“The Court concludes that Watchtower has been deliberate in its violations of the Court’s orders, and the Plaintiffs’ right to discovery. Its claims that it could not understand the plain language in the Court’s orders are absurd and frivolous. Its decision to obstruct has wasted many hours of scarce time and resources for the Plaintiffs, and for the Court itself, and has prevented Nunez from preparing for trial, which is obviously Watchtower’s intent.”
-Judge Elizabeth Best, Montana Seventh Judicial District Court, July 22nd, 2021
On July 22nd, 2021, Montana Judge Elizabeth Best ordered a combination of fines and sanctions against the Watchtower Bible and Tract Society of New York, a corporation operated by Jehovah’s Witnesses since 1909.
According to the 9-page order issued by Judge Best, Jehovah’s Witnesses must pay $11,075 in legal fees along with a $500 per day fine for each day it violates the orders of the court to produce critical documents in the Nunez v. Watchtower civil case. The court ruled that Watchtower has been intentionally obstructive in their defiance of orders from May 28th and June 23rd of this year, and must retroactively pay the daily fine until it complies with the order.
As an additional penalty against the Jehovah’s Witness defendants, Judge Best ruled that Watchtower and the Christian Congregation of Jehovah’s Witnesses (CCJW) are “prohibited from arguing, making innuendo, mentioning, offering evidence of any “advice of counsel” defense, and from offering any evidence about the advice their attorneys gave them at any time before trial.”
This order is directly related to documents that were privately shared by Watchtower in Judge Manley’s chambers during the 2018 trial in Thompson Falls.
Why was Watchtower Fined? A Brief Case History
In 2016, Lexi Nunez filed a civil lawsuit against Jehovah’s Witnesses for Negligence Per Se, arguing that church elders and their parent corporation, Watchtower, violated Montana’s mandatory child abuse reporting laws. Elders in Thompson Falls claimed they were advised by Watchtower’s New York Legal Department that they had no legal obligation to report Lexi’s step-grandfather, Max Reyes, when they learned that he had abused Lexi’s aunt Holly and uncle Peter.
By preventing church elders from contacting law enforcement, Nunez was subjected to continued abuse by Reyes, despite the fact that the church had disfellowshipped Reyes for over a year.
The case went to trial in September 2018. Judge James Manley ruled prior to trial that the Jehovah’s Witnesses had violated Montana’s statutory reporting code, and the jury was instructed to determine whether the defendants acted with malice. The jury found the defendants guilty, assessing a total of $35 million dollars as a civil award to Nunez.
In January of 2020, the Montana Supreme Court, while sympathetic to Nunez, ruled that Watchtower had successfully navigated a loophole in the mandatory reporting act. The Court decreed that while the facts of the case were disturbing, the Jehovah’s Witness elders were acting according to their “established church practice” when they sealed off reports about the abuser, Max Reyes. Thus, the 2018 judgment was reversed.
Soon after the reversal, Nunez refiled an amended complaint, arguing that while statutory negligence was off the table, she could still argue common law negligence, which is independent of the issue of mandatory reporting. In other words, Nunez wanted her opportunity to demonstrate that Watchtower and the Thompson Falls elders were negligent on their own merits, after learning of Max Reyes’s propensity for abusing children.
The Court agreed and permitted Nunez to proceed on her assertions of common law negligence.
On April 16th, 2021, the case took a dramatic turn when attorneys for Nunez filed a motion to compel the Jehovah’s Witnesses to turn over documents that were revealed in Judge Manley’s chambers on September 23rd, 2018, the night before closing arguments in the original trial.
Watchtower attorney Joel Taylor produced several pages of documents from a CM (Child Maltreatment) telephone log in an effort to persuade Judge Manley that Watchtower was justified in arguing lack of malice by congregation elders – because those pages purportedly revealed a good faith effort by elders to seek legal advice.
Later that evening, Taylor emailed Nunez’s attorneys just three of ten pages that resembled a case file on Max Reyes.
Those pages tipped off attorneys for Nunez that there was something more ominous lurking beneath the “telephonic log.” It was clear that a database of child abusers and victims is a tool used by Jehovah’s Witnesses in the management of their global religious organization.
This legal strategy proved to be a monumental challenge for Watchtower, as they never expected a second trial and the document discovery that would follow.
Hence, Nunez initiated discovery this year on all 10 pages, along with any supplemental information related to a Child Abuse/Maltreatment database.
