Preview
BER-L-005508-21 11/07/2023 5:48:40 PM Pg 1 of 6 Trans ID: LCV20233316950
ROBINS KAPLAN LLP
Rayna E. Kessler, Esq.
NJ ID No. 031782010
1325 Avenue of the Americas, Suite 2601
New York, New York 10019
Telephone: (212) 980-7431
Facsimile: (212) 980-7499
Email: RKessler@RobinsKaplan.com
THE ZALKIN LAW FIRM, P.C.
Elizabeth A. Cate, Esq. (admitted pro hac vice)
10 Times Square
1441 Broadway, Suite 3147
New York, NY 10018
Telephone: (858) 259-3011
Email: elizabeth@zalkin.com
Attorneys for Corinne Pandelo
:
CORINNE PANDELO, : SUPERIOR COURT OF NEW JERSEY
: LAW DIVISION - BERGEN COUNTY
Plaintiff, :
: DOCKET NO. BER-L-005508-21
v. :
:
THE GOVERNING BODY OF : CIVIL ACTION
JEHOVAH’S WITNESSES; :
FAIRLAWN CONGREGATION OF :
JEHOVAH’S WITNESSES; :
WATCHTOWER BIBLE AND TRACT :
SOCIETY OF NEW YORK, : CERTIFICATION OF RAYNA E.
HACKENSACK CONGREGATION OF : KESSLER, ESQ., IN SUPPORT OF
JEHOVAH’S WITNESSES; and : MOTION TO COMPEL DEFENDANTS
JOHN AND JANE DOES 1-100, whose : TO PRODUCE DISCOVERY
identities are presently unknown to Plaintiff :
in their official and individual capacities, :
:
Defendants. :
:
:
:
BER-L-005508-21 11/07/2023 5:48:40 PM Pg 2 of 6 Trans ID: LCV20233316950
I, RAYNA E. KESSLER, ESQ., hereby certifies as follows:
1. I am an attorney at law of the law of the State of New Jersey and partner at the law
firm Robins Kaplan LLP, attorneys for Plaintiff Corinne Pandelo (“Plaintiff”). I am personally
familiar with the facts and circumstances of this matter.
2. I make this Certification in support of Plaintiff’s Motion to Compel Defendants to
Produce Discovery.
3. On August 18, 2021, Plaintiff filed a Complaint in the Superior Court of New Jersey
- Bergen County against Defendants The Governing Body of Jehovah’s Witnesses1 ; Fairlawn
Congregation of Jehovah’s Witnesses (“Fairlawn Congregation”); Watchtower Bible and Tract
Society of New York (“Watchtower”); and Hackensack Congregation of Jehovah’s Witnesses
(“East Hackensack Congregation”)2. See Trans ID: LCV20211914643.
4. On October 13, 2021, Plaintiff filed her First Amended Complaint attaching her
First Set of Requests for Production of Documents (“RFP”) and Request for Admissions (“RFA”).
See Trans ID: LCV20212383924.
5. On December 10, 2021, Defendant Watchtower filed its Answer to the Amended
Complaint with affirmative defenses (see Trans ID: LCV20212896479) and responded to
Plaintiff’s First Set of RFPs and RFAs. A true and correct copy of Watchtower’s responses are
attached hereto as Exhibit A.
6. On January 31, 2022, Defendant East Hackensack filed its Answer to the Amended
Complaint with affirmative defenses (see Trans ID: LCV2022410677) and responded to Plaintiff’s
1
On May 18, 2022, Judge Estela M. De La Cruz, J.S.C., entered an order dismissing the First
Amended Complaint against the Governing Body of Jehovah’s Witnesses.
2
Counsel for Defendant named as “Hackensack Congregation of Jehovah’s Witnesses” contends
that the proper name for this Defendant is “East Hackensack Congregation of Jehovah’s Witnesses.”
2
BER-L-005508-21 11/07/2023 5:48:40 PM Pg 3 of 6 Trans ID: LCV20233316950
First Set of RFPs with its document production and RFAs on February 7, 2022. A true and correct
copy of East Hackensack’s responses are attached hereto as Exhibit B.
7. On June 29, 2022, Defendant Fairlawn Congregation filed its Answer to the
Complaint (see Trans ID: LCV20222433434), responded to Plaintiff’s First Set of RFAs on
December 19, 2022, and responded to Plaintiff’s First Set of RFPs on January 11, 2023. A true
and correct copy of Fairlawn’s responses is attached hereto as Exhibit C.
8. In letters dated July 21, 2022, Plaintiff’s counsel raised the issue of Watchtower’s
and East Hackensack’s insufficient responses and objections to Plaintiff’s First Set of RFPs and
requesting a privilege log from East Hackensack. A true and correct copy of these letters is attached
hereto as Exhibit D.
9. On September 2, 2022, counsel for Watchtower and East Hackensack produced a
privilege log for Watchtower’s anticipated document production and indicated that East
Hackensack did not withhold any documents from its production on the ground of privilege. A
true and correct copy of this letter is attached hereto as Exhibit E.
10. In a letter dated October 24, 2022, Plaintiff’s counsel asked whether East
Hackensack intended to stand on its objections to RFP Numbers 4 and 5 and challenged
Watchtower’s privilege log. A true and correct copy of this letter is attached hereto as Exhibit F.
11. On December 5, 2022, counsel for Watchtower and East Hackensack provided an
amended privilege log for Watchtower's anticipated document production and stated East
Hackensack intended to stand on its objections to Plaintiff's RFP Numbers 4 and 5. A true and
correct copy of this letter is attached hereto as Exhibit G.
3
BER-L-005508-21 11/07/2023 5:48:40 PM Pg 4 of 6 Trans ID: LCV20233316950
12. On September 25, 2023, Fairlawn produced its first set of documents with a
privilege log in response to Plaintiff’s First Set of RFPs. A true and correct copy of the cover letter
and privilege log is attached hereto as Exhibit H.
13. On September 28, 2023, Watchtower produced its first set of documents in response
to Plaintiff’s First Set of RFPs.
14. In letters to Defendants Watchtower and East Hackensack dated October 24, 2023,
Plaintiff’s counsel raised Watchtower’s and East Hackensack’s improper redactions and
incomplete responses to RFP Number 4 and 5. As of the date of filing this Motion, Plaintiff has
not received properly redacted documents from Watchtower or East Hackensack. A true and
correct copy of these letters is attached hereto as Exhibit I.
15. On October 30, 2023, counsel for Watchtower and East Hackensack informed
Plaintiff that they intended to produce a redaction log later in the week. Plaintiff has not received
a redaction log in compliance with Paragraph 18 of the Consent Order as of the date of filing this
Motion. A true and correct copy of this email correspondence is attached hereto as Exhibit J.
16. More than a year after Plaintiff filed her First Amended Complaint, Defendant
Fairlawn Congregation responded to Form “C” Interrogatories on October 28, 2022. A true and
correct copy of the responses is attached hereto as Exhibit K.
17. Defendants East Hackensack Congregation and Watchtower provided responses to
the Form “C” Interrogatories on October 30, 2023. A true and correct copy of these responses is
attached hereto as Exhibit L.
18. On November 23, 2022, Plaintiff sent a letter to Defendant Fairlawn
Congregation’s counsel explaining the deficiencies in Fairlawn’s responses to the Form “C”
4
BER-L-005508-21 11/07/2023 5:48:40 PM Pg 5 of 6 Trans ID: LCV20233316950
Interrogatory Numbers 3 and 7. A true and correct copy of the letter is attached hereto as Exhibit
M.
19. Following Plaintiff’s deficiency letter dated November 23, 2022, counsel for both
parties had a telephone call in which Fairlawn Congregation’s counsel agreed to supplement
responses to Interrogatories Numbers 3 and 7. Fairlawn Congregation never served any
supplemental responses.
20. On October 26, 2023, counsel for Plaintiff sent another letter to counsel for
Fairlawn, again raising the issue of the insufficient interrogatory responses, referring counsel to
the explanation of those deficiencies laid out in the November 23, 2022, correspondence. Further
in this letter, Plaintiff’s counsel challenged the assertion of cleric-penitent privilege over the two
documents identified on Fairlawn’s privilege log and addressed Fairlawn Congregations failure to
comply with its discovery obligations in responding to Plaintiff’s First Set of RFP Numbers 4, 5,
9, 10, 11, 12, 18 and 21. Plaintiff’s counsel advised Fairlawn that Plaintiff would be filing a motion
to compel if Fairlawn did not withdraw the asserted privilege and produce both documents in un-
redacted form. As of the time of filing this motion, Fairlawn has not responded to the October 26,
2023, letter or otherwise supplemented any of its discovery responses or document production. A
true and correct copy of this letter is attached hereto as Exhibit N.
21. A true and correct copy of the unpublished decision Hansen v. Rite Aid Corp., No.
A-2972-13T3, 2015 WL 9853068, at *4 (App. Div. Jan. 20, 2016) referenced in Plaintiff
Memorandum of Law in Support is attached hereto as Exhibit O.
22. For the reason stated herein, Plaintiff respectfully requests that this Court issue an
Order compelling Defendants Watchtower, East Hackensack, and Fairlawn to produce documents
responsive to Plaintiff’s First Set of RFPs Numbers 4 and 5 relating to complaints or allegations
5
BER-L-005508-21 11/07/2023 5:48:40 PM Pg 6 of 6 Trans ID: LCV20233316950
of other victims of sexual abuse committed by Clement Pandelo; compelling Defendants
Watchtower and East Hackensack to comply with Paragraph 18 of the Consent Order and include
the redacted documents in its privilege log; and compelling Defendant Fairlawn to produce in full
any documents withheld on the basis of cleric-penitent privilege; and compel Defendant Fairlawn
Congregation to respond fully to Plaintiff’s Form C Interrogatories Numbers 3 and 7.
I hereby certify that the foregoing statements made by me are true. I am aware that if any
of the foregoing statements made by me are willfully false, I am subject to punishment.
Dated: November 7, 2023 By: /s/Rayna E. Kessler
Rayna E. Kessler, Esq.
NJ ID No. 031782010
ROBINS KAPLAN LLP
1325 Avenue of the Americas, Suite 2601
New York, NY 10019
Telephone: (212) 980-7431
Facsimile: (212) 980-7499
Email: RKessler@RobinsKaplan.com
Attorneys for Plaintiff Corinne Pandelo
6
BER-L-005508-21 11/07/2023 5:48:40 PM Pg 1 of 16 Trans ID: LCV20233316950
ROBINS KAPLAN LLP
Rayna E. Kessler, Esq.
