Paula Gordon v. Nexstar Broadcasting, Inc., et al.
Filing
73
ORDER GRANTING 69 71 Defendant's Motion for Discovery, signed by Magistrate Judge Jennifer L. Thurston on 11/11/2018. (Hall, S)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
PAULA GORDON,
Plaintiff,
12
v.
13
14
NEXSTAR BROADCASTING, INC., et al.,
Defendants.
15
16
)
)
)
)
)
)
)
)
)
)
Case No.: 1:18-cv-0007 - DAD - JLT
ORDER GRANTING DEFENDANT’S MOTION
FOR DISCOVERY
(Docs. 69, 71)
Paula Gordon contends she suffered sexual harassment as an employee of the defendants. She
17
18
alleges the defendants are liable sexual harassment, discrimination and retaliation in violation of the
19
Fair Employment and Housing Act, violation public policy, and intentional infliction of emotional
20
distress. Defendants contend Plaintiff was “motivated… to make… unsubstantiated allegations of
21
harassment” due to a romantic involvement with an individual who had an account with the defendants,
22
and seeks to compel further testimony from Plaintiff regarding that relationship. (Docs. 69, 71)
23
The Court found the matter suitable for decision without oral argument, and took the matter
24
under submission pursuant to Local Rule 230(g). (Doc. 72) For the following reasons, Defendants’
25
motion to compel discovery is GRANTED.
26
I.
27
28
Background
Plaintiff alleges she was hired in December 2012 as an account executive, “to perform in the
business of television media sales,” and her “$120,000 salary was based on commission only.” (Doc.
1
1
14 at 5, ¶ 15) She contends that after the defendants hired Erik Mendoza as a sales manager in August
2
2013, she “suffered from constant and egregious sex harassment.” (Id., ¶ 16) Plaintiff asserts she “was
3
subjected to a constant stream of sex harassment, including, inappropriate touching, and obscene and
4
sexually vulgar comments and exhibitions.” (Id., ¶17) She alleges that “acts of harassment were
5
performed in front of other persons, including persons working both for and working with Defendants.”
6
(Id.) According to Plaintiff, “Defendants “tolerated, acquiesced, encouraged, failed to protect, failed to
7
investigate and allowed to exist, a hostile, oppressive, dangerous and violent work environment for
8
Plaintiff as created by [Mendoza].” (Id.)
9
Plaintiff alleges that in February 2016, she complained to her supervisor Derek Jeffery, the
10
General Manager of Nexstar, that “Adam Chase, would constantly threaten Plaintiff’s job by stating he
11
could take away any of her business accounts.” (Doc. 14 at ¶¶ 8, 19) She asserts, “Mr. Chase took
12
away at least eight (8) of Plaintiff’s accounts and inexplicably gave many of them to [Mendoza].” (Id.
13
at 7, ¶19) Plaintiff reports she cried in front of Jeffrey, who responded that Plaintiff was “being way too
14
emotional” and said he “wouldn’t go to [his] boss crying.” (Id.) Plaintiff asserts that “[i]n June 2016,
15
once Mr. Chase left his position with Defendants, [Jeffery] told Plaintiff that Mr. Chase ‘hated’
16
Plaintiff because ‘he (Mr. Chase) hated women, particularly strong women.’” (Id. at 8, ¶19)
17
She asserts that in July 2016, Mendoza was promoted to local sales manager, a position which
18
made him Plaintiff’s supervisor. (Doc. 14 at 6, ¶18) Plaintiff alleges that at the time of the promotion,
19
she described Mendoza’s “constant egregious and sexually inappropriate comments and actions” to
20
Alma Navarrete, the General Sales Manager and another supervisor over Plaintiff. (Id., ¶¶ 7, 20)
21
Navarrete told Plaintiff to “[j]ust ignore him.” (Id. at 8, ¶ 20) She contends that year, she also described
22
Mendoza’s “offensive and vulgar sexual comments and physical touching, photos and videos to
23
Navarrete, who “discouraged Plaintiff from filing a complaint with Defendants.” (Id., ¶ 23) Plaintiff
24
asserts that Navarrete reported this conversation to Jeffery. (Id.)
