A New Jersey appellate court ruled Monday that most of Seton Hall’s internal investigation into former Cardinal Theodore McCarrick can remain confidential, finding that two of the three sections of the report are protected by attorney-client privilege.
The decision reverses a November ruling by Superior Court Judge Avion Benjamin that would have required the university to disclose the report to plaintiffs in their case against the Archdiocese of Newark over clergy sexual abuse claims.
McCarrick, who served as archbishop of Newark from 1986 to 2000 before being defrocked in 2019, previously chaired Seton Hall’s Board of Trustees and Board of Regents. Allegations that McCarrick sexually harassed seminarians at SHU’s Immaculate Conception Seminary School of Theology (ICS) prompted the university to hire Gibbons P.C. to conduct an independent review. Gibbons then retained the law firm Latham & Watkins to carry out the investigation, which resulted in the 2019 report.
In its published opinion, the three-judge appellate panel ruled that the first two sections of the report are protected by attorney-client privilege because the investigation was conducted to help SHU’s lawyers prepare for litigation.
“Even though no attorney-client privilege existed between SHU and Latham, an attorney-client relationship existed between Gibbons and SHU that extended to Latham as a necessary agent of Gibbons,” the panel’s ruling says.
However, the court ordered the release of a third section examining SHU's policies, procedures and Title IX compliance. Judges found that portion was intended to improve university operations rather than provide legal advice and said disclosure is in the public’s interest because it could help prevent future sexual misconduct and harassment.
“It is in the public interest to disclose self-critical analyses of SHU’s policies and procedures,” the ruling states. “Accordingly, the third section of the Latham Report, and documents relating to it, should be produced.”
The appeals court also rejected arguments that SHU waived attorney-client privilege by sharing the report with the Vatican during its investigation of McCarrick. According to the opinion, SHU believed Catholic Canon Law required it to comply with the Vatican’s request, and the Vatican agreed the report would remain confidential.
“As a part of the Church, SHU provided the Vatican with the Latham Report as part of its religious duty and in furtherance of their shared goal of investigating the extent of McCarrick's abuse and preventing the abuse from happening to others,” the opinion says. “Thus, SHU did not waive any privilege by Sharing the Latham Report to the Vatican.”
The appeals court also found that emails and attachments predating the case—dating back to the 1980s—were not privileged and encouraged the trial court to review them individually to determine which can be disclosed.
“On remand, a fact-specific analysis needs to be completed to determine whether
each email was prepared in anticipation of litigation,” the ruling states. “Moreover, the court must determine if the documents contain self-critical analysis, in which case that part should be produced.”
The case now returns to the trial court for further review.
Megan Pitt is the Editor-in-Chief of The Setonian. She can be reached at megan.pitt@student.shu.edu.