NJ ID No. 031782010
1325 Avenue of the Americas, Suite 2601
New York, New York 10019
Telephone: (212) 980-7431
Facsimile: (212) 980-7499
Email: RKessler@RobinsKaplan.com
THE ZALKIN LAW FIRM, P.C.
Elizabeth A. Cate, Esq. (admitted pro hac vice)
10 Times Square
1441 Broadway, Suite 3147
New York, NY 10018
Telephone: (858) 259-3011
Email: elizabeth@zalkin.com
Attorneys for Corinne Pandelo
:
CORINNE PANDELO, : SUPERIOR COURT OF NEW JERSEY
: LAW DIVISION - BERGEN COUNTY
Plaintiff, :
: DOCKET NO. BER-L-005508-21
v. :
:
THE GOVERNING BODY OF : CIVIL ACTION
JEHOVAH’S WITNESSES; :
FAIRLAWN CONGREGATION OF :
JEHOVAH’S WITNESSES; :
WATCHTOWER BIBLE AND TRACT :
SOCIETY OF NEW YORK, : PLAINTIFF’S MEMORANDUM OF LAW
HACKENSACK CONGREGATION OF : IN SUPPORT OF MOTION TO COMPEL
JEHOVAH’S WITNESSES; and : DEFENDANTS TO PRODUCE
JOHN AND JANE DOES 1-100, whose : DISCOVERY
identities are presently unknown to Plaintiff :
in their official and individual capacities, :
:
Defendants. :
:
:
:
BER-L-005508-21 11/07/2023 5:48:40 PM Pg 2 of 16 Trans ID: LCV20233316950
PRELIMINARY STATEMENT
This case arises out of the childhood sexual abuse perpetrated on Plaintiff Corinne Pandelo
(hereinafter, “Plaintiff”) by Clement (“Tino”) Pandelo, a former agent of Defendants Watchtower
Bible and Tract Society of New York, Inc. (hereinafter, “Watchtower”), Fairlawn Congregation of
Jehovah’s Witnesses (hereinafter, “Fairlawn”), and East Hackensack Congregation of Jehovah’s
Witnesses (named in the complaint as Hackensack Congregation of Jehovah’s Witnesses)
(hereinafter, “East Hackensack”) (collectively, “Defendants”). Now an adult, Plaintiff brought this
suit pursuant to New Jersey’s Child Sexual Abuse Act (“CSAA”) which revived previously time-
barred civil claims for childhood sexual abuse for two years, commencing on December 1, 2019.
Defendants have failed to produce certain documents and/or respond sufficiently to
uniform interrogatories, all of which are crucial to the prosecution of Plaintiff’s claims and are
relevant to Defendants’ affirmative defenses asserted in their Answers. Defendants’ failure to
produce crucial documents, sufficiently respond to interrogatories, and lack of good faith efforts
to meaningfully resolve discovery issues without Court intervention has forced Plaintiff to bring
this instant motion. As such, Plaintiff, by and through her attorneys, Robins Kaplan, LLP and the
Zalkin Law Firm, P.C., hereby submit this Motion to Compel seeking an Order that Defendants
comply with discovery obligations and remedy discovery deficiencies set forth in detail below.
PROCEDURAL AND FACTUAL BACKGROUND
On August 18, 2021, Plaintiff filed a Complaint in the Superior Court of New Jersey -
Bergen County, alleging that Defendants are liable for the injuries she suffered as a result of the
sexual abuse by Clement Pandelo, a former agent of Defendants. The current operative pleading,
the First Amended Complaint, was filed and served on October 13, 2021. Plaintiff attached her
2
BER-L-005508-21 11/07/2023 5:48:40 PM Pg 3 of 16 Trans ID: LCV20233316950
First Set of Requests for Production of Documents (“RFPs”) and Requests for Admission (“RFAs”)
to the First Amended Complaint.
Defendant Watchtower filed its Answer to Plaintiff’s Amended Complaint with affirmative
defenses and responded to Plaintiff’s First Set of RFPs and RFAs on December 10, 2021. See
Certification of Rayna E. Kessler (“Kessler Cert.”) ¶ 5, Ex. A. Defendant East Hackensack filed
its Answer to Plaintiff’s Amended Complaint with affirmative defenses on January 31, 2022, and
responded to Plaintiff’s First Set of RFPs with its document production and RFAs on February 7,
2022. See Kessler Cert., ¶ 6, Ex. B. Defendant Fairlawn filed its Answer to Plaintiff’s Complaint
with affirmative defenses on June 29, 2022, responded to Plaintiff’s First Set of RFAs on
December 19, 2022, and responded to Plaintiff’s First Set of RFPs on January 11, 2023. See
Kessler Cert., ¶ 7, Ex. C.
In letters dated July 21, 2022, Plaintiff’s counsel raised the issue of Watchtower's and East
Hackensack's insufficient responses and objections to Plaintiff's First Set of RFPs and requesting
a privilege log from East Hackensack. See Kessler Cert., ¶ 8, Ex. D. In response, on September 2,
2022, counsel for Watchtower and East Hackensack produced a privilege log for Watchtower's
anticipated document production and indicated that East Hackensack did not withhold any
documents from its production on the ground of privilege. See Kessler Cert., ¶ 9, Ex. E. In a letter
dated October 24, 2022, Plaintiff's counsel asked whether Congregation intended to stand on its
objections to RFP Numbers 4 and 5 and challenged Watchtower's privilege log. See Kessler Cert.,
¶ 10, Ex. F. On December 5, 2022, counsel for Watchtower and East Hackensack provided an
amended privilege log for Watchtower's anticipated document production and stated East
Hackensack intended to stand on its objections to Plaintiff's RFP Numbers 4 and 5. See Kessler
Cert. ¶ 11, Ex. G.
3
BER-L-005508-21 11/07/2023 5:48:40 PM Pg 4 of 16 Trans ID: LCV20233316950
Aside from East Hackensack's redacted document production dated February 7, 2022, the
parties did not exchange documents until after the Court entered the Stipulated Consent Order
Regarding Preservation of Confidential Information ("Consent Order") (see Trans ID:
LCV2023856021). On September 25, 2023, Fairlawn produced its first set of documents with a
privilege log in response to Plaintiff's First Set of RFPs. See Kessler Cert., ¶ 12, Ex. H. On
September 28, 2023, Watchtower produced its first set of documents in response to Plaintiff's First
Set of RFPs. See Kessler Cert., ¶ 13.
In letters to Defendants Watchtower and East Hackensack dated October 24, 2023,
Plaintiff’s counsel raised Watchtower and East Hackensack’s improper redactions and incomplete
responses to RFP Numbers 4 and 5. See Kessler Cert., ¶ 14, Ex. I. As of the date of filing of this
Motion, Plaintiff has not received properly redacted documents from Watchtower or East
Hackensack. Id.
More than a year after Plaintiff filed her First Amended Complaint, triggering Fairlawn’s
obligation to provide responses to Form “C” Interrogatories, Fairlawn provided responses on
October 28, 2022. See Kessler Cert., ¶ 16, Ex. K. East Hackensack Congregation and Watchtower
provided responses to Form “C” Interrogatories on October 30, 2023. See Kessler Cert., ¶ 17, Ex.
L.
On November 23, 2022, counsel for Plaintiff sent a letter to Fairlawn’s counsel explaining
the deficiencies in Fairlawn’s responses to the Form “C” Interrogatories Numbers 3 and 7. See
Kessler Cert., ¶ 18, Ex. M. During a follow up phone call, Fairlawn’s counsel agreed to supplement
the responses, but never did. See Kessler Cert., ¶ 19. On October 26, 2023, counsel for Plaintiff
sent another letter to counsel for Fairlawn, again raising the issue of the insufficient interrogatory
4
BER-L-005508-21 11/07/2023 5:48:40 PM Pg 5 of 16 Trans ID: LCV20233316950
responses, referring counsel to the explanation of those deficiencies laid out in the November 23,
2022, correspondence. See Kessler Cert., ¶ 20, Ex. N.
In the letter dated October 26, 2023, Plaintiff’s counsel also challenged the assertion of
cleric-penitent privilege over the two documents identified on Fairlawn’s privilege log and
requested a response by October 30, 2023. Id. Plaintiff’s counsel advised Fairlawn that Plaintiff
would be filing a motion to compel if Fairlawn did not withdraw the asserted privilege and produce
both documents in un-redacted form. Id. As of the time of filing this Motion, Fairlawn has not
responded to the October 26, 2023, letter or otherwise supplemented any of its discovery responses
or document production. Id.
LEGAL STANDARD
Under Rule 4:10-2(a), “[p]arties may obtain discovery regarding any matter, not privileged,
which is relevant to the subject matter involved in the pending action, whether it relates to the
claim or defense of the party seeking discovery or to the claim or defense of any other party.” In
resolving a discovery dispute, the threshold inquiry is potential relevance. In re Liquidation of
Integrity Ins. Co., 165 N.J. 75, 82 (2000). Relevant evidence is “evidence having a tendency in
reason to prove or disprove any fact of consequence to the determination of the action.” N.J.R.E.
401. In the context of pretrial discovery in a civil case, however, relevance is construed more
broadly than it is under N.J.R.E. 401. Hansen v. Rite Aid Corp., No. A-2972-13T3, 2015 WL
9853068, at *4 (App. Div. Jan. 20, 2016). “Under Rule 4:10-2(a), the test is whether the
information is useful, or if it relates to issues in the case or to the credibility of a party.” Id.; see
also Kessler Cert., ¶ 21, Ex. O.
As a general matter, “New Jersey’s discovery rules are to be construed liberally in favor of
broad pretrial discovery.” Payton v. New Jersey Tpk. Auth., 148 N.J. 524, 535 (1997) (citing
5
BER-L-005508-21 11/07/2023 5:48:40 PM Pg 6 of 16 Trans ID: LCV20233316950
Jenkins v. Rainner, 69 N.J. 50, 56 (1976) (“Our court system has long been committed to the view
that essential justice is better achieved when there has been full disclosure so that the parties are
conversant with all the available facts.”)). Where the plaintiff can demonstrate a substantial need
for the requested materials and can demonstrate an undue hardship and inability to obtain them
without disclosure by the defendant, the materials are discoverable. Jenkins, 69 N.J. at 57–58. A
party may “obtain relief from the court to limit discovery” only “in appropriate situations.” Serrano
v. Underground Utilities Corp., 407 N.J. Super. 253, 267 (App. Div. 2009). But, “[w]hen
examining a party’s request to restrict pretrial discovery, the principle guiding the court should be
to generally permit the widest latitude in the use of available discovery tools.” Marrero v. Feintuch,
418 N.J. Super. 48, 60 (App. Div. 2011) (citing Blumberg v. Dornbusch, 139 N.J. Super. 433, 438
(App. Div. 1976)).
