Doe v. Old Dominion Univ.
289 F. Supp. 3d 744 (2018)
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Rule of Law:
Federal common law recognizes a qualified victim-advocate privilege, protecting confidential communications between a sexual assault victim and their advocate, which can be overcome only if the theoretical relevance of the communications to the case outweighs the public policy interest in maintaining confidentiality.
Facts:
- Jane Doe, a sexual assault victim, engaged in email communications with her victim advocate, Laura Dunn, and the organization SurvJustice, Inc., between October 25, 2014, and January 5, 2015.
- Jane Doe filed a lawsuit against Old Dominion University (ODU) alleging claims related to her sexual assault.
- During discovery, ODU requested production of these emails from Jane Doe, her parents, and SurvJustice.
- Jane Doe, her parents, and SurvJustice objected to the production, asserting a victim-advocate privilege.
- Jane Doe included an email as an exhibit to her Amended Complaint, which consisted of two emails from an ODU representative forwarded by her to Ms. Dunn, without any additional text written by Jane Doe or her advocate.
Procedural Posture:
- Jane Doe filed a Title IX action against Old Dominion University (ODU) in federal district court, proceeding under a pseudonym.
- The district court entered a Rule 26(f) Pretrial Order, with discovery deadlines, which were later stayed.
- ODU filed a Motion to Dismiss Amended Complaint, which the court denied, lifting the stay on discovery.
- During discovery, ODU requested emails between Jane Doe (and persons acting on her behalf) and her victim advocate, Laura Dunn, and SurvJustice, Inc., as well as from Jane Doe's parents.
- Jane Doe, SurvJustice, and Jane Doe's Parents objected to the production, asserting a victim-advocate privilege.
- ODU filed three Motions to Compel: (1) against Plaintiff Jane Doe, (2) against SurvJustice, Inc., and (3) against Jane Doe's Parents.
- The court convened a hearing on the Motions to Compel and ordered Plaintiff and non-parties SurvJustice and Plaintiff's Parents to produce the withheld documents for an in camera inspection.
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Issue:
Does a qualified victim-advocate privilege exist under federal common law for communications between sexual assault victims and their advocates, and if so, what standard governs when it can be overcome in discovery?
Opinions:
Majority - Henry Coke Morgan, Jr.
Yes, a qualified victim-advocate privilege exists for communications between sexual assault victims and their advocates under federal common law, and it can be overcome if the theoretical relevance of the communications outweighs the public policy interest in keeping them confidential. Applying Federal Rule of Evidence 501, the court drew parallels to the Supreme Court's reasoning in Jaffee v. Redmond, which recognized a psychotherapist-patient privilege. The court found that such a privilege promotes sufficiently important interests to outweigh the need for probative evidence for four key reasons: (1) it is rooted in the imperative need for confidence and trust, as victims require a safe space for frank and complete disclosure to advocates; (2) it serves public ends by encouraging the reporting and investigation of sexual assaults and facilitating access to mental health services; (3) denying the privilege would offer only minimal evidentiary benefit, as fear of disclosure would chill communications, preventing the evidence from coming into being; and (4) the majority of states (40 states and D.C.) have enacted similar protections, indicating widespread support and the potential for disruptive effects if federal courts disregarded it. The court rejected ODU's arguments that Jane Doe waived the privilege by filing an exhibit to her Amended Complaint (as it contained only ODU's communications, not her own substantive disclosures) and that a general protective order sufficiently preserved confidentiality (as Jane Doe had a substantial interest in keeping communications confidential from ODU itself). After an in camera review of the withheld documents, the court partially granted ODU's motions to compel for specific emails deemed relevant (e.g., regarding attorney retention, ODU's response to the alleged attack, or efforts to obtain accommodations) and denied the motions for the remaining documents protected by the privilege.
Analysis:
This decision significantly broadens the scope of federal evidentiary privileges by formally recognizing a federal common law victim-advocate privilege. It extends the reasoning from Jaffee v. Redmond to a new context, reinforcing the principle that certain confidential relationships serve a transcendent public good. The case establishes a balancing test that judges will apply, weighing the specific relevance of communications against the strong public policy interest in protecting survivors' ability to seek support without fear of disclosure. This will likely encourage more victims to come forward and seek advocacy services, while also imposing a high bar for discovery of such sensitive information in federal civil litigation.
