Discovering the Secret Archives: Evidentiary Privileges for Church Records

Abstract

In our time there has occurred a plague of claims and law suits against clergy and churches as a result of alleged clergy wrongdoing. Many of these cases have to do with sexual misconduct. Knowing that the individual clergy are likely to have very limited financial resources, claimants have joined churches and church officials in their lawsuits under theories of negligent selection, negligent assignment, or negligent supervision of clergy. These negligence theories have led to pre-trial discovery requests for confidential church records and clergy personnel files. This has created a serious dilemma for the churches involved, and in particular for the Roman Catholic Church whose canon law mandates the non-disclosure of records kept in the church's secret archives. This article will focus on the conflict between the civil procedural rules creating a right to pre-trial discovery and the free exercise rights of a church to select, evaluate and assign clergy without fear of disclosure of confidential information relied upon in the process.