JOHN NDJ DOE, et al. vs CHURCH OF THE NAZARENE, A CALIFORNIA CORPORATION, et al.

23CV012006: JOHN NDJ DOE, et al. vs CHURCH OF THE NAZARENE, A CALIFORNIA CORPORATION, et al. 08/13/2024 Hearing on Motion to Quash Subpoena for Records from Lassen High School in Department 54

Tentative Ruling

Defendant Bradley Earl Reger’s (“Reger”) motion to quash the subpoena for records served on Lassen High School (“LHS”) is ruled upon as follows.

Background

This action was filed by 14 fictitiously-named Plaintiffs (hereafter, “Plaintiffs”) against Reger and several other Defendants, including entities and additional individuals. The operative First Amended Complaint (“FAC”) includes 13 causes of action: (1) civil sex trafficking; (2) civil conspiracy; (3) negligence; (4) negligent supervision; (5) negligent hiring/retention; (6) negligent failure to warn, train, or educate; (7) intentional infliction of emotional distress; (8) assault; (9) sexual battery; (10) sexual harassment; (11) gender violence; (12) breach of fiduciary duty; and (13) constructive fraud.

Plaintiffs allege that Reger “is a serial pedophile, having been alleged to have sexually abused hundred of minors. He did so as a trusted adult, using his position as a medical treater and adult in various religious congregations, camps, coaching positions and medical facilities which permitted his access to minor boys.” (FAC, ¶ 1.) Plaintiffs allege that Reger was a licensed nurse practitioner since at least 2003, owned and operated multiple ambulance companies in Northern California and Northern Nevada, and owned and operated his own clinic in Susanville, and that Reger used this “umbrella of authority” to engage in the alleged sexual abuse. (FAC, ¶ 5.)

Plaintiffs further allege that the alleged abuse occurred while Plaintiffs were under the control of Reger “in his capacity as [a] volunteer, employee, camp, counselor, deacon, youth leader, coach, mentor, board member, missionary leader, [and/or] teacher,” with the entity Defendants, which include the entities owned/operated by Reger and various religious entities. (FAC, ¶ 72.) Plaintiffs further allege that Reger engaged in a consistent and similar pattern of abuse, with all 14 Plaintiffs alleging that the abuse occurred “under the guise of medical examinations.” (FAC, ¶¶ 75-88.)

On April 15, 2024, Plaintiffs served Reger with a Notice to Consumer or Employee and Objection and a copy of the subject deposition subpoena. (Derby Decl., ¶ 3, Exh. A.) Plaintiffs served the subpoena on LHS on April 30, 2024. (Louro Decl., ¶ 4, Exh. B.) The subpoena describes the documents sought as follows:

“Any and all records, including but not limited to, contracts for work or employment or performance of physicals for student athletes, or any other documents in your possession, custody or control, related to BRADLEY EARL REGER (DOB 2/22/1956.)”

(Derby Decl., Exh. A, p. 5.)

23CV012006: JOHN NDJ DOE, et al. vs CHURCH OF THE NAZARENE, A CALIFORNIA CORPORATION, et al. 08/13/2024 Hearing on Motion to Quash Subpoena for Records from Lassen High School in Department 54

LHS is not a party to this lawsuit, and the FAC does not contain any allegations that Reger was ever employed by LHS. In their opposition brief, Plaintiffs assert that “[u]pon information and belief, Reger also perpetrated his abuse at Lassen High School.” (Opp. MPA, p. 3:9-10.)

Reger’s Motion

Reger advances both procedural and substantive arguments in support of quashing the subpoena. Procedurally, Reger asserts that (1) the subpoena improperly seeks documents not prepared by LHS as required by Evidence Code section 1561(a); (2) the description of the documents sought is not sufficiently specific; and (3) Plaintiffs failed to provide Reger with five days’ notice before serving the subpoena as required by Code of Civil Procedure section 2020.410(d). Substantively, Reger contends that (1) the subpoena invades his right to privacy as it would include payroll records showing his private financial information, and also would include Reger’s “own school records from the 1970’s” (Reger’s MPA, p. 4:23), suggesting that Reger attended LHS as a student; and (2) the subpoena invades the privacy rights of third parties, specifically the students upon whom Reger performed physicals at LHS.

Plaintiffs’ Opposition

Plaintiffs contend that the subpoena seeks a specific category of documents, namely, documents related to Reger. Plaintiffs also contend that Reger’s notice argument is misplaced, since the subpoena was not actually served until 15 days after the notice was served. Plaintiffs do not specifically address Reger’s Evidence Code section 1561(a) argument. On the issue of privacy, Plaintiffs assert that the information sought is not subject to the right of privacy, but even if it is, the information is highly relevant to Plaintiffs’ claims, and thus the need for the discovery far outweighs the privacy interests of Reger or of third parties. Plaintiffs also ask the Court to limit the subpoena if it agrees with any of Reger’s arguments, although Plaintiffs do not propose any specific modifications.

