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

California Court of Appeals, Fourth District, First Division

November 9, 2017

OSBALDO PADRON, Plaintiff and Respondent,

         APPEAL from an order of the Superior Court of San Diego County No. 37-2013-00067529- CU-PO-CTL, Richard E. L. Strauss, Judge. Affirmed.

          Morris Polich & Purdy, Pamela A. Palmer, Beth A. Kahn, Dean A. Olson, Ryan McKim; and Francis J. McNamara for Defendant and Appellant.

          The Zalkin Law Firm, Irwin M. Zalkin, Devin M. Storey; Pine Freeman Tillett, Norman Pine and Scott Tillett, for Plaintiff and Respondent.

          HUFFMAN, Acting P. J.

         This case presents the issue whether a superior court can impose a hefty daily monetary sanction on a party who steadfastly refuses to comply with a discovery order. Here, the court ordered Watchtower Bible and Tract Society of New York, Inc. (Watchtower) to produce documents responsive to a specific request for production. Per the court's order, the documents would be redacted to protect certain third parties' privacy interests and produced subject to a strict confidentiality and nondisclosure order negotiated by Watchtower. In addition, the court ordered Watchtower to look for documents in files it represented, on multiple occasions, to be in its possession, custody, and/or control. Watchtower informed the court that it would not comply with the order. As such, plaintiff Osbaldo Padron brought a motion for monetary sanctions against Watchtower for its discovery abuses. The court awarded sanctions in the amount of $4, 000 per day for noncompliance with the order, and Watchtower appeals that order.

         However, this is not the first time we have been asked to review a superior court's sanctions against Watchtower for discovery abuses. In Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566 (Lopez), we reversed the superior court's order imposing terminating sanctions for Watchtower's refusal to produce documents in response to a request for production identical to the one at issue here. (Id. at p. 606.) Although we concluded terminating sanctions in the first instance were unwarranted in that case, we specifically noted that a court had wide discretion to penalize a party who refuses to comply with a discovery order, including imposing "a significant monetary penalty for every day [a party] did not search for the documents or for each day the responsive documents were not produced." (Id. at p. 605.) Indeed, in its opening brief in Lopez, Watchtower asserted the superior court should not have imposed terminating sanctions, but could have issued monetary sanctions that increased incrementally over the passage of time or with Watchtower's failure to comply with the underlying order by certain procedural benchmarks.

         Following Lopez, supra, 246 Cal.App.4th 566, the court granted Padron's motion, sanctioning Watchtower $2, 000 per day for every day Watchtower did not produce responsive documents and $2, 000 per day for every day Watchtower did not search for responsive documents.

         On appeal, Watchtower challenges the validity of the sanctions order. It asserts the superior court exceeded its authority in sanctioning Watchtower $4, 000 per day. In support of its argument, Watchtower attacks the underlying order requiring it to produce certain documents with limited redactions. It claims Watchtower does not have possession and/or control of responsive documents after March 2001, the court's order improperly addressed issues of religious polity and administration, and Watchtower acted with substantial justification in refusing to remove some redactions in its documents because production of documents without those redactions would violate constitutionally protected privacy rights. We reject these contentions.

         Initially, we are troubled that Watchtower has taken two inconsistent positions before us. In Lopez, supra, 246 Cal.App.4th 566, Watchtower argued monetary sanctions, untethered to the plaintiff's reasonable expenses, were an appropriate sanction for discovery abuse. We agreed on this point in Lopez at page 605. Here, after the superior court imposed a daily monetary sanction for noncompliance, Watchtower now argues such a sanction is not authorized. We cannot rectify these diametrically opposed positions. Accordingly, we find judicial estoppel prevents Watchtower from arguing the superior court lacked the authority to issue the subject monetary sanctions.

         In addition, even if we did not apply judicial estoppel, we nevertheless would conclude the superior court appropriately sanctioned Watchtower in the instant matter. A superior court is vested with considerable discretion to manage discovery. (See Pomona Valley Hospital Medical Center v. Superior Court (2012) 209 Cal.App.4th 687, 692.) The superior court effectively managed a particularly acrimonious discovery process here, taking the additional measure of appointing a discovery referee. The court ultimately determined that the requested documents were discoverable subject to limited redactions as well as a confidentiality and nondisclosure order. Nevertheless, Watchtower has obstinately refused to comply with the order, consistently attempting to reargue the very discovery issues the court already decided. As such, we determine, under these extreme circumstances, where a party has been given ample opportunity to argue its position, a discovery referee and the court have thoroughly considered the party's arguments and rejected those arguments (considering pleadings, evidence, and oral argument), and the party willfully refuses to comply with the court's order, a court may "impose[] a significant monetary penalty" on the party. (Lopez, supra, 246 Cal.App.4th at p. 605.) Accordingly, we affirm.



         Padron sued Watchtower and the Playa Pacifica Spanish Congregation of Jehovah's Witnesses (Pacifica Congregation) for negligence; negligent supervision/failure to warn; negligent hiring/retention; negligent failure to warn, train, or educate; sexual battery; and sexual harassment. In addition to general damages, Padron also seeks punitive damages. Padron's claims were based on his allegation that Gonzalo Campos had molested him when he was a child.

