This issue of a tribunal system to hear grievances within the JWs was the crux of a legal case in Canada years ago. The court decided that due to the tribunal format wherein more than one individual heard the confession of a congregant, the ecclesiastical privilege rules did not apply to the JWs.
Here is a more recent ruling against Watchtower: https://www.reminger.com/insights-reports-615.html
McFarland v. West Congregation of Jehovah’s Witnesses, Lorain, OH, Inc., 9th Dist. Lorain No. 15CA010740, 2016-Ohio-5462
"During the course of the litigation, McFarland sought the production of certain documents between the Congregation and the Congregation’s governing bodies regarding McFarland, her allegations of molestation and the alleged abuser. The defendants withheld approximately nineteen documents from their production, claiming that these documents were protected by the clergy-penitent privilege. (Id., ¶ 10.)
"In examining whether the clergy-penitent privilege applied in this instance to each of the disputed documents, the appellate court began by noting that not every word authored or spoken by a cleric is automatically privileged and there is no protection for communications made for secular purposes – even when those communications were intended to be confidential. Ward, 128 Ohio St. 3d 212, 2010-Ohio-6275, at ¶ 15; Niemann v. Cooley, 93 Ohio App.3d 81, 88-89 (1st Dist.1994). Further limiting the clergy-penitent privilege is the fact that the privilege stems from a penitent’s desire to receive spiritual counsel, not a cleric’s desire to give it. See Trammel v. United States, 445 U.S. 40, 51 (1980).
"In its examination of each of the nineteen disputed documents, the appellate court only withheld production of those documents where the defendants clearly satisfied their legal burden of demonstrating that the document served a religious counseling purpose rather than a secular one. For example, correspondence between governing elders and various congregations were not deemed confidential because they did not involve an instance of a particular penitent confiding to a cleric. (Id., ¶ 16.) Another letter, in which the author was drawing attention to the Congregation’s handling of a particular matter, was also not privileged because it did not pose any questions to the elders or request advice of a spiritual nature. (Id., ¶ 20.) Further, the court also refused to protect those documents involving persons unrelated to the McFarland dispute, finding no third-party privacy rights applied. (Id., ¶ 53.)
"Finally, the court rejected defendants’ claim that the production of the disputed documents violated their First Amendment rights by exposing their “internal discipline procedures and beliefs regarding repentance, mercy and redemption to external, secular scrutiny.” (Id., ¶ 56.) The First Amendment to the United States Constitution and the Establishment Clause and Free Exercise Clause prohibit states from enacting “laws that have the purpose or effect of advancing or inhibiting religion,” or expressing a preference for any one religious denomination. Varner, 500 F.3d at 495. The Clauses apply to limit the power of courts to hear suits whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by church judicatories.” Watson v. Jones, 80 U.S. 679, 727, 20 L. Ed. 666 (1871).
"In rejecting the Congregation’s First Amendment claims in McFarland, the appellate court noted that the First Amendment does not protect religious institutions from disclosing relevant, non-privileged information. Thus, because the documents were not privileged, there was no need for the court to interpret or evaluate the defendants’ religious beliefs or internal governance. In short, because the question of relevance was purely secular and “did not require the court to delve into religious law and policy” there was no merit to the Congregation’s First Amendment claims. (Id., ¶ 59, relying, in part, upon Howard v. Covenant Apostolic Church, Inc., 124 Ohio App.3d 24, 28-29 (1st Dist.1997)).
"In total, the appellate court found that only four of the disputed documents were protected from production by the clergy-penitent privilege. The significance of this holding is that despite the generally-held belief that matters of church governance and policy are protected from production, there are strict limits applied to the clergy-penitent privilege and determining whether the privilege applies requires a careful, case-by-case analysis."
