In Discovery, Most Documents Fail Clergy-Penitent Privilege

In McFarland v. West Congregation of Jehovah's Witnesses, Lorain, Ohio, Inc., (OH App., Aug. 22, 2016), an Ohio appeals court affirmed in part and reversed in part a trial court's rejection of the clergy-penitent privilege as the basis for a Jehovah's Witness congregation to refuse to produce 19 specific documents sought in discovery by a plaintiff suing over alleged sexual abuse as a minor by another church member.  The appeals court found that only four of the documents met the statutory criteria for the clergy-penitent privilege.  Communications between bodies of church elders did not qualify for the privilege.  The court rejected the argument that production of the unprivileged documents would expose the church's internal discipline procedures and beliefs regarding repentance, mercy, and redemption to external, secular scrutiny in violation of the 1st Amendment.