25
According to Plaintiff, Mendoza was “investigated by Defendants for sexually harassing
26
another subordinate” after another female account executive, Alyssa Duran, reported Mendoza as
27
sexually harassing her in November 2016. (Doc. 14 at 8, ¶ 21) Plaintiff asserts she was not interviewed
28
related to Mendoza’s behavior toward Duran, but was instead asked to “describe her ‘relationship’ with
2
1
her fellow female Account Executive.” (Id.) She alleges Ms. Duran was on leave during the
2
investigation while Mendoza kept working, and after the leave ended, Navarrete told Plaintiff: “[W]e
3
are going to make sure Duran quits. We aren’t going to give her another account. She is out of here.’”
4
(Id., ¶ 22) Plaintiff contends that from this, she “learned what Defendants do to women who complain
5
of sex harassment.” (Id.)
6
On January 12, 2017, Navarrete told Plaintiff that Jeffery wanted to meet with her. (Doc. 14 at
7
8, ¶ 24) Plaintiff asserts that during the meeting, Jeffery informed Plaintiff that Navarrete had reported
8
Plaintiff’s complaints of sexual harassment and abuse by Mendoza.” (Doc. 14 at 8-29, ¶ 24) Jeffery
9
asked Plaintiff if Mendoza made “just comments,” to which Plaintiff responded the harassment was
10
also physical. (Id. at 9, ¶ 24) According to Plaintiff, Jeffrey responded, ““You should have done what
11
my wife would have done, you should have kicked Erik in the balls.” (Id.) Jeffrey then “abruptly”
12
ended the meeting with Plaintiff and Navarrete. (Id.) Later that day, Navarrete went to Plaintiff and
13
said Plaintiff was jeopardizing [Navarrete’s] job by telling her the information about Mendoza.” (Id.,
14
¶ 25) In response, Plaintiff told Navarrete that she could not “pick and choose” what information she
15
told Jeffrey, and asked why Navarrete did not tell Jeffrey about Mendoza “showing pictures of his
16
penis and videos of him masturbating.” (Id.) According to Plaintiff, Navarrete then responded: “Don’t
17
tell me! I don’t want to know!” (Id.)
18
Plaintiff asserts she again met with Jeffery regarding Mendoza’s conduct the following day, on
19
January 13, 2017. (Doc. 14 at 9, ¶ 26) Jeffery again asked Plaintiff whether it “[w]as … more than just
20
comments.” (Id.) She alleges that she responded, “yes, as I told you, it was also physical. Alma
21
[Navarrete] knows everything.” (Id.) Plaintiff added, “I told Alma everything last year.” (Id.) She
22
contends that after the meetings with Jeffery and Navarrete, her “sex harassment complaints were just
23
ignored” and “Defendants did not contact Plaintiff regarding her sexual harassment allegations and
24
complaints.” (Id., ¶ 27)
25
On January 24, 2017, Plaintiff fold Jeffery “that her medical doctor ordered her on a leave of
26
absence to address Plaintiff’s trauma and non-stop hostile workplace.” (Doc. 14 at 9, ¶ 28) In April
27
2017, while Plaintiff remained on leave, she “voluntarily participated in an investigation conducted by
28
an attorney who was hired by Defendants to investigate Plaintiff’s sex harassment claims.” (Id. at 9-10,
3
1
¶ 29) She asserts the investigation concluded in June 2017, and “[t]he investigator found that Defendant
2
Mendoza had sexually harassed Plaintiff.” (Id., ¶ 30)
3
According to Plaintiff, “Defendants demanded that Plaintiff immediately return to work.” (Doc.
