Stalnaker v. Kmart Corp.

GERALD L. RUSHFELT, District Judge.

Under consideration is Defendant's First Motion For Protective Order. Pursuant to Fed. R. Civ. P. 26(c), defendant thereby seeks an order protecting non-party witnesses Lea Rozenberg, Rhonda Hyde, Gloria Olivares, and Lonny Casaert from discovery concerning voluntary romantic conduct or their sexual-related activities. Plaintiff has noticed depositions for these witnesses. She opposes the motion.

Plaintiff claims sexual harassment. She alleges that Donald Graves, an employee in the Receiving Department of defendant, created a hostile working environment and sexually harassed her by inappropriate touching. . . . She has made no allegations against any of the proposed deponents.

Defendant asserts that plaintiff has not alleged that any of the witnesses had romantic or sexual involvement with her, created or contributed to the alleged hostile work environment, or otherwise wronged her. It further states that none of them have complained to it of sexual harassment. It contends that any voluntary romantic or sexual activities of the witnesses are irrelevant. It suggests, furthermore, that inquiry into such activities will invade their privacy rights. It argues that the embarrassment, humiliation, and invasion of privacy which would result from such inquiry substantially outweighs the probative value, if any, of such activities. It contends that Fed. R. Evid. 412 bars inquiry into such activities.

Plaintiff asserts that investigation has revealed potential harassment by Mr. Graves towards Ms. Rozenberg. Plaintiff suggests that the other witnesses may possess relevant information about sexual harassment at Kmart. She would agree to a protective order preventing dissemination of discovery to third parties. She suggests that such an order would alleviate the concern for privacy. She claims no intent to violate Fed. R. Evid. 412.

The parties apparently view the scope of the requested protective order differently. Defendant seeks "to exclude inquiry into voluntary, consensual sexual relations that have no relation to the instant case." . . . It further states that it "does not attempt to prevent plaintiff from inquiring into purported sexual harassment by Graves of employees other than plaintiff." . . . Plaintiff claims the requested protective order is too broad. She suggests that it would prohibit inquiry into potential sexual harassment by Graves.

The confusion may stem from the phrasing of the proposed protective order. Defendant seeks "an order that any voluntary romantic conduct or sexual-related activities of Lea Rozenberg, Rhonda Hyde, Gloria Olivares or Lonny Casaert not be inquired into during deposition or other discovery." If "voluntary" modifies "romantic conduct," but not "sexual-related activities," the proposed protective order might encompass inquiry into potential sexual harassment by Graves. The court does not read the proposed order in that manner. The motion and supporting memorandum speak about voluntary romantic and sexual activities. The court reads voluntary as modifying both "romantic conduct" and "sexual-related activities." With the scope of the proposed order now settled, the court will set forth the applicable law.

Fed. R. Civ. P. 26(b) permits a broad scope of discovery. It provides in pertinent part that " [p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action." Fed. R. Civ. P. 26(b)(1). The information sought need not be admissible at trial if it appears reasonably calculated to lead to the discovery of admissible evidence. Id. Despite the broad scope of permissible discovery, the court may enter protective orders totally prohibiting certain discovery or limiting the scope of discovery to certain matters. Fed. R. Civ. P. 26(c)(1) and (4).

Whether to enter a protective order is within the sound discretion of the court. Thomas v. International Bus. Machs. . . . Fed. R. Civ. P. 26(c) provides that the court, upon a showing of good cause, "may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." " [A] party is entitled to request a protective order to preclude any inquiry into areas that are clearly outside the scope of appropriate discovery." Caldwell v. Life Ins. Co. of N. Am. . . . The party seeking a protective order, however, has the burden to show good cause for it. Sentry Ins. v. Shivers. . . . To establish good cause, that party must submit "a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements." Gulf Oil Co. v. Bernard. . . .

Even when a motion "arises in the context of discovery under Rule 26 of the Federal Rules of Civil Procedure, the Court must remain mindful of Rule 412 and its implications." Sanchez v. Zabihi. . . . Fed. R. Evid. 412(a) provides that " [e]vidence offered to prove that any alleged victim engaged in other sexual behavior" or "to prove any alleged victim's sexual predisposition" is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c). Only subdivision (b)(2) appears applicable here. It provides:

In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the alleged victim.

The Advisory Committee Notes for the 1994 amendments explain the terminology and the applicability of the Rule:

The terminology "alleged victim" is used because there will frequently be a factual dispute as to whether sexual misconduct occurred. It does not connote any requirement that the misconduct be alleged in the pleadings. Rule 412 does not, however, apply unless the person against whom the evidence is offered can reasonably be characterized as a "victim of alleged sexual misconduct."