         Around September 27, 1980, Campos became an agent of Watchtower. In 1982, Campos molested a minor boy. Watchtower was aware of Campos's actions, but did not report him to the police or take any action to prevent further abuse.

         In 1986, Campos molested another minor boy. Watchtower was informed of Campos's acts, but did not report him to the police or take any action to prevent further abuse.

         In early 1997, Campos became associated with the Pacifica Congregation. The Pacifica Congregation was a subsidiary or subdivision of Watchtower. Two of Watchtower's agents, who knew about Campos's molestation of children, were appointed leaders of the Pacifica Congregation. Both Pacifica Congregation and Watchtower were aware of Campos's past acts of molestation.

         In April of 1994, Watchtower received a letter from a parent who claimed Campos molested his child and asked for Campos to be investigated. Watchtower forwarded the letter to Pacifica Congregation and instructed it to investigate the matter. Pacifica Congregation did so and confirmed that Campos had molested the child and that Watchtower was aware Campos had molested a child before January 1, 1987.

         Padron and his family were associated with the Pacifica Congregation. Campos frequently spoke at religious services for the Pacifica Congregation and had a leadership position with that group. Padron and his family met Campos through their involvement with the Pacifica Congregation, and Campos was able to "ingratiate himself" with Padron's family.

         In 1994 or 1995, Campos molested Padron on multiple occasions when Padron was seven or eight years old.

         Discovery Issues

         On January 16, 2015, Padron served a deposition notice for the taking of the deposition of Watchtower's person most qualified (PMQ) to testify regarding a number of topics. Included with the PMQ deposition notice was a request for production of documents. Although that request consisted of 29 separate requests, the request critical to the underlying dispute is request number 12. That request sought: "All letters, emails, facsimiles, or other documentary, tangible, or electronically stored information of any kind Watchtower Bible and Tract Society New York, Inc. received in response to the Body of Elder Letter dated March 14, 1997."[1]

         "The March 14, 1997 letter instructed elders to send a written report to Watchtower about 'anyone who is currently serving or who formerly served in a [Watchtower]-appointed position in your congregation who is known to have been guilty of child molestation in the past.' Watchtower said this information should be kept confidential, and instructed elders to place the reports in a " 'Special Blue' " envelope. The March 14 letter also reminded elders of prior letters stating that when a known 'child molester' moves to another congregation, a letter of introduction should be sent to the new congregation and copies of the letter should be sent to Watchtower in the " 'Special Blue envelopes.' " (Lopez, supra, 246 Cal.App.4th at p. 576, fn. 4.)

         Watchtower served objections and responses to the PMQ deposition notice including the requests for production. Regarding request for production number 12, Watchtower only objected and did not agree to provide any responsive documents. Watchtower also filed a motion for protective order, seeking, among other things, an order declaring that it did not have to produce any documents responsive to request number 12. In support of its motion for protective order, Watchtower characterized the March 14, 1997 letter's primary purpose as "to ensure each of the congregations of Jehovah's Witnesses in the United States were in compliance with Jehovah's Witnesses understanding of the Holy Scriptures and their religious practices and beliefs." Watchtower thus argued that any response to the March 14, 1997 letter would be protected by the clergy-penitent and attorney-client privileges. Also, Watchtower asserted the requested documents would contain information that would infringe upon third party privacy rights. Watchtower additionally claimed that the subject requests, including request number 12, sought information relating to religious faith, custom, belief, practice, and internal church governance, which is protected under the First Amendment to the United States Constitution as well as the California Constitution.

         Further, Watchtower emphasized that the requests were overbroad and oppressive. Supporting its position, Watchtower submitted the declaration of Richard Ashe, Jr. (Ashe). Ashe had been a Jehovah's Witnesses elder since 1982. In 1999, he began serving at the United States branch offices of Jehovah's Witnesses in New York as well as the service department of the United States branch offices (Service Department). Ashe reviewed the requests for production and stated that the requests sought "confidential spiritual documents sent to Service Department elders by bodies of elders in congregations of Jehovah's Witnesses from throughout the United States."

         Ashe explained that responses to the March 14, 1997 letter from local congregation bodies of elders were filed in individual congregation files maintained by Service Department elders for each congregation of Jehovah's Witnesses in the United States. As of the date of Ashe's declaration (February 23, 2015), there were about 14, 400 congregations. Ashe claimed that "[t]o accurately and completely respond to [the subject] request[] would require the review of records from all of these 14, 400 congregations." Ashe estimated that it would take one elder working 40 hours a week without vacation between 20.77 to 27.69 years to search all the files of the 14, 400 congregations to find responsive documents.

