Georges F. de Laire
v.
Gary Michael Voris, et al.
United States District Court, D. New Hampshire
December 9, 2021
ORDER
Joseph A DiClerico, Jr. United States District Judge
The Very Reverend Georges F. de Laire, J.C.L., who serves as the Judicial Vicar and the Vicar for Canonical Affairs for the Diocese of Manchester, brings a defamation claim against Gary Michael Voris, Anita Carey, and St. Michael's Media, Inc. a/k/a Church Militant. In support, de Laire alleges that the defendants published defamatory articles and a video about him because of a doctrinal dispute between a religious group in New Hampshire and officials of the Catholic Church. The defendants served the Diocese of Manchester, which is not a party in the case, with a subpoena under Federal Rule of Civil Procedure 45, seeking documents for discovery, and now move to compel the Diocese to comply with the subpoena. The Diocese objects.
Standard of Review
A subpoena to a nonparty must comport with the scope of discovery under Federal Rule of Civil Procedure 26(b)(1). Katz v. Shell Energy N. Am. (U.S.), LP, __ F.Supp.3d __, 2021 WL 4477626, at *l (D. Mass. Sept. 30, 2021).
In that regard, the documents or information subject to the subpoena must not be privileged, must be relevant to a party's claim or defense, and must be proportional to the needs of the case. Fed.R.Civ.P. 26(b)(1). Further, the party who issues the subpoena "must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena." Fed.R.Civ.P. 45(d) (1) . In determining whether the subpoena imposes an undue burden, courts examine the relevance of and need for the documents sought, the benefits of the request, and the expense and inconvenience of compliance. Katz, 2021 WL 4477626, at *l.
Background
As the Judicial Vicar and the Vicar for Canonical Affairs for the Diocese of Manchester, de Laire serves with the Bishop of the Diocese of Manchester in a judicial body, the Tribunal, for the Diocese of Manchester.[1] As part of his official duties, de Laire has had interactions since 2016 with a religious group in New Hampshire known as the Slaves of the Immaculate Heart of Mary, incorporated as the Saint Benedict Center, Inc. He
eventually placed sanctions on the group because of a doctrinal dispute with the Catholic Church.
The defendant, Church Militant, is identified as a Michigan not-for-profit corporation that posts articles, videos, and podcasts on a website, churchmilitant.com. Gary Michael Voris is president of Church Militant. Anita Carey was a reporter for Church Militant from March of 2017 to November of 2019.
Church Militant published an article about de Laire dated January 17, 2019, that criticized de Laire's role in the church's interactions with the Saint Benedict Center and the sanctions imposed. After that article was published, Voris travelled to New Hampshire in April of 2019 to interview members and supporters of the Saint Benedict Center about de Laire's actions and made a video about de Laire, which was published on April 15, 2019. On June 25, 2019, Church Militant published another article, which was written by Anita Carey, that challenged de Laire's interpretation of canon law, his interactions with the Saint Benedict Center, and reported that complaints had been lodged against him, among other things.
De Laire brought suit against Church Militant, Voris, and Carey, alleging that the articles and video defamed him. The defendants served a subpoena on the Diocese of Manchester with six requests for documents. The Diocese provided some documents but also objected to the requests.
Discussion
The defendants move to compel the Diocese to comply with their requests in the subpoena that are numbered 1, 2, 3, and 5. The Diocese objects.
A. Request 1
In Request 1, the defendants sought:
All documents related to or concerning any complaint made against or about de Laire, by any person or entity, concerning any manner, at any time. "Complaint" is to be given its broadest possible meaning and encompasses any document where de Laire's performance or behavior is questioned or criticized.
Doc. no. 46-2, at *2. The Diocese provided the following response:
The Subpoena Recipients incorporate and restate all of the objections above. They state further that the request is vague, ambiguous, overly broad, and unduly burdensome to the extent that "complaint" is undefined, disproportional and not tailored to the subject matter in the underlying suit, not reasonably calculated to discover admissible evidence, and does not describe with reasonable particularity the topics for examination.[2]
Id. In its objection, the Diocese contends that the defendants amended the scope of Request 1, which is demonstrated by an email from defendants' counsel dated July 2, 2021. The defendants do not acknowledge that amendment in their motion.