4
14 at 10, ¶ 31) She asserts that she “was suffering severe emotional distress from the abuse and
5
mistreatment by Defendants,” and “feared that if she returned to work, she, like other sex harassment
6
victims of Defendants, would be retaliated against by the Local Sales Manager, her bosses, and the
7
entire management team.” (Id.) On July 31, 2017, Plaintiff was fired, and replaced by Lupe Carbajal,
8
“who Defendants[] knew had sexually harassed Plaintiff at a previous job.” (Id., ¶¶ 32- 33)
9
Plaintiff filed claims with the California Department of Fair Employment and Housing, which
10
“granted the right to sue.” (Doc. 14 at 13, ¶ 45) On September 22, 2017, Plaintiff filed a complaint in
11
the Los Angeles County Superior Court. (See Doc. 1 at 2, ¶ 1) Plaintiff identified the following causes
12
of action: (1) statutory harassment, (2) gender discrimination in violation of California’s Fair
13
Employment and Housing Act (“FEHA”), (3) violation of public policy, (4) retaliation in violation of
14
FEHA, (5) and intentional infliction of emotional distress. (See id. at 10, 19-26)
15
Nexstar filed a notice of removal on October 31, 2017, thereby removing the action to the
16
Central District of California. (Doc. 1) Plaintiff filed an amended complaint (Doc. 14), after which
17
she also voluntarily dismissed The CW Network as a defendant (Doc. 25) and voluntarily dismissed
18
the first cause of action for harassment as to Derek Jeffery and Alma Navarrete (Doc. 26). Thus, the
19
defendants remaining in the action are Nexstar Broadcasting, Telemundo 17.3, KGET-TV 17, and
20
Erik Mendoza. (See Doc. 14 at 10) On December 28, 2017, the Central District transferred the action
21
to the Eastern District of California, thereby initiating the action before this Court. (Doc. 45) T
22
The Court issued new civil case documents and set a scheduling conference for April 2, 2018.
23
(See Docs 48, 56) At the scheduling conference, the parties were directed to complete non-expert
24
discovery no later than February 15, 2019. (Doc. 58 at 2) The parties began discovery, and participated
25
in mid-discovery status conference with the Court on September 10, 2018. (Doc. 64) The parties
26
agreed to limit Plaintiff’s deposition to 12 hours, without prejudice to bringing a motion. (Id.)
27
28
Plaintiff appeared for her deposition on September 24, 2018. (See Doc. 71 at 2; Doc. 71-1 at 4)
“During the deposition, Plaintiff testified that Mendoza touched her leg during an event in September
4
1
2016,” when “Ted Nicholas, President of Nexstar’s client, 3 Way Chevrolet, was the only witness who
2
told her that he witnessed the alleged touching.” (Doc. 71 at 2) She also testified “she is presently in a
3
romantic relationship with Nicholas and that their relationship started around February 2017.” (Id.)
4
Counsel for Nexstar “asked Plaintiff to describe the nature of her relationship with Nicholas in
5
December 2016, in particular, whether Plaintiff and Nicholas were in a romantic relationship at the time
6
when they were seeking to get the 3 Way Chevrolet account transferred from Mendoza to Plaintiff, and
7
when Plaintiff complained that Mendoza sexually harassed her.” (Id.) Plaintiff’s counsel objected to
8
the questioning and instructed Plaintiff not to answer the questions “on the asserted bases of privacy
9
and relevance.” (Id.)
10
The Court held an informal telephonic conference with the parties on October 3, 2018. (Doc.
11
66) Because the dispute was not resolved, the defendants were authorized to file a motion to compel
12
the further testimony of Plaintiff. (Id.) In October 9, 2018, the defendants filed a notice of the motion
13
now before the Court. (Doc. 69) The parties filed their joint statement regarding the discovery dispute
14
on November 1, 2018. (Doc. 71).
15
II.
16
17
Scope of Discovery
The scope and limitations of discovery are set forth by the Federal Rules of Civil Procedure. In
relevant part, Rule 26(b) states:
21
Unless otherwise limited by court order, parties may obtain discovery regarding any
nonprivileged manner that is relevant to any party’ claim or defense - including the
existence, description, nature, custody, condition, and location of any documents or
other tangible things . . . For good cause, the court may order discovery of any matter
relevant to the subject matter involved in the accident. Relevant information need not
be admissible at the trial if the discovery appears reasonably calculated to lead to the
discovery of admissible evidence.
22
Fed. R. Civ. P. 26(b). Relevance is interpreted broadly, based on the general principal that litigants
23
have a right to ‘every man’s evidence’ . . . and that wide access to relevant facts serves the integrity
24
and fairness of the judicial process by promoting the search for the truth.” Shoen v. Shoen, 5 F.3d
25
1289, 1292 (9th Cir. 1993), quoting United States v. Bryan, 339 U.S. 323, 331 (1950) (internal citation
26
omitted).
