Motion to Compel Compliance with Subpoena
23CV012006: JOHN NDJ DOE, et al. vs CHURCH OF THE NAZARENE, A CALIFORNIA CORPORATION, et al. 12/12/2024 Hearing on Motion to Compel Compliance with Subpoena in Department 54
Tentative Ruling
Plaintiffs motion to compel non-party Fact Finding Ministries, LLCs (FFM) compliance with subpoena is ruled upon as follows.
Plaintiffs are admonished for failing to comply with California Rules of Court, rule 3.1110(f)(4), which provides, Unless they are submitted by a self-represented party, electronic exhibits must include electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit. Failure to comply with these requirements in the future may result in papers not being considered, matters being continued so that papers may be submitted in the proper format, and/or the imposition of sanctions.
Overview
This action arises from alleged sexual abuse inflicted upon minors by defendant Bradley Earl Reger (Reger). Fourteen John Doe Plaintiffs filed this action on November 20, 2023, against twenty-one defendants, including The Church of the Nazarene, Inc., a Missouri nonprofit corporation dba The General Board Church of the Nazarene (Board), which Plaintiffs identified as Doe 1 on November 20, 2024. (See Amendment to Complaint, November 20, 2024.) Plaintiffs allege that at the time of the abuse, Reger was a volunteer, employee, visitor, counselor, teacher, coach, deacon, youth group leader, and/or board member of various entities, including the Board.
Plaintiffs allege Regers abuse was facilitated by numerous entities and individuals who possessed knowledge of his misconduct, permitted him to access the minors who would become his victims, and engaged in a conspiracy to facilitate and conceal Regers misconduct.
On April 11, 2024, Plaintiffs issued a subpoena to FFM for [a]ny and all records related to BRADLEY EARL REGER. (Declaration of Jenny Louro (Louro Decl., ¶ 4, Ex. B.) After meet-and-confer efforts between Plaintiffs counsel and FFMs counsel, it was agreed that FFMs production date to be on or before July 19, 2024. (Id., ¶ 5, Ex. C.) On July 19, 2024, FFM produced a privilege log and declined to produce any documents. (Ibid.) The privilege log asserted the attorney-client privilege, attorney work product, and privacy rights of third-parties for various interview/investigation memoranda and notes pertaining to potential witnesses.
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Plaintiffs now move to compel FFM to comply with the subpoena. Plaintiffs argue that FFM fails to provide any foundation showing the applicability of the privileges. Plaintiffs further contend that neither the attorney-client privilege or attorney work product doctrine protects the withheld documents, and the requested documents will not create an unlawful invasion of privacy.
The Board has filed an opposition to the motion. The opposition states, in part:
23CV012006: JOHN NDJ DOE, et al. vs CHURCH OF THE NAZARENE, A CALIFORNIA CORPORATION, et al. 12/12/2024 Hearing on Motion to Compel Compliance with Subpoena in Department 54
Fact Finding Ministries, LLC, (FFM) was retained by counsel for The Church of the Nazarene, Inc., (Church) to conduct interviews of potential witnesses. The client and holder of the privilege is the Church, who has not officially appeared in this case or the related case also filed in this Court (although it was recently served in the related cases). FFM and its counsel was authorized by the Church to assert the privilege in response to the underlying subpoena on its behalf pursuant to California Evidence Code §954 and, now that this dispute has resulted in the instant motion to compel, the Church is appearing for the sole purpose of asserting its attorney-client privilege and oppose the production of the requested documents.
[¶]
The records requested in the subpoena include notes regarding witness interviews conducted by FFM at the request of the Churchs counsel and notes memorializing conversations between the Church, its counsel and FFM as an agent of the attorney in its investigative capacity.
[¶]
The records sought by the subpoena to FFM are subject to protection under the work product doctrine because FFM conducted witness interviews pursuant to the instructions provided by and solely at the request of counsel for the Church. Further, FFM was acting in its capacity as the Churchs attorneys agent when it conducted the interviews. Essentially, it is the same as if the Churchs attorney conducted this investigation and these interviews himself.
(Opposition, 2:7-14; 2:21-23; 3:19-23.)
The Board, however, provides no declaration to support its arguments. The opposition is not evidence, and the Court did not consider factual assertions in the opposition not supported by any evidence.
A party that seeks to protect communications from disclosure based upon the attorney-client privilege must establish the preliminary facts necessary to support its exercisei.e., a communication made in the course of an attorney-client relationship. . . . Once that party establishes facts necessary to support a prima facie claim of privilege, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish the communication was not confidential or that the claim of privilege does not for other reasons apply. (City of Petaluma v. Superior Court (2016) 248
SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO
23CV012006: JOHN NDJ DOE, et al. vs CHURCH OF THE NAZARENE, A CALIFORNIA CORPORATION, et al. 12/12/2024 Hearing on Motion to Compel Compliance with Subpoena in Department 54
Cal.App.4th 1023, 1032, quoting Costco Wholesale v. Superior Court (2009) 47 Cal.4th 725, 733.)
As the Board fails to establish the preliminary facts necessary to support the existence of the attorney-client relationship or the work-product protection, Plaintiffs motion to compel FFMs compliance with subpoena is GRANTED.
FFM shall produce the documents responsive to the subpoena by no later than December 23, 2024, unless the parties agree in writing to a later date.
This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)
Moving party has indicated the incorrect address in its notice of motion. The correct address for Department 54 of the Sacramento County Superior Court is 813 6th Street, Sacramento California 95814. Moving party shall notify responding party(ies) immediately.
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; 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.
SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO
23CV012006: JOHN NDJ DOE, et al. vs CHURCH OF THE NAZARENE, A CALIFORNIA CORPORATION, et al. 12/12/2024 Hearing on Motion to Compel Compliance with Subpoena in Department 54
Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court- Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp- 13.pdf.
A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Courts 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 Reporters Office and an official reporter will be provided.