ARGUMENT
I. Defendants Must Produce Documents Relating to Complaints or Allegations of Other
Victims of Sexual Abuse Committed by Clement Pandelo.
In her discovery requests, Plaintiff sought documents related to other incidents of sexual
abuse committed by Clement Pandelo as well as Defendants’ response to those incidents. See
Trans ID: LCV20212383924 at 54-56, Plaintiff’s Demand for Production of Documents, First Set,
Numbers 4 and 5. In response, Defendants objected to Plaintiff’s request and produced documents
related solely to Plaintiff’s abuse by Clement Pandelo. During meet-and-confer efforts, Plaintiff
asked Defendants to confirm whether it had withheld any documents responsive to Plaintiff’s
request on the basis of any of its objections. See Kessler Cert., ¶¶ 8, 10, 14. Watchtower and East
Hackensack responded that they intended to stand on their objections to Plaintiff’s request and did
not confirm whether they had withheld any otherwise responsive documents. See Kessler Cert., ¶
6
BER-L-005508-21 11/07/2023 5:48:40 PM Pg 7 of 16 Trans ID: LCV20233316950
9, 11. 1 As a result of Defendants’ responses, Plaintiff is unaware if additional responsive
documents even exist, and if so, why they are being withheld. As demonstrated in detail below,
Plaintiff is entitled to the evidence requested, and there is no valid objection upon which the
evidence may be withheld.
“The broadest possible latitude should be accorded pretrial discovery.” Gureghian v.
Hackensack Hosp., 109 N.J. Super. 143, 146 (Law. Div. 1970). If evidence is “…relevant to the
issues of the pending action and it can reasonably lead to the discovery of admissible evidence, it
is capable of discovery even though it might be inadmissible in the trial of the action.” Id. at 148.
To prove her claim of negligence, Plaintiff must show that Defendants owed her a duty of
care. Vizzoni v. B.M.D., 459 N.J. Super. 554, 568 (App. Div. 2019). One way in which Plaintiff
can establish that Defendants owed her a duty is by showing that it was reasonably foreseeable to
Defendants that Clement Pandelo posed Plaintiff a risk of harm. Clohesy v. Food Circus
Supermarkets, Inc., 149 N.J. 496, 502 (1997). Documents and information related to Clement
Pandelo’s other victims of sexual abuse are undoubtedly discoverable in that they are reasonably
calculated to lead to this notice evidence. For example, if Defendants investigated an incident of
sexual abuse prior to Plaintiff’s abuse, documents relating to this investigation would allow
Plaintiff to prove that it was reasonably foreseeable to Defendants that Clement Pandelo was a
dangerous individual. Here, Plaintiff’s requests are reasonably calculated to lead to admissible
evidence and all responsive documents must be produced accordingly.
Further supporting Plaintiff’s position is the fact that several courts have rejected
Defendants’ argument that they could withhold documents and information based in part on the
1
Fairlawn did not respond to Plaintiff’s counsel’s October 26, 2023, letter seeking confirmation
of Fairlawn’s position on this issue. See Kessler Cert., ¶ 20.
7
BER-L-005508-21 11/07/2023 5:48:40 PM Pg 8 of 16 Trans ID: LCV20233316950
exact same objections asserted here regarding incidents of sexual abuse not even related to the
particular abuse or abuser. Lopez v. Watchtower Bible & Tract Soc'y of New York, Inc., 201 Cal.
Rptr. 3d 156 (Ct. App. 2016); Padron v. Watchtower Bible & Tract Soc'y of New York, Inc., 225
Cal. Rptr. 3d 81 (Ct. App. 2017). Surely, if documents and information regarding wholly unrelated
incidents of abuse are discoverable, so too must information and documents related to incidents of
sexual abuse by the same perpetrator here be discoverable as well.
Ostensibly, Defendants are withholding responsive documents based on one or all of their
objections that Plaintiff’s requests are overbroad, unduly burdensome, and/or violate the United
States and New Jersey Constitutions. Defendants’ position is procedurally and substantively
defective.
First, Defendants’ responses do not indicate whether responsive documents even exist and,
the responses do not indicate that if responsive documents do exist, they are being withheld
pursuant to any of the asserted privileges. Plaintiff attempted to ascertain this information during
meet-and-confer efforts, but Defendants failed to provide this necessary information. These
failures alone necessitate a rejection of Defendants’ asserted objections for failure to comply with
New Jersey rules governing discovery responses. Rule 4:18-1.
Second, a party must show good cause for withholding otherwise responsive documents
based on an objection other than privilege. Rule 4:10-3; Trenton Renewable Power, LLC v. Denali
Water Sols., LLC, 470 N.J. Super. 218, 227 (App. Div. 2022). Here, Defendants have not identified
any cause, let alone good cause, for withholding the responsive documents (should they exist) in
either their discovery responses or during meet-and-confer efforts. Absent such a showing, the
Court must order Defendants to produce these otherwise responsive documents, just as California
8
BER-L-005508-21 11/07/2023 5:48:40 PM Pg 9 of 16 Trans ID: LCV20233316950
courts have done with respect to even more attenuated evidence than Plaintiff seeks here. Lopez,
201 Cal. Rptr. 3d 156; Padron, 225 Cal. Rptr. 3d 81.
Third, Defendants’ constitutional objections are specious. Defendants claim that Plaintiff
seeks improper evidence related to “…the religious beliefs, faith, custom, practices, and internal
governance or discipline of the Religion.” However, Plaintiff is not seeking such evidence, and
even if she were, there is nothing improper about seeking such evidence. In support of its
objections, Defendants cite Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976).
But Serbian Eastern Orthodox did not deal with discoverability of evidence related to religious
beliefs, practices, and governance. Rather, Serbian Eastern Orthodox stands for the proposition
that a court may not intervene to decide intra-church disputes. 426 U.S. at 724-25.
Consequently, Defendants must be ordered to either confirm that they have not withheld
any responsive documents on the basis of their asserted objections or produce responsive
documents.
II. Watchtower and East Hackensack Improperly Redacted Information to Which
Plaintiff is Entitled To.
The document productions of Watchtower and East Hackensack contain documents
redacted on the ground of third-party privacy. See Kessler Cert., ¶ 9, 10, 11, 14. To the extent that
these redactions, labeled with “TP Privacy,” are intended to comply with the Consent Order, the
redactions are improper. Paragraph 18 of the Consent Order requires that names of other minor or
adult victims of sexual abuse/misconduct be redacted and identified using traceable anonymous
names or initials or numbers, which should be accompanied by, where possible, the name and
contact information of the victim or a legal representative of the victim. Watchtower and East
Hackensack did not comply with the Consent Order in redacting this information. These
9
BER-L-005508-21 11/07/2023 5:48:40 PM Pg 10 of 16 Trans ID: LCV20233316950
defendants did not identify the names of other minor or adult victims using any anonymous
markers or provide any contact information for the victims or their legal representatives.
Further, from the context of the redacted information, it does not appear that all redactions
labeled with “TP Privacy” are in fact other minor or adult victims. Watchtower and East
Hackensack did not include these redacted documents in its privilege log, and so it is impossible
to know what type of information is being withheld.
Plaintiff attempted to resolve this issue by letter dated October 24, 2023. See Kessler Cert.,
¶ 14, Ex. I. Watchtower and East Hackensack’s counsel informed Plaintiff via email on October
30, 2023, that they intended to produce redaction logs later that same week. See Kessler Cert., ¶
15, Ex. J. Plaintiff has not received revised redaction logs, or any other logs, as of the filing date
of this Motion. Id.
Plaintiff seeks an order compelling Watchtower and East Hackensack to comply with
Paragraph 18 of the Consent Order and include the redacted documents in their privilege logs.
III. The Court Should Compel Fairlawn to Respond Fully to Form “C” Interrogatory
Numbers 3 and 7.
Fairlawn has failed to provide sufficient responses to Form “C” Interrogatories Numbers 3
and 7. See Kessler Cert., ¶¶ 16, 18, 20. Fairlawn asserted 17 affirmative defenses in its Answer
filed on June 29, 2022, at least one of which pleads that Plaintiff’s damages were caused by or
contributed to by the negligence of others (see Trans ID: LCV20222433434). Interrogatory
Number 3 requires Fairlawn to state the facts on which it intends to predicate these defenses and
identify a copy of every document relating to such facts. In response, Fairlawn has stated no facts
and identified no documents. See Kessler Cert., ¶ 16, Ex. K. Interrogatory Number 7 asks for the
names and address of the other people who caused or contributed to Plaintiff’s damages and the
facts on which Defendants will rely in establishing this negligence. Fairlawn responded that it will
10
BER-L-005508-21 11/07/2023 5:48:40 PM Pg 11 of 16 Trans ID: LCV20233316950
rely on “any and all evidence adduced during pre-trial discovery and adduced in the 1994
Litigation and the jury verdict related to the 1994 Litigation.” Id. From Fairlawn’s responses,
Plaintiff is left to assume that Fairlawn is either withholding facts on which its affirmative defenses
are based or that there are no facts supporting Fairlawn’s affirmative defenses and that Fairlawn
will support its affirmative defenses with every single piece of paper produced in this case.
An order compelling responses is an appropriate and necessary remedy. With the deadline
for conducting discovery quickly approaching, Fairlawn’s continued unresponsiveness will
deprive Plaintiff of the ability to continue building a case, which includes investigating and
rebutting Fairlawn’s affirmative defenses. Accordingly, Plaintiff seeks the Court’s aid in ensuring
that Fairlawn comply with its discovery obligations and that Plaintiff be provided with the
information needed to continue prosecuting her claims. Plaintiff should not otherwise be forced to
litigate defenses without the benefit of the discovery process and the established interrogatories
intended to provide her with the necessary information.
IV. The Court Should Compel Fairlawn to Produce All Documents Withheld on the
Purported Basis of Cleric-Penitent Privilege.
On September 25, 2023, Defendant Fairlawn supplemented its responses to Plaintiff’s First
Set of RFPs with its document production and a privilege log. See Kessler Cert., ¶ 12, Ex. H. In
Fairlawn’s supplemental production, Fairlawn has withheld two documents, in whole or in part,
based on an assertion of cleric-penitent privilege. Fairlawn does not dispute the responsiveness or
relevance of these two documents, but rather asserts the privilege as the sole ground for
withholding. Fairlawn asserts this privilege, however, without providing sufficient information on
which applicability of the privilege can be determined. Fairlawn has not provided Plaintiff or this
Court with the requisite details allowing for evaluation of whether it has met its burden of
establishing the privilege.
