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. 08/29/2024 Hearing on Motion to Quash Plaintiffs' Deposition Subpoena for Production of Documents in Department 54

Tentative Ruling

Defendant/Cross-Defendant Bradley Earl Reger’s (“Reger”) motion to quash the subpoena for records served on Mountain Meadows Bible Camp is ruled upon as follows.

The notice of motion does not provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06. Moving counsel is directed to contact opposing counsel and advise them of Local Rule 1.06 and the Court’s tentative ruling procedure and the manner to request a hearing. If moving counsel is unable to contact opposing counsel prior to the hearing, moving counsel is ordered to appear at the hearing by Zoom or by telephone.

The notice of motion provides the incorrect address for the Court. The address for Department 54 of the Sacramento Superior Court is 813 6th Street, Sacramento, California 95814.

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 May 14, 2024, Plaintiffs served Reger with a Notice to Consumer or Employee and

23CV012006: JOHN NDJ DOE, et al. vs CHURCH OF THE NAZARENE, A CALIFORNIA CORPORATION, et al. 08/29/2024 Hearing on Motion to Quash Plaintiffs' Deposition Subpoena for Production of Documents in Department 54

Objection and a copy of the subject deposition subpoena. (Derby Decl., ¶ 3, Exh. A.) Plaintiffs served the subpoena on Mountain Meadows Bible Camp on May 29, 2024. (Louro Decl., ¶ 4, Exh. B.) The subpoena describes the documents sought as follows:

“Any and all employment records, including but not limited to, volunteer records, personnel file, complaints, reports, investigations, interviews, applications, photographs, investigative files, documents, files, records, conclusions, evaluations, submissions, supporting documents, school files, discussions, communications, court files, disciplinary action, board meeting minutes, or any other documents in your possession, custody or control, related to BRADLEY EARL REGER (DOB: 2/22/1956) (SS# 556-11- XXXX).”

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

The subpoena called for a production date of June 13, 2024.

Mountain Meadows Bible Camp is not a party to this lawsuit, and the FAC does not contain any allegations related to this entity. In their opposition brief, Plaintiffs assert that “[u]pon information and belief, Reger also perpetrated his abuse at Mountain Meadows Bible Camp.” (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 Mountain Meadows Bible Camp 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). These procedural arguments are identical to the arguments raised by Reger in his similar motion to quash Plaintiffs’ subpoena for records from Lassen High School, which the Court heard on August 13, 2024. The Court rejects Reger’s procedural arguments for the same reasons stated in the Court’s August 13 order.

Substantively, Reger contends that (1) the subpoena invades his right to privacy as it would include payroll records showing his private financial information, amd (2) the subpoena invades the privacy rights of countless third parties who may have worked with or for Reger at Mountain Meadows Bible Camp. Specifically, Reger contends, “If Mountain Meadows Bible Camp were required to turn over these records, such production would include confidential employment records and financial information of third persons other than Mr. Reger by the overbroad ‘related to’ language.” (Reger’s MPA, p. 4:21-23.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV012006: JOHN NDJ DOE, et al. vs CHURCH OF THE NAZARENE, A CALIFORNIA CORPORATION, et al. 08/29/2024 Hearing on Motion to Quash Plaintiffs' Deposition Subpoena for Production of Documents in Department 54

Plaintiffs’ Opposition

Plaintiffs first contend that Reger has not properly served this motion because Mountain Meadows Bible Camp is not listed on the proof of service. A motion to quash a business records subpoena must be served on the witness. (Code Civ. Proc. §§ 1985.3(g), 1985.6(f).) With his reply, Reger filed a supplemental proof of service attesting that email service was made on Paul Wein, Custodian of Records for Mountain Meadows Bible Camp via email on June 7, 2024, one day after this motion was filed. The Court is satisfied that the motion was properly served. (See Code Civ Proc. § 1013b.)

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.

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.)

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 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

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV012006: JOHN NDJ DOE, et al. vs CHURCH OF THE NAZARENE, A CALIFORNIA CORPORATION, et al. 08/29/2024 Hearing on Motion to Quash Plaintiffs' Deposition Subpoena for Production of Documents in Department 54

other grounds by Williams, supra, 3 Cal.5th at p. 557, fn. 8.) However, 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.) Similarly, based on the types of records sought, it appears that any potential third party privacy issues are employee/personnel and/or financial records, which would also be subjected to a general balancing test.