Discussion

A deposition subpoena may command the production of business records for copying. (Code Civ. Proc. § 2020.020.) Either the nonparty witness who has been subpoenaed, or any party to the action, may challenge the deposition subpoena. (Code Civ. Proc. § 1987.1.) Additionally, an employee whose employment records are sought via subpoena may bring a motion under Code of Civil Procedure section 1987.1. (Code Civ. Proc. § 1985.6(f).) A deposition subpoena may be attacked via motion to quash on various grounds, including the ground that the records sought are not relevant to the subject matter or are privileged or private. (See Code Civ. Proc. § 2017.010.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV012006: JOHN NDJ DOE, et al. vs CHURCH OF THE NAZARENE, A CALIFORNIA CORPORATION, et al. 08/13/2024 Hearing on Motion to Quash Subpoena for Records from Lassen High School in Department 54

Evidence Code § 1561(a)

This statute provides that the records produced pursuant to a business records subpoena “shall be accompanied by the affidavit of the custodian or other qualified witness, stating in substance each of the following: (3) The records were prepared by the personnel of the business in the ordinary course of business at or near the time of the act, condition, or event.” (Evid. Code § 1561(a)(3).) This language appears to correspond to the requirements for the business records exception to the hearsay rule. (See Evid.

Code § 1271.) This does not mean that a business records subpoena served during discovery is invalid if it may result in the production of records other than those “prepared by the personnel of the business.” Further, Evidence Code section 1561 governs the requirements a custodian of records must follow when served with a business records subpoena, not the contents or form of a business records subpoena. Finally, even assuming this statute requires subpoenas to seek only records prepared by the personnel of the business, the subject subpoena here would comply with this requirement, since it seeks employment documents, which were presumably prepared by LHS personnel, and records of physicals performed on students by Reger, which were presumably prepared by Reger in his purported role as an employee or agent of LHS.

Description of the Records Sought

“A deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item, and shall specify the form in which any electronically stored information is to be produced, if a particular form is desired.” (Code Civ. Proc. § 2020.410(a).)

Reger relies on Calcor Space Facility v. Superior Court (1997) 53 Cal.App.4th 216. In that case, the court noted that litigants had begun using demands for the production of documents, both to parties and nonparties, “as devices to determine whether documents exist.” (Id. at p. 222.) The court further stated:

“This places a great burden on the responding party, a burden which should generally be borne by the party seeking the discovery. We do not intend to suggest this use of the procedure to compel document production is always improper. However, particularly when dealing with an entity which is not even a party to the litigation, the court should attempt to structure discovery in a manner which is least burdensome to such an entity.”

(Ibid.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV012006: JOHN NDJ DOE, et al. vs CHURCH OF THE NAZARENE, A CALIFORNIA CORPORATION, et al. 08/13/2024 Hearing on Motion to Quash Subpoena for Records from Lassen High School in Department 54

Calcor involved a contractual dispute over the manufacture of trainable gun mount systems. The subpoena at issue consisted of 32 separate requests prefaced by six pages of definitions and instructions, which the court found to be “particularly obnoxious.” (Id. at p. 223.) The court also found the subpoena was not reasonably particular because it was essentially a blanket demand that required the responding entity to conduct an extensive search of its files at multiple locations. Indeed, the court found that the subpoena “might as well be condensed into a single sentence: Produce everything in your possession which in any way relates to gun mounts.” (Id. at p. 222.)

Here, the subpoena bears little resemblance to the subpoena in Calcor. Plaintiffs’ description of the documents sought is barely four lines long and is limited to documents related to Reger. While the description is perhaps inartful grammatically, it is still limited solely to Reger, and there is no reason to believe it will place a significant burden on LHS to search for and produce the records.

Notice to Consumer or Employee

A business records subpoena that seeks consumer or employment records must be served, along with a specific notice to the consumer or employee, on the consumer or employee at least five days prior to service of the subpoena on the custodian of the records. (Code Civ. Proc. §§ 1985.3(b)(3), 1985.6(b)(3).) Reger’s argument that Plaintiffs failed to comply with this requirement is rejected, since, as noted above, the subpoena was not served on LHS until April 30, 2024, 15 days after Reger was served with the notice.