         Padron opposed Watchtower's motion for protective order. In addition to challenging Watchtower's arguments that the requested documents were not privileged or implicated any constitutionally protected rights, Padron maintained that Watchtower's characterization of the March 14, 1997 letter was not accurate. To this end, Padron submitted a letter dated July 20, 1998, drafted on Watchtower letterhead, that discussed the March 14, 1997 letter. The July 20, 1998 letter explained under what circumstances an elder should report a known child molester. In so explaining, the July 20, 1998 letter discussed the "legal considerations" of dealing with known child molesters:

         "Those who are appointed to privileges of service, such as elders and ministerial servants, are put in a position of trust. One who is extended privileges in the congregation is judged by others as being worthy of trust. This includes being more liberal in leaving children in their care and oversight. The congregation would be left unprotected if we prematurely appointed someone who was a child abuser as a ministerial servant or an elder. In addition, court officials and lawyers will hold responsible any organization that knowingly appoints former child abusers to positions of trust, if one of these, thereafter commits a further act of child abuse. This could result in costly lawsuits, involving dedicated funds that should be used to further the Kingdom work. So, legal considerations must also be weighed along with the degree of notoriety, the extent of the misconduct, how many years ago the sin occurred, and how the brother is now viewed by the congregation and people in the community including those he victimized."

         After considering the pleadings and evidence regarding the motion for protective order as well as entertaining oral argument, the court denied, in part, the motion for protective order in a minute order dated March 13, 2015. In doing so, the court explained:

         "The Court finds that the information sought in Request No. 12 (aka 'Molestation Files') is directly relevant to Plaintiff's claims as alleged in this action. Further, Defendant failed to establish that the clergy-penitent privilege is applicable to each responsive document, and if the privilege did apply that it was not vitiated once the information was shared and/or communicated to others. (Roman Catholic Archbishop of Los Angeles v. Superior Court (2005) 131 Cal.App.4th 417, 444-445.) In addition, Defendant failed to establish that the information is protected by the attorney-client privilege and/or is work product. Further, all personal, identifying information pertaining to any third party/victim should be redacted from the documents to address any privacy concerns. Nor is the Court persuaded that compliance with the production would be unduly burdensome. (See Declarations of Richard Ashe, Jr.) The records are stored electronically and it appears that the requested information could be obtained with a search term of March 14, 1997, and/or some other written code that would reduce the time/expense involved. (Declaration of Rafiq Wayani) Therefore, Defendant's motion for a protective order is denied with respect to Request No. 12. However, as both parties primarily focus on Request No. 12, as opposed to addressing each of the remaining requests at issue (Requests Nos. 4-7; 24-25), the Court is not persuaded that the information sought in these Requests should be produced at this time. Although the information may be relevant in some respects, the Requests also appear overly broad in both time and scope."

         The parties subsequently appeared at a status conference on March 27, 2015 to discuss the progress of the production of documents in response to request number 12. Watchtower again argued the burden of the production was overwhelming and tried to convince the court to limit the production just to congregations in California. The court rejected Watchtower's argument and reiterated that the document production was not limited to California. Watchtower then agreed to make a rolling production of documents within 30 days, subject to a confidentiality and nondisclosure order that the parties would negotiate.

         On May 13, 2015, the court entered the confidentiality and nondisclosure order agreed to by the parties. Per that order, responsive documents could only be used by Padron's attorneys for preparation of depositions, oppositions and replies to motions, and at trial of the instant action. For documents being submitted to the superior court, the confidentiality and nondisclosure order set forth a procedure by which such documents would be lodged under seal. Responsive documents could only be shown to Padron's attorneys, the attorneys' staff, and any retained experts or consultants. Finally, the confidentiality and protective order required responsive documents and copies of responsive documents to be returned to Watchtower and/or destroyed.

         Although Watchtower produced some documents, Padron believed that Watchtower had not complied with the March 13, 2015 order. As such, the parties met and conferred, but did not resolve their dispute. Padron ultimately moved to compel production of documents consistent with the March 13, 2015 order. Padron claimed Watchtower's production was inadequate because: (1) Watchtower refused to produce any documents that it received after March 2001; and (2) Watchtower redacted information from the documents far beyond what the court permitted in the March 13, 2015 order.[2] In support of his motion, Padron submitted the declaration of counsel Devin M. Storey as well as 33 exhibits.

         Watchtower opposed Padron's motion to compel and supported its opposition with numerous declarations and exhibits. Among other arguments, Watchtower explained that the Service Department oversaw the spiritual activities of congregations of Jehovah's Witnesses in the United States. Before March 2001, Watchtower was the corporation through which the Service Department functioned and communicated with congregations. Beginning in March 2001, the Service Department began using the Christian Congregation of Jehovah's Witnesses (CCJW) as the corporate entity through which it functioned and communicated with congregations. CCJW and Watchtower are separate corporations with their own respective board of directors and bank accounts. Thus, Watchtower asserted that documents responsive to request number 12 would have been sent to Watchtower before March 2001 and CCJW after that date. Because request number 12 only pertained to Watchtower and Watchtower had no control over CCJW, Watchtower argued it only was required to produce responsive documents up until March 2001.

         Watchtower also insisted it had properly redacted the responsive documents per the March 13, 2015 order. It noted the order called for the redaction of "all personal, identifying information pertaining to any third party/victim from the documents to address any privacy concerns." Therefore, ...

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