As reported by JW Watch on April 30th, those documents suggest the extent of data collected by Jehovah’s Witnesses about child abusers and their victims.
The April 16th motion to compel production of these documents launched a substantial legal battle between Nunez and Watchtower that has led to the disclosure that even more documents exist about the Nunez case. Watchtower insists that these documents are irrelevant and privileged and should not be disclosed to the Plaintiff.
Judge Elizabeth Best, assigned to the 2022 trial, disagrees.
On May 26th, 2021, Judge Best issued an 11-page order compelling production of all documents sought by Nunez, and chastised Watchtower for its abuse of the discovery process. Nunez’s attorneys had argued that Taylor could not selectively turn over 3 of 10 pages to the plaintiff at the 2018 trial, then claim attorney-client privilege on the other 7 pages.
On page 9 of the Order, the Court stated: “Defendants’ attempt, now, to obstruct disclosure of the entire document, which on the face of the previously disclosed three pages constitutes attorney-client communications and legal advice, by cloaking it as “privileged,” is, at best, disingenuous. Defendants may not cherry pick portions of documents for which they waive privilege because it works to their strategic advantage, while withholding other parts because it does not. Defendants have clearly waived any claim of privilege.”
The Judge also addressed Watchtower’s continued claims that the documents do not form a part of any database of information.
“Defendants object that the discovery request is “vague and ambiguous,” representing that they do not know what the words “CM Database” mean. The Court finds this objection to be frivolous and interposed for an improper purpose. It is clear to the Court that the Defendants understand what the Plaintiff is seeking, regardless of whether they choose to call the information sought something different. The Defendants’ counsel discussed the “CM Database” with the Court during the Rule 16 conference, which led to the Court’s scheduling order, and never objected that they did not understand the term.”
Judge Best concluded her Order by advising Watchtower that the Court “will not tolerate further obstruction and will consider sanctions for similar conduct in the future”
Watchtower continued to defy the judge, and instead of producing the 10 pages to Nunez, they delayed the process further by submitting the pages to the Court itself for in camera review. (Inspection by judge)
On June 17th, 2021, Judge Best issued yet another court order, this time compelling production of the documents and issuing legal and financial penalties to Watchtower for their obstruction. In her 8-page order, the judge condemned Watchtower’s behavior and fined the religious organization all costs and attorneys fees associated with their motion to compel document production. The legal fees alone were $11,075.00.
Meanwhile, prior to the June 17th Order, Watchtower had complicated their case even further by submitting a supplemental privilege log to the court, a document that disclosed the existence of 22 new pages of documents previously unknown to Nunez. Many of the records concern legal advice provided to the Polson Montana congregation when elders conferred with Watchtower about Peter McGowan. As previously reported by JW Watch, Peter was not only a victim of Max Reyes, he was also responsible for years of sexual abuse of his own niece, Lexi.
The existence of these documents raises serious questions about why this information was not turned over to Nunez’s attorneys in 2018. Watchtower’s position is that they are irrelevant to the case, and protected.
The Harshest of All Judgments
Finally, on July 22nd, 2021 the Montana Court imposed what might be one of the severest censures of a defendant and counsel in Montana history. The following is an excerpt from the Judge’s order:
“This Court issued Orders on May 28, 2021 (Doc. 210) and on June 23, 2021 (Doc. 214) in which it set forth relevant law on discovery and its expectations of all parties during discovery. The May 28, 2021, Order compelled production of certain specific documents by Watchtower. Watchtower not only flouted its disobedience of that Order, in subsequent pleadings it asserted that an order issued by Judge Manley (Doc. 116) was the “law of the case” and that, therefore, it is “confused” about this Court’s orders, and seeks “guidance” before producing documents the Court has ordered produced. The Court finds Watchtower’s arguments to be frivolous and specious, interposed solely to obstruct and delay.“
“Based on the Court’s review of Watchtower’s documents submitted for in camera review, the Court immediately recognized Watchtower’s obstruction and issued another Order, this time assessing sanctions. (Doc. 214). Watchtower defied that Order and continues to refuse to produce 22 pages of documents, and unabashedly misrepresents the truth. As to documents the Court expressly ordered it to produce, Watchtower asserts that it complied and is simply waiting for the Court to address its embellished claims of privilege, and its “confusion” and its claim that a previous order issued by Judge Manley, before the first trial, supersedes this Court’s Orders.”