Plaintiffs contend that the identities of third parties are relevant and discoverable because “those individuals are likely witnesses to Reger’s abuse, abusive tendencies, and/or inappropriate behavior with minor children at the camp.” (Opp. MPA, p. 8:5-7.) Plaintiffs further contend that the documents sought via the subpoena 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. 8:12-13.)

As noted above, the records at issue here seem to be subject to the general balancing test, meaning Plaintiffs need not show a compelling need to justify disclosure. Even so, based on the record before it, the Court finds that the balance of factors weighs against disclosure. Plaintiffs have made no effort to even connect Reger to Mountain Meadows Bible Camp beyond a onesentence assertion made upon information and belief in their opposition brief. Other than this assertion, there is nothing on the record before the Court, either as evidence or allegations, establishing that Reger ever worked for or with this entity, let alone that he engaged in any abusive conduct there.

The Court could certainly conceive of ways that the documents could be relevant, but that would require the Court to engage in several assumptions not supported on the record. For instance, one of the named defendants in this action, Defendant Gospel Missionary Union dba Avant Ministries, is alleged to be the owner of Echo Ranch Bible Camp, a camp in Alaska where Reger is alleged to have worked/volunteered and where he is alleged to have sexually abused minors. If Reger indeed worked/volunteered at Mountain Meadows Bible Camp in the same or similar roles as at Echo Ranch, then the relevance of the documents sought in the subpoena might be clearer.

Plaintiffs have not made this or any similar showing to warrant disclosure.

The Court also notes that although the subpoena does not expressly seek more private documents that would require a compelling need (i.e., medical records), the subpoena is also extremely broad as it includes “any other documents related to” Reger. (Derby Decl., Exh. A, p. 5.) This could conceivably mean any document with Reger’s name on it, and it is completely unknown how many potential third parties this would encompass. Thus, the significant scope of the subpoena weighs against disclosure.

Plaintiffs also argue that compelling state interests support disclosure. Plaintiffs presented essentially the same argument in relation to the subpoena of documents from Lassen High

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV012006: JOHN NDJ DOE, et al. vs CHURCH OF THE NAZARENE, A CALIFORNIA CORPORATION, et al. 08/29/2024 Hearing on Motion to Quash Plaintiffs' Deposition Subpoena for Production of Documents in Department 54

School. The Court rejects this argument for the same reasons discussed in the Court’s August 13, 2024 order.

Plaintiffs also indicate that they are agreeable to redacting identifying information of minors or potential victims of Reger’s abuse, but the exact nature of this proposal is not entirely clear. For one, whom do Plaintiffs propose do the redacting? The witness? Reger? Who would determine whether a person is a “potential victim”? Would the redactions apply to individuals who are no longer minors, but who were minors at the time the document was created? Similarly, Plaintiffs propose, “To the extent that the records from Mountain Meadows Bible Camp refer to or contain privileged personal information, that information may be redacted and accounted for on a privilege log, subject to further meet and confer efforts to determine whether it needs to be disclosed at a later time.” (Opp.

MPA, p. 8:13-16.) Again, Plaintiffs do not explain how this would work. Who would do the redacting? Who would make the initial claim of privilege? What types of information would be subject to redaction? To the extent Plaintiffs propose these alternatives as an invitation to the Court to modify the subpoena, the uncertainty of the proposals precludes the Court from doing so.

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 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:

Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure:

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;

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV012006: JOHN NDJ DOE, et al. vs CHURCH OF THE NAZARENE, A CALIFORNIA CORPORATION, et al. 08/29/2024 Hearing on Motion to Quash Plaintiffs' Deposition Subpoena for Production of Documents in Department 54

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.

Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or by video conference via the Zoom video/audio conference platform with notice to the Court and all other parties in accordance with Code of Civil Procedure §367.75. Although remote participation is not required, the Court will presume all parties are appearing remotely for non-evidentiary civil hearings. The Department 53/54 Zoom Link is https://saccourt-cagov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear on Zoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NO COURTCALL APPEARANCES WILL BE ACCEPTED.

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