Rowland v. Watchtower Bible and Tract Society of New York, Inc.

[[COURTLISTENER_SUBOPINION {"id":"10249332","type":"100trialcourt","part":"other","author":null,"source_field":"html_with_citations"}]]
IN THE UNITED STATES DISTRICT COURT 
                 FOR THE DISTRICT OF MONTANA 
                         BILLINGS DIVISION 
ARIANE ROWLAND, and JAMIE                )  Cause No. CV 20-59-BLG-SPW 
SCHULZE, 
                                      )  ORDER RE MOTION TO COMPEL 
          Plaintiffs,                 )  HARDIN CONGREGATION’S 
                                    }  SUBPOENA 
   VS.                                ) 
                                      ) 
WATCHTOWER BIBLE AND 
TRACT SOCIETY OF NEW YORK,               ) 
INC., and WATCH TOWER BIBLE    _) 
AND TRACT SOCIETY OF 
PENNSYLVANIA,                            ) 
                                      ) 
          Defendants. 
                                      ) 
                                      ) 

   This matter comes before the Court on Plaintiffs Ariane Rowland and Jamie 
Schulze’s  Motion  to  Compel  Re:  Hardin  Congregation  of  Jehovah’s  Witnesses 
(“Hardin  Congregation”)  Subpoena,  filed April  21,  2021.  (Doc.  48).  The  Court 
granted the Hardin Congregation’s Motion to Intervene (Doc.  55) and the Hardin 
Congregation filed a response to the Motion to Compel on May 5, 2021 (Doc. 56). 
Defendants Watch Tower Bible and Tract Society of Pennsylvania (‘WTPA”) and 
Watchtower Bible and Tract Society of New York, Inc.  (““WTNY”) joined in the 
Hardin Congregation’s opposition. (Doc. 58). Plaintiffs filed their reply on May 14, 

                                   -l- 

2021 (Doc. 59) and a hearing was held June 2, 2021. The matter is now deemed ripe 
for adjudication. For the following reasons, the Court grants Plaintiffs’ motion. 
I.     RELEVANT BACKGROUND 
   At various times between 1973 and 1992, Plaintiffs allege that they endured 
serial child sexual abuse from members of the Hardin Congregation. Plaintiffs claim 
that the Defendants permitted and facilitated that sexual abuse, as the two named 
entities, Watchtower Bible and Tract Society of New York (“WTNY”) and Watch 
Tower Bible and Tract Society of Pennsylvania (“WTPA”), “(1) were operating as 
alter egos of each other during the period in question; (2) were made aware of the 
abuse; and (3) chose to allow the abuse to continue by ignoring credible reports and 
directing  congregational  leaders  in  Hardin  not  to  report  the  abuse  to  local 
authorities.” (Doc. 49 at 2). 
   WTPA filed a motion to dismiss Plaintiffs’  Complaint for lack of personal 
jurisdiction,  arguing  that  WTPA  does  not  have  the  necessary  “continuous  and 
systematic” contacts in the state necessary for general personal jurisdiction. WTPA 
also argues that it does not engage in any substantial interactions in the state that 
could have resulted in the claimed tort for specific personal jurisdiction. (Doc. 10 at 
11). 
   The Court stayed ruling on the motion to dismiss after reviewing documents 
submitted by Plaintiffs in response. The Court found that “WTPA may have played 

                                   -2- 

a greater role in the church’s governance in the past” (Doc.  24 at 4) and allowed 
jurisdictional discovery to proceed. Pursuant to that discovery, Plaintiffs served a 
subpoena duces tecum on the Hardin Congregation on January 11, 2021. The Hardin 
Congregation  produced  100  pages  of documents  in  response  but  withheld  ten 
documents and heavily  redacted two more.  The Hardin Congregation  stated that 
these documents were privileged under Montana’s  statutory attorney-client privilege 
and  statutory  clergy-penitent  privilege  as  well  as  third  party  privacy,  elders 
expectation of confidentiality, and congregant expectation of confidentiality. (Doc. 
49-3). 
   Plaintiffs  filed  the  present  motion  to  compel  arguing  that  the  Hardin 
Congregation’s refusal to provide the withheld documents  does  not comply with 
Montana’s  privilege  standards  and  asks  the  Court  to  find  that  the  Hardin 
Congregation  must  provide  more  detail  about  the  documents  in  order to  better 
determine  whether  established  privileges  apply  or  for  the  Court  to  review  the 
documents in camera and determine the applicability of the asserted privileges. 
Il.    LEGAL STANDARDS 
   Federal Rule of Civil Procedure 45(e)(2)(A) states: 
   A person withholding subpoenaed information under a claim that it is 
   privileged or subject to protection as trial-preparation material must: (i) 
   expressly make the claim; and (ii) describe the nature of the withheld 
   documents,  communications,  or  tangible  things  in  a  manner  that, 
   without revealing information itself privileged or protected, will enable 
   the parties to assess the claim. 
                                   -3- 