11
BER-L-005508-21 11/07/2023 5:48:40 PM Pg 12 of 16 Trans ID: LCV20233316950
Although the cleric-penitent privilege is recognized under New Jersey law, courts apply
such privilege narrowly. As pointed out by the Supreme Court in interpreting the most recent
iteration of the statute governing cleric-penitent privilege, “[a]s a general rule, we construe
testimonial privileges narrowly because they prevent the trier of fact from hearing relevant
evidence and thereby ‘undermine the search for truth in the administration of justice.” State v. J.G.,
201 N.J. 369, 383 (2010) (construing the applicable statute, N.J.S.A. 2A:84A-23).
To establish the applicability of any privilege, the asserting party must provide facts
purportedly justifying applicability of the asserted privilege. Rule 4:10-2(e). As Rule 4:10-2(e)
provides:
When a party withholds information otherwise discoverable under these rules by
claiming that it is privileged or subject to protection as trial preparation material,
the party shall make the claim expressly and shall describe the nature of the
documents, communications, or things not produced or disclosed in a manner
that, without revealing information itself privileged or protected, will enable
other parties to assess the applicability of the privilege or protection.
For this reason, the asserting party must provide a detailed privilege log that identifies the withheld
information and explains why it qualifies for the privilege. See Seacoast Builders Corp. v. Rutgers,
358 N.J. Super. 524, 541-42, (App. Div. 2003) (a party asserting a privilege must provide a detailed
enough privilege log so as not to deprive other parties of the ability to assess the applicability of
the privilege). Drawing parallels to the identical federal rule, the Seacoast court pointed to federal
court decisions explaining what type of information must be included in a privilege log. Mainly,
the Seacoast court relied on the federal analogs to emphasize the need for a privilege log to identify
the privilege asserted and providing an explanation of why each document is privileged, including
all factual grounds and legal analysis showing that each element is met. Id. at 542.
Without an explanation as to why a privilege should apply, an opposing party is precluded
from effectively challenging the assertion for the privilege because it cannot ascertain if the
12
BER-L-005508-21 11/07/2023 5:48:40 PM Pg 13 of 16 Trans ID: LCV20233316950
withheld information falls within a protected category or whether any privilege has been waived.
Plaintiff received a cursory privilege log from Fairlawn and is therefore hampered in her ability to
analyze whether a claim of privilege has been properly asserted.
Looking at the scant information that is provided, it becomes clear that Fairlawn has not,
and likely cannot, meet its burden of demonstrating that the withheld information is entitled to
protection. Pointing to the framework contained within the statute governing the cleric-penitent
privilege, the New Jersey Supreme Court highlighted the three requirements that must be met for
the cleric-penitent privilege to apply to a communication: the communication must have been (1)
made in confidence; (2) to a cleric; and (3) in the cleric’s professional character or role as a spiritual
advisor. State v. J.G., 201 N.J. at 383.
Based on the paucity of information contained in the privilege log and Fairlawn’s refusal
to engage meaningfully in the meet and confer process, there is no indication that any, let alone all
three of the requirements have been met.
In State v. J.G., the Court adopted an objective standard for evaluating the requirements of
the cleric-penitent privilege that allows for the consideration of all the facts, therefore
acknowledging the varied exchanges that take place between clerics and penitents, not all of which
qualify for protection under the privilege. 358 N.J. Super. at 384. Applying this standard to each
of the three requirements of the privilege, it becomes clear that Fairlawn has failed to meet its
burden of establishing that it is entitled to the protection of the privilege. With respect to withheld
Item Number 1, Fairlawn provides only the name of the author of the letter, perpetrator Clement
(“Tino”) Pandelo, providing no information about to whom the letter was addressed nor how it
was sent or maintained. Based on this scant description, it has not even been established that the
letter was intended for or sent to a cleric. Even if Fairlawn could show that the letter was sent to a
13
BER-L-005508-21 11/07/2023 5:48:40 PM Pg 14 of 16 Trans ID: LCV20233316950
cleric, that alone would not establish applicability of the privilege. Not all letters (or other
communications) from a penitent to a cleric are automatically subject to protection from privilege
as such letters are not necessarily sent with the reasonable expectation of confidentiality. State v
J.G., 201 N.J. at 384 (citing State v. List, 270 N.J. Super., 169, 174–75 (App. Div. 1993) (a letter
to a pastor, “left for anyone to find and read” was not indicative of “a reasonable expectation of
confidentiality”). Without even identifying a cleric as the recipient of the letter or establishing that
the recipient meets the requirements to be considered a cleric, it can similarly not be determined
whether the information in the letter was communicated to the cleric in their capacity as a cleric.
Fairlawn has made no effort to demonstrate satisfaction of the three statutory elements to obtain
the protection of the cleric-penitent privilege over this document.
The bare bones information provided in the privilege log about Item Number 2, even when
combined with the contextual information contained within the non-redacted portions of the
document, similarly leave Plaintiff unable to determine whether the privilege is being properly
asserted. In this instance, the redacted document is described as a “record of Disfellowship or
Disassociation” dated August 25, 1988 and authored by “Fairlawn Congregation.” See Kessler
Cert., ¶ 12, Ex H. Based on that description and the non-redacted portions of the document, the
Court need not even engage in an objective analysis of the three required elements for the cleric-
penitent privilege to apply. Fairlawn has failed to assert that the document even constitutes a
“communication.”
Even if Fairlawn could characterize this “Record of Disfellowship or Disassociation” as a
“communication,” it still could not satisfy the three statutory elements necessary to warrant
applying the privilege. For starters, neither the document nor the privilege log asserts or suggests
that this document was sent from a penitent to a cleric (or anyone who could qualify as a cleric) or
14
BER-L-005508-21 11/07/2023 5:48:40 PM Pg 15 of 16 Trans ID: LCV20233316950
otherwise purports to describe any communication between a penitent and a cleric. Moreover,
without further information about the function and use of this “Record of Disfellowshipping or
Disassociation,” it cannot be determined whether there was a reasonable expectation of confidence.
Moreover, the fact that Fairlawn disclosed the document at all, even in redacted form, leads to the
conclusion that Fairlawn only seeks to protect the information of what offense Clement Pandelo
was disfellowshipped for—a fact which is plainly relevant to Plaintiff’s case.
While Plaintiff is hard pressed to find any basis on which the cleric-penitent privilege could
be applied to the withheld documents, at a minimum, Fairlawn cannot be excused from its
discovery obligations based on its bald assertion that the documents are entitled to protection.
Fairlawn should therefore be compelled to produce the two documents in their entirety.
CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests that this Court issue an Order
compelling Defendants Watchtower, East Hackensack, and Fairlawn to produce documents
responsive to Plaintiff’s First Set of RFPs Numbers 4 and 5 relating to complaints or allegations
of other victims of sexual abuse committed by Clement Pandelo; compelling Defendants
Watchtower and East Hackensack to comply with Paragraph 18 of the Consent Order and include
the redacted documents in its privilege log; and compelling Defendant Fairlawn to produce in full
any documents withheld on the basis of cleric-penitent privilege; and compel Defendant Fairlawn
Congregation to respond fully to Plaintiff’s Form C Interrogatories Numbers 3 and 7.
Respectfully submitted,
Dated: November 7, 2023
By: /s/Rayna E. Kessler
Rayna E. Kessler, Esq.
NJ ID No. 031782010
ROBINS KAPLAN LLP
15
BER-L-005508-21 11/07/2023 5:48:40 PM Pg 16 of 16 Trans ID: LCV20233316950
1325 Avenue of the Americas, Suite 2601
New York, New York 10019
Telephone: (212) 980-7431
Facsimile: (212) 980-7499
Email: RKessler@RobinsKaplan.com
Elizabeth A. Cate, Esq.
THE ZALKIN LAW FIRM PC
10 Times Square, 1441 Broadway, Suite 3147
New York, New York 10018
Telephone: (858) 259-3011
Facsimile: (858) 259-3015
Email: elizabeth@zalkin.com
Attorneys for Plaintiff Corinne Pandelo
16
BER-L-005508-21 11/07/2023 5:48:40 PM Pg 1 of 30 Trans ID: LCV20233316950
EXHIBIT A
BER-L-005508-21 11/07/2023 5:48:40 PM Pg 2 of 30 Trans ID: LCV20233316950
Anthony P. La Rocco
Dana B. Parker
Thomas A. Zelante, Jr.
K&L GATES LLP
One Newark Center, 10th Floor
Newark, New Jersey 07102
P: (973) 848-4000
F: (973) 848-4001
Attorneys for Defendant Watchtower Bible and
Tract Society of New York, Inc.
SUPERIOR COURT OF NEW JERSEY
Corinne Pandelo, LAW DIVISION
BERGEN COUNTY
Plaintiff, DOCKET NO.: BER-L-5508-21
v. Civil Action
The Governing Body of Jehovah’s Witnesses, DEFENDANT WATCHTOWER BIBLE
Fairlawn Congregation of Jehovah’s AND TRACT SOCIETY OF NEW YORK,
Witnesses, Watchtower Bible and Tract INC.’S RESPONSE TO PLAINTIFF’S
Society of New York, Inc., Hackensack FIRST SET OF REQUESTS FOR
Congregation of Jehovah’s Witnesses, and PRODUCTION OF DOCUMENTS
John and Jane Does 1-100, whose identities
are presently unknown to Plaintiff, in their
official and individual capacities,
Defendants.
TO: Rayna E. Kessler, Esq.
Robins Kaplan LLP
399 Park Avenue, Suite 3600
New York, NY 10022-4611
Attorneys for Plaintiff Corinne Pandelo
Defendant Watchtower Bible and Tract Society of New York, Inc. (“WTNY” or
“Responding Defendant”) by and through its attorneys, K&L Gates, LLP, hereby submits its
responses and objections to Plaintiff’s First Set of Requests for Production of Documents
(“Requests”). Neither the responses herein nor any documents which WTNY may produce or
1
BER-L-005508-21 11/07/2023 5:48:40 PM Pg 3 of 30 Trans ID: LCV20233316950
reference in responding to these Requests waives the protections of the attorney-client privilege,
the work product doctrine, the cleric-penitent privilege, the self-critical analysis privilege, the joint
defense or common interest doctrine, or any other applicable privilege or immunity. WTNY
expressly reserves the right to amend or to supplement its answers, responses and objections to
these Requests as additional responsive information becomes available by way of discovery or
otherwise.
WTNY’s responses to these Requests are accurate as of the date made. WTNY is engaged
in continuing investigation of the matters inquired into by these Requests, and cannot exclude the
possibility that it may obtain more complete information or information which indicates that the
answers or responses are incorrect. WTNY will provide supplemental information, if any, as
required by New Jersey Court Rules.
