Published November 14th, 2017
“Watchtower has abused the discovery process. It has zealously advocated its position and lost multiple times. Yet, it cavalierly refuses to acknowledge the consequences of these losses and the validity of the court’s orders requiring it to produce documents…And, in a further act of defiance, Watchtower informed the court that it would not comply with the March 25, 2016 order requiring it to produce documents…”
So stated the California Fourth Court of Appeal in a decision where the Watchtower organization has been held responsible for refusal to hand over its database of child abuse files, specifically those it has been collecting since March of 2001. The court penalized Watchtower in the amount of $4,000 per day, a fine which has been accruing for over a year, and which may surpass two million dollars.
This is in addition to significant legal fees paid by Watchtower to Morris Polich & Purdy, the California firm retained for their defense. The November 9th ruling further stipulates that Watchtower must pay the legal costs incurred as a result of their appeal, a hefty price to pay for their adamant refusal to turn over child abuse files.
Abuse victim Osbaldo Padron filed suit against the Watchtower Organization following the discovery that Congregation elders in the Playa Pacifica Spanish Congregation, along with Watchtower officials in New York, had known for more than a decade that Gonzalo Campos had molested multiple boys. Neither the police nor child protective services were contacted by church elders, or by Watchtower. Instead, Campos was elevated from congregant, to Ministerial Servant, and finally to Elder by June of 1993.
Not long after Campos’ appointment, Padron was molested at just 7-8 years of age.
In 2011, Campos admitted on camera to allegations of pedophilia, but has since fled to Mexico and is presumed to be an active Jehovah’s Witness. The congregation elders who protected Campos, along with the Watchtower Bible and Tract Society are being held responsible for the willful neglect which led to the sexual abuse of multiple victims.
While some victims have already settled with Watchtower in private, undisclosed agreements, two victims of Campos opted to file civil lawsuits in an attempt to hold the Jehovah’s Witness organization accountable both financially and legally. The two victims are Jose Lopez and Osbaldo Padron.
Jose Lopez filed a civil suit in February of 2013, in which attorney Irwin Zalkin and his team obtained subpoenas for documents related to Watchtower’s knowledge of the prevalence of childhood sexual abuse within its organization. Additionally, Zalkin obtained an order to depose Governing Body Member Gerrit Losch as the Person Most Qualified (PMQ) to testify for Watchtower.
Watchtower refused to cooperate, failing to produce the requested documents in full, and Losch denied that he had any legal connection to Watchtower. In 2001, Watchtower removed Governing Body members from their New York and Pennsylvania corporations to insulate them from legal responsibility. The Superior Court of the State of California did not find this tactic amusing, and issued a default judgment for Lopez, awarding him 13.5 million dollars.
Watchtower’s Costly Mistake
Watchtower appealed the Lopez verdict and argued that the terminating judgment was unfair, that it did not give them a chance to defend their position. The court agreed that lesser sanctions should have been tried first in an attempt to pry loose those documents. Watchtower eventually released four years’ worth of heavily redacted files, from March 1997 to March 2001.
Why only four years?
Watchtower made a costly and damaging decision when it released a letter to all congregations dated March 14, 1997, in which congregation elders were advised to submit reports on all “former” or “known” child molesters who had relocated from a different congregation.
Congregations were instructed to allow all elders access to information regarding child molesters, while also forwarding details to Watchtower Headquarters inside a “special blue envelope.” Elders were instructed not to discuss this information with any congregation member.
This official edict from Watchtower provides the legal starting point for the document discovery process, despite the fact that Jehovah’s Witnesses had been collecting child abuse and other sensitive documents at headquarters for decades.
Faced with the choice of compliance or writing a check for 13.2 million dollars, Watchtower released those documents, but redacted them excessively, and stopped with March 2001. This was the year that the Christian Congregation of Jehovah’s Witnesses (CCJW) was formed. Watchtower’s legal team argues that once CCJW was formed, they no longer had access to or control over child abuse documents.
Meanwhile, victim Osbaldo Padron filed suit against Watchtower in September of 2013. Among the allegations were negligence; negligent supervision/failure to warn; negligent hiring/retention; negligent failure to warn, train, or educate; sexual battery; and sexual harassment.
Watchtower officials and multiple congregation elders had significant knowledge that Gonzalo Campos was a sexual predator, yet did nothing to protect Osbaldo Padron, the congregation, or the local community.
As with Lopez, Padron demanded that Watchtower release all of it’s child abuse documentation from March 1997 forward. Watchtower refused to comply, arguing 1st amendment protection, clergy-penitent privilege, and attorney-client privilege as a basis for non-compliance.
Senior Watchtower Service Department official Richard Ashe declared that Padron’s request for these documents was unreasonable and that it would take a full-time worker at headquarters up to 28 years to search through the files of over 14,400 congregations, and retrieve the abuse cases demanded by the plaintiff. The court rejected Watchtower’s arguments, including the attempt to disclose only documents from the state of California.
As mentioned earlier, Watchtower released redacted documents from the period of March 1997 to March 2001. Watchtower continued to maintain that it had no obligation to produce documents after March 2001, claiming that Watchtower and CCJW are separate entities.
The court-appointed discovery referee disagreed, describing Watchtower and CCJW as “alter egos.” The court agreed with the referee and issued an order dated March 25th, 2016, demanding a complete document release by Watchtower.
