The Watcher Cat

The Watcher Cat

Sunday, April 22, 2012

Follow Up: SNAP Deposition Round 2

In the absence of a written order, it's a little hard to know what to make of this story. On the one hand, the judge in the lawsuit against Fr. Joseph Tierney and the Diocese of Kansas City-St.Joseph has ordered a second deposition of David Clohessy, Director of the Survivors Network of those Abused by Priests ("SNAP"). As I wrote in my prior post discussing the first day of the deposition, not only did Catholic League President William Donoghue misstate the testimony and its legal import in his eagerness to brand Clohessy a "con man," but many of the questions did not go to relevant issues in the litigation, and seemed to me to be more aimed at discrediting SNAP than at eliciting evidence for the case against Tierney and the Diocese, and suggested to me that the deposition was abused to harass SNAP.

On the other hand, the judge has said that she intends to "limit the original document request to several broad categories related to sexual misconduct by priests in the Kansas City-St. Joseph diocese," focusing on the question of repressed memory, specifically regarding the plaintiff's claim that he had repressed his memories of the abuse, and was therefore, under Missouri law, entitled to a tolling--a partial judicial waiver--off the statute of limitations. s the judge is quoted as saying, "I believe they [lawyers for Tierney and the diocese] are entitled to have information on repressed memory." In another article, from the Kansas City Star, the judge is quoted as saying "that she planned to order another deposition for Clohessy and possibly have a retired judge sit in to rule on disputes over whether documents or answers could be properly disclosed and answered."

(Let me point out that My Best Critic has subsequently pointed out in an off-the-record conversation that I did not mention in my prior post the issue which had led to the deposition being ordered over SNAP's objection, whether SNAP had evidence Well pointed out, old friend, and I should have. It wasn't directly on point with respect to my analysis, but did leave a hole as to the question--which I should have assessed--as to whether any of the deposition went to legitimate issues in the litigation.)

So here's the problem, for me: On the one hand, I can see how, if SNAP has evidence that the plaintiff in this case, and the related other cases against Tierney, did not repress their memories, and therefore did not qualify for a toll of the statute of limitations, that would be germane. But at Clohessy's first deposition, as I have already pointed out, neither Tierney's nor the Diocese's counsel even asked about any communications SNAP, Clohessy or SNAP's President, Barbara Blaine had with the plaintiff; only Clohessy's counsel asked this question. As the Kansas City Star article suggests, defense counsel is arguing that “SNAP, through Mr. Clohessy, could be routinely advising plaintiff and others to claim repressed memory to evade the statute of limitations. Defendants are entitled to discovery on that issue.” (At the first deposition, Clohessy denied that it does, saying "we provide no instructions to anybody about repressed memory.") But, since SNAP isn't a party to this action, isn't that only true if it has so advised the plaintiff(s)? And since Clohessy wasn't even asked questions to elicit that information, how is the broader question, and old records concerning non-plaintiff complainants from within the Diocese to SNAP proper discovery?

The judge may just be trying to make sure that all legitimate evidence is gathered, but counsel for the defense seems to me to be using the coercive process of discovery to harass a non-party and to dissuade victims from seeking its assistance. The court is, it seems to me, obligated to protect SNAP and its clientele against that abuse of the process.

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