   Further, District of Montana Local Rule 26.3(c)(2) requires: 
   All motions to compel or limit discovery must: (A) set forth the basis 
   for the motion;  (B) certify that the parties complied with subsection 
   (c)(1) or a description of the moving party’s attempts to comply; and 
   (C) attach, as an exhibit: (i) the full text of the discovery sought; and 
   (ii) the full text of the response. 
Subsection (c)(1) requires parties to confer through direct dialogue such as 
telephone or other detailed communication before a court grants any motion 
to compel discovery. See also Fed. R. Civ. P. 37(a)(3)(B). 
   In civil cases, “state law governs privilege regarding a claim or defense 
for which state law supplies the rule of decision.” Fed. R. Evid. 501. Montana 
Code Annotated § 26-1-804 provides that “[a] member of the clergy or priest 
may  not,  without  the  consent  of the  person  making  the  confession,  be 
examined  as  to  any  confession  made  to  the  individual  in  the  individual’s 
professional character in the course of discipline enjoined by the church to 
which the individual belongs.” 
Il.   DISCUSSION 
   As an initial matter, the Court finds that the parties have sufficiently complied 
with  D.  Mont.  L.R.  26.3(c)  as  demonstrated  by  Plaintiffs’  Notice  of  Written 
Discovery and Associated Conferral Efforts. (Doc. 44). Therefore, the Court shall 
proceed to address the merits of the Hardin Congregation’s privilege arguments. 
      a.  Hardin Congregation’s Additional Privileges 
                                   -4- 

   The first issue before the Court is whether the Hardin Congregation’s attempts 
to withhold documents as privileged due to the asserted third-party’s, congregants’, 
and  elders’  expectations  of privacy  are  valid  under  Montana  law.  The  Hardin 
Congregation argues that, although these privacy expectations are not codified as 
privileged  under  any  Montana  statute,  they  nonetheless  constitute  privileged 
communications  under  the  Montana  Supreme  Court’s  holding  in  Nunez  v. 
Watchtower Bible and Tract Society,
455  P.3d 829
(2018).  Plaintiffs oppose this 
position and argue that the Nunez decision concerned an entirely separate statute 
from Montana’s privilege statues and the Montana Supreme Court did not discuss 
privileges anywhere in the opinion. Therefore, according to Plaintiffs, Nunez has no 
bearing  on  the  scope  of Montana’s  privilege  law  and  did  not  expand  privilege 
protection to the asserted privacy expectations. 
   It is a fundamental principle that “the public .  .  . has a right to every man’s 
evidence.” Trammel v.  U.S.,
445 U.S. 40, 50
(1980) (quoting United States v. Bryan,
339 U.S. 323, 331
(1950)). Courts are afforded the power to craft new evidentiary 
privileges when necessary, however, the United States Supreme Court has cautioned 
that  courts  should  not  exercise  the  authority  expansively  unless  it  “promotes 
sufficiently important interests to outweigh the need for probative evidence.” Univ. 
of Pa.  v. E.E.O.C.,
493 U.S.  182,  189
(1990) (quoting Trammel,
445 U.S. at 51
). 
Testimonial privileges directly contradict this fundamental principle and, “[a]s such, 