Privacy

“The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 552.) A party seeking disclosure of private information must show a compelling interest “to justify ‘an obvious invasion of an interest fundamental to personal autonomy.’” (Id. at p. 556.) When a lesser privacy interests are involved, a compelling interest is not required. Instead, a balancing test is applied, “with the strength of the countervailing interest sufficient to warrant disclosure of private information varying according to the strength of the privacy interest itself, the seriousness of the invasion, and the availability of alternatives and protective measures.” (Ibid.)

An employee’s personnel records are generally protected by the constitutional right of privacy. (San Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083, 1097 [disapproved on other grounds by Williams, supra, 3 Cal.5th at p. 557, fn. 8.) This right of privacy also protects a person’s medical information from disclosure. (Bd. of Medical Quality Assurance v. Gherandini

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV012006: JOHN NDJ DOE, et al. vs CHURCH OF THE NAZARENE, A CALIFORNIA CORPORATION, et al. 08/13/2024 Hearing on Motion to Quash Subpoena for Records from Lassen High School in Department 54

(1979) 93 Cal.App.3d 669, 678-679; see also Lewis v. Superior Court (2017) 3 Cal.5th 561, 575.) Medical records, to the extent that they involve confidential communication between a patient and a physician, are statutorily protected by the physician-patient privilege. (See Evid. Code § 994.)

For the purposes of the privacy analysis, the Court construes the subpoena as seeking two categories of documents related to Reger: (1) Reger’s employment and personnel records, i.e., payroll records, employment agreements, application documents, onboarding documents, etc.; and (2) records of physical examinations of student athletes conducted by Reger. The first category involves only Reger’s own personal privacy interest. The second category involves the privacy interests of the third-party student athletes. The Court thus addresses the two categories separately.

1. Reger’s Employment and Personnel Records

Reger’s privacy interest in his employment records does not constitute an “‘interest fundamental to personal autonomy,’” and it is thus subject to a general balancing test. (Williams, supra, 3 Cal.5th at p. 556.) However, Plaintiffs have not made any showing of a countervailing interest warranting the disclosure of Reger’s employment records sought via the subpoena, which includes “contracts for work or employment,” and unspecified “other documents.” (Derby Decl., Exh. A, p. 5.) It is not apparent from Plaintiffs’ opposition why Reger’s personnel records are sought, and thus it is not clear what interest could be served by disclosure.

2. Records of Physical Examinations Conducted by Reger

Plaintiffs’ request for records related to the “performance of physicals for student athletes” seems to invade the privacy rights of the third-party student athletes who underwent physicals from Reger at LHS. Because these records would almost certainly include provide medical information, disclosure of the records invades an interest fundamental to personal autonomy, and thus Plaintiffs must show a compelling need to justify disclosure.

Reger contends that the subpoena “compromises not only the privacy interests of Mr. Reger but also those of countless individuals who are not parties to this case who attended Lassen High School at any time and participated in High School athletics.” (Reger’s MPA, p. 5:5-7, emphasis in original.) Plaintiffs contend that they “do not expect privileged information to be contained within Lassen High School’s records, other than basic identifying information of potential victims of crime—which Plaintiffs are agreeable to redaction of such information.” (Opp. MPA, p. 5:20-22, emphasis in original.) At the same time, however, Plaintiffs argue that the documents are relevant because they “would allow Plaintiffs to show Reger implemented a pattern and practice of sexual abuse and neglect, spanning over decades.” (Opp. MPA, p. 5:25-

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV012006: JOHN NDJ DOE, et al. vs CHURCH OF THE NAZARENE, A CALIFORNIA CORPORATION, et al. 08/13/2024 Hearing on Motion to Quash Subpoena for Records from Lassen High School in Department 54

26.) If this latter argument is correct, then the documents would seemingly include private medical information about the students. It is not clear how the documents could show Reger’s pattern and practice of sexual abuse without also including private information about the students beyond basic identifying information.

Plaintiffs also argue that the documents are highly relevant and that this relevance combined with the compelling state interest in protecting minors from sexual abuse by holding abusers accountable outweighs any privacy interests. Plaintiffs rely on In re The Clergy Cases I (2010) 188 Cal.App.4th 1224 (Clergy Cases), but the Court finds that case distinguishable. Clergy Cases involved a settlement agreement between plaintiffs who alleged sexual abuse by clergy members and the defendant, Franciscan Friars of California, Inc. (the “Franciscans”).

During the pendency of the underlying lawsuits, the Franciscans had produced confidential personnel files and psychiatric reports related to some of the accused clergy members (referred to in the opinion as the “Individual Friars”). Part of the settlement agreement addressed the public disclosure of these documents. Pursuant to the specific procedure provided by the settlement agreement,

“The Franciscans agreed to produce to plaintiffs and lodge with the court the files of any alleged perpetrator, all documents previously withheld from plaintiffs as identified in privilege logs relating to childhood sexual abuse, deposition testimony, and any new privilege logs reflecting withheld documents. After the Franciscans submitted the documents to the hearing officer, the Franciscans had 15 days to ‘provide appropriate notice of the potential release of such documents to any [alleged perpetrator], and/or any affected third parties [who had the right to] submit his or her objection(s) .’”