Dated: December 10, 2021 Respectfully submitted,
By: /s/ Anthony P. La Rocco
Anthony P. La Rocco
Dana B. Parker
Thomas A. Zelante, Jr.
K&L GATES LLP
One Newark Center, 10th Floor
Newark, New Jersey 07102
P: (973) 848-4000
F: (973) 848-4001
Attorneys for Defendant Watchtower Bible
and Tract Society of New York, Inc.
2
BER-L-005508-21 11/07/2023 5:48:40 PM Pg 4 of 30 Trans ID: LCV20233316950
PRELIMINARY STATEMENT AND GENERAL OBJECTIONS
1. The following Preliminary Statement and General Objections are incorporated into
Responding Defendant’s responses to each Request as if Responding Defendant separately so
objected and/or stated in response to each Request.
2. Investigation and discovery by Responding Defend
Preview
BER-L-005508-21 11/07/2023 5:48:40 PM Pg 1 of 6 Trans ID: LCV20233316950 ROBINS KAPLAN LLP Rayna E. Kessler, Esq. NJ ID No. 031782010 1325 Avenue of the Americas, Suite 2601 New York, New York 10019 Telephone: (212) 980-7431 Facsimile: (212) 980-7499 Email: RKessler@RobinsKaplan.com THE ZALKIN LAW FIRM, P.C. Elizabeth A. Cate, Esq. (admitted pro hac vice) 10 Times Square 1441 Broadway, Suite 3147 New York, NY 10018 Telephone: (858) 259-3011 Email: elizabeth@zalkin.com Attorneys for Corinne Pandelo : CORINNE PANDELO, : SUPERIOR COURT OF NEW JERSEY : LAW DIVISION - BERGEN COUNTY Plaintiff, : : DOCKET NO. BER-L-005508-21 v. : : THE GOVERNING BODY OF : CIVIL ACTION JEHOVAH’S WITNESSES; : FAIRLAWN CONGREGATION OF : JEHOVAH’S WITNESSES; : WATCHTOWER BIBLE AND TRACT : SOCIETY OF NEW YORK, : CERTIFICATION OF RAYNA E. HACKENSACK CONGREGATION OF : KESSLER, ESQ., IN SUPPORT OF JEHOVAH’S WITNESSES; and : MOTION TO COMPEL DEFENDANTS JOHN AND JANE DOES 1-100, whose : TO PRODUCE DISCOVERY identities are presently unknown to Plaintiff : in their official and individual capacities, : : Defendants. : : : : BER-L-005508-21 11/07/2023 5:48:40 PM Pg 2 of 6 Trans ID: LCV20233316950 I, RAYNA E. KESSLER, ESQ., hereby certifies as follows: 1. I am an attorney at law of the law of the State of New Jersey and partner at the law firm Robins Kaplan LLP, attorneys for Plaintiff Corinne Pandelo (“Plaintiff”). I am personally familiar with the facts and circumstances of this matter. 2. I make this Certification in support of Plaintiff’s Motion to Compel Defendants to Produce Discovery. 3. On August 18, 2021, Plaintiff filed a Complaint in the Superior Court of New Jersey - Bergen County against Defendants The Governing Body of Jehovah’s Witnesses1 ; Fairlawn Congregation of Jehovah’s Witnesses (“Fairlawn Congregation”); Watchtower Bible and Tract Society of New York (“Watchtower”); and Hackensack Congregation of Jehovah’s Witnesses (“East Hackensack Congregation”)2. See Trans ID: LCV20211914643. 4. On October 13, 2021, Plaintiff filed her First Amended Complaint attaching her First Set of Requests for Production of Documents (“RFP”) and Request for Admissions (“RFA”). See Trans ID: LCV20212383924. 5. On December 10, 2021, Defendant Watchtower filed its Answer to the Amended Complaint with affirmative defenses (see Trans ID: LCV20212896479) and responded to Plaintiff’s First Set of RFPs and RFAs. A true and correct copy of Watchtower’s responses are attached hereto as Exhibit A. 6. On January 31, 2022, Defendant East Hackensack filed its Answer to the Amended Complaint with affirmative defenses (see Trans ID: LCV2022410677) and responded to Plaintiff’s 1 On May 18, 2022, Judge Estela M. De La Cruz, J.S.C., entered an order dismissing the First Amended Complaint against the Governing Body of Jehovah’s Witnesses. 2 Counsel for Defendant named as “Hackensack Congregation of Jehovah’s Witnesses” contends that the proper name for this Defendant is “East Hackensack Congregation of Jehovah’s Witnesses.” 2 BER-L-005508-21 11/07/2023 5:48:40 PM Pg 3 of 6 Trans ID: LCV20233316950 First Set of RFPs with its document production and RFAs on February 7, 2022. A true and correct copy of East Hackensack’s responses are attached hereto as Exhibit B. 7. On June 29, 2022, Defendant Fairlawn Congregation filed its Answer to the Complaint (see Trans ID: LCV20222433434), responded to Plaintiff’s First Set of RFAs on December 19, 2022, and responded to Plaintiff’s First Set of RFPs on January 11, 2023. A true and correct copy of Fairlawn’s responses is attached hereto as Exhibit C. 8. In letters dated July 21, 2022, Plaintiff’s counsel raised the issue of Watchtower’s and East Hackensack’s insufficient responses and objections to Plaintiff’s First Set of RFPs and requesting a privilege log from East Hackensack. A true and correct copy of these letters is attached hereto as Exhibit D. 9. On September 2, 2022, counsel for Watchtower and East Hackensack produced a privilege log for Watchtower’s anticipated document production and indicated that East Hackensack did not withhold any documents from its production on the ground of privilege. A true and correct copy of this letter is attached hereto as Exhibit E. 10. In a letter dated October 24, 2022, Plaintiff’s counsel asked whether East Hackensack intended to stand on its objections to RFP Numbers 4 and 5 and challenged Watchtower’s privilege log. A true and correct copy of this letter is attached hereto as Exhibit F. 11. On December 5, 2022, counsel for Watchtower and East Hackensack provided an amended privilege log for Watchtower's anticipated document production and stated East Hackensack intended to stand on its objections to Plaintiff's RFP Numbers 4 and 5. A true and correct copy of this letter is attached hereto as Exhibit G. 3 BER-L-005508-21 11/07/2023 5:48:40 PM Pg 4 of 6 Trans ID: LCV20233316950 12. On September 25, 2023, Fairlawn produced its first set of documents with a privilege log in response to Plaintiff’s First Set of RFPs. A true and correct copy of the cover letter and privilege log is attached hereto as Exhibit H. 13. On September 28, 2023, Watchtower produced its first set of documents in response to Plaintiff’s First Set of RFPs. 14. In letters to Defendants Watchtower and East Hackensack dated October 24, 2023, Plaintiff’s counsel raised Watchtower’s and East Hackensack’s improper redactions and incomplete responses to RFP Number 4 and 5. As of the date of filing this Motion, Plaintiff has not received properly redacted documents from Watchtower or East Hackensack. A true and correct copy of these letters is attached hereto as Exhibit I. 15. On October 30, 2023, counsel for Watchtower and East Hackensack informed Plaintiff that they intended to produce a redaction log later in the week. Plaintiff has not received a redaction log in compliance with Paragraph 18 of the Consent Order as of the date of filing this Motion. A true and correct copy of this email correspondence is attached hereto as Exhibit J. 16. More than a year after Plaintiff filed her First Amended Complaint, Defendant Fairlawn Congregation responded to Form “C” Interrogatories on October 28, 2022. A true and correct copy of the responses is attached hereto as Exhibit K. 17. Defendants East Hackensack Congregation and Watchtower provided responses to the Form “C” Interrogatories on October 30, 2023. A true and correct copy of these responses is attached hereto as Exhibit L. 18. On November 23, 2022, Plaintiff sent a letter to Defendant Fairlawn Congregation’s counsel explaining the deficiencies in Fairlawn’s responses to the Form “C” 4 BER-L-005508-21 11/07/2023 5:48:40 PM Pg 5 of 6 Trans ID: LCV20233316950 Interrogatory Numbers 3 and 7. A true and correct copy of the letter is attached hereto as Exhibit M. 19. Following Plaintiff’s deficiency letter dated November 23, 2022, counsel for both parties had a telephone call in which Fairlawn Congregation’s counsel agreed to supplement responses to Interrogatories Numbers 3 and 7. Fairlawn Congregation never served any supplemental responses. 20. On October 26, 2023, counsel for Plaintiff sent another letter to counsel for Fairlawn, again raising the issue of the insufficient interrogatory responses, referring counsel to the explanation of those deficiencies laid out in the November 23, 2022, correspondence. Further in this letter, Plaintiff’s counsel challenged the assertion of cleric-penitent privilege over the two documents identified on Fairlawn’s privilege log and addressed Fairlawn Congregations failure to comply with its discovery obligations in responding to Plaintiff’s First Set of RFP Numbers 4, 5, 9, 10, 11, 12, 18 and 21. Plaintiff’s counsel advised Fairlawn that Plaintiff would be filing a motion to compel if Fairlawn did not withdraw the asserted privilege and produce both documents in un- redacted form. As of the time of filing this motion, Fairlawn has not responded to the October 26, 2023, letter or otherwise supplemented any of its discovery responses or document production. A true and correct copy of this letter is attached hereto as Exhibit N. 21. A true and correct copy of the unpublished decision Hansen v. Rite Aid Corp., No. A-2972-13T3, 2015 WL 9853068, at *4 (App. Div. Jan. 20, 2016) referenced in Plaintiff Memorandum of Law in Support is attached hereto as Exhibit O. 22. For the reason stated herein, Plaintiff respectfully requests that this Court issue an Order compelling Defendants Watchtower, East Hackensack, and Fairlawn to produce documents responsive to Plaintiff’s First Set of RFPs Numbers 4 and 5 relating to complaints or allegations 5 BER-L-005508-21 11/07/2023 5:48:40 PM Pg 6 of 6 Trans ID: LCV20233316950 of other victims of sexual abuse committed by Clement Pandelo; compelling Defendants Watchtower and East Hackensack to comply with Paragraph 18 of the Consent Order and include the redacted documents in its privilege log; and compelling Defendant Fairlawn to produce in full any documents withheld on the basis of cleric-penitent privilege; and compel Defendant Fairlawn Congregation to respond fully to Plaintiff’s Form C Interrogatories Numbers 3 and 7. I hereby certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. Dated: November 7, 2023 By: /s/Rayna E. Kessler Rayna E. Kessler, Esq. NJ ID No. 031782010 ROBINS KAPLAN LLP 1325 Avenue of the Americas, Suite 2601 New York, NY 10019 Telephone: (212) 980-7431 Facsimile: (212) 980-7499 Email: RKessler@RobinsKaplan.com Attorneys for Plaintiff Corinne Pandelo 6 BER-L-005508-21 11/07/2023 5:48:40 PM Pg 1 of 16 Trans ID: LCV20233316950 ROBINS KAPLAN LLP Rayna E. Kessler, Esq. NJ ID No. 031782010 1325 Avenue of the Americas, Suite 2601 New York, New York 10019 Telephone: (212) 980-7431 Facsimile: (212) 980-7499 Email: RKessler@RobinsKaplan.com THE ZALKIN LAW FIRM, P.C. Elizabeth A. Cate, Esq. (admitted pro hac vice) 10 Times Square 1441 Broadway, Suite 3147 New York, NY 10018 Telephone: (858) 259-3011 Email: elizabeth@zalkin.com Attorneys for Corinne Pandelo : CORINNE PANDELO, : SUPERIOR COURT OF NEW JERSEY : LAW DIVISION - BERGEN COUNTY