The defendants assert that the request is relevant to de Laire's allegation that they defamed him by reporting that "at least three complaints against de Laire have been filed with the Holy See . . . [t]ogether they allege corruption, abuse of office, grave violations of the law, and incompetence as a canonist." Doc. no. 1, ¶ 58. They further assert that they specified that they were looking for annulment complaints and that the Diocese did not deny such complaints existed, but the Diocese has not produced them. They state that the Diocese said it searched for other complaints but found none, when the Saint Benedict Center produced complaints that its members filed against de Laire.
As written, Request 1 is overbroad and not proportional to the needs of the case. If the request has been narrowed or redefined by agreement, which appears to be the case, that would be material to the court's consideration of whether to enforce the subpoena with respect to Request 1. Further, to the extent the defendants are aware of and are seeking specific complaints or documents, they should address those matters directly rather
than in a footnote. As presented, however, the Diocese cannot be compelled to provide additional responses to Request 1.
B. Request 2
Request 2 states: ``De Laire's employment or personnel file." Doc. no. 46-2, at *2. The Diocese responded as follows:
The Subpoena Recipients incorporate and restate all of the objections above. They state further that the request is vague, ambiguous, overly broad, and unduly burdensome to the extent that the term "personnel file" is undefined, disproportional and not tailored to the subject matter in the underlying suit, not reasonably calculated to discover admissible evidence, and does not describe with reasonable particularity the topics for examination. For example, priests are not subject to state and federal employment laws because they are ministers exempt from such laws pursuant to the establishment and free exercise clauses of the First Amendment, and consequently, the term "employment or personnel file" is ambiguous. Moreover, the request is an entanglement with the internal affairs of a religious organization and its minister in violation of the First Amendment.
Id. In its objection, the Diocese reiterates that no personnel or employment file exists, states that it has produced some responsive information, and states that information about the relationship between de Laire and the church is protected under the First Amendment.
The defendants responded in the motion to compel that when they were informed that no personnel file exists, they amended the request to ask for "any records related to de Laire's discipline, assignments and medical treatment, including
referrals of de Laire to treatment." Doc. no. 46-7, at *5. In support, the defendants cite an email chain between counsel. The emails indicate that counsel for the defendants asked about medical records as part of a personnel file and was told that counsel did not know if medical records existed and that those records should be obtained from de Laire. The emails do not mention discipline or referrals for treatment.
Once again, if Request 2 has been modified, the defendants should have provided the modified request and the Diocese's response to the court, in a straightforward and clear manner. The defendants' presentation of the dispute is not sufficiently clear to support an order compelling compliance. Further, based on other filings, it appears that de Laire has authorized the defendants to obtain his medical records from his providers, which would appear to obviate a need to obtain medical information from the Diocese.
C. Request 3
The defendants asked for ``[a]ll documents concerning the sanctions imposed against The St. Benedict Center, including without limitation all communications with the SBC or its agents, all internal communications within the diocese and all communications with any other organization or body." Doc. no. 46-2, at *2-*3. The Diocese responded as follows:
The Subpoena Recipients incorporate and restate all of the objections above. They state further that the request is vague, ambiguous, overly broad, and unduly burdensome and oppressive; disproportional and not tailored to the subject matter in the underlying suit; barred in whole or in part by the ecclesiastical abstention doctrine; not reasonably calculated to discover admissible evidence; and does not describe with reasonable particularity the topics for examination. Subject to these objections, the subpoena recipients will produce information made public concerning sanctions imposed against SBC.
Id. at *3. In the motion to compel, the defendants contend that they are seeking information about sanctions imposed on the St. Benedict Center to defend against the claim that the characterization of the...