(Clergy Cases, supra, 188 Cal.App.4th at pp. 1229-1230.)

The settlement agreement also prohibited the Franciscans from objecting based on third party privacy, but did not limit the rights of any third-party objectors, including the Individual Friars. The Individual Friars do not appear to have been parties to any of the underlying lawsuits, and most of them did not sign the settlement agreement. However, after receiving notice as required by the settlement agreement, the Individual Friars objected to the production of records that consisted “almost entirely of psychological evaluations or progress reports prepared by psychotherapists who examined the Individual Friars.” (Id. at p. 1232.)

The court rejected the Individual Friars’ privacy objections, concluding that “the social interests in disclosure of information relating to sexual predators of children outweigh the Individual Friars’ privacy interests.” (Id. at p. 1235.) In discussing the social interests supporting disclosure, the court stated:

“Surely, all members of the Santa Barbara Franciscan province, as well as members of the Catholic Church throughout California, have a compelling interest in knowing what treatment

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV012006: JOHN NDJ DOE, et al. vs CHURCH OF THE NAZARENE, A CALIFORNIA CORPORATION, et al. 08/13/2024 Hearing on Motion to Quash Subpoena for Records from Lassen High School in Department 54

the Individual Friars received, if any, for their predatory proclivities, and whether it was adequate to protect young parishioners whom they may have encountered in their ministries. Plaintiffs, former members of the Santa Barbara Franciscan province who have suffered the lifelong effects of childhood abuse, have the same interests as other members of the province and society in having the documents of their abusers released. Indeed, all citizens have a compelling interest in knowing if a prominent and powerful institution has cloaked in secrecy decades of sexual abuse revealed in the psychiatric records of counselors who continued to have intimate contact with vulnerable children while receiving treatment for their tendencies toward child molestation.”

(Id. at p. 1236.)

The present case differs from Clergy Cases in several respects. For one, the settlement agreement provided a specific procedure to provide notice to the Individual Friars—i.e., the third parties whose privacy rights were at risk—of the pending release of their private information. Here, there is no mechanism for providing notice to the student athletes whose private information may be contained in any physical examination reports. Additionally, although the Individual Friars were apparently not parties to the underlying lawsuits, they were closely related to the suits, since the plaintiffs’ claims were rooted in the alleged abuse committed by the Individual Friars.

Here, whether the student athletes who received physicals from Reger have any relationship to this lawsuit is speculative at this point. Similarly, the records at issue in Clergy Cases were specific to Individual Friars accused of abuse. Here, Plaintiffs’ subpoena encompasses all records of physical examinations performed by Reger, whether they involved alleged abuse or not. Finally, the societal interests discussed in Clergy Cases are not equally present here, since, at least on the current record, there are no allegations of wrongdoing by LHS, so there is no apparent benefit to disclosing the physical examination records as a means to check that LHS is protecting its students from sexual predators.

In sum, Plaintiffs’ opposition seems to overstate the interests supporting disclosure while also understating the nature of third-party privacy interests involved. On the current record before it, including the text of the subpoena itself, the Court finds that the privacy interests of the thirdparty student athletes are significant, and Plaintiffs have not established a compelling interest that warrants disclosure.

Disposition

For the reasons discussed above, Reger’s motion to quash is GRANTED. This ruling is without prejudice to Plaintiffs issuing a more specific or narrowly tailored subpoena.

The Court declines Plaintiffs’ request to modify the subpoena. Plaintiffs have not provided any

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV012006: JOHN NDJ DOE, et al. vs CHURCH OF THE NAZARENE, A CALIFORNIA CORPORATION, et al. 08/13/2024 Hearing on Motion to Quash Subpoena for Records from Lassen High School in Department 54

specific modifications for the Court to consider, and the Court is not inclined to draft the subpoena for Plaintiffs.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. § 1019.5; Cal. Rules of Court, rule 3.1312.)

NOTICE:

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To request limited oral argument, on any matter on this calendar, you must call the Law and Motion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If no request for oral argument is made, the tentative ruling becomes the final order of the Court.

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SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV012006: JOHN NDJ DOE, et al. vs CHURCH OF THE NAZARENE, A CALIFORNIA CORPORATION, et al. 08/13/2024 Hearing on Motion to Quash Subpoena for Records from Lassen High School in Department 54

signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.