                                   _5- 

they must be strictly construed and accepted  ‘only to the very limited extent that 
permitting a refusal  to  testify  or  excluding  relevant  evidence  has  a public  good 
transcending the normally predominant principle of utilizing all rational means for 
ascertaining truth.’” Trammel,
445 U.S. at 50
. (quoting Elkins v.  United States,
364 
U.S. 206, 234
(1960)). 
   The  Hardin Congregation  asserts that the Montana  Supreme  Court,  in the 
Nunez  case,  expanded  the  scope  of the  clergy-penitent  testimonial  privilege  to 

encompass  three  new  privileges:  Third-Party  Privacy,  Elders  Expectation  of 
Confidentiality,   and   Congregant   Expectation   of   Privacy.   Specially,   the 
Congregation argues: 
   [T]he [Nunez] Court took recognized [sic.] that basic tenets specific to 
   the  Jehovah’s  Witnesses’  faith  put  an  “emphasis  on  confidentiality 
   particularly in handling communications and reports of’ what the Court 
   described  as  serious  sin.  This  emphasis  on  confidentiality  expressly 
   applied to:  1) promises to congregants that what they discussed with 
   elders would remain strictly confidential; 2) that the requirement that 
   elders keep  such  communications  strictly  confidential  was  based  on 
   Scripture;  3) that congregation members must trust elders to keep all 
   scriptural communications strictly confidential; 4) that the premise the 
   confidential treatment of such communications applied to all members 
   and not just those accused of or confessing serious sin; 5) that an elder’s 
   disclosure of confidential communications to those not entitled to hear 
   such communications could call into question an elder’s qualifications 
   and result in an elder’s removal; 6) that a local elder’s communications 
   with experienced elders in New York are likewise strictly confidential; 
   and  7)  that  all   spiritual   communications  taking  place  during 
   investigations were strictly confidential.   _ 

                                   -6- 

(Doc.  56 at 5-6).  According to the Congregation, these communications are now 
protected under the umbrella of privilege making the documents described in the 
Privilege Log appropriately withheld as communications between congregants and 
clergy and between clergy and clergy. 
   The Court finds this argument insufficient to warrant the expansion of the 
testimonial  privilege  to  such  an  encompassing  degree.  In  Nunez,  the  Montana 
Supreme Court examined the interplay between Montana’s mandatory child abuse 
reporter statute and the Jehovah’s Witness faith’s practice of strict confidentiality in 
handling  reports  of child  abuse  within  the  church.  The  Nunez  Court  ultimately 
decided that the reporter statute did not apply to communications made during the 
Jehovah’s Witness congregation’s investigation of alleged child sexual abuse based 

on  an  exception  contained  within  that  statute  exempting  clergy  members  from 
reporting information recognized as confidential under church doctrine. 455 P.3d at 
836. 
   In 1998, Holly McGowan reported to her church elder, Don Herberger, that 
her stepfather, Maximo Reyes, was sexually abusing her.  Jehovah’s Witness church 
doctrine requires two witnesses to substantiate a claim of abuse. Nunez, 455 P.3d at 
831. Because Holly could not produce a second eyewitness, her claim was dismissed 
as unactionable and Holly returned home for further, escalating abuse at the hands 
of Reyes. Jd. 

                                   -7- 

   In  2004,  another  stepchild of Reyes,  Peter McGowan,  told Herberger that 
Reyes had sexually abused him. Holly was able to confirm Peter’s report as a second 
witness  and  the  claim  was  undertaken  by  Herberger  and  two  other  elders  for 
investigation.  Jd.  Neither  Herberger  nor  any  other  elder  ever  contacted  local 
authorities regarding the child abuse allegations. Instead, in accordance with church 
doctrine, Herberger formed a “judicial committee” to confront Reyes and eventually 
disfellowship  him  in  April  2004.  Jd.  A  report  of  the  investigation  and  the 
disfellowship was  compiled and  sent to the  Christian Congregation of Jehovah’s 
Witnesses, a national church organization that facilitates communications with local 
chapters and the legal service department housed within Watchtower Bible and Tract 
Society of New York, Inc. Jd. A year later, Reyes was allowed to return to the church. 
Id. 
   During this time, and unknown to the church, Reyes was also sexually abusing 
his  granddaughter,  Alexis,  beginning  in  2002  and  continuing  for  five  years.  Id. 
Alexis and Holly filed a lawsuit against their local church and Watch Tower in 2016 
arguing  that  the   Jehovah’s  Witnesses  were  negligent  per  se  under  Montana’s 
mandatory reporter statute for failing to report the abuse to local authorities. Jd. 
   Codified as Montana Code Annotated 41-3-201(1), the mandatory reporter 
statute requires select professionals and officials to report child abuse when they 
“know or have reasonable cause to suspect, as a result of information they receive 