Plaintiff, : : DOCKET NO. BER-L-005508-21 v. : : THE GOVERNING BODY OF : CIVIL ACTION JEHOVAH’S WITNESSES; : FAIRLAWN CONGREGATION OF : JEHOVAH’S WITNESSES; : WATCHTOWER BIBLE AND TRACT : SOCIETY OF NEW YORK, : PLAINTIFF’S MEMORANDUM OF LAW HACKENSACK CONGREGATION OF : IN SUPPORT OF MOTION TO COMPEL JEHOVAH’S WITNESSES; and : DEFENDANTS TO PRODUCE JOHN AND JANE DOES 1-100, whose : DISCOVERY identities are presently unknown to Plaintiff : in their official and individual capacities, : : Defendants. : : : : BER-L-005508-21 11/07/2023 5:48:40 PM Pg 2 of 16 Trans ID: LCV20233316950 PRELIMINARY STATEMENT This case arises out of the childhood sexual abuse perpetrated on Plaintiff Corinne Pandelo (hereinafter, “Plaintiff”) by Clement (“Tino”) Pandelo, a former agent of Defendants Watchtower Bible and Tract Society of New York, Inc. (hereinafter, “Watchtower”), Fairlawn Congregation of Jehovah’s Witnesses (hereinafter, “Fairlawn”), and East Hackensack Congregation of Jehovah’s Witnesses (named in the complaint as Hackensack Congregation of Jehovah’s Witnesses) (hereinafter, “East Hackensack”) (collectively, “Defendants”). Now an adult, Plaintiff brought this suit pursuant to New Jersey’s Child Sexual Abuse Act (“CSAA”) which revived previously time- barred civil claims for childhood sexual abuse for two years, commencing on December 1, 2019. Defendants have failed to produce certain documents and/or respond sufficiently to uniform interrogatories, all of which are crucial to the prosecution of Plaintiff’s claims and are relevant to Defendants’ affirmative defenses asserted in their Answers. Defendants’ failure to produce crucial documents, sufficiently respond to interrogatories, and lack of good faith efforts to meaningfully resolve discovery issues without Court intervention has forced Plaintiff to bring this instant motion. As such, Plaintiff, by and through her attorneys, Robins Kaplan, LLP and the Zalkin Law Firm, P.C., hereby submit this Motion to Compel seeking an Order that Defendants comply with discovery obligations and remedy discovery deficiencies set forth in detail below. PROCEDURAL AND FACTUAL BACKGROUND On August 18, 2021, Plaintiff filed a Complaint in the Superior Court of New Jersey - Bergen County, alleging that Defendants are liable for the injuries she suffered as a result of the sexual abuse by Clement Pandelo, a former agent of Defendants. The current operative pleading, the First Amended Complaint, was filed and served on October 13, 2021. Plaintiff attached her 2 BER-L-005508-21 11/07/2023 5:48:40 PM Pg 3 of 16 Trans ID: LCV20233316950 First Set of Requests for Production of Documents (“RFPs”) and Requests for Admission (“RFAs”) to the First Amended Complaint. Defendant Watchtower filed its Answer to Plaintiff’s Amended Complaint with affirmative defenses and responded to Plaintiff’s First Set of RFPs and RFAs on December 10, 2021. See Certification of Rayna E. Kessler (“Kessler Cert.”) ¶ 5, Ex. A. Defendant East Hackensack filed its Answer to Plaintiff’s Amended Complaint with affirmative defenses on January 31, 2022, and responded to Plaintiff’s First Set of RFPs with its document production and RFAs on February 7, 2022. See Kessler Cert., ¶ 6, Ex. B. Defendant Fairlawn filed its Answer to Plaintiff’s Complaint with affirmative defenses on June 29, 2022, responded to Plaintiff’s First Set of RFAs on December 19, 2022, and responded to Plaintiff’s First Set of RFPs on January 11, 2023. See Kessler Cert., ¶ 7, Ex. C. In letters dated July 21, 2022, Plaintiff’s counsel raised the issue of Watchtower's and East Hackensack's insufficient responses and objections to Plaintiff's First Set of RFPs and requesting a privilege log from East Hackensack. See Kessler Cert., ¶ 8, Ex. D. In response, on September 2, 2022, counsel for Watchtower and East Hackensack produced a privilege log for Watchtower's anticipated document production and indicated that East Hackensack did not withhold any documents from its production on the ground of privilege. See Kessler Cert., ¶ 9, Ex. E. In a letter dated October 24, 2022, Plaintiff's counsel asked whether Congregation intended to stand on its objections to RFP Numbers 4 and 5 and challenged Watchtower's privilege log. See Kessler Cert., ¶ 10, Ex. F. On December 5, 2022, counsel for Watchtower and East Hackensack provided an amended privilege log for Watchtower's anticipated document production and stated East Hackensack intended to stand on its objections to Plaintiff's RFP Numbers 4 and 5. See Kessler Cert. ¶ 11, Ex. G. 3 BER-L-005508-21 11/07/2023 5:48:40 PM Pg 4 of 16 Trans ID: LCV20233316950 Aside from East Hackensack's redacted document production dated February 7, 2022, the parties did not exchange documents until after the Court entered the Stipulated Consent Order Regarding Preservation of Confidential Information ("Consent Order") (see Trans ID: LCV2023856021). On September 25, 2023, Fairlawn produced its first set of documents with a privilege log in response to Plaintiff's First Set of RFPs. See Kessler Cert., ¶ 12, Ex. H. On September 28, 2023, Watchtower produced its first set of documents in response to Plaintiff's First Set of RFPs. See Kessler Cert., ¶ 13. In letters to Defendants Watchtower and East Hackensack dated October 24, 2023, Plaintiff’s counsel raised Watchtower and East Hackensack’s improper redactions and incomplete responses to RFP Numbers 4 and 5. See Kessler Cert., ¶ 14, Ex. I. As of the date of filing of this Motion, Plaintiff has not received properly redacted documents from Watchtower or East Hackensack. Id. More than a year after Plaintiff filed her First Amended Complaint, triggering Fairlawn’s obligation to provide responses to Form “C” Interrogatories, Fairlawn provided responses on October 28, 2022. See Kessler Cert., ¶ 16, Ex. K. East Hackensack Congregation and Watchtower provided responses to Form “C” Interrogatories on October 30, 2023. See Kessler Cert., ¶ 17, Ex. L. On November 23, 2022, counsel for Plaintiff sent a letter to Fairlawn’s counsel explaining the deficiencies in Fairlawn’s responses to the Form “C” Interrogatories Numbers 3 and 7. See Kessler Cert., ¶ 18, Ex. M. During a follow up phone call, Fairlawn’s counsel agreed to supplement the responses, but never did. See Kessler Cert., ¶ 19. On October 26, 2023, counsel for Plaintiff sent another letter to counsel for Fairlawn, again raising the issue of the insufficient interrogatory 4 BER-L-005508-21 11/07/2023 5:48:40 PM Pg 5 of 16 Trans ID: LCV20233316950 responses, referring counsel to the explanation of those deficiencies laid out in the November 23, 2022, correspondence. See Kessler Cert., ¶ 20, Ex. N. In the letter dated October 26, 2023, Plaintiff’s counsel also challenged the assertion of cleric-penitent privilege over the two documents identified on Fairlawn’s privilege log and requested a response by October 30, 2023. Id. Plaintiff’s counsel advised Fairlawn that Plaintiff would be filing a motion to compel if Fairlawn did not withdraw the asserted privilege and produce both documents in un-redacted form. Id. As of the time of filing this Motion, Fairlawn has not responded to the October 26, 2023, letter or otherwise supplemented any of its discovery responses or document production. Id. LEGAL STANDARD Under Rule 4:10-2(a), “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party.” In resolving a discovery dispute, the threshold inquiry is potential relevance. In re Liquidation of Integrity Ins. Co., 165 N.J. 75, 82 (2000). Relevant evidence is “evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action.” N.J.R.E. 401. In the context of pretrial discovery in a civil case, however, relevance is construed more broadly than it is under N.J.R.E. 401. Hansen v. Rite Aid Corp., No. A-2972-13T3, 2015 WL 9853068, at *4 (App. Div. Jan. 20, 2016). “Under Rule 4:10-2(a), the test is whether the information is useful, or if it relates to issues in the case or to the credibility of a party.” Id.; see also Kessler Cert., ¶ 21, Ex. O. As a general matter, “New Jersey’s discovery rules are to be construed liberally in favor of broad pretrial discovery.” Payton v. New Jersey Tpk. Auth., 148 N.J. 524, 535 (1997) (citing 5 BER-L-005508-21 11/07/2023 5:48:40 PM Pg 6 of 16 Trans ID: LCV20233316950 Jenkins v. Rainner, 69 N.J. 50, 56 (1976) (“Our court system has long been committed to the view that essential justice is better achieved when there has been full disclosure so that the parties are conversant with all the available facts.”)). Where the plaintiff can demonstrate a substantial need for the requested materials and can demonstrate an undue hardship and inability to obtain them without disclosure by the defendant, the materials are discoverable. Jenkins, 69 N.J. at 57–58. A party may “obtain relief from the court to limit discovery” only “in appropriate situations.” Serrano v. Underground Utilities Corp., 407 N.J. Super. 253, 267 (App. Div. 2009). But, “[w]hen examining a party’s request to restrict pretrial discovery, the principle guiding the court should be to generally permit the widest latitude in the use of available discovery tools.” Marrero v. Feintuch, 418 N.J. Super. 48, 60 (App. Div. 2011) (citing Blumberg v. Dornbusch, 139 N.J. Super. 433, 438 (App. Div. 1976)). ARGUMENT I. Defendants Must Produce Documents Relating to Complaints or Allegations of Other Victims of Sexual Abuse Committed by Clement Pandelo. In her discovery requests, Plaintiff sought documents related to other incidents of sexual abuse committed by Clement Pandelo as well as Defendants’ response to those incidents. See Trans ID: LCV20212383924 at 54-56, Plaintiff’s Demand for Production of Documents, First Set, Numbers 4 and 5. In response, Defendants objected to Plaintiff’s request and produced documents related solely to Plaintiff’s abuse by Clement Pandelo. During meet-and-confer efforts, Plaintiff asked Defendants to confirm whether it had withheld any documents responsive to Plaintiff’s request on the basis of any of its objections. See Kessler Cert., ¶¶ 8, 10, 14. Watchtower and East Hackensack responded that they intended to stand on their objections to Plaintiff’s request and did not confirm whether they had withheld any otherwise responsive documents. See Kessler Cert., ¶ 6 BER-L-005508-21 11/07/2023 5:48:40 PM Pg 7 of 16 Trans ID: LCV20233316950 9, 11. 1 As a result of Defendants’ responses, Plaintiff is unaware if additional responsive documents even exist, and if so, why they are being withheld. As demonstrated in detail below, Plaintiff is entitled to the evidence requested, and there is no valid objection upon which the evidence may be withheld. “The broadest possible latitude should be accorded pretrial discovery.” Gureghian v. Hackensack Hosp., 109 N.J. Super. 