The legal battle continued, with the court ultimately deciding that sanctions against Watchtower were both justified and necessary. The court stated:
“In this case, there is a clear failure to comply with a discovery order on the part of Watchtower. First, Watchtower failed to properly comply with the court’s March 13, 2015 [order] and produced documents with excessive redactions. After the court adopted the Discovery Referee’s Recommendation as an order, Watchtower has unequivocally stated it will not comply. By the time of the hearing on the motion for sanctions, it will have been over a year since the initial order and almost three months since the Recommendation was adopted. In the period since the Recommendation was adopted, Watchtower has shown no effort or willingness to comply with the discovery order.“Based upon the history in this case and Watchtower’s statements at the April 8, 2016 [hearing], the court finds that Watchtower’s failure to comply is willful. Watchtower argues that its failure is not willful because it has no control over CCJW documents. However, Watchtower clearly has control over the documents it has already produced and could revise the redactions with regard to those documents. This is obviously and clearly within the scope of Watchtower’s powers which it chooses not to exercise. Continuing to repeat its prior unsuccessful arguments in opposition to the discovery order further illustrates Watchtower’s obstinacy in compliance. Further, based upon the unambiguous statements made by Watchtower’s counsel, there is no reasonable dispute that Watchtower is simply refusing even to attempt to comply with the court’s order.”
With this declaration, the court decided to punish Watchtower in the following manner:
The court therefore sanctioned Watchtower $2,000 per day for every day Watchtower did not produce responsive documents and $2,000 per day for every day Watchtower did not search for responsive documents.
This fine was deemed fair and just in consideration of the court’s awareness of more than 1.3 billion dollars worth of real estate owned by the Watchtower organization.
Estoppel Traps Watchtower
Not surprisingly, Watchtower strongly objected to being fined $4,000 per day for failure to produce documents related to child abuse. Unfortunately this objection violated the legal principle known as estoppel. According to the court:
“Judicial estoppel precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position.The doctrine’s dual goals are to maintain the integrity of the judicial system and to protect parties from opponents’ unfair strategies.”
The court explained further how Watchtower violated this legal principle:
“Here, we find all the elements of judicial estoppel present. Watchtower has taken two positions. In Lopez, supra, 266 Cal.App.4th 566, it argued monetary sanctions, untethered to the plaintiff’s reasonable costs, were appropriate. In the instant matter, Watchtower now claims the superior court was not authorized to issue such sanctions. Watchtower has taken these contrary positions in two separate cases before this court.”
The reality of the situation is that Watchtower’s attorneys were boxed in due to the $13.2 million dollar judgment in the Lopez case, and felt they had no other recourse but to claim that the court should have fined them a lesser penalty. But when they were assessed this lesser penalty in the Padron case, they strongly objected. The patience of California’s justice system had run thin, as the court finally declared:
“Here, it is beyond debate that Watchtower has abused the litigation process and has shown little respect for the superior court’s authority.”
Reaffirming that the financial penalties imposed by the Superior Court of California were justifiable, the court declared:
“Nonetheless, Watchtower refuses to comply with the court order and maintains the court was just wrong. In this sense, it refuses to acknowledge the authority of the court and repudiates the procedures and rules all litigants are supposed to follow in superior court. In these extreme circumstances, we conclude the superior court was authorized to issue the monetary sanctions”
It is clear that the California appellate court was well aware of Watchtower’s intentional obfuscation when it blurred the lines between the Watchtower Organization and the Christian Congregation of Jehovah’s Witnesses (CCJW). The attempt to claim that Watchtower had no access or control of documents possessed by CCJW was an attempt to mislead the court.
“The representations of Watchtower’s counsel as well as the declarations of Watchtower agents clearly indicate that Watchtower has access to responsive documents from 1997 to present. We thus conclude substantial evidence supports the discovery referee’s finding, adopted by the court, that Watchtower was in “custody and control” of responsive documents beyond the March 2001 creation of CCJW.”
Watchtower Versus Watchtower
Further substantiating the legal gamesmanship taking place in an attempt to circumvent justice and mislead the court, Watchtower sent a letter to its alter ego, CCJW, in a measure feigning compliance with the document production order of March 25th 2016.
The first letter, dated July 2nd 2016 was sent from Watchtower’s California law firm, Morris, Polich & Purdy, to Anthony P. La Rocco, attorney for CCJW:
This letter was followed by a reply from the firm representing CCJW, in which Watchtower’s California counsel was informed that CCJW was not a party to the Padron Case and had no obligation or duty to respond to the document production order:
Once again, the court was not tricked by these tactics, and called attention to Watchtower’s inconsistent stance:
“We find it curious that the existence of CCJW and the March 2001 cut off only became an issue after Watchtower produced documents and Padron complained that the production was not sufficient. It appears Watchtower argued that it had access to the documents after March 2001 when it was to its benefit to support its burden argument, but only after losing that argument, it claimed to not have access to documents after a certain point of time to justify its limited production. Such gamesmanship has no place in civil discovery. “
In other words – Watchtower originally claimed that it was excessively burdensome to search ALL their documents from 1997 to the present, revealing that they did indeed have possession of these documents. They then attempted an alternate strategy by declaring that they did NOT have access to these documents, and that CCJW could not legally produce them.
As a result of the proceedings outlined above, the Fourth Appellate District Court of Appeal has affirmed the lower court’s ruling that the Watchtower Bible and Tract Society of New York, Inc. is responsible for the payment of the $4,000 per day fine assessed back in 2016, along with all costs associated with this appeal.
The court concluded its judgment by stating:
“On the record before us, we are satisfied that the superior court’s order was not arbitrary, capricious, or whimsical. To the contrary, the superior court has shown great patience and flexibility in dealing with a recalcitrant litigant who refuses to follow valid orders and merely reiterates losing arguments. We therefore affirm.” [bold ours]
The judgment was entered November 9th 2017. Watchtower has 40 days to file a petition for review with the California Supreme Court. Jose Lopez and Osbaldo Padron continue their civil cases against Watchtower in the Superior Court of California, County of San Diego.
Read the complete appellate court judgment here