Although Rule 412 addresses admissibility, it "is applicable and has significance in deciding" certain discovery motions. . . . "It deals with the relevance of an alleged victim's past sexual behavior or alleged sexual predisposition in sex offense cases." Ramirez v. Nabil's, Inc. . . . As amended in 1994, "this Rule, commonly referred to as the Rape Shield Rule, now applies to civil as well as criminal cases." Alberts v. Wickes Lumber Co. . . . It applies "in any civil case in which a person claims to be the victim of sexual misconduct, such as actions for sexual battery or sexual harassment." Fed. R. Evid. 412 advisory committee notes (1994 amend.) It also "applies to non-party witnesses as well as to parties." Burger v. Litton Indus. . . .

Congress amended Rule 412 "to diminish some of the confusion engendered by the original rule and to expand the protection afforded alleged victims of sexual misconduct." Fed. R. Evid. 412. . . . The rule aims to safeguard the alleged victim against the invasion of privacy, potential embarrassment and sexual stereotyping that "is associated with public disclosure of intimate sexual details and the infusion of sexual innuendo into the factfinding process. By affording victims protection in most instances, the rule also encourages victims of sexual misconduct to institute and to participate in legal proceedings against alleged offenders.

Rule 412 seeks to achieve these objectives by barring evidence relating to the alleged victim's sexual behavior or alleged sexual predisposition, whether offered as substantive evidence of [sic] for impeachment, except in designated circumstances in which the probative value of the evidence significantly outweighs possible harm to the victim.

The revised rule applies in all cases involving sexual misconduct without regard to whether the alleged victim or person accused is a party to the litigation. Rule 412 extends to "pattern" witnesses in both criminal and civil cases whose testimony about other instances of sexual misconduct by the person accused is otherwise admissible.

Although Rule 412 "does not apply directly to discovery . . . the Court must consider it 'in order not to undermine the rationale of Rule 412.' " (quoting Fed. R. Evid. 412 advisory committee notes (1994 Amend.)). Fed. R. Civ. P. 26 continues to govern "discovery of a victim's past sexual conduct or predisposition in civil cases." . . .

In order not to undermine the rationale of Rule 412, however, courts should enter appropriate orders pursuant to Fed. R. Civ. P. 26(c) to protect the victim against unwarranted inquiries and to ensure confidentiality. Courts should presumptively issue protective orders barring discovery unless the party seeking discovery makes a showing that the evidence sought to be discovered would be relevant under the facts and theories of the particular case, and cannot be obtained except through discovery. In an action for sexual harassment, for instance, while some evidence of the alleged victim's sexual behavior and/or predisposition in the workplace may perhaps be relevant, non-work place conduct will usually be irrelevant.

Although Fed. R. Evid. 412 applies generally to sexual harassment cases, the court does not find it controlling the present motion for protective order. The rule does not apply in a particular context, "unless the person against whom the evidence is offered can reasonably be characterized as a 'victim of alleged sexual misconduct.' ". . . Defendant seeks to protect non-party witnesses from embarrassment, humiliation, and invasion of privacy. The witnesses themselves have sought no protection. They have raised no objections to proposed discovery; The court assumes plaintiff seeks the discovery for use against defendant and Mr. Graves, not the witnesses. Fed. R. Evid. 412, consequently, appears to have no application to these facts.

Fed. R. Evid. 412 aside, defendant has demonstrated good cause to bar discovery of voluntary romantic and sexual activities of the four non-party witnesses to the extent they have no relationship to the allegations against Kmart. Those activities appear generally irrelevant to any issue in this action. Any sexual harassment by Graves is relevant, however, whether of plaintiff or of others. Consequently, the court will not preclude inquiry about any voluntary romantic or sexual activities with Mr. Graves to the extent they show any conduct on his part to encourage, solicit, or influence any employee of defendant to engage or continue in such activities. Such discovery is potentially embarrassing and annoying, both to the deponents and to defendant. The parties shall use such discovery, therefore, only for purposes of this litigation and shall not disclose it to anyone outside this litigation. . . .

For the foregoing reasons the court sustains in part and overrules in part Defendant's First Motion For Protective Order. . . . Plaintiff may not pursue discovery from Lea Rozenberg, Rhonda Hyde, Gloria Olivares, or Lonny Casaert about any voluntary romantic or sexual activities, except to the limited extent indicated in this order. The parties, furthermore, shall use discovery from such witnesses only for purposes of this litigation and shall not otherwise disclose it.

IT IS SO ORDERED.