Neutral-Principles Discovery of Clergy Files in Child Victims Act Litigation: Limits of Religious and Counseling Privileges and Preservation of Attorney-Client/Work-Product Protections

Introduction

S.E. v. Diocese of Brooklyn (2025 NY Slip Op 04228) is a significant Appellate Division, Second Department, decision that clarifies the discoverability of clergy personnel files in actions brought under New York’s Child Victims Act (CPLR 214-g). The plaintiff alleged that, as a child in 1988–1989, he was sexually abused by Patrick Sexton while Sexton was employed by the Roman Catholic Diocese of Brooklyn. He sued the Diocese, among others, for negligent hiring, retention, and supervision, and intentional infliction of emotional distress, asserting the Diocese knew or should have known of Sexton’s propensity to abuse children.

In discovery, the Diocese produced a redacted version of Sexton’s clergy file and a privilege log. Following an in camera review, the Supreme Court, Kings County, ordered production of certain pages in unredacted form. The Diocese and Sexton moved to vacate aspects of that order and sought protective orders under CPLR 3103(a). The trial court denied both motions, prompting separate appeals.

The Appellate Division largely affirmed the trial court’s order compelling disclosure, but it modified to protect discrete portions of the file that were shielded by the attorney-client privilege and the attorney work-product doctrine. The court rejected the Diocese’s First Amendment defenses and its invocations of the priest-penitent, physician-patient, and psychologist-client privileges over the bulk of the materials.

Summary of the Judgment

• The court reaffirmed New York’s broad discovery standard: parties are entitled to all matter material and necessary to the prosecution or defense of the action (CPLR 3101[a]). Personnel records are generally discoverable in negligent hiring, retention, or supervision claims.
• First Amendment protections for religious institutions do not bar discovery when courts can apply neutral principles of law. Here, the documents were sought not to resolve internal religious disputes but to prove the Diocese’s knowledge of Sexton’s propensity to abuse children.
• The court held that the Diocese and Sexton failed to establish the priest-penitent privilege (CPLR 4505) for the identified materials, because there was no showing that communications were made in confidence for spiritual guidance.
• Claims of physician-patient (CPLR 4504) and psychologist-client (CPLR 4507) privileges also failed for the specific materials at issue.
• However, the court modified the order to protect: (a) pages PDS000348–PDS000350 and (b) the penultimate paragraph on page PDS000414. These entries, concerning a conversation between church members (among others) and attorney Joe Farrell, were shielded by the attorney work-product doctrine and the attorney-client privilege.
• Result: The protective order was granted only for those specific pages/paragraph; all other challenged portions remained discoverable. Sexton’s appeal was rejected in full. Costs were awarded to the plaintiff against both the Diocese and Sexton.

