Update-April 2023

Hotchalk v. LCMS trial pushed to 2025

A trial date in the $302 million lawsuit against the Lutheran Church—Missouri Synod over the closure of Concordia University Portland has been pushed to 2025, as the Oregon Supreme Court reviews a trial court decision over the discoverability of Synod documents.

The parties agreed to block out two six-week trial periods in 2025, one “optimistic” period for February-March, and another “backup” in September-October. 

Trial is delayed while the Oregon Supreme Court reviews a discovery dispute over documents which Synod attorneys have argued are confidential and protected under the First Amendment. 

In a hearing last month, plaintiff’s attorney Jim McDermott told the trial court that these reviews typically last more than a year. “If past is prologue, we are at least a year away from a decision by the Oregon Supreme Court on the mandamus issue,” he said.

How much time would plaintiff need for discovery once a decision came down from the Supreme Court, the trial court asked.

“6-9 months.”

In its opening brief to the state Supreme Court, filed last month, plaintiff Hotchalk Inc said the trial court decision “created a novel and dangerous doctrine: decreeing that the First Amendment provides a privilege protecting relevant religious documents and communications from discovery in commercial litigation.” 

The trial court established a “highly relevant” standard in which, once relevant documents are claimed to present First Amendment issues, “the burden shifts to the requesting party [Hotchalk] to show that the documents are ‘highly relevant’ (an admittedly amorphous term).” In its briefing to the court, HotChalk called this burden-shifting “highly relevant” standard “unworkable.” 

“Respectfully, HotChalk submits that the trial court’s test is a Catch-22: the requesting party has the burden to prove the documents are ‘highly relevant’ but the requesting party cannot see the documents to aid in its proof attempts; and the reason the requesting party cannot see the documents is that the requesting party has not proven that they are ‘highly relevant.’”

In its opposition to Hotchalk’s mandamus petition, the Synod warned that if the state Supreme Court grants the petition, “it will be plunged prematurely into a tangled web of complex First Amendment issues without the benefit of a complete record essential for review.”

Oral argument before the Supreme Court has been scheduled for June 2023.