UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Georges F. de Laire

v. Civil No. 21-cv-131-JD Opinion No.

Gary Michael Voris, et al.

O R D E R

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. (US), LP, --- F. Supp. 3d ---,

, at *1 (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,

, at *1.

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

1 The Diocese states that it is composed of the Most Reverend Peter Anthony Libasci and the Roman Catholic Bishop of Manchester, a Corporation Sole.

2 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.

3 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

2 The defendants did not provide the Diocese’s general objections that were in an introductory section of their responses. When challenged for failing to do so, the defendants argued that the Diocese should not have included boilerplate objections. The matters addressed under the heading “General Objections” are not “boilerplate” and instead include issues about the scope of a subpoena under Rule 45, privilege, privacy of health information, and confidentiality. The defendants were required to submit that section.

4

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

5 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.

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

6 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:

7 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 sanctions as an “attack” was defamatory.

1. Privilege

The Diocese asserts that the information the defendants are

seeking is protected from disclosure by the ecclesiastical

exemption, relying primarily on Watson v. Jones,

(1871).3 The Supreme Court’s decision in Watson, however,

established that secular courts lack jurisdiction to decide

matters that are “strictly and purely ecclesiastical.”

. For that reason, “[i]n considering the circumstances of

any given case, courts must take care to avoid ‘resolving

3 The Diocese provided a general statement about the ecclesiastical exemption in an introduction to the specific requests in the subpoena and its responses to those requests. The general approach provides little support for the Diocese’s objections to specific requests in the subpoena.

8 underlying controversies over religious doctrine.’” Our Lady of

Guadalupe School v. Morrissey-Berru,

(2020) (quoting Presbyterian Church in U.S. v. Mary Elizabeth

Blue Hull Mem. Presbyterian Church,

(1969))

and citing Serbian E. Orthodox Diocese v. Milivojevich,

(1976); see also In re Roman Catholic Church of

Archdiocese of Santa Fe,

, at *4 (D.N.M. Sept.

17, 2021). Further, civil courts are barred by the First

Amendment’s Establishment Clause from excessive entanglement in

employment disputes that involve “the protected ministerial

relationship.” Demkovich v. St. Andrew the Apostel Parish,

Calumet City,

, 981-82 (7th Cir. 2021).

In this case, however, de Laire’s claim is defamation.

Neither the subpoena request nor the defamation claim requires

the court to decide ecclesiastical matters or employment

disputes. See In re Roman Catholic Church,

, at

*5. Instead, the subpoena and the motion to compel raise a

discovery issue. See Dolquist v. Heartland Presbytery,

(D. Kan. 2004) (holding that First Amendment

religious rights protected by church autonomy doctrine and

ministerial exception did not bar questions about church’s

investigation into complaints of sexual misconduct). The

Diocese has not cited a case that persuasively recognizes an

9 ecclesiastical exemption from the subpoena requests at issue

here.

In Scott v. Hammock,

(D. Utah 1990), the

plaintiff sued her father, alleging abuse during her childhood.

The plaintiff served a subpoena on the office of the Presiding

Bishopric of the Church of Jesus Christ of Latter-Day Saints for

the production of documents about the excommunication of the

defendant from the church and in particular sought communications

between the defendant and persons present during a Bishop’s

Court. The church moved to quash the subpoena on the grounds of

privilege under Utah law and the Free Exercise Clause of the

First Amendment.

.

The court considered the Utah statutory privilege that

protected a confession made to a clergyman or priest and

construed the privilege liberally to avoid an unconstitutional

application.

. In doing so, the court concluded

that confidential communications within the church, between a

member and a church official and from one ecclesiastical officer

to another for the purpose of church discipline, are protected.

. For that reason, the motion to quash was granted as

to those confidential communications. While the Diocese cites

the Scott case, it makes no effort to analogize the holding

there to the circumstances presented here.

10 The Diocese also cites Cimijotti v. Paulsen,

(8th Cir. 1965), a per curiam decision that briefly affirmed the

district court’s grant of summary judgment in favor of the

defendants. The quote attributed to that case by the Diocese is

actually taken from the district court’s decision. Cimijotti v.

Paulsen,

(N.D. Iowa 1963). That decision

addressed the priest-penitent privilege under Iowa law.