                                   -8- 

in their professional  or  official  capacity,  that  a  child  is  abused  or neglected  by 
anyone[.]” Members of clergy are included in the statute as mandatory reporters.
Mont. Code Ann. § 41-3-201
(2)(h). However, clergy members are not obligated to 
report the information “if the communication is required to be confidential by canon 
law,  church  doctrine,  or established  church practice.”
Mont.  Code  Ann.  §  41-3
- 
201(6)(c). 
   The  Nunez  Court  examined  the  practice  and  doctrine  of the  Jehovah’s 
Witness’s  church  and  recognized  the  heavy  emphasis  the  church  placed  on 
confidentiality within its chapters and organizations. Nunez, 455 P.3d at 833. Within 
that doctrine was an established practice to handle reports of child abuse using a 
committee of local elders and to conduct all investigations internally after contacting 
Watchtower’s legal department for guidance. Id. Watchtower informed Herberger, 
in this case, that Montana law did not require them to report the abuse allegations to 
local authorities and to continue with the internal investigation. Jd. Congregants are 
informed  that  any  communications  they  have  with  elders  will  remain  strictly 
confidential.  Jd.  This  duty  of confidentiality  represents  a  serious  undertaking  to 
elders, as “disclosing confidential information constitutes a breach that could result 
in an elder’s removal.” Id. at 834. 
   Alexis  argued  on  appeal  that,  although  Jehovah’s  Witnesses  practice 
confidentiality in communications, Herberger’s act of sending Peter’s child abuse 

                                   -9- 

report to multiple different individuals and entities within the Jehovah’s Witness 
organization  was  inconsistent  with  confidentiality  and  subjected  the  report  to 
mandatory reporting. Jd. The Montana Supreme Court disagreed after examining the 

express language of the reporting statute and its various exceptions: 
   Under § 41-3-201(6)(b), MCA, clergy are not required to report known 
   or suspected child abuse if the knowledge results from a congregation 
   member’s confidential communication or confession and if the person 
   making the  statement does not consent to disclosure.  This exception 
   tracks  closely  to  Alexis’s  definition  of  confidentiality—that  is,  a 
   communication between two people that prohibits disclosure unless the 
   communicant  consents.  But  the  Legislature  did  not  so  narrowly 
   circumscribe  the  exception.  In  adopting  §  41-3-201(6)(c),  MCA,  it 
   indicated  its  intent  to  accommodate  definitions  of  confidentiality 
   beyond that contained in subsection (6)(b). When a  statute has “several 
   provisions or particulars,” courts are, if possible, to adopt a construction 
   that “will give effect to all.” Section 1-2-101, MCA. To give effect to 
   both  provisions,  we  conclude  that  Alexis’s  restrictive  definition  of 
   confidentiality  is  an  incomplete  construction  of  the  mandatory 
   reporting statute. 
   Id.  at  835.  Thus,  the  Nunez  Court  held  that  because  of  the  Jehovah’s 
Witnesses’ documented practice of strict confidentiality, the broader exception of § 
41-3-201(6)(c)—exempting  church  officials   from  reporting  communications 
“required  to  be  confidential  by  canon  law,  church  doctrine,  or  established 
practice”—applied and the church elders were not required to report the confidential 
child abuse information to local authorities. Jd. at 836. 
   At  no  point  does  the  Nunez  Court  reference  Montana’s  clergy-penitent 
privilege  statute  in their discussion of Jehovah’s  Witness’  confidential practices. 

                                  -10- 

Instead,  the  analysis  is  confined  solely  to  the  language  and  application  of the 
mandatory reporter statute. The two statutes are completely dissimilar except for one 
important instance. Montana’s clergy-penitent statute states that “[a] member of the 
clergy or priest may not, without the consent of the person making the confession, 
be  examined  as  to  any  confession  made  to  the  individual  in  the  individual’s 
professional character in the course of discipline enjoined by the church to which 
the  individual  belongs.”
Mont.  Code  Ann.  §  26-1-804
.  Montana’s  mandatory 
reporter statute requires clergy persons to report child abuse information unless “the 
statement was intended to be a part of a confidential communication between the 
member of the clergy or the priest and  a member of the church or congregation[.]”
Mont. Code Ann. § 41-3-201
(6)(b)(ii). 
   As  noted  above,  the  Montana  Supreme  Court  recognized  this  (6)(b)(ii) 
exception to the reporter statute as narrower than the (6)(c) exception resulting in 
the  Court  agreeing  with  the  Jehovah’s  Witness’  argument.  Had  the  (6)(b)(ii) 
exception applied instead of (6)(c), it is unlikely that the Nunez Court would have 
reached  the  same  conclusion  as  “[the  (6)(b)(ii)]  exception  tracks  closely  with 
Alexis’s definition of confidential—that is,  a communication between two people 
that prohibits disclosure unless the communicant consents.” 455 P.3d at 835. The 
clergy-penitent privilege statute contains no broad provision or exception similar to 
(6)(c). The privilege restricts itself to protecting confidential communications made 

