Hulec v. J.H. Bennett & Company, Inc. et al
Opinion and Order signed by Judge James S. Gwin on 7/11/14 granting in part and denying in part the motions to compel of Defendants J.H. Bennett & Company and Stephen Muellauer. (Related Docs. 45 , 48 ) (M,G)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
J.H. BENNETT & COMPANY, INC.,
CASE NO. 1:14-CV-00492
OPINION & ORDER
[Resolving Docs. 45 & 48]
JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
In this case concerning alleged discrimination, sexual harassment, and retaliatory conduct,
Defendants J.H. Bennett & Company and Stephen Muellauer separately move the Court to “compel
Plaintiff[ Hulec]’s full and complete deposition testimony” concerning “the nature and extent of
Plaintiff’s apparent and presently ongoing activity as a prostitute/escort.”1/
Plaintiff Hulec opposes the motions on the grounds that the questions are harassing, that the
testimony is irrelevant, that the testimony is barred by Evidence Rule 412, and that she claims the
right not to be compelled to incriminate herself.2/
For the reasons that follow, the Court GRANTS IN PART and DENIES IN PART the
Doc. 45 (J.H. Bennett & Co.) at 1; see also Doc. 48 (Muellauer).
Case No. 1:14-CV-00492
Whether evidence will be admissible is a separate issue from whether discovery will be
allowed on that issue.
Any evidence concerning an alleged victim’s sexual history in a civil case must satisfy the
requirements of Federal Rule of Evidence 412. Rule 412 prohibits the use of evidence “offered to
prove that a victim engaged in other sexual behavior” or “offered to prove a victim’s sexual
predisposition” unless “its probative value substantially outweighs the danger of harm to any victim
and of unfair prejudice to any party.”3/
Ordinarily, Civil Rule 26 permits parties to conduct discovery into any nonprivileged matter
reasonably calculated to lead to the discovery of admissible evidence; so a party normally may seek
discovery of evidence that is inadmissible if it may lead to admissible evidence.4/
But Evidence Rule 412 also limits the scope of discovery where the evidence sought deals
with an alleged victim’s past sexual conduct.5/ Therefore, courts should not allow 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
So although Evidence Rule 412 partially limits the broad scope of discovery of Civil Rule
26, evidence that falls within Evidence Rule 412’s ambit does not need to be definitively admissible
to be discoverable.
Fed. R. Evid. 412(a) & (b).
See Fed. R. Civ. P. 26(b)(1).
Fed. R. Evid. 412 advisory committee’s note (c) (1994) (“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.”).
Case No. 1:14-CV-00492
Here, Plaintiff Hulec requests lost wages and damages for emotional distress.7/ Evidence
about the wages Plaintiff may have earned as an escort would be relevant to calculate the damages
Plaintiff is entitled to should she win this case.
And although Plaintiff has indicated a willingness to give testimony about the sexual assault
she experienced, other sexual encounters may also bear on the cause and extent of Plaintiff’s
The Court also finds that Plaintiff has waived her Fifth Amendment claim in this matter.
Plaintiff Hulec has placed her damages and emotional distress at issue in this case by seeking those
damages.9/ Additionally, the fact that Plaintiff Hulec has worked as an escort appears to be known
to police and authorities already without any threat of prosecution due to Plaintiff’s victim impact
statement in the sexual assault prosecution.10/
The Court allows limited discovery, through a reopened deposition or interrogatories, into
these matters: (1) the general nature of the escort services Plaintiff has offered or performed in the
past five years; (2) the frequency with which she has performed those services; (3) her income from
those services; and (4) any medical or psychological treatment she received related either to her
sexual assault or to other sexual encounters.
Defendants should not take this order as open invitation to ask any questions they can think
See Doc. 51 at 16.
See Hertenstein v. Kimberly Home Health Care, Inc., 189 F.R.D. 620 (D. Kan. 1999) (permitting discovery
into private sexual activities in sexual harassment case because such inquiries were relevant to cause and extent of
Cf. Maday v. Public Libraries of Saginaw, 480 F.3d 815, 821 (6th Cir. 2007) (“[W]hen Maday put her
emotional state at issue in the case, she waived any [attorney-client and social-worker-client] privilege . . .”).
See Doc. 45-5 (“I know because of my escorting that I am not viewed favorably by society but no one should
be treated like an animal to be beaten and violated emotionally an [sic] physically. You should know that I have a regular
job, family, and friends like everyone else. Yes I have made mistakes but I was caring and loving person.”).
Case No. 1:14-CV-00492
of or as an indication that the Court will admit evidence on this topic under the theories mentioned
in this order or any other theory.11/
Additionally, Plaintiff Hulec’s responses shall not be used for any purpose other than this
litigation. None of her responses shall be communicated to any person, including Defendants, other
than counsel of record for the parties, their staff, and necessary litigation services providers, who will
also be bound by this confidentiality. All counsel must maintain the information securely and
appropriately. And any litigation material that references her responses shall be filed under seal with
a corresponding, redacted public copy.
IT IS SO ORDERED.
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
Dated: July 11, 2014
See Gowens v. Tidwell, No. 10-10518, 2013 WL 2285446, at *3 (E.D. Mich. May 23, 2013) (“Gowens’
voluntary decisions to participate in temporary Muslim marriages, consensual acts of cunnilingus, and to join an online
dating community have absolutely no bearing on whether a nonconsensual act of sexual assault caused mental distress.
In addition, the evidence would be extremely prejudicial, painting Gowens as a promiscuous woman who engaged in sex
for cash.” (emphasis in original)); Evans v. Bd. of Educ. Sw. City School Dist., No. 2:08-CV-794, 2012 WL 4481421,
at *2 (S.D. Ohio Sept. 27, 2012) (“Whether victims had engaged in other sexual behavior with other partners simply has
no relevance to whether they consented to or welcomed the advances in the particular instances at issue in this case. The
evidence of relationships or sexual behavior with others entirely lacks probative value if presented for any purpose in
the instant case.”).
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