.S. Conference of Catholic Bishops”, “Affidavit” regarding service and witness fee attached
hereto as Exhibit “A”.
B.

The Subpoena Meets All Subjective Requirements Under Rule 45.
The Defendants do not contend that the USCCB will be subjected to an undue burden if the

court does not quash the subpoena. FED. R. CIV. P. 45(c)(3)(A)(iv). In fact, according to the
USCCB’s website, the stated purpose for requesting the data and information from the Defendant
Diocese is to prepare a “public report” on the progress made in response to the crises of clergy sex
crimes; an additional purpose is for the data and information and report to serve as a tool for the
USCCB to be an effective resource to the Diocese in implementing and maintaining the agreed
standards

and

responsibilities

in

addressing
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clergy

sex

crimes.

See

http://usccb.org/about/child-and-youth-protection/who-we-are.cfm
Clearly, the USCCB does not view the data and information collected from the Diocese as
an “undue burden”. Certainly, the Defendants can not argue that the USCCB would be subjected
to an “undue burden” by responding to the subpoena. This Court, likewise, should not find the
subpoena subjects the USCCB to any “undue burden”.
C.

The Subpoena Meets All Subjective Requirements Under Rule 26.
Rule 26 obligates courts to limit discovery where “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.” FED. R. CIV. P. 26(b)(2)(C)(iii). However, “[f]or good cause,
the court may order discovery of any matter involved in the action. Relevant information need not
be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of
admissible evidence." FED. R. CIV. P. 26(b)(1). See also In re: Roman Catholic Archbishop of
Portland in Oregon, and Successors, a Corporation Sole, dba the Archdiocese of Portland in
Oregon, 335 B.R. 815, (BDtOr. 2005) (ruling “[t]he burden is on the party objecting to discovery
to show that discovery should not be allowed”). The Advisory Committee Notes to Rule 26 indicate
that "[t]he purpose of discovery is to allow a broad search for facts, the names of witnesses, or any
other matters which may aid a party in the preparation or presentation of his case." Adv. Com. Notes,
1946 Amendment, FED. R. CIV. P. 26. Furthermore, the Advisory Committee Notes approvingly
cite language from a case stating that "the Rules . . . permit 'fishing for evidence as they should.'" Id.
Clearly under the long established rule in the Fifth Circuit, a judge’s discovery rulings must “adhere
to the liberal spirit of the Rules.” Burns v. Thiokol Chem. Corp., 483 F.2d 300, 305 (5th Cir.
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1973).
Defendants argue that the data and information requested under the subpoena is not relevant
to Plaintiff’s case and is therefore, outside of the scope of discovery.2 Specifically, Defendants’ Rule
26 argument refers to the timeframe of the Plaintiff’s allegations and the date the Diocese submitted
the data and information to the USCCB. However, as discussed above, the data and information is
collected in real time, i.e., as it becomes available to the Diocese (2002 to present); it is understood
and expected, nevertheless that the data and information will refer to earlier time periods, i.e., before
the scandal and crises in 2002 (1954 and earlier to present).3 As the allegations cited above indicate,
Defendants’ acts and omissions and knowledge of clergy sex crimes that is the subject of Plaintiff’s
complaint parallel the earlier time periods of the data and information collected by the USCCB, i.e.,
pre-scandal and crises in 2002. This data and information can establish or lead to information that
establishes what the Diocese knew about clergy sex crimes and what was the Diocese’s response,
pre-scandal and crises in 2002. In 2002, the USCCB responded to the scandal and crises and agreed
to adopt a standard policy and procedures for all archdioceses/dioceses to follow in addressing clergy
sex crimes. Presumably, from 2002 to the present, all archdioceses/dioceses have complied with the
established policy and procedures. But, the timeframe in question regarding Catholic institutions’
policy and procedures and response to clergy sex crimes is pre-scandal and crises in 2002, which is

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Defendants also argue that the data and information submitted by the Diocese to the
USCCB has been obtained from the Diocese. However, as the attached correspondence to the
Diocese’s counsel indicates, the Diocese has never responded to Plaintiff’s request for
production. See Exhibit B attached hereto.
3

The Roman Catholic Diocese of Baton Rouge was not created until 1961. See
Diocesan History at
http://www.diobr.org/index.php?option=com_content&view=article&id=17&Itemid=23
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the identical timeframe of Plaintiff’s allegations and also, for the most part, the timeframe of data
and information collected by the USCCB. There is no question that these documents are relevant
to Plaintiff’s case.
CONCLUSION
This Court must order the USCCB to respond to the subpoena.

Respectfully submitted,
ANDRE LAPLACE
By:

/s/ Andre Laplace
Andre Laplace, La. Bar #08039
2762 Continental Drive, Suite 103
Baton Rouge, La. 70808
[phone]
[phone] (FAX)

FELECIA Y. PEAVY, ESQ.
By:

/s/ Felecia Y. Peavy
Felecia Y. Peavy
Texas Bar No. 15698820
Federal Admissions No. 13530
808 Travis, Ste. 907
Houston, Texas 77002
[phone]
[phone] (FAX)

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been served by electronic
transmission and U.S. Mail on the following counsel pursuant to the Federal Rules of Civil
Procedure on this the 21st day of March, 2012.
Don M. Richard
1250 Poydras, Ste. 2450
New Orleans, Louisiana, 70113
Attorney for The Redemptorists/New Orleans Vice Province and
Very Reverend Harry Grile, C.Ss.R., As Provincial of the Redemptorists/Denver Province
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C. Michael Pfister
3838 North Causeway Blvd., Ste. 2900
Metaire, Louisiana, 70002
Attorney for The Roman Catholic Church of the Diocese of Baton Rouge and
Most Reverend Robert W. Muench

/s/Felecia Y. Peavy
Felecia Y. Peavy

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