18
19
20
27
28
A party seeking discovery may move for an order compelling an answer when a deponent fails
to answer a question. See Fed. R. Civ. P. 37(b). Once the party seeking discovery establishes that a
5
1
request seeks relevant information, “[t]he party who resists discovery has the burden to show discovery
2
should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.”
3
Global Ampersand, LLC v. Crown Eng'g & Constr., 261 F.R.D. 495, 499 (E.D. Cal. 2009), quoting
4
Oakes v. Halvorsen Marine Ltd., 179 F.R.D 281, 283 (C.D. Cal. 1998); see also Blankenship v. Hearst
5
Corp., 519 F.2d 418, 429 (9th Cir. 1975) (requiring defendants “to carry heavy burden of showing why
6
discovery was denied”). Thus, a party’s right to relevant discovery is not limitless. For example, the
7
Court “can limit discovery if it determines, among other things, that the discovery is: (1) unreasonably
8
cumulative or duplicative; (2) obtainable from another source that is more convenient, less
9
burdensome, or less expensive; or (3) the burden or expense of the proposed discovery outweighs its
10
likely benefit.” See Favale v. Roman Catholic Diocese of Bridgeport, 235 F.R.D. 553, 558 (D. Conn.
11
2006) (internal quotation marks omitted).
12
III.
13
Discussion and Analysis
Defendants note that Plaintiff testified Mendoza touched her leg in September 2016, which was
14
witnessed by Ted Nicholas, who was the president of, Three-Way Chevrolet, which was purchasing
15
advertising from KGET and was a client of Nexstar. (Doc. 71 at 2, citing Depo. 84:11-86:6; see also
16
Doc. 71-1 at 11, Depo. 128:15-21) Plaintiff testified that Mr. Nicholas sought to have the Three-Way
17
Chevrolet account handled by Plaintiff, as early as October 2016. (Doc. 71-1 at 12, Depo. 142:2-
18
143:20) In addition, she testified that her relationship with Mr. Nicholas turned from friendship to
19
romantic around February 2017, after she left Nexstar. (Id. at 11, Depo. 129:4-19)
20
21
22
23
Defendants observe that on December 14, 2016, treatment notes from Plaintiff’s therapist
included the following:
Met a man, feels very intensely as does he, but he’s still legally married, though
unhappily with children …. [illegible] is confused, but knows she can’t wait for him
to get a divorce in a few years. Frustrated, confused.
24
(Doc. 71 at 7) During the deposition, Plaintiff acknowledged that she made this statement to her
25
therapist and said that she “was referring to Ted.” (Doc. 71-1 at 14)
26
In addition, the therapist’s notes from December 22, 2016 include the following: “Also
27
frustrated with T, they had a great weekend in Denver, but he goes home to his wife (in legal sense
28
only). [Illegible] feels all of the old feelings she used to have with [illegible], and won’t do that again.”
6
1
(Doc. 71 at 7) Mr. Sevilla, counsel for Nexstar, attempted to question Plaintiff regarding this statement
2
during the deposition, asking Plaintiff if she was referring to Mr. Nichols at that time. (See Doc. 71-1
3
at 14-15) Plaintiff responded, “I don’t know,” as her attorney, Mr. Smith, instructed her to not answer.
4
(Id. at 15, Depo. 170:13-17) When Plaintiff was again asked if she was “referring to Ted” and if she
5
went “to Denver with Ted Nicholas,” Mr. Smith instructed her not to answer the questions. (Id., Depo.
6
173:8-13) Mr. Smith objected to the questioning on the grounds of relevance and right of privacy. (Id.,
7
Depo. 172:17-20)
8
9
Defendants now seek “an order compelling Plaintiff to respond to cross-examination questions
related to the nature of her relationship with [Ted] Nicholas, including answering whether or not the
10
‘T’ in her therapy notes referred to Nicholas.” (Doc. 71 at 17) Defendants contend their “theory of the
11
case is that Plaintiff’s initiation of or efforts to initiate a romantic involvement with Nicholas in
12
December 2016 is what motivated Plaintiff to desire to take over Nicholas’ account from Mendoza,
13
which in turn motivated her to make her unsubstantiated allegations of harassment against Mendoza.”