                                  -ll- 

between  a  person  and  a  clergy  member  in  the  clergy  member’s  professional 
discipline unless  the  confessant consents to waiving that protection.
Mont.  Code 
Ann. § 26-1-804
. This key difference in statutory language convinces the Court that 
the  broad  protections  the  Hardin  Congregation  seeks  are  not  supported  by  the 
privilege statute itself. Simply labeling the communications as confidential does not 
make  them  privileged.  Confidentiality  is  just  one  element  required  under  the 
privilege  statute.  To  hold  otherwise  would  be  to  ignore  the  remaining  express 
language of
Mont. Code Ann. § 26-1
-804—-something the Court does not have the 

power to do. See
Mont. Code Ann. §  1-2-101
. 
   Therefore,  the  Court  finds  that  the  Montana  Supreme  Court’s  holding  in 
Nunez v.  Watchtower did not expand Montana’s clergy-penitent privilege statute to 
include the additional privileges urged by the Hardin Congregation.  The Court is 
further not convinced to  expand the privilege here and shall  apply the  statute as 
strictly construed. See Univ. of Pa., 493 US. at 189. 
      b.  Application of Clergy-Penitent Privilege 
   Noted above, Montana Code Annotated § 26-1-804 states, “[a] member of the 
clergy or priest may not, without the consent of the person making the confession, 
be  examined  as  to  any  confession  made  to  the  individual  in  the  individual’s 
professional character in the course of discipline enjoined by the church to which 
the  individual  belongs.”  The  Montana  Supreme  Court  has  adopted  a  broad 

                                  -12- 

interpretation of the statute “in order to minimize the risk that § 26-1-804, MCA, 
might be discriminatorily applied because of differing judicial perceptions of a given 
church’s practices or religious doctrine, and in order to least interfere with federal 
and  Montana  constitutional  protections  of  religious  freedom  .  ..  .”  State  v. 
MacKinnon,
957  P.2d  23,  28
(1998).  This  interpretation  encompasses  non- 
penitential statements as well as strictly confessional statements so long as the non- 
penitential statements were “made in confidence and for the purpose of seeking or 
receiving religious guidance, admonishment, or advice. . . .”
Id.,
957 P.2d at 27
-28 
(quoting Scott v.  Hammock,
870 P.2d 947, 956
(Utah  1994). Additionally, for the 
privilege statute to apply, the confession must be made to a clergy person acting in 
their professional  character, meaning “the  clergy persons must be  acting in their 
capacities as clerics or in their religious roles,” and must be made in the course of 
discipline enjoined, meaning “the confession was made pursuant to the practice and 
discipline  of the  church.”  State  v.  Gooding,
989  P.2d  304,  307
(1999)  (quoting 
MacKinnon,
957 P.2d at 28
). 
   The Montana Supreme Court undertakes the privilege analysis on a case-by- 
case basis. In MacKinnon, the Montana Supreme Court held that the privilege did 
not apply to statements made to clergy persons because those statements were not 
directed at the individuals in their professional characters or made in the course of 
discipline enjoined by the church. 975 P.2d at 28. MacKinnon had been charged with 