Analysis

Precedents Cited and Their Influence

• Wadolowski v Cohen, 99 AD3d 793; Matter of Skolinsky, 70 AD3d 845
  • These cases reiterate the broad scope of New York discovery and the “material and necessary” standard under CPLR 3101(a). The court relied on these to support compelling disclosure of personnel documents that bear on notice, knowledge, or supervision.
• Holloway v Orthodox Church in Am., 232 AD3d 773; Blanco v County of Suffolk, 51 AD3d 700
  • Directly relevant to negligent hiring/retention claims, these decisions recognize that personnel records are typically discoverable because they can evidence notice, prior complaints, or remedial action—all central to negligent supervision theories.
• Cajamarca v Osatuk, 163 AD3d 619; Diaz v Minhas Constr. Corp., LLC, 188 AD3d 812; Pulgarin v Richmond, 219 AD3d 1356
  • These cases emphasize that discovery reaches any matter that may lead to admissible evidence and apply a “usefulness and reason” test. They undergird the court’s willingness to allow discovery of clergy file contents germane to the Diocese’s knowledge.
• Coads v Nassau County, 231 AD3d 906; Wasserman v Amica Mut. Ins. Co., 193 AD3d 795
  • They articulate the burden on a party asserting privilege to demonstrate immunity from disclosure. The Diocese and Sexton failed to carry that burden for most of the disputed documents.
• New Hope Christian Church, Inc. v Parks, 236 AD3d 669; Madireddy v Madireddy, 66 AD3d 647
  • These apply the “neutral principles of law” doctrine to religious disputes, allowing secular courts to adjudicate matters without entanglement in ecclesiastical questions. The Appellate Division used these to reject the Diocese’s First Amendment objection to discovery focused on notice and supervision.
• Maida v Diocese of Brooklyn, 2023 WL 2139769 (Sup Ct, Kings County); Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159
  • Maida is a recent trial-court decision in a CVA matter approving discovery of clergy files to prove institutional notice. Kenneth R. is a Second Department case recognizing liability theories against a diocese for negligent supervision and the significance of institutional knowledge. Both contextualize the need for personnel file discovery in abuse cases.
• People v Carmona, 82 NY2d 603; Matter of Keenan v Gigante, 47 NY2d 160
  • These define the scope of the priest-penitent privilege under CPLR 4505: communications must be made in confidence for spiritual guidance. The court concluded the Diocese and Sexton failed to show the documents met that standard.
• Matter of Farrow v Allen, 194 AD2d 40
  • Addresses limits of physician-patient and psychologist-client privileges. The court drew on Farrow to hold that the materials identified by the trial court did not qualify for CPLR 4504 or 4507 protection.
• 1415, LLC v New York Mar. & Gen. Ins. Co., 181 AD3d 629; Lehman v Piontkowski, 84 AD2d 759
  • These cases reinforce the protections for attorney-client communications and attorney work product. They guided the court’s modification to shield specific pages referring to consultations with counsel (Joe Farrell).

Legal Reasoning

1. Broad discovery framework
   • Under CPLR 3101(a), discovery is liberal. The court reiterated that anything “material and necessary” to the prosecution or defense must be disclosed, and discoverability extends to material likely to lead to admissible evidence. The “usefulness and reason” test guided the court’s view that clergy personnel files—when negligent supervision is alleged—are quintessentially relevant.
2. Personnel files in negligent supervision litigation
   • Precedent confirms that personnel records can bear on notice, retention decisions, and supervision practices. Because S.E. alleges the Diocese knew or should have known of Sexton’s propensity to abuse children, the clergy file is directly probative of those issues.
3. First Amendment and the neutral-principles doctrine
   • The Diocese invoked First Amendment protections. The court rejected that argument because the dispute did not require doctrinal adjudication or internal church governance evaluation. Rather, the court could apply neutral tort and evidence principles to discover facts about knowledge and supervision.
4. Privileges asserted and why most failed
   • Priest-penitent (CPLR 4505): The Diocese and Sexton did not demonstrate that the communications were confidential and for the purpose of spiritual guidance. Without those elements, the privilege does not attach.
   • Physician-patient (CPLR 4504) and psychologist-client (CPLR 4507): The court found the challenged materials did not reflect privileged therapeutic communications or records within the statutory definitions. Often, summaries, third-party reports, or administrative notes fall outside these privileges.
   • Burden of proof: The party asserting privilege bears the burden of establishing each element with specificity. The Diocese’s privilege log and submissions were insufficient for most of the file portions ordered disclosed.
5. Privileges that did attach
   • Attorney-client and work-product (CPLR 3101[c] and common law): The court protected pages PDS000348–PDS000350 and the penultimate paragraph of PDS000414 because they concerned conversations with attorney Joe Farrell. Communications seeking or giving legal advice, and materials reflecting counsel’s legal impressions or strategy, remain off-limits absent waiver.
   • Protective order: Under CPLR 3103(a), the court granted a tailored protective order as to those discrete portions, demonstrating the preference for surgical, rather than wholesale, redaction or withholding.