14
(Id.) Plaintiff argues the requested evidence is not relevant and “is solely designed to embarrass Ms.
15
Gordon and Mr. Nicholas, whose deposition is set for December 7, 2018. (Id. at 18-19)
16
A.
17
As an initial matter, the Court notes that Plaintiff objects to the requested discovery by attacking
18
the merits of the defense related to the motivation of Plaintiff to fabricate sexual harassment allegations
19
against Mendoza. Specifically, Plaintiff argues “[the] so-called theory of ‘motivation makes no sense,
20
is illogical, and [is] completely destroyed by the facts.” (Doc. 71 at 3) Plaintiff supports this contention
21
by asserting Mr. Nicholas requested Plaintiff handle the account “well before any social relationship
22
was formed between Ms. Gordon and Mr. Nicholas,” and asserting that “Mr. Nicholas could simply
23
pull the account from Nexstar if he saw fit.” (Id. at 18) She also reports that the Three-Way Chevrolet
24
account was transferred to her on January 12, 2017. (Id. at 19) Based upon these facts, and additional
25
statements made during the deposition, Plaintiff contends the theory of motivation “makes no sense”
26
and lacks merit. (See id. at 5, 18-19)
27
28
Merits of the Defense
Significantly, whether Defendants’ theory of the case is viable is not at issue at this juncture,
and the Court need not weigh the merits of the defense. “A party may not resist discovery by
7
1
challenging the merits of a claim or defense…. Discovery exists to determine if a claim or defense has
2
merit; discovery does not exist to adjudicate the merits of claims and defenses that have not yet been
3
substantiated.” FTC v. AMG Servs., 2015 WL 5097526, at *8 (D. Nev. Aug. 28, 2015) (citing Republic
4
of Argentina v. NML Capital, Ltd., 134 S. Ct. 2250, 2257-58 (2014)). Accordingly, Plaintiff’s
5
challenge to the merits of the defendants’ theory of the case is not evaluated because it is not a proper
6
basis for resisting discovery.
7
B.
8
Relevant evidence is defined as “evidence having any tendency to make the existence of any
9
Relevance
fact that is of consequence to the determination of the action more probable or less probable than it
10
would be without the evidence.” Fed. R. Evid. 401. Relevancy to a subject matter is interpreted
11
“broadly to encompass any matter that bears on, or that reasonably could lead to other matter that
12
could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S.
13
340, 351 (1978).
14
Defendants seek “information as to whether Plaintiff and Nicholas were working towards
15
having more than a platonic relationship in December 2016, intimate or otherwise.” (Doc. 71 at 7-8)
16
As noted above, Defendants’ theory of the case is that Plaintiff was motivated by the relationship to
17
accuse Mendoza of harassment. Defendants thus argue that “the nature of Nicholas’ relationship with
18
Plaintiff during the relevant time frame (October 2016-January 2017) is highly relevant as to Plaintiff’s
19
motive for accusing Mendoza of harassment and whether her complaints against Mendoza were
20
actually true.” (Id. at 7) Defendants observe:
21
22
23
24
Plaintiff testified that, as of December 26, 2016, she did not have an intimate or
romantic relationship with Nicholas. (Yang Decl., ¶2, Ex. A, Gordon Dep. 101:21102:25.) However, Plaintiff qualified her response based on her own definition that
“romantic” solely meant “intimate,” and she said “no.” (Yang Decl., ¶2, Ex. A, Gordon
Dep. 106:5-13). When Plaintiff testified that her “romantic” relationship with Nicholas
started on February 2017, she again qualified her response based on her counsel’s
understanding of the term “romantic.” (Yang Decl., ¶2, Ex. A, Gordon Dep. 129:4-19.)