143, 146 (Law. Div. 1970). If evidence is “…relevant to the issues of the pending action and it can reasonably lead to the discovery of admissible evidence, it is capable of discovery even though it might be inadmissible in the trial of the action.” Id. at 148. To prove her claim of negligence, Plaintiff must show that Defendants owed her a duty of care. Vizzoni v. B.M.D., 459 N.J. Super. 554, 568 (App. Div. 2019). One way in which Plaintiff can establish that Defendants owed her a duty is by showing that it was reasonably foreseeable to Defendants that Clement Pandelo posed Plaintiff a risk of harm. Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 502 (1997). Documents and information related to Clement Pandelo’s other victims of sexual abuse are undoubtedly discoverable in that they are reasonably calculated to lead to this notice evidence. For example, if Defendants investigated an incident of sexual abuse prior to Plaintiff’s abuse, documents relating to this investigation would allow Plaintiff to prove that it was reasonably foreseeable to Defendants that Clement Pandelo was a dangerous individual. Here, Plaintiff’s requests are reasonably calculated to lead to admissible evidence and all responsive documents must be produced accordingly. Further supporting Plaintiff’s position is the fact that several courts have rejected Defendants’ argument that they could withhold documents and information based in part on the 1 Fairlawn did not respond to Plaintiff’s counsel’s October 26, 2023, letter seeking confirmation of Fairlawn’s position on this issue. See Kessler Cert., ¶ 20. 7 BER-L-005508-21 11/07/2023 5:48:40 PM Pg 8 of 16 Trans ID: LCV20233316950 exact same objections asserted here regarding incidents of sexual abuse not even related to the particular abuse or abuser. Lopez v. Watchtower Bible & Tract Soc'y of New York, Inc., 201 Cal. Rptr. 3d 156 (Ct. App. 2016); Padron v. Watchtower Bible & Tract Soc'y of New York, Inc., 225 Cal. Rptr. 3d 81 (Ct. App. 2017). Surely, if documents and information regarding wholly unrelated incidents of abuse are discoverable, so too must information and documents related to incidents of sexual abuse by the same perpetrator here be discoverable as well. Ostensibly, Defendants are withholding responsive documents based on one or all of their objections that Plaintiff’s requests are overbroad, unduly burdensome, and/or violate the United States and New Jersey Constitutions. Defendants’ position is procedurally and substantively defective. First, Defendants’ responses do not indicate whether responsive documents even exist and, the responses do not indicate that if responsive documents do exist, they are being withheld pursuant to any of the asserted privileges. Plaintiff attempted to ascertain this information during meet-and-confer efforts, but Defendants failed to provide this necessary information. These failures alone necessitate a rejection of Defendants’ asserted objections for failure to comply with New Jersey rules governing discovery responses. Rule 4:18-1. Second, a party must show good cause for withholding otherwise responsive documents based on an objection other than privilege. Rule 4:10-3; Trenton Renewable Power, LLC v. Denali Water Sols., LLC, 470 N.J. Super. 218, 227 (App. Div. 2022). Here, Defendants have not identified any cause, let alone good cause, for withholding the responsive documents (should they exist) in either their discovery responses or during meet-and-confer efforts. Absent such a showing, the Court must order Defendants to produce these otherwise responsive documents, just as California 8 BER-L-005508-21 11/07/2023 5:48:40 PM Pg 9 of 16 Trans ID: LCV20233316950 courts have done with respect to even more attenuated evidence than Plaintiff seeks here. Lopez, 201 Cal. Rptr. 3d 156; Padron, 225 Cal. Rptr. 3d 81. Third, Defendants’ constitutional objections are specious. Defendants claim that Plaintiff seeks improper evidence related to “…the religious beliefs, faith, custom, practices, and internal governance or discipline of the Religion.” However, Plaintiff is not seeking such evidence, and even if she were, there is nothing improper about seeking such evidence. In support of its objections, Defendants cite Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976). But Serbian Eastern Orthodox did not deal with discoverability of evidence related to religious beliefs, practices, and governance. Rather, Serbian Eastern Orthodox stands for the proposition that a court may not intervene to decide intra-church disputes. 426 U.S. at 724-25. Consequently, Defendants must be ordered to either confirm that they have not withheld any responsive documents on the basis of their asserted objections or produce responsive documents. II. Watchtower and East Hackensack Improperly Redacted Information to Which Plaintiff is Entitled To. The document productions of Watchtower and East Hackensack contain documents redacted on the ground of third-party privacy. See Kessler Cert., ¶ 9, 10, 11, 14. To the extent that these redactions, labeled with “TP Privacy,” are intended to comply with the Consent Order, the redactions are improper. Paragraph 18 of the Consent Order requires that names of other minor or adult victims of sexual abuse/misconduct be redacted and identified using traceable anonymous names or initials or numbers, which should be accompanied by, where possible, the name and contact information of the victim or a legal representative of the victim. Watchtower and East Hackensack did not comply with the Consent Order in redacting this information. These 9 BER-L-005508-21 11/07/2023 5:48:40 PM Pg 10 of 16 Trans ID: LCV20233316950 defendants did not identify the names of other minor or adult victims using any anonymous markers or provide any contact information for the victims or their legal representatives. Further, from the context of the redacted information, it does not appear that all redactions labeled with “TP Privacy” are in fact other minor or adult victims. Watchtower and East Hackensack did not include these redacted documents in its privilege log, and so it is impossible to know what type of information is being withheld. Plaintiff attempted to resolve this issue by letter dated October 24, 2023. See Kessler Cert., ¶ 14, Ex. I. Watchtower and East Hackensack’s counsel informed Plaintiff via email on October 30, 2023, that they intended to produce redaction logs later that same week. See Kessler Cert., ¶ 15, Ex. J. Plaintiff has not received revised redaction logs, or any other logs, as of the filing date of this Motion. Id. Plaintiff seeks an order compelling Watchtower and East Hackensack to comply with Paragraph 18 of the Consent Order and include the redacted documents in their privilege logs. III. The Court Should Compel Fairlawn to Respond Fully to Form “C” Interrogatory Numbers 3 and 7. Fairlawn has failed to provide sufficient responses to Form “C” Interrogatories Numbers 3 and 7. See Kessler Cert., ¶¶ 16, 18, 20. Fairlawn asserted 17 affirmative defenses in its Answer filed on June 29, 2022, at least one of which pleads that Plaintiff’s damages were caused by or contributed to by the negligence of others (see Trans ID: LCV20222433434). Interrogatory Number 3 requires Fairlawn to state the facts on which it intends to predicate these defenses and identify a copy of every document relating to such facts. In response, Fairlawn has stated no facts and identified no documents. See Kessler Cert., ¶ 16, Ex. K. Interrogatory Number 7 asks for the names and address of the other people who caused or contributed to Plaintiff’s damages and the facts on which Defendants will rely in establishing this negligence. Fairlawn responded that it will 10 BER-L-005508-21 11/07/2023 5:48:40 PM Pg 11 of 16 Trans ID: LCV20233316950 rely on “any and all evidence adduced during pre-trial discovery and adduced in the 1994 Litigation and the jury verdict related to the 1994 Litigation.” Id. From Fairlawn’s responses, Plaintiff is left to assume that Fairlawn is either withholding facts on which its affirmative defenses are based or that there are no facts supporting Fairlawn’s affirmative defenses and that Fairlawn will support its affirmative defenses with every single piece of paper produced in this case. An order compelling responses is an appropriate and necessary remedy. With the deadline for conducting discovery quickly approaching, Fairlawn’s continued unresponsiveness will deprive Plaintiff of the ability to continue building a case, which includes investigating and rebutting Fairlawn’s affirmative defenses. Accordingly, Plaintiff seeks the Court’s aid in ensuring that Fairlawn comply with its discovery obligations and that Plaintiff be provided with the information needed to continue prosecuting her claims. Plaintiff should not otherwise be forced to litigate defenses without the benefit of the discovery process and the established interrogatories intended to provide her with the necessary information. IV. The Court Should Compel Fairlawn to Produce All Documents Withheld on the Purported Basis of Cleric-Penitent Privilege. On September 25, 2023, Defendant Fairlawn supplemented its responses to Plaintiff’s First Set of RFPs with its document production and a privilege log. See Kessler Cert., ¶ 12, Ex. H. In Fairlawn’s supplemental production, Fairlawn has withheld two documents, in whole or in part, based on an assertion of cleric-penitent privilege. Fairlawn does not dispute the responsiveness or relevance of these two documents, but rather asserts the privilege as the sole ground for withholding. Fairlawn asserts this privilege, however, without providing sufficient information on which applicability of the privilege can be determined. Fairlawn has not provided Plaintiff or this Court with the requisite details allowing for evaluation of whether it has met its burden of establishing the privilege. 11 BER-L-005508-21 11/07/2023 5:48:40 PM Pg 12 of 16 Trans ID: LCV20233316950 Although the cleric-penitent privilege is recognized under New Jersey law, courts apply such privilege narrowly. As pointed out by the Supreme Court in interpreting the most recent iteration of the statute governing cleric-penitent privilege, “[a]s a general rule, we construe testimonial privileges narrowly because they prevent the trier of fact from hearing relevant evidence and thereby ‘undermine the search for truth in the administration of justice.” State v. J.G., 201 N.J. 369, 383 (2010) (construing the applicable statute, N.J.S.A. 2A:84A-23). To establish the applicability of any privilege, the asserting party must provide facts purportedly justifying applicability of the asserted privilege. Rule 4:10-2(e). As Rule 4:10-2(e) provides: When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection. For this reason, the asserting party must provide a detailed privilege log that identifies the withheld information and explains why it qualifies for the privilege. See Seacoast Builders Corp. v. Rutgers, 358 N.J. Super. 