                                  -13- 

sexually assaulting his nine-year-old stepdaughter and became active in the Missoula 
Christian Church subsequent to the filing of the Information. Jd. at 24. Two months 
after  the  charges  were  filed,  MacKinnon  attended  a  church  function  at  a  local 
restaurant and attempted to discuss the charges with his ex-wife, who was also active 
in the church, in the parking lot after the function ended. The ex-wife requested that 
the  conversation  take  place  inside  the  restaurant  and  in  the  presence  of church 
officials.  Jd.  at  28.  The  MacKinnon  Court  founds  these  facts  insufficient  to 
demonstrate  that  MacKinnon’s  statements  were  made  in  confidentiality  and  for 
religious guidance: 
   MacKinnon,  not  yet  a  church  member  at  the  time  of  the  July 
   conversation, had not previously sought spiritual advice or counseling 
   from either John or Coleen Contos. Further, MacKinnon did not ask to 
   meet with John and Coleen Contos for the purpose of confession or for 
   religious  guidance,  counseling,  admonishment  or  advice.  Rather, 
   Monica requested that John and Coleen Contos be present during the 
   July conversation, but only to serve as facilitators. Moreover, during 
   the July conversation, MacKinnon did not ask for, and the Contoses did 
   not give, any spiritual advice or forgiveness. No prayers were given and 
   nothing was  said about forgiveness.  Rather, MacKinnon volunteered 
   his statements without apparent encouragement in order to set things 
   right with his step-daughter, M.G., so that she would not have to testify 
   at  court  proceedings.  In  this  regard,  MacKinnon’s  statements  were 
   directed at Monica and M.G., not the Contoses. Finally, MacKinnon 
   had  no  reasonable  expectation that his  statements  would be  held  in 
   confidence. MacKinnon did not seek and the Contoses did not make 
   any representations of confidentiality.  Instead, MacKinnon made his 
   statements  in a public place to  his  ex-wife  and  step-daughter in the 
   presence of the Contoses. 
Id. at 28-29, 

                                  -14- 

   Similarly, in Gooding, the defendant, an active member of the Sunrise Church 
of Christ,  was  charged  with  sexual  assault of his  stepdaughter and attempted to 
confide his actions in members of his church.
989 P.2d at 305-06
.  One member, 
Gerald Glover, was a junior minister in the church while the other member, Tina 
Glover, did not hold any official church position. /d. at 308. The Montana Supreme 
Court held that despite Gooding’s attempts to protect his statements to Gerald as 
privileged, the district court properly allowed Tina to testify at trial because Tina 

was present when the statements were made as a layperson by-stander: 
   Gooding’s statements to Gerald in Tina’s presence were not privileged 
   as to Tina, even if we were to conclude that Gerald met the definition 
   of clergy. Section 26-1-804, MCA, states that “a clergy or priest cannot 
   ...  be  examined as to confessions made to him.” The statute clearly 
   creates a testimonial privilege for a “clergyman or priest”; the statute 
   does  not  expressly  create  a  testimonial  privilege  for  a  nonclerical 
   church  member  for  statements  made  in  his  or  her  presence.  In 
   interpreting a statute, we cannot add what has been omitted. See §  1-2- 
   101, MCA. 
Gooding,
989 P.2d at 308
. 
   The present situation has not been addressed by the Montana Supreme Court. 
The two prior cases involved direct communications between a  single individual and 

a  clergy  member  or  made  in  front  of  clergy  members.  Here,  the  contested 
communications  are  correspondence  between  Hardin  Congregation  elders  and 
congregants  and  individuals  in  Watchtower  New  York,  New  Mexico,  and  the 
Christian  Congregation  of Jehovah’s  Witnesses.  Plaintiffs  requested  the  Hardin 

                                  -15- 

Congregation to produce “[a] copy of all documents in your possession relating to 
abuse  of Ariane  Rowland  and  Jamie  Schulze.”  (Doc.  49-2  at  6).  The  Hardin 
Congregation  responded  “[s]ee  attached Privilege  Log,”  (/d.)  which  lists  twelve 
withheld documents. (Doc. 49-3). Those documents include: 
1.  Internal   notes   by   MHardin   congregation   elders   documenting 
   ecclesiastical communications made in confidence to the elders for the 
   purpose of seeking or receiving religious guidance, admonishment, or 
   advice. 
2.  Internal   notes   by   MHardin   congregation   elders   documenting 
   ecclesiastical communications made in confidence to the elders for the 
   purpose of seeking or receiving religious guidance, admonishment, or 
   advice. 
3.  Internal  note  documenting  legal  advice  received  by  the  Hardin 
   Congregation from Watchtower New York Legal Department. 
4.  Correspondence from Congregant made in confidence to elders in the 
   Hardin Congregation, for the purpose of seeking or receiving religious 
   guidance, admonishment, or advice. 
5.  Internal note by Hardin congregation elders documenting ecclesiastical 
   communications made in confidence to the elders for the purpose of 
   seeking or receiving religious guidance, admonishment, or advice. 
6.  Correspondence  from  Hardin  Congregation  made  in  confidence  to 
   Watchtower New York for the purpose of seeking or receiving religious 
   guidance, admonishment, or advice. 
7.  Correspondence  from  New  Mexico  elder  to  elders  in  the  Hardin 
   Congregation  made  in  confidence  to  assist  the  elders  in  providing 
   religious guidance, admonishment, or advice. 
8.  Correspondence  from  the  Hardin  Congregation to  Watchtower New 
   York Legal Department seeking legal advice. 
9.  Correspondence  from the  Hardin  Congregation to  Watchtower New 
   York Legal Department seeking legal advice. 
10. Correspondence  from  Hardin  Congregation  made  in  confidence  to 
   Christian  Congregation  of Jehovah’s  Witnesses  for  the  purpose  of 
   seeking or receiving religious guidance, admonishment, or advice. 
11. Correspondence from Congregant to Hardin Congregation elders made 
   in  confidence  to  the  elders  for the  purpose  of seeking  or receiving 
   religious guidance, admonishment, or advice. 
                                  -16- 