25
(Doc. 71 at 7) According to Defendants, they “are seeking to clarify what Plaintiff meant when she
26
testified to having a platonic relationship with Nicholas as of December 26, 2016,” and the questions
27
are not “solely posed for ‘impeachment.’” (Id. at 8)
28
Plaintiff argues she “not placed her relationship with Mr. Nicholas (who is married but going
8
1
through a divorce) in issue,” and the information sought by Defendants is irrelevant. (Doc. 71 at 8)
2
According to Plaintiff, “[a] platonic relationship changes to a romantic relationship when there
3
becomes physical intimacy.” (Id.) Thus, Plaintiff contends that although Defendants assert they are
4
not seeking “‘any evidence of Plaintiff’s or Nicholas’ sexual behavior,’ that is precisely what they
5
seek by arguing that there was a ‘romantic’ relationship in December 2016.” (Id.) Further, she argues
6
the status of the relationship in December “pertains merely to impeachment on a collateral issue,” such
7
as when plaintiff denies an affair. (Id. at 9-10, citing Winfred D. v. Michelin North America, Inc., 165
8
Cal.App.4th 1011 (2008)) Because impeachment on a collateral issue is improper, Plaintiff contends
9
Defendants are not entitled to the additional discovery related to the affair. (Id. at 11, citing Ortiz v.
10
Yates, 704 F.3d 1026, 1038 (9th Cir. 2012))
1.
11
12
Whether the evidence relates only to a collateral issue
As Plaintiff observes, in Winfred D., the California state court considered whether information
13
sought related to the plaintiff’s extramarital affair was relevant evidence. The plaintiff had suffered a
14
severe brain injury when transporting produce, and filed a personal injury action against the designer
15
and manufacturer of a tire that delaminated, saying it caused his vehicle to rollover. Id., 165
16
Cal.App.4th at 1014. During the trial, the “court permitted defendants to introduce evidence that, while
17
plaintiff was married to his first wife, he had an affair with, and later married, his business partner’s
18
wife; he then had two wives;” and later had an affair with a third woman. Id. “The trial court reasoned
19
that this evidence was relevant to plaintiff’s credibility,” and it was admitted. Id. Finding the trial
20
court erred, the appellate court observed: “Ordinarily, evidence of marital infidelity would be
21
inadmissible on grounds that it lacks relevance and amounts to a ‘smear’ upon the [witness’s]
22
character.” Id. at 1026, citing (Smith v. Commonwealth, 904 S.W.2d 220, 222 (Ky. 1995). Because the
23
evidence related to the affair did not relate to the substantive issues of “whether Winfred’s vehicular
24
accident was caused by a tire defect, as he asserted, or by overloading the van with produce, as [the
25
defendant] contended,” the appellate court concluded the evidence should not have been admitted. Id.
26
at 1027, 1029.
27
28
In contrast, testimony regarding the relationship between Plaintiff and Mr. Nicholas is sought as
support for the defendants’ theory that the relationship motivated Plaintiff’s actions, and is not merely
9
1
related to the collateral issue of credibility.
2.
2
3
Relevance as to Defendants’ theory of the case
Notably, the Winfred court also acknowledged that evidence related to “an extramarital affair
4
may be admissible where it has a connection to a substantive issue and goes to motive.” Id., 165
5
Cal.App.4th at 1026. While the relationship between Plaintiff and Mr. Nicholas is not the substantive
6
issue in this action, Defendants have made it clear their theory of the case rests on Plaintiff’s motive to
7
fabricate allegations of sexual harassment to secure the Three-Way Chevrolet account and work with
8
Mr. Nicholas. Thus, the Court finds the defendants have met the burden to demonstrate the discovery
9
sought is relevant to the defendants’ theory of the case, as required by Rule 26.
10
C.
Right to Privacy under Fed. R. Evid. 412
11
The parties disagree regarding whether Rule 412 of the Federal Rules of Evidence is applicable
12
in this action. (See Doc. 71 at 15, 19) According to Plaintiff, Rule 412 “governs this dispute,” and is
13
applied to “both admissibility and discoverability in cases involving sexual misconduct.” (Id. at 19-
14
20) (emphasis omitted, citing Barta v. City of Honolulu, 169 F.R.D. 132 (D. Hawaii 1996)) On the
15
other hand, the defendants contend Rule 412 does not govern because “Defendants do not seek
16
testimony regarding Plaintiff’s sexual history or the intimate details of her relationship with Nicholas
17
(or others).” (Doc. 71 at 15) In addition, the defendants assert they “do not seek to know whether
18
Plaintiff had sex with Nicholas, what they did in their personal time, or what they did in Denver (other
19
than to determine whether the traveled together and whether the trip was personal or related to KGET
20
business).” (Id.)
