Title IX lawsuit weighs the victim-advocate privilege

A federal judge in the Eastern District of Virginia recently ruled that conversations between an alleged sexual assault victim and her advocate are not protected in the same way as attorney-client or doctor-patient communications. In Jane Doe v. Old Dominion University, Plaintiff Jane Doe (“Doe”), a student at Old Dominion University (“ODU”), sued the university under Title IX relating to her alleged sexual assault.

As part of discovery in the litigation, ODU served a subpoena duces tecum on SurvJustice, a victim advocacy legal group, for messages between Doe and her parents and SurvJustice before Doe became its legal client. SurvJustice refused claiming the prior communications were protected by the “victim-advocate privilege” allegedly created by Va. Code Ann. § 63.2-104.1.

ODU filed a motion to compel Doe (and her parents) and SurvJustice to provide the requested documents. ODU argued that the privilege did not apply, that Doe had already provided communications with a prior victim advocate, and that any produced documents would be under seal to protect Doe’s anonymity. Doe’s counsel countered that production would unduly invade the necessity of a confidential relationship between a sexual assault victim and an advocate.

The Court found that “there exists a limited victim-advocate privilege which applies to the withheld email and other communications between Plaintiff and her parents and her victim advocate SurvJustice.” The Court noted that thirty-nine states, including Virginia, have adopted laws protecting some level of confidentiality for victim-advocate communications. The Court continued, “[h]owever, such privilege is not absolute” and ordered Doe and SurvJustice (and Doe’s parents) to produce the withheld documents for an in camera inspection to determine whether any are relevant to any of ODU’s defenses. One example the Court provided was any communication that may relate to issues of consent underlying the incident. From the Court’s order, it appears that the SurvJustice documents may include the Plaintiff’s cellular phone records.

Through its in-camera review, the Court determined that some of the documents, described as “emails,” are “subject to production.” Because the Court ordered these documents produced under seal, it is not possible to determine the full nature and scope of the records the Court ordered produced.

We will continue to follow similar developments in the evolving area of Title IX litigation, particularly as courts address vexing issues of privileges and privacy that require the balancing of competing considerations.