12. Correspondence from Congregant made in confidence to elders in the 
   Hardin Congregation, for the purpose of seeking or receiving religious 
   guidance, admonishment, or advice.
Id.
All but two documents are dated. The Log states that documents 3, 8 and 9 are 
withheld due to attorney-client privilege.!  The remaining documents are withheld 
under several asserted privileges including the clergy-penitent privilege, third-party 
privacy  privilege,  elders  expectation  of confidentiality  privilege,  and  congregant 
expectation of privacy privilege. Jd. The Privilege Log contains no information on 
who  specifically  created  the  correspondence,  who  the  correspondence  was 
specifically addressed to, or (with the exception of the three documents claimed to 
be attorney-client privilege) which specific privilege applies to the document. Jd. In 
short,  the  Privilege  Log provides no  details  regarding  the  documents  other than 

vague descriptions of the source of the correspondence and its intended audience. 
   A similar issue appeared before the Court of Appeals of Ohio in McFarland 

v.  W.  Congregation of Jehovah’s  Witnesses, Lorain,  Ohio,  Inc.,
60 N.E. 39
(Ohio 
Ct.  App.  2016).  In  McFarland,  the  plaintiff sued  her  local  Jehovah’s  Witness 
congregation, the Christian Congregation of  Jehovah’s Witnesses, and Watchtower 
Bible and Tract Society of New York, Inc. for negligence, ratification, and fraud due 
to the congregation’s alleged failure to protect the plaintiff from molestation at the 

' The documents withheld due to the attorney-client privilege do not appear to be at issue. No party addresses the 
documents specifically in briefing and Plaintiffs do not make an argument that the attorney-client privilege should 

                                  -17- 

hands of a member the congregation knew had a history of child sexual abuse. Jd. at 
44,  McFarland  filed  a  motion  to  compel  disclosure  of several  letters  and  any 
documents the congregation possessed that related to McFarland and the individual 
that sexually assaulted her. Jd.  at 45. The defendants opposed the motion on the 
grounds  of  clergy-penitent  privilege,  attorney-client  privilege,  and  the  First 
Amendment. The trial court granted McFarland’s motion in part after conducting an 
in camera review and ordered the defendants to turn over 19 documents. Jd. 
   On appeal, the Ohio Court of Appeals considered the reach of Ohio’s clergy- 
penitent privilege statute and affirmed the ruling of the trial court as to several of the 
documents.  Similar to  Montana’s  statute,  Ohio’s  clergy-penitent privilege  statute 
reads: “[a] cleric, when the cleric remains accountable to the authority of that cleric’s 
church, denomination, or sect, [shall not testify] concerning a confession made, or 

any information confidentially communicated, to the cleric for a religious purpose 
in the  cleric’s professional  character.” Jd.  at 46  (quoting R.C.  231702(C)(1)).  In 
affirming the trial court, the court of appeals examined each document individually 
to  determine  whether  the  privilege  applied  as  the  privilege  “only  protects 
‘information confidentially communicated’ when it is communicated to a cleric ‘for 

a religious  counseling purpose  in the  cleric’s  professional  character.’” Jd.  at 47. 
Thus, “[nJot every word authored or spoken by a  cleric is privileged.”
Id.
-18- 

