Update-July 2022

Oregon judge again denies Synod’s motions to dismiss, upholds protective order

The Lutheran Church—Missouri Synod still faces claims for intentional fraudulent transfer and intentional interference with contractual relations but notched a significant legal victory on June 30 when Multnomah County Circuit Court judge Eric Dahlin granted its motion for protective order over roughly 2,000 documents which Synod attorneys had argued were confidential and protected from discovery under the First Amendment.

“I’m not making any determination that any particular document is privileged such that it doesn’t even need to be put on a privilege log,” said Judge Dahlin, referring to a list of documents the Synod wants protected. “There needs to be a privilege log…but I can tell you that my thought is that communications amongst the various related entities, even though they’re separate legal entities, such as the System, such as the Synod…if there are other related religious entities talking about this religious item, that to me seems that it would be protected by the First Amendment privilege. 

“To be clear, I don’t think there’s an absolute First Amendment privilege…I do think, unless I’m convinced otherwise, that simply discussing things between Concordia and the System and the Synod, that doesn’t necessarily appear to be a waiver to me.” 

Judge Dahlin called the privilege analysis “a balancing situation” which “under Ninth Circuit precedent, if the documents are highly relevant, then the privilege wouldn’t necessarily apply.” For this case, Judge Dahlin has established that “highly relevant” applies to any documents related to Hotchalk or finance, and the court is relying on the Synod and its lawyers to produce in good faith documents that meet this standard. Judge Dahlin also reviewed a random sample of 75 documents from the Synod’s privilege log and determined that, with one exception, it “appropriately withheld documents that are subject to First Amendment protections.” 

Jim McDermott, attorney for Hotchalk, disagreed with Judge Dahln’s ruling, and said Hotchalk would likely seek a higher court’s reversal of his decision.