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  Judge Says Priest's Records Are Open to Lawyers' Review

By David Singleton
The Scranton Times [Scranton PA]
June 17, 2004

A federal judge won't reverse his decision to allow attorneys for a man who contends he was molested by two Roman Catholic priests to review one of the clergymen's psychological records.

However, in an unusual move, U.S. District Judge John E. Jones III agreed to let the Rev. Eric Ensey and the Rev. Carlos Urrutigoity immediately appeal his order to the 3rd U.S. Circuit Court of Appeals.

A civil complaint filed in 2002 accused the priests, both members of the Society of St. John, of molesting a former St. Gregory's Academy student identified in court papers as John Doe between 1997 and 2000.

On March 23, Judge Jones ruled the former student's legal counsel could review a psychological evaluation of the Rev. Urrutigoity performed at the request of the Diocese of Scranton.

Although he deferred a decision on a similar evaluation of the Rev. Ensey because it was unavailable for his review, Judge Jones concluded the records were not protected by the psychotherapist-patient privilege or the attorney-client privilege.

In reaffirming his decision Tuesday, Judge Jones said he is convinced the priests had no expectation the results of their evaluations would remain private.

The Rev. Ensey and the Rev. Urrutigoity were "quite obviously" evaluated at the request of then-Bishop James C. Timlin "and with every expectation that the results ultimately would be placed in the hands of the diocese for its review," the judge said. "Any psychotherapist-patient privilege was thus waived."

Judge Jones noted the priests have consistently based their nonwaiver argument on the fact their attorneys -- not the diocese -- received the reports. But he said it is clear the priests' legal counsel intercepted the reports "in a creative attempt to cloak them" with the attorney-client privilege and prevent their disclosure.

PRIVILEGE WAIVED

"We remain unpersuaded by defendant priests' efforts, after the fact, to reconstruct a privilege long ago waived by them," Judge Jones wrote.

At the same time, Judge Jones will let the priests immediately appeal his March 23 order to the 3rd Circuit Court.

As a general rule, the judge said, orders issued by a district court on discovery matters -- such as disclosure of the evaluations -- cannot be appealed until there is a judgment in the case.

But Judge Jones said because the 3rd Circuit Court has never addressed the issue of the psychotherapist-patient privilege, his March 23 order falls within the narrow exception to the rule.

The case is currently scheduled to go to trial in September.

 
 

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