21
Notably, Rule 412 governs the use of evidence that “is not admissible in a civil or criminal
22
proceeding involving alleged sexual misconduct.” Fed. R. Evid. 412(a). Rule 412 prohibits “(1)
23
evidence offered to prove that a victim engaged in other sexual behavior; or (2) evidence offered to
24
prove a victim’s sexual predisposition.” Id. In civil cases, “he court may admit evidence offered to
25
prove a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs
26
the danger of harm to any victim and of unfair prejudice to any party.” Id., Fed. R. Evid. 412(b).
27
Here, the defendants do not seek discovery prohibited by Rule 412, such as evidence regarding
28
whether Plaintiff engaged in sexual behavior with Nicholas, or evidence related to Plaintiff’s sexual
10
1
predisposition. Thus, the Court finds Rule 412 does not govern this dispute, and the right to privacy
2
under Rule 412 is not implicated.
3
D.
Additional Testimony from Plaintiff
4
Plaintiff contends, “She testified on multiple occasions that as of December 2016, they were
5
good friends, but platonic. That should be the end of the inquiry.” (Doc. 71 at 18) Specifically, Plaintiff
6
testified that as of December 26, 2016, she and Mr. Nicholas were “very … just friends, good friends.”
7
(Doc. 71-1 at 9, Depo. 102:21-23) She also testified as follows:
8
9
10
11
Q. Ms. Gordon, were you having a romantic relationship with Mr. Ted Nicholas as of
December 26, 2016?
A. Romantic meaning dating intimate?
Q. Yes.
A. Intimacy?
Q. Yes.
A. No.
12
(Doc. 71-1 at 10, Depo. 106:5-12) When asked if they were platonic friends in December 2016,
13
Plaintiff responded, “yes.” (Id., Depo. 102:24-25) However, Plaintiff also testified that as of the
14
deposition, their relationship was “still platonic” (id. at 14, Depo. 165:7-10), despite also testifying
15
their relationship had turned from friendship to romantic. (Id. at 11, Depo. 129:4-19) Thus, it is not
16
clear what Plaintiff meant when she testified the relationship was “platonic,” and what the status of the
17
relationship was in December 2016.1
18
At this juncture, the Court need not define the relationship between Plaintiff and Mr. Nicholas.
19
However, the defendants are entitled to discovery that would assist the finder of fact in evaluating the
20
nature of the relationship, and whether that relationship would motivate Plaintiff’s actions or cause
21
bias on the part of Mr. Nicholas. Thus, the Court finds discovery about the relationship between
22
Plaintiff and Mr. Nicholas to be relevant and discoverable. However, these inquiries are limited to
23
information such as the frequency of communications between the two and the extent to which these
24
communications concerned matters not merely connected to a business context, whether they traveled
25
together and whether this travel was merely for business or for personal reasons is. Defendants are
26
27
Notably, Plaintiff now argues that “[a] platonic relationship changes to a romantic relationship when there
becomes physical intimacy.” (Doc. 71 at 8) This argument cannot be reconciled with her testimony that in both December
2016 and after February 2017, she and Mr. Nicholas had a “platonic” relationship.
1
28
11
1
entitled to ask Plaintiff additional questions regarding about these contacts with Mr. Nicholas during
2
the period from October 2016 through December 2016, including determining whether he is the
3
individual identified as “T” in her therapist’s treatment notes. Defendants are not permitted to inquire
4
generally into Plaintiff’s relationship with Mr. Nicholas, and may not seek information related to their
5
physical, intimate relationship, if any.
6
IV.
Conclusion and Order
7
Based upon the foregoing, the Court ORDERS:
8
1.
Defendants’ motion to compel discovery (Docs. 69, 71) is GRANTED;
9
2.
Plaintiff SHALL testify as to whether the individual identified as “T” referenced in the
10
December 14, 2016 and December 22, 2016 entries in her therapy notes was Nicholas,
11
and clarify the nature of their relationship in December 2016; and
12
3.
Defendants SHALL NOT ask Plaintiff questions regarding the intimate
details of her relationship with Nicholas.
13
14
15
16
17
IT IS SO ORDERED.
Dated:
November 11, 2018
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
18
19
20
21
22
23
24
25
26
27
28
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?