; see also Stevens v. Brigham Young Univ.,

, 1118-20 (D. Idaho 2019). The Diocese has not shown that

the priest-penitent privilege, as recognized in Iowa, has any

bearing on the discovery issues in this case.

In Whole Woman’s Health v. Smith,

(5th Cir.

2018), also cited by the Diocese, the court criticized the lower

court for failing to properly consider a privilege issue under

the Religious Freedom Restoration Act (“RFRA”) and the First

Amendment in denying a motion to quash a subpoena.

at 369-

72. The court acknowledged the First Amendment issues

implicated by compelling discovery from a non-party religious

organization and in particular compelling disclosure of internal

communications.

. Despite that concern, the court

noted the lack of guiding cases, applied the doctrine of

constitutional avoidance, and did not decide whether a privilege

existed under RFRA or the First Amendment to bar the documents

sought in that case.

at 370 & 374 (“We need not and do not

11 finally resolve whether the order enforcing discovery of the

internal emails violated TCCB's constitutional rights, but the

issues raised above should have given pause to the district

court before it waved away TCCB's privilege claims.”) The court

concluded, under Rule 45(d), that the subpoena should have been

quashed to avoid an undue burden.

.

The Fifth Circuit in Women’s Health did not hold that a

religious institution is protected from disclosure of internal

communications by an ecclesiastical privilege or the First

Amendment. There do not appear to be cases where courts have

applied Women’s Health as authority for an ecclesiastical

privilege against discovery based on the First Amendment.4

The Diocese bears the burden of showing that the

information or documents sought in the subpoena are protected by

4 In Apple Inc. v. Match Group, Inc.,

(N.D. Cal. Aug. 19, 2021), involving discovery in three antitrust cases against Apple Inc., the court used the Fifth Circuit’s discussion of First Amendment issues to support the conclusion that the defendant, a non-religious public policy opponent of Apple, should not be compelled to turn over its internal communications. Id. at *8. Importantly, there the target of the subpoena made a focused and developed argument that enforcement would infringe its First Amendment rights. In McRaney v. N. Am. Mission Bd. of S. Baptist Convention, Inc.,

(Mem.) (5th Cir. 2020), part of the panel that decided Whole Woman’s Health dissented from the majority’s denial of rehearing en banc and said that the decision in Whole Woman’s Health was based in part on concerns about intrusions into religious bodies’ self-governance. Despite that post hoc statement, the decision itself is based on other grounds.

12 an applicable privilege that has not been waived.5 XYZ Corp. v.

United States (In re Keeper of the Records),

, 22

(1st Cir. 2003). The Diocese has made no developed argument

that the documents the defendants seek in Request 5 would

interfere in its free exercise of religion under the First

Amendment or would violate the establishment clause of the First

Amendment. Although the underlying conflict between the Saint

Benedict Center and the Diocese arose out of a doctrinal

dispute, the merits of the dispute are not before the court,

will not be considered, and will not be decided here. The

Diocese has not carried its burden of showing that an

ecclesiastical privilege or the First Amendment bars production

of the information sought in Request 3.6

2. Scope of the Request

The defendants state in the memorandum in support of the

motion to compel that the Diocese produced certain email

communications to and from de Laire but nothing pertaining to

5 Apparently, the Diocese has produced emails to and from de Laire but has not addressed how those communications are outside the claimed ecclesiastical exemption.

6 The court notes that the defendants’ argument that no blanket ecclesiastical exemption should apply because it would protect documents related to clergy sex abuse is an attempt to introduce a controversial matter that is unrelated to this case. Such gratuitous remarks do not advance the defendants’ cause.

13 the Diocese’s efforts to impose sanctions against the St.

Benedict Center. More specifically, the defendants assert that

the Congregation for the Doctrine of the Faith issued the

precepts against the St. Benedict Center, that the precepts were

not issued in a vacuum, and that they want to see what de Laire

submitted to the Congregation for the Doctrine of the Faith

about the St. Benedict Center. The defendants state that they

are looking for documents or information that show that the

sanction was an “attack” by de Laire on the Center as

characterized in their publications.

Request 3, as propounded in the subpoena, is not limited to

documents or information de Laire submitted to the Congregation

for the Doctrine of the Faith about the St. Benedict Center,

which lead to the sanction. Instead, the defendants are seeking

“[a]ll documents concerning the sanctions imposed against The

St. Benedict Center.” The Diocese is not a party to this

litigation, and Rule 45 precludes burdensome demands. Request

3, as written, is overbroad for the relevance the defendants

describe and therefore is unnecessarily burdensome.