524, 541-42, (App. Div. 2003) (a party asserting a privilege must provide a detailed enough privilege log so as not to deprive other parties of the ability to assess the applicability of the privilege). Drawing parallels to the identical federal rule, the Seacoast court pointed to federal court decisions explaining what type of information must be included in a privilege log. Mainly, the Seacoast court relied on the federal analogs to emphasize the need for a privilege log to identify the privilege asserted and providing an explanation of why each document is privileged, including all factual grounds and legal analysis showing that each element is met. Id. at 542. Without an explanation as to why a privilege should apply, an opposing party is precluded from effectively challenging the assertion for the privilege because it cannot ascertain if the 12 BER-L-005508-21 11/07/2023 5:48:40 PM Pg 13 of 16 Trans ID: LCV20233316950 withheld information falls within a protected category or whether any privilege has been waived. Plaintiff received a cursory privilege log from Fairlawn and is therefore hampered in her ability to analyze whether a claim of privilege has been properly asserted. Looking at the scant information that is provided, it becomes clear that Fairlawn has not, and likely cannot, meet its burden of demonstrating that the withheld information is entitled to protection. Pointing to the framework contained within the statute governing the cleric-penitent privilege, the New Jersey Supreme Court highlighted the three requirements that must be met for the cleric-penitent privilege to apply to a communication: the communication must have been (1) made in confidence; (2) to a cleric; and (3) in the cleric’s professional character or role as a spiritual advisor. State v. J.G., 201 N.J. at 383. Based on the paucity of information contained in the privilege log and Fairlawn’s refusal to engage meaningfully in the meet and confer process, there is no indication that any, let alone all three of the requirements have been met. In State v. J.G., the Court adopted an objective standard for evaluating the requirements of the cleric-penitent privilege that allows for the consideration of all the facts, therefore acknowledging the varied exchanges that take place between clerics and penitents, not all of which qualify for protection under the privilege. 358 N.J. Super. at 384. Applying this standard to each of the three requirements of the privilege, it becomes clear that Fairlawn has failed to meet its burden of establishing that it is entitled to the protection of the privilege. With respect to withheld Item Number 1, Fairlawn provides only the name of the author of the letter, perpetrator Clement (“Tino”) Pandelo, providing no information about to whom the letter was addressed nor how it was sent or maintained. Based on this scant description, it has not even been established that the letter was intended for or sent to a cleric. Even if Fairlawn could show that the letter was sent to a 13 BER-L-005508-21 11/07/2023 5:48:40 PM Pg 14 of 16 Trans ID: LCV20233316950 cleric, that alone would not establish applicability of the privilege. Not all letters (or other communications) from a penitent to a cleric are automatically subject to protection from privilege as such letters are not necessarily sent with the reasonable expectation of confidentiality. State v J.G., 201 N.J. at 384 (citing State v. List, 270 N.J. Super., 169, 174–75 (App. Div. 1993) (a letter to a pastor, “left for anyone to find and read” was not indicative of “a reasonable expectation of confidentiality”). Without even identifying a cleric as the recipient of the letter or establishing that the recipient meets the requirements to be considered a cleric, it can similarly not be determined whether the information in the letter was communicated to the cleric in their capacity as a cleric. Fairlawn has made no effort to demonstrate satisfaction of the three statutory elements to obtain the protection of the cleric-penitent privilege over this document. The bare bones information provided in the privilege log about Item Number 2, even when combined with the contextual information contained within the non-redacted portions of the document, similarly leave Plaintiff unable to determine whether the privilege is being properly asserted. In this instance, the redacted document is described as a “record of Disfellowship or Disassociation” dated August 25, 1988 and authored by “Fairlawn Congregation.” See Kessler Cert., ¶ 12, Ex H. Based on that description and the non-redacted portions of the document, the Court need not even engage in an objective analysis of the three required elements for the cleric- penitent privilege to apply. Fairlawn has failed to assert that the document even constitutes a “communication.” Even if Fairlawn could characterize this “Record of Disfellowship or Disassociation” as a “communication,” it still could not satisfy the three statutory elements necessary to warrant applying the privilege. For starters, neither the document nor the privilege log asserts or suggests that this document was sent from a penitent to a cleric (or anyone who could qualify as a cleric) or 14 BER-L-005508-21 11/07/2023 5:48:40 PM Pg 15 of 16 Trans ID: LCV20233316950 otherwise purports to describe any communication between a penitent and a cleric. Moreover, without further information about the function and use of this “Record of Disfellowshipping or Disassociation,” it cannot be determined whether there was a reasonable expectation of confidence. Moreover, the fact that Fairlawn disclosed the document at all, even in redacted form, leads to the conclusion that Fairlawn only seeks to protect the information of what offense Clement Pandelo was disfellowshipped for—a fact which is plainly relevant to Plaintiff’s case. While Plaintiff is hard pressed to find any basis on which the cleric-penitent privilege could be applied to the withheld documents, at a minimum, Fairlawn cannot be excused from its discovery obligations based on its bald assertion that the documents are entitled to protection. Fairlawn should therefore be compelled to produce the two documents in their entirety. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that this Court issue an Order compelling Defendants Watchtower, East Hackensack, and Fairlawn to produce documents responsive to Plaintiff’s First Set of RFPs Numbers 4 and 5 relating to complaints or allegations of other victims of sexual abuse committed by Clement Pandelo; compelling Defendants Watchtower and East Hackensack to comply with Paragraph 18 of the Consent Order and include the redacted documents in its privilege log; and compelling Defendant Fairlawn to produce in full any documents withheld on the basis of cleric-penitent privilege; and compel Defendant Fairlawn Congregation to respond fully to Plaintiff’s Form C Interrogatories Numbers 3 and 7. Respectfully submitted, Dated: November 7, 2023 By: /s/Rayna E. Kessler Rayna E. Kessler, Esq. NJ ID No. 031782010 ROBINS KAPLAN LLP 15 BER-L-005508-21 11/07/2023 5:48:40 PM Pg 16 of 16 Trans ID: LCV20233316950 1325 Avenue of the Americas, Suite 2601 New York, New York 10019 Telephone: (212) 980-7431 Facsimile: (212) 980-7499 Email: RKessler@RobinsKaplan.com Elizabeth A. Cate, Esq. THE ZALKIN LAW FIRM PC 10 Times Square, 1441 Broadway, Suite 3147 New York, New York 10018 Telephone: (858) 259-3011 Facsimile: (858) 259-3015 Email: elizabeth@zalkin.com Attorneys for Plaintiff Corinne Pandelo 16 BER-L-005508-21 11/07/2023 5:48:40 PM Pg 1 of 30 Trans ID: LCV20233316950 EXHIBIT A BER-L-005508-21 11/07/2023 5:48:40 PM Pg 2 of 30 Trans ID: LCV20233316950 Anthony P. La Rocco Dana B. Parker Thomas A. Zelante, Jr. K&L GATES LLP One Newark Center, 10th Floor Newark, New Jersey 07102 P: (973) 848-4000 F: (973) 848-4001 Attorneys for Defendant Watchtower Bible and Tract Society of New York, Inc. SUPERIOR COURT OF NEW JERSEY Corinne Pandelo, LAW DIVISION BERGEN COUNTY Plaintiff, DOCKET NO.: BER-L-5508-21 v. Civil Action The Governing Body of Jehovah’s Witnesses, DEFENDANT WATCHTOWER BIBLE Fairlawn Congregation of Jehovah’s AND TRACT SOCIETY OF NEW YORK, Witnesses, Watchtower Bible and Tract INC.’S RESPONSE TO PLAINTIFF’S Society of New York, Inc., Hackensack FIRST SET OF REQUESTS FOR Congregation of Jehovah’s Witnesses, and PRODUCTION OF DOCUMENTS John and Jane Does 1-100, whose identities are presently unknown to Plaintiff, in their official and individual capacities, Defendants. TO: Rayna E. Kessler, Esq. Robins Kaplan LLP 399 Park Avenue, Suite 3600 New York, NY 10022-4611 Attorneys for Plaintiff Corinne Pandelo Defendant Watchtower Bible and Tract Society of New York, Inc. (“WTNY” or “Responding Defendant”) by and through its attorneys, K&L Gates, LLP, hereby submits its responses and objections to Plaintiff’s First Set of Requests for Production of Documents (“Requests”). Neither the responses herein nor any documents which WTNY may produce or 1 BER-L-005508-21 11/07/2023 5:48:40 PM Pg 3 of 30 Trans ID: LCV20233316950 reference in responding to these Requests waives the protections of the attorney-client privilege, the work product doctrine, the cleric-penitent privilege, the self-critical analysis privilege, the joint defense or common interest doctrine, or any other applicable privilege or immunity. WTNY expressly reserves the right to amend or to supplement its answers, responses and objections to these Requests as additional responsive information becomes available by way of discovery or otherwise. WTNY’s responses to these Requests are accurate as of the date made. WTNY is engaged in continuing investigation of the matters inquired into by these Requests, and cannot exclude the possibility that it may obtain more complete information or information which indicates that the answers or responses are incorrect. WTNY will provide supplemental information, if any, as required by New Jersey Court Rules. Dated: December 10, 2021 Respectfully submitted, By: /s/ Anthony P. La Rocco Anthony P. La Rocco Dana B. Parker Thomas A. Zelante, Jr. K&L GATES LLP One Newark Center, 10th Floor Newark, New Jersey 07102 P: (973) 848-4000 F: (973) 848-4001 Attorneys for Defendant Watchtower Bible and Tract Society of New York, Inc. 2 BER-L-005508-21 11/07/2023 5:48:40 PM Pg 4 of 30 Trans ID: LCV20233316950 PRELIMINARY STATEMENT AND GENERAL OBJECTIONS 1. The following Preliminary Statement and General Objections are incorporated into Responding Defendant’s responses to each Request as if Responding Defendant separately so objected and/or stated in response to each Request. 2. Investigation and discovery by Responding Defend