Impact

• Child Victims Act litigation
  • This decision strengthens plaintiffs’ ability to obtain personnel files in CVA actions alleging negligent hiring, retention, and supervision. It confirms that First Amendment defenses and generalized invocations of religious privilege will not defeat discovery conducted under neutral legal principles.
• Religious institutions and privilege management
  • Dioceses and other religious entities must distinguish between spiritual communications (potentially privileged) and administrative, personnel, or disciplinary records (generally discoverable). Conclusory privilege claims will not suffice.
  • Attorney-client and work-product protections remain robust. Institutions should carefully document when counsel is engaged, the purpose of communications, and segregate legal advice from business or pastoral records.
• Discovery practice and case management
  • In camera review and detailed privilege logs are endorsed as practical tools. Courts will parse records at a granular level, compelling disclosure of non-privileged content while issuing protective orders for genuinely privileged content.
  • Expect more targeted challenges to redactions. The decision invites precise, page- or paragraph-level rulings rather than categorical withholding.
• Substantive tort claims
  • By ensuring access to personnel files, the decision facilitates proof on core negligence elements like notice and foreseeability, likely influencing settlement dynamics and trial proof in institutional abuse cases.

Complex Concepts Simplified

• Material and necessary (CPLR 3101[a])
  • A liberal standard: if the material can help prove or disprove a claim or defense, or lead to admissible proof, it is usually discoverable.
• Neutral principles of law
  • Courts may decide matters involving religious entities if they can do so using ordinary legal rules without deciding religious doctrine. Here, negligence and privilege rules fit that bill.
• Priest-penitent privilege (CPLR 4505)
  • Protects confidential communications made to clergy for spiritual guidance. Administrative or non-spiritual communications generally do not qualify.
• Physician-patient (CPLR 4504) and psychologist-client (CPLR 4507) privileges
  • Protect confidential communications for diagnosis or treatment. Notes or summaries by non-medical personnel, or communications outside a therapeutic context, typically are not covered.
• Attorney-client privilege and attorney work product
  • Attorney-client covers confidential communications for legal advice. Work product protects an attorney’s mental impressions, strategies, and legal analysis. These remain strong limits on discovery.
• Protective order (CPLR 3103[a])
  • A court order limiting discovery to prevent unreasonable annoyance, embarrassment, or prejudice. Often used to tailor what must be disclosed.
• In camera review
  • Judge-only inspection of materials to decide privilege disputes without revealing content to the other side unless disclosure is ordered.

Practice Takeaways

• For plaintiffs in CVA and negligent supervision cases
  • Request personnel files with specificity. Cite the “material and necessary” standard and cases like Holloway and Blanco. Ask for in camera review where privilege is asserted.
• For religious institutions and other defendants
  • Prepare detailed privilege logs. Clearly identify the communicator, recipient, purpose (legal advice versus spiritual guidance versus administration), and context.
  • Segment records: keep legal communications with counsel separate and clearly labeled; maintain pastoral counseling records distinctly from HR or disciplinary files.
  • Expect neutral-principles scrutiny, not categorical First Amendment immunity.
• For courts
  • Granular rulings and tailored protective orders, as in S.E., minimize over- or under-disclosure. Consider page- or paragraph-specific directives.

What This Decision Did Not Decide

• Liability on the merits
  • The decision concerns discovery and privilege, not whether the Diocese is ultimately liable for negligent hiring, retention, or supervision, or for intentional infliction of emotional distress.
• Universal privilege rules for all clergy files
  • The holding is document- and context-specific. Different records might trigger different privileges if their elements are established with competent proof.

Conclusion

S.E. v. Diocese of Brooklyn establishes a clear blueprint for discovery of clergy personnel files in CVA and analogous negligent supervision cases. The Appellate Division confirms that:

• New York’s liberal discovery standards apply fully to religious institutions when courts employ neutral principles of law.
• Generalized First Amendment and religious-privilege objections will not block discovery aimed at proving institutional knowledge or notice.
• Priest-penitent, physician-patient, and psychologist-client privileges are narrowly construed to their statutory elements and must be proven document-by-document.
• Attorney-client and work-product protections remain robust, warranting tailored protective orders for truly legal communications and attorney mental impressions.

By compelling disclosure of non-privileged clergy file materials while protecting discrete legal communications, the court balanced transparency with legitimate confidentiality. The decision will shape discovery strategies in CVA litigation and beyond, guiding institutions, litigants, and trial courts toward precise, principle-driven privilege adjudication.