Mirlis v. Greer, 3:16-cv-00678

Plaintiff Eliyahu Mirlis sued Yeshiva of New Haven and Rabbi Daniel Greer alleging Greer sexually molested him as a student from 2002–2005.
Defense counsel noticed the deposition of nonparty Aviad Hack, who testified he had a sexual relationship with Greer and was aware Greer had molested Mirlis and made admissions about Mirlis to Hack.
At Hack’s deposition, defense counsel asked about (1) a December 2015 conversation with former student Yaakov Hatanian and (2) communications with Hack’s rabbi, Rabbi Hillel David; Hack’s counsel instructed Hack not to answer some questions.
Defendants moved to compel Hack to answer the disputed questions; the court required motions to identify each question with particularity and later received the full deposition transcript.
The court analyzed whether counsel’s instruction not to answer was proper under Rule 30 and whether the clergy-penitent privilege under Connecticut law barred disclosure of communications with Rabbi David.
The court granted the motion to compel: Hack must answer the question about Hatanian and must respond to the inquiry about communications with Rabbi David because the privilege was not shown to apply to all communications on the record.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel may instruct a deponent not to answer deposition questions as to relevance	Objection on relevancy justified non-answer; questions were irrelevant	Instruction not permitted; objections should be noted but the deponent should answer and later seek rulings	Instruction not to answer was improper; absent privilege or court order Hack must answer; no Rule 30(d) motion was made and record too sparse to justify protective relief
Whether questions about Hack’s conversation with Yaakov Hatanian are discoverable	Conversation irrelevant and not admissible; counsel refused answer	Topic potentially relevant; defendants entitled to answer under Rule 30	Compelled: Hack must answer; relevancy objection alone does not permit refusal to answer at deposition
Whether clergy-penitent privilege shields Hack’s communications with Rabbi Hillel David	Communications were privileged and counsel properly objected to further inquiry	Defendants contend privilege not established for all communications and some recorded topics were non-privileged (e.g., staffing, management)	Compelled: Hack failed to meet burden to prove privilege; some communications were non-privileged; must answer and factual basis for any privilege claim must be developed

Application of American Tobacco Co., 880 F.2d 1520 (2d Cir. 1989) (existence of privilege in diversity case determined by state law)
State v. Mark R., 300 Conn. 590 (Conn. 2011) (elements and burden for clergy-penitent privilege under Connecticut law)
In re Omeprazole Patent Litig., 227 F.R.D. 227 (S.D.N.Y. 2005) (party seeking protective order under Rule 30(d) must show bad faith or that deposition unreasonably annoys, embarrasses, or oppresses the deponent)