• Key point: Personal notes ministers make during counseling sessions may be privileged.
• A federal court in Virginia ruled that the clergy-penitent privilege applied to a pastoral counselor, and that as a result the counselor did not have to disclose notes she took during counseling sessions. A woman was injured when she was struck by a can falling from the top shelf in a grocery store. She later sued the grocery store for personal injuries and emotional distress. At the time of the accident and thereafter the woman sought counseling from a pastoral counselor at a local nonprofit, multidenominational counseling center operated by 8 churches. All of the counselors at the center are ordained ministers. During the woman's counseling sessions, her counselor followed her usual practice of taking notes. The grocery store learned of the counseling relationship and issued a subpoena seeking disclosure of all of the counselor's notes in an attempt to verify the woman's injuries. The counselor claimed that her notes were protected from disclosure by the clergy-penitent privilege, and refused to disclose them. The grocery store argued that the clergy-penitent privilege only applied to "testimony [given] as a witness in any civil action," and accordingly did not apply to a request for notes or other documents. The court ruled that the counselor's notes were protected from disclosure by the privilege. It began by quoting the Virginia clergy-penitent privilege:
No regular minister, priest, rabbi or accredited practitioner over the age of eighteen years, or any religious organization or denomination usually referred to as a church, shall be required in giving testimony as a witness in any civil action to disclose any information communicated to him in a confidential manner, properly entrusted to him in his professional capacity and necessary to enable him to discharge the functions of his office according to the usual course of his practice or discipline, wherein such person so communicating such information about himself or another is seeking spiritual counsel and advice relative to and growing out of the information so imparted. Va. Code Ann. § 8.01-400.