Lopez v. Watchtower Bible & Tract Society of New York, Inc.
246 Cal. App. 4th 566
| Cal. Ct. App. | 2016Background
- Plaintiff Jose Lopez sued Watchtower Bible and Tract Society alleging childhood sexual abuse (by Gonzales Campos in 1986) and claims including negligent hiring/retention, negligent supervision/failure to warn, and punitive damages.
- Lopez sought broad discovery from Watchtower: (a) congregational and corporate documents about reports of child sexual abuse (1979–present) including responses to a March 14, 1997 Body of Elders letter; and (b) depositions including Watchtower's PMQ and Gerrit Lösch (a member of the Governing Body).
- A discovery referee recommended (and the trial court adopted) that Watchtower produce the requested PMQ documents (with redactions/privilege log) and that López may depose Lösch as a "managing agent."
- Watchtower declined to produce the post‑1986/other‑perpetrator documents (arguing overbreadth, privilege, burden, First Amendment, and that the Governing Body/Lösch are not Watchtower managing agents) and Lösch did not appear for deposition.
- The trial court found willful noncompliance, granted monetary and terminating sanctions, struck Watchtower’s answer, and entered default; the Court of Appeal reversed the Lösch deposition order and the terminating sanctions and remanded for lesser sanctions on document nonproduction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Validity/reach of PMQ document production (requests for reports 1979–present and responses to 1997 letter) | Lopez: documents (including post‑1986 and other‑perpetrator reports) are relevant to notice, ratification, punitive damages, intent, and willfulness; redactions and privilege log suffice for privacy/privilege issues | Watchtower: requests are overbroad, unduly burdensome (14,000+ files), invade privacy, protected by clergy‑penitent and attorney‑client privileges, and implicate First Amendment religious freedom | Court of Appeal: trial court did not abuse discretion ordering production; relevance and alternatives for privacy/privilege addressed (redactions, privilege log); burden claim rejected on record showing segregated reports and searchable scans. |
| 2) Whether Lösch is a "managing agent" subject to deposition notice (so no subpoena required) | Lopez: Governing Body issues operational guidelines (including child‑abuse policies) and Lösch as a long‑serving member likely exercises managerial discretion and identifies with Watchtower interests | Watchtower: Governing Body is a separate religious/spiritual body, Lösch is not an officer/employee/managing agent of Watchtower and cannot be compelled; no evidence Watchtower can make Lösch appear | Held: Reversed — plaintiff failed to prove the critical Waters factor that Watchtower could be expected to compel Lösch to appear; evidence insufficient to treat Lösch as a party‑affiliated managing agent. |
| 3) Privilege, privacy, and First Amendment defenses to discovery | Lopez: many reports were not penitential or privileged and could be segregated; in any event privilege must be shown by privilege log after identification | Watchtower: clergy‑penitent privilege, attorney‑client/work product, third‑party privacy, and religious‑freedom/ministerial‑exception bar production | Held: Court of Appeal: privilege claims premature absent privilege log; penitential privilege inapplicable to communications intended for third parties; First Amendment/ministerial‑exception and ecclesiastical‑abstention doctrines do not categorically bar this discovery. |
| 4) Appropriateness of terminating sanctions and default for failure to comply | Lopez: Watchtower willfully disobeyed orders (no meaningful effort to search/produce), so monetary and terminating sanctions were justified | Watchtower: inability to compel Lösch; no destruction of documents; burden/ongoing appellate challenges; terminating sanctions are drastic and lesser sanctions should be tried first | Held: Court of Appeal: sanctions for document nonproduction could be appropriate, but terminating sanctions were an abuse of discretion here because the Lösch order was invalid and the court imposed the ultimate sanction without first attempting lesser sanctions (monetary, evidentiary/issue sanctions, or other compulsion). |
Key Cases Cited
- Waters v. Superior Court, 58 Cal.2d 885 (defining "managing agent" test for party‑affiliated deponents)
- Maldonado v. Superior Court, 94 Cal.App.4th 1390 (party‑affiliated status assessed at time of notice; limits on compelling former employees)
- Roman Catholic Archbishop of Los Angeles v. Superior Court, 131 Cal.App.4th 417 (religious‑freedom and clerical privilege defenses do not automatically bar discovery of institutional records in child‑abuse contexts)
- Conti v. Watchtower Bible & Tract Society of New York, Inc., 235 Cal.App.4th 1214 (clergy‑penitent privilege does not protect communications made with expectation of third‑party disclosure)
- Calcor Space Facility v. Superior Court, 53 Cal.App.4th 216 (limits on overbroad and unduly burdensome document subpoenas)
- Doppes v. Bentley Motors, Inc., 174 Cal.App.4th 967 (sanctions law: incremental approach; terminating sanctions are drastic and should be used sparingly)