“Watchtower’s representations raise other very serious concerns about its candor with the Court from the outset. Before the Court’s first Order of May 28, 2021, counsel Joel Taylor (Taylor), on behalf of Watchtower, signed and filed an affidavit1 in which he represented, inter alia, that the fourth page of one document at issue “contains no information.” The document, later reluctantly produced, contains information about Max Reyes abusing Peter McGowan, and notably contains blank spaces in response to a question, “Efforts to protect the victim?” which is obviously potentially probative of Nunez’s claims of breach of a duty to protect minors. Failure to answer such a question is, actually, “information,” which is apparent to any competent lawyer.”
“Likewise, Watchtower initially opposed the Motion to Compel by representing that withheld documents were “unrelated” to previously disclosed documents, and Taylor attested to the truth of this representation in his affidavit. It is clear that this representation was false. Documents 1a and 1b relate to Max’s abuse of Peter and Holly beginning in 1994.2 Watchtower pretended, in its initial briefing, not to understand the term, “database.” It turns out, from the few documents now produced, that they were indeed part of an “electronic database” -in Watchtower’s own words.“
“Nunez’s discovery requests were based on an email from Watchtower lawyer Taylor, in which he described them as “the other 7 pages involve Peter/Alexis” and “the remaining pages involve Peter Jr. ‘s confession [to] the Polson Congregation regarding his abuse of Alexis.”
“After the Court’s first order to produce the documents, Watchtower produced only seven pages of documents, none of which relate to Peter abusing Alexis. Rather, the produced documents relate to evidence already known to Nunez, the abuse of Peter, Holly, and Alexis by Max Reyes. The missing pages regarding Peter’s abuse of Alexis have not been produced at all. In sum, then, Watchtower has misrepresented to the Court that it has even partially complied with the Court’s Order.”
“On June 11, 2021 (after the May 28, 2021, Order), Watchtower identified an additional 22 pages of documents that had, until that date, never been disclosed to Nunez or the Court. Simultaneously, it filed a new and improved privilege log listing documents in random order, many of which clearly refer to evidence of Peter abusing Alexis, which the Court had ordered produced. Appallingly, Watchtower continues to withhold documents about Peter’s abuse of Alexis, and appears to be attempting a sleight of hand by offering a modified privilege log.”
“Watchtower has reasserted its claims of privilege, ignored the Court’s Order overruling those claims, asserted “confusion” and lack of understanding of the Orders [asserting that it does not “understand” whether the Court’s Orders apply to congregations, even though they briefed that very issue and claimed privilege for congregations starting in February 2021], and simultaneously inconsistently asked the Court to alter or amend Orders which it feigns not to understand. These arguments are frivolous, neither based on fact or law, and will not be tolerated, as the Court has previously warned. Watchtower’s defiance is breathtaking and must, as the Montana Supreme Court has often said, not be dealt with leniently. Instead, courts are instructed to “intently punish transgressors rather than patiently encouraging their cooperation.””
“The Court concludes that Watchtower has been deliberate in its violations of the Court’s orders, and the Plaintiffs’ right to discovery. Its claims that it could not understand the plain language in the Court’s orders are absurd and frivolous. Its decision to obstruct has wasted many hours of scarce time and resources for the Plaintiffs, and for the Court itself, and has prevented Nunez from preparing for trial, which is obviously Watchtower’s intent. Every time a party chooses attrition and stonewalling, not only the opposing party in the case involved, but parties in numerous other cases lose opportunities to exercise their fundamental right to access to the Courts.” [highlighted areas by JW Watch]
The conduct and actions of Watchtower’s legal team are so serious that Judge Best warned the Jehovah’s Witnesses that such violations of court orders could lead to an order of judgment by default, where the defendants would lose the case without ever facing a jury. This could potentially cost Watchtower millions, if not tens of millions of dollars. In 2015, a California court awarded a judgment by default against Watchtower for similar violations of the discovery process.
After losing appeals to the California and U.S. Supreme Courts, Watchtower paid more than 6 million dollars to the victim in judgment and interest.
Montana Judge Elizabeth Best concluded her Order by enumerating both financial and legal sanctions against Watchtower. Aside from the economic penalties, Watchtower will be barred from offering evidence that elders relied upon “advice of counsel” as a defense, or that they believed they were complying with the law when they failed to protect Lexi Nunez from the sexual abuse by Max Reyes.
As of the date of this article, Watchtower continues in contempt of the court’s orders and has not provided Nunez any further documents.