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March 23, 2004.

JOHN DOE, JOHN DOE, SR. and JANE DOE, Plaintiffs

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 Page 2 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. ยง 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. Page 3


  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 Page 4 testimony of Bishop Timlin in this matter.*fn1 Page 5

  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, Page 6 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 Page 8 with psychotherapists. Page 9

  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 Page 10 communications between the Defendant Priests and their psychotherapists were made in the course of diagnosis. The next question we must resolve is ...

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