   The  court  of  appeals  found  that  not  every  document  communicated 
information intended for a religious purpose. Some were letters from one group of 
elders to another group of elders and did not appear to respond to any request for 
religious guidance such as “correspondence between an individual congregation and 
the  [Christian  Congregation]  Service  Department,  based  on  a  specific,  spiritual 
inquiry posted by that individual congregation.” Jd.  Other documents were letters 
sent from an individual expressing frustration over the congregation’s handling of 
sexual assault allegations  or letters  sent from the  Service Department containing 
certain background information to aid investigations of sexual assault. Jd. at 48-50. 
These  documents  were  written  for  secular  purposes  and  not  to  seek  religious 
guidance or counseling. Thus, the court of appeals held that while the information 

was confidential, it did not meet the additional requirements to be privileged and the 
trial court did not err in ordering the production of those documents. Jd. at 50; See 
also Ellis v.  U.S.,
922 F. Supp. 539, 541
(D. Utah 1996) (“[A] subsequent transmittal 
of a communication may still be confidential if that was intended as a part of the 

purposes  of  the  communication.  A  communication  to  a  cleric  intended  for 
publication outside the religious uses of the church would not be privileged. In that 
regard,  a communication for an  informational,  administrative,  or public relations 
purpose would not be confidential.”). 

                                  -19- 

   The  Court  finds  the  practice  of  the  McFarland  Court  instructive  and 
applicable to the present dispute. The difficulty facing the Court is that the Privilege 
Log contains so few details concerning the documents that the Court is unable to 
determine whether the communications were made for a religious or secular purpose. 
As an alternative relief, Plaintiffs have requested the Court perform an in camera 
review of the withheld documents. “Before engaging in in camera review . . .  ‘the 
judge should require a showing of a factual basis adequate to support a good faith 
belief by a reasonable person’ .. . that in camera review of the materials may reveal 
evidence  to  establish  the  claim...  .”  U.S.  v.  Zolin,
491  U.S.  554,  572
(1989) 
(Discussing whether an  in camera review was  applicable to claims that material 
protected under the attorney-client privilege fell within the crime-fraud exception). 
This standard also applies to claims of clergy-penitent privilege based on the facts 
and circumstances of the case. Ellis,
922 F. Supp. at 543
. 
   Here, Plaintiffs requested that the Hardin Congregation produce “[a] copy of 
all documents in your possession relating to abuse of Ariane Rowland and Jamie 
Schulze.”  (Doc.  49-2  at  6).  In  response,  the  Hardin  Congregation  attached  the 
Privilege  Log  describing  twelve  documents  in  their  possession  that  the  Hardin 
Congregation was  withholding under various  claims  of privilege.  The  Court has 
already discussed the vague nature of the document descriptions, yet the Court finds 
it telling  that  these  twelve  documents  were  identified  in  response  to  Plaintiffs’ 

                                  -20- 

question.  It  is  clear  to  the  Court  that  these  documents  are  related  to  the  abuse 
allegations  of  Ariane  Rowland  and  Jamie  Schulze,  otherwise,  the  Hardin 
Congregation would not have mentioned the correspondence at all. While the vague 
descriptions of the documents prevent the Plaintiffs from making a stronger factual 
showing, the Court finds that the Plaintiffs have met their burden of demonstrating 
a reasonable belief that an in camera review of these documents produced in relation 
to  the  question  of Rowland’s  and  Schulze’s  abuse  allegations  may  yield  more 
evidence  establishing  those  claims.  The  Court  therefore  orders  the  Hardin 
Congregation to produce unredacted versions of documents  1, 2, 4, 5, 6, 7,  10,  11 
and 12 listed in the Privilege Log for the Court’s in camera review. Documents 3, 8 
and 9, withheld due to attorney-client privilege issues, are not at issue in this order 
and need not be provided. 
IV.   CONCLUSION 
   IT  IS  HEREBY  ORDERED  that  Plaintiffs  Ariane  Rowland  and  Jamie 
Schulze’s Motion to  Compel  re the Hardin  Congregation  Subpoena (Doc.  48)  is 
STAYED pending the Court’s in camera review of the documents. 
   IT IS FURTHER ORDERED that the Hardin Congregation must produce 
an unredacted version of all documents described in the Privilege Log (Doc. 49-3), 
except documents 3, 8 and 9, for the Court’s review within fourteen (14) days of the 
date of this Order. 

                                  -21- 

The Clerk of Court is directed to notify counsel of the entry of this Order. 
DATED this     8      day of July, 2021. 
                                 L  pce     ( 
                                 SUSAN P. WATTERS 
                                 United States District Judge 

                            a2