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Bouchard v. New York Archdiocese

September 19, 2007


The opinion of the court was delivered by: Pitman, United States Magistrate Judge


I. Introduction

Former defendant Cardinal Edward Egan moves for a protective order pursuant to Fed.R.Civ.P. 26(c) precluding plaintiff from taking his deposition in this matter (Docket Item 47). Plaintiff also moves for a protective order pursuant to Fed.R.Civ.P. 26(c) precluding defendants from continuing the deposition of plaintiff (Docket Item 55) .

For the reasons set forth below, Cardinal Egan's motion is granted in part; plaintiff's motion is denied.

II. Facts

This is a diversity action in which plaintiff alleges that a Roman Catholic priest visiting New York from Sri Lanka, Fr. Fernando Kennedy, sexually assaulted her and committed other torts against her during the summer of 2001 while he was temporarily working at the Church of Our Savior ("COOS"), a Roman Catholic parish in Manhattan within the Archdiocese of New York (the "Archdiocese"). The allegations of the complaint are summarized in detail in the May 18, 2006 opinion of the Honorable Charles S. Haight, United States District Judge, which granted in part and denied in part defendants' motions to dismiss the complaint and for summary judgment. Bouchard v. New York Archdiocese, 04 Civ. 9978 (CSH), 2006 WL 1375232 (S.D.N.Y. May 18, 2 006) ("Bouchard I"). Familiarity with Bouchard I is assumed. Cardinal Egan's motion arises out of plaintiff's efforts to depose him in this matter.*fn1 Cardinal Egan claims that he is entitled to a protective order because (1) he claims he had never heard of Fr. Kennedy prior to the commencement of this action, (2) his position is analogous to that of high corporate or government executives who are frequently granted protective orders precluding their depositions where it is shown that they lack personal knowledge of the events in question and there is no showing that the executive or official has unique knowledge, and (3) there is a high probability that any deposition of Cardinal Egan would be used to humiliate and embarrass him, given the behavior of plaintiff's counsel in other cases involving allegations of sexual misconduct by members of the clergy of the Roman Catholic Church. See generally Hoatson v. New York Archdiocese, 05 Civ. 10467 (PAC), 2007 WL 431098 (S.D.N.Y. Feb. 8, 2007). In addition to other material, Cardinal Egan has submitted an affidavit in support of his motion in which he states, in pertinent part:

2. I have been the Archbishop [of the Archdiocese of New York] since June 2000, and was elevated to the College of Cardinals in February 2001. As the Archbishop, I am the head of the Archdiocese, which encompasses ten counties within the State of New York -- New York, Bronx, Richmond, Dutchess, Orange, Putnam, Rockland, Sullivan, Ulster, and Westchester.

3. The Archdiocese's most recent statistical overview, as of late 2005, reveals that there are approximately 405 parishes, 1,536 priests, 3,028 nuns, 209 diocesan and parish elementary schools, 23 diocesan and parish high schools, and 5400 lay teachers within the Archdiocese. This number does not include visiting priests. Additionally, the same statistical overview indicates that there are more than 2.5 million Roman Catholics within the boundaries of the Archdiocese.

4. When priests from other dioceses and from religious orders visit parishes within the Archdiocese, there is virtually never a reason for them to be brought to my attention. I never meet or speak with the vast majority of priests who visit parishes within the Archdiocese.

5. I am aware that Angie Bouchard has filed a lawsuit alleging improper conduct by one Father Kennedy, who is alleged to have visited a parish within the Archdiocese from Sri Lanka some time in 2001. I can categorically state that I have never met, sanctioned or authorized Father Kennedy, nor did I have anything to do with his alleged presence or purported service in the parish. Until Ms. Bouchard complained to the Archdiocese in 2004, I had never even heard of Father Kennedy. Finally, I do not know Ms. Bouchard, and am only aware of her because of the allegations she has made.

6. I have absolutely no personal knowledge of, and had no personal involvement in, the acts alleged in the Plaintiff's lawsuit. (Affidavit of Cardinal Edward Egan, sworn to Aug. 24, 2006, annexed as Exhibit A to the Declaration of Daniel R. Alonso, dated Sept. 1, 2006 ("Alonso Decl."))

Plaintiff's motion for a protective order precluding the continuation of her deposition is based on allegedly abusive conduct by defendants' counsel at the first session of her deposition. In support of her motion, plaintiff cites only six instance of alleged misconduct by defense counsel; the instances of alleged misconduct cited by plaintiff span a total of 40 pages out of a 303-page transcript.

! At pages 44-50 and 56-65 of the Transcript of Plaintiff's Deposition, conducted on September 8, 2006 ("Bouchard Dep. Tr."), counsel for COOS resisted suggestions from plaintiff's counsel to defer questioning concerning incidents of sexual abuse by a family member that plaintiff suffered as a child and a teenager. However, at pages 65-66 of the transcript, counsel for COOS agreed to defer questioning concerning this subject.

! At pages 111-13, counsel for plaintiff objected to the fact that counsel for COOS and the Archdiocese conferred from time to time during the former's examination of plaintiff and that some of these discussions appeared to involve the interpretation of unspecified discovery provisions of the Federal Rules of Civil Procedure. Although plaintiff's counsel noted these conferences on the record, he also admitted that he was not making any "sinister" implications (Bouchard ...

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