D. Request 5

In Request 5, the defendants asked the Diocese to produce

“[a] list of all canonical proceedings or matters in which de

14 Laire was involved, in any capacity, for the period January 1,

2011 through today.” The Diocese responded:

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, attorney-client privilege, or attorney work product doctrine; not reasonably calculated to discover admissible evidence; and does not describe with reasonable particularity the topics for examination. The Subpoena Recipients reserve their right to produce a privilege log if and when the ecclesiastical abstention doctrine issue is resolved against the Subpoena Recipients.7

Doc. no. 46-2, at *4. The defendants represent, however, that

the request was subsequently limited to “matters that happened

after January 1, 2020 and to matters involving clergy and

marriages.” Doc. no. 46-7, at *6. In its objection to the

motion to compel, the Diocese represents that the request was

modified to include a date restriction “for the period of 6

years before the first article was printed, i.e., January 2020”

but does not acknowledge a subject matter limitation. Doc. no.

59, at *5.

7 It is unclear if the ecclesiastical abstention doctrine is the same privilege as the ecclesiastical exemption that the Diocese claimed with respect to Request 3. Further, the court assumes that the last sentence of the response includes a typographical error and that the Diocese intended to convey that it would produce a privilege log if the ecclesiastical abstention doctrine issue were resolved in its favor, not against it.

15 The defendants contend that the information they seek is

relevant to de Laire’s competence in his role as a canonist.

Although not specifically cited by the defendants, they

apparently are addressing several statements, attributed to de

Laire’s colleagues, that he was incompetent and botched cases.

In the motion, they discuss certain complaints, which they say

were identified on July 8, 2021, and involve dissolution of a

marriage.

The Diocese again invokes an ecclesiastical exemption or

ecclesiastical abstention as a privilege that bars production of

the requested documents. As is discussed above, the Diocese has

not shown that such a privilege exists for purposes of discovery

and have not shown that the First Amendment protects against

production of the documents requested here. Further, to the

extent the Diocese has disclosed some documents but withheld

others, any privilege may have been waived.

As with the defendants’ other requests, however, there

appears to be some confusion about what the defendants are

seeking in Request 5. Request 5 has apparently gone through

several iterations, and it may now be focused narrowly on

specific information. Rather than guess at what is sought in

Request 5, the better approach would be to give the defendants

an opportunity to clarify the request and to focus as

specifically as possible on particular information or documents.

16 The Diocese will then have the opportunity to respond

appropriately in light of this decision.

E. Other Matters

The Diocese contends that the defendants’ motion should be

denied because of procedural irregularities. As is noted above,

the defendants improperly omitted the general objections section

of the Diocese’s response. In addition, the Diocese contends

that the defendants failed to comply with Federal Rule of Civil

Procedure 37(a)(1) because, despite the certification, the

defendants did not make good faith efforts to resolve the

disputes before moving to compel. The defendants argue that

they complied with the requirements of Rules 45 and 37.

The court need not resolve the procedural issues here

because the motion is denied for other reasons. Nevertheless,

as the rules provide, counsel are expected to use their best

efforts to resolve discovery matters without involving the

court. Counsel do not appear to have communicated as

effectively as might be necessary to accomplish that purpose.

Conclusion

For the foregoing reasons, the defendants’ motion to compel

responses to a subpoena (document no. 46) is denied.

17 Denial of the motion is without prejudice to the defendants

making further efforts to obtain relevant and appropriate

documents and information from the Diocese. Before serving a

second subpoena, however, counsel shall discuss these matters

either in person, by telephone, or by video conference to

attempt in good faith to resolve or narrow the scope of the

requests and objections.

To the extent the matters are not resolved by communication

or by a second subpoena, if necessary, counsel shall agree on

what matters remain unresolved before a motion to compel or a

motion to quash is filed. Counsel for the Diocese shall not

invoke an ecclesiastical exemption or First Amendment protection

unless prepared to make a detailed and particularized showing

that such protection applies to a specific request made by the

defendants and has not been waived.

SO ORDERED.

______________________________ Joseph A DiClerico, Jr. United States District Judge

December 9, 2021

cc: Counsel of record.

18