Clergy-Communicant Privilege Not Waived by Presence of Third Parties

From WebXchange Inc. v. Dell Inc., 2010 U.S. Dist. LEXIS 12954 (D. Del. Feb. 16, 2010):

The clergy-communicant privilege "protect[s] communications made (1) to a clergyperson (2) in his or her spiritual capacity (3) with a reasonable expectation of confidentiality." In re Grand Jury Investigation, 918 F.2d 374, 384 (1990). "The presence of multiple parties, unrelated by blood or marriage, during discussions with a member of the clergy may, but will not necessarily, defeat the condition that communications be made with a reasonable expectation of confidentiality for the privilege to attach." Id. at 386. The necessary inquiry is whether the third party's presence is essential to and in furtherance of the communication to the clergyperson. Id. (emphasis added).

Given that Defendants do not challenge M. Meera's or S. Shankar's qualifications as clergy (D.I. 151, at 5), the threshold criterion that the withheld communications be made to clergypersons is satisfied. Moreover, the Court sees no reason to doubt that Dr. Arunachalam was seeking blessings from M. Meera and S. Shankar via the three withheld emails, and thus, the second criterion is satisfied. Although it is somewhat of a closer call, the Court will accept Dr. Arunachalam's representation that the third parties for whom blessing were sought needed to be copied on the emails in order to be blessed, and accordingly finds that their presence was essential to and in furtherance of Dr. Arunachalam's communication to clergypersons.

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