The opinion of the court was delivered by: JOHN E. JONES, District Judge
Pending before this Court is Plaintiff's Motion to Compel Production
of Psychological and Psychiatric Records and Evaluations of Defendant
Fathers Ensey and Urrutigoity (hereinafter "Defendant Priests" or "Frs.
Ensey and Urrutigoity"). We have reviewed the submissions of the parties
and taken into consideration the presentations made at oral argument on
January 27, 2004. For the reasons set forth below, we will grant
Plaintiff's Motion subject to certain strict limitations.
John Doe and his parents John Sr. and Jane Doe (hereinafter
collectively "Plaintiffs"), commenced this action by filing a Complaint
on March 20, 2002 against
the Defendant Priests, the Bishop of Scranton, James C. Timlin, the
Diocese of Scranton, the Society of St. John, the Priestly Fraternity of
St. Peter, and St. Gregory's Academy (hereinafter collectively
"Defendants"), all domiciled in Pennsylvania. The Plaintiffs claim that
while John Doe was a minor and student at Saint Gregory's Academy he was
sexually molested. Plaintiffs' Complaint alleged the following state law
claims: Assault and Battery (Count I); Negligence (Counts II and III);
Agency (Count IV); Intentional and Negligent Infliction of Emotional
Distress (Counts V and VI); Invasion of Privacy (Count VII); and Breach
of Duty (Count VIII). We have jurisdiction pursuant to 28 U.S.C. § 1331, as
Plaintiff John Doe, now an adult, resides in North Carolina.
By Order of December 18, 2002, we referred this case to Magistrate
Judge J. Andrew Smyser for pretrial proceedings. On January 13, 2003,
Magistrate Judge Smyser issued a Report and Recommendation denying in
part Defendants Frs. Ensey's and Urrutigoity's, and the Society of St.
John's collective Motion to Dismiss (doc.13). By Order of February 4,
2003, we adopted the Magistrate Judge's Report and Recommendation in
toto, dismissing Count VII as outside the statute of limitations and
Count VIII as subsumed by other counts.
On November 3, 2003, Plaintiffs filed the instant Motion to Compel
Production of the Psychological and Psychiatric Records and Evaluations
of Frs. Urrutigoity and Ensey.
Plaintiff John Doe was a student at Saint Gregory's Academy in 1997.
St. Gregory's is a boy's school, located on Diocese of Scranton property,
and owned and operated by the Fraternity of St. Peter, a pontifical
clerical association associated with the Diocese. Frs. Ensey and
Urrutigoity are members of the Society of St. John, a diocesan clerical
association of the Diocese of Scranton that is housed in the same
building as St. Gregory's. Both priests served as chaplains at the
Academy. Plaintiffs allege that throughout the 1997-1998 academic year,
John Doe was sexually molested repeatedly by Frs. Ensey and Urrutigoity.
During discovery, the Plaintiffs learned of the existence of certain
written psychological or psychiatric reports which resulted from
evaluations of the Defendant Priests. Plaintiffs seek to compel the
production of these records as containing or leading to the discovery of
relevant evidence. Plaintiffs allege that because these evaluations were
conducted at the behest of the Diocese of Scranton's Independent Review
Board and Bishop James Timlin, and because the Bishop later reviewed the
reports, no privilege applies to protect their discovery. In support of
these allegations, Plaintiffs provide various correspondence of the
Diocese as well as the deposition
testimony of Bishop Timlin in this matter.*fn1
Defendant Priests assert that all of their psychological/psychiatric
records are protected by both the psychiatrist/psychologist-patient
privilege and the attorney-client and work-product privileges,*fn2 that
the records should remain confidential,*fn3 and that they are not
relevant to the claims in this case.*fn4 Counsel for the Defendant
Priests claim that their firm was retained by Frs. Urrutigoity and Ensey
in response to a criminal investigation conducted by the Scranton
District Attorney's Office prior to the initiation of the instant case,
and that the psychological evaluations were initially sought at their
suggestion in preparation for a potential criminal prosecution.*fn5 In
addition, counsel claims that the Defendant Priests at no time signed a
consent to release the records to the Diocese, and that no member of the
Diocese, including Bishop Timlin,
ever received any written psychological reports about
either Fr. Ensey or Fr. Urrutigoity.*fn6 Counsel admits only that Bishop
Timlin received verbal communications about the duration and location of
the Defendant Priests' psychological counseling.
By our Order of December 11, 2003, we directed the Defendant Priests to
be prepared to produce the records at issue during the January 27, 2004
hearing, so that we might conduct an in camera review if
warranted. We have determined that in order to address the issues raised
in the Motion, such review is necessary.*fn7 Two of the subject reports
were in the possession of counsel for the Defendant Priests and were
provided to us at the hearing.*fn8 However, one of the reports is in the
possession of a non-party, The Southdown Institute located in Ontario,
Canada, a treatment facility used by the Diocese in such circumstances,
and it has not been produced for our inspection.*fn9 All of the subject
reports involve consultations by the Defendant Priests
The U.S. Supreme Court has recognized a psychotherapist-patient
privilege under the Federal Rules of Evidence. In Jaffe v.
Redmond, the Court held that "confidential communications between a
licensed psychotherapist and her patients in the course of diagnosis or
treatment are protected from compelled disclosure under Rule 501 of the
Federal Rules of Evidence."*fn10 518 U.S. 1, 15 (1996). Thus, for the
privilege to attach, the communication must be both confidential and made
in the course of diagnosis or treatment.
Despite their counsel's claim that these evaluations were ordered by
them pursuant to pending or threatened criminal or civil litigation, the
facts demonstrate that Frs. Ensey and Urrutigoity were asked to see
psychotherapists by the Diocese in response to allegations of sexual
misconduct.*fn11 This leads us to conclude that the
communications between the Defendant Priests and their
psychotherapists were made in the course of diagnosis. The next question
we must resolve is ...