Opinion
Civil No. 00-1091 PJK/WWD ACE
May 16, 2001
ORDER ON MOTION TO RECONSIDER
THIS MATTER comes before the Court upon Defendants Joint Motion for Reconsideration Due to Recent Deposition Testimony, filed April 16, 2001 [docket #98].
Defendants seek reconsideration of an order [docket # 83] which granted Plaintiffs a protective order to prevent discovery of Plaintiffs non-work-related sexual history in this sexual harassment lawsuit.
A motion to reconsider is appropriate where a court has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the court by the parties, or has made an error not of reasoning, but of apprehension. Huff v. UARCO, Inc., 925 F. Supp. 550, 561 (N.D.Ill. 1996). Another basis for a motion to reconsider would be a controlling or significant change in the law or facts since the submission of the issue to the Court. Id.; see also, Hayes v. Douglas Dynamics, Inc., 8 F.3d 88, 91 (1st Cir. 1993). A motion to reconsider is not appropriate to re-argue an issue already decided by the Court. See Frederick v. Southeastern Penn. Transp. Auth., 926 F. Supp. 63, 64 (E.D.Pa. 1996).
In their motion for a protective order, Plaintiffs contended that Defendants should not be able to question them about their sexual activity outside of work. In that context, Defendants present no factual or legal basis in the instant motion to persuade me that my previous order should be modified. However, they urge reconsideration of that order on the basis of the deposition testimony of a sexual harassment expert Amy Oppenheimer which Defendants contend should be considered new evidence that should allow discovery of Plaintiffs sexual activities outside of work. Defendants reference to this testimony centers on the relevancy of Plaintiffs conduct and relationships with the alleged harasser outside of work. When premised on conduct involving instances of Plaintiffs sexual misconduct outside of work where Defendant Terry McDaniel was also present, Defendants discovery efforts are no longer a general exploration into Plaintiffs private affairs. Rather, they seek information which is directly related to key elements in a sexual harassment claim, since it is probative of the type of relationships Plaintiffs had with McDaniel and whether Plaintiffs welcomed his behavior.
Hostile work environment harassment occurs when unwelcome sexual conduct unreasonably interfer[es] with an individual's work performance or creat[es] an intimidating, hostile, or offensive working environment." Smith v. Norwest Financial Acceptance, Inc., 129 F.3d 1408, 1412 (10th Cir. 1997) (emphasis added) (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986)).
Defendants distinguish their discovery request from a fishing expedition into Plaintiffs private sexual behavior with the explanation that McDaniel was a witness to the very out of work conduct that forms part of the basis for Plaintiffs harassment claim.
According to Defendants, Plaintiffs allege that one of the ways McDaniel sexually harassed them was by discussing the Plaintiffs sexual activities which he witnessed outside of work. Reply at 2. Although Plaintiffs maintain that McDaniel was not invited by Plaintiffs for the purpose of observing sexual relations, they do not dispute McDaniels presence.
I agree that McDaniels involvement does distinguish this case from those cases where courts have not allowed discovery into Plaintiffs private sexual conduct. See e.g., Burns v. McGregor Electronic Industries, Inc., 989 F.2d 959, 963 (8th Cir. 1993) (posing for nude magazine outside work hours not material to issue of whether plaintiff found on-the-job harassment offensive); EEOC v. Wal-Mart Stores, Inc., et al., 1999 WL 1032963 (10th Cir. N.M.) (evidence of plaintiffs sexual relationships with coworkers outside work and generalized suspicions about her relationships outside work was not relevant to harassment claims); Howard v. Historic Tours of America, et al, 177 F. R. D. 48 (D.D.C. 1997) (plaintiffs not required to answer discovery requests concerning sexual relationships with co-workers).
The Howard court recognized in dicta that even if the question were narrowed to seek only the plaintiffs sexual behavior with other employees of which the harassing employees knew or had reason to know, the question would still possess minimal probative force. 177 F. R. D. at 53. I point out that the ruling in Howard was limited to whether or not the plaintiffs should be required to provide information regarding their sexual relationships with co-workers. In fact, the reason the court noted that Defendants were not prejudiced by not securing this information from plaintiffs was because Defendants could obtain the information from co-workers. 177 F. R. D. at 53.
Although Plaintiffs do not claim that McDaniel himself demanded sex from Plaintiffs, nevertheless the facts in the case line up closer to those in cases where discovery into a plaintiffs involvement with a harassing defendant was allowed. See, e.g., Winsor v. Hinckley Dodge, Inc., 79 F.3d 996, 1001 (10th Cir. 1996) (district court did not err in allowing discovery into plaintiffs relationship with former sales manager, finding that it was directly related to her claims that she was sexually harassed by rumors of an affair and the inference that she received preferential treatment as a result of the relationship); Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848, 856 (1st Cir. 1998) (district court did not abuse its discretion under Rule 412 in sexual harassment case where it excluded evidence of employee's moral character or alleged promiscuity, but allowed evidence directly relevant to employer's theory that employee's relationship distracted her from work, and evidence of her allegedly flirtatious behavior toward manager). In EEOC v. Wal-Mart Stores, Inc., a case cited by Plaintiffs in their brief for a protective order, the court allowed the admission of evidence of plaintiffs sexual relationship with the defendant.
It can be assumed that the court allowed general discovery of this material, since the decision addressed only its admissibility at trial.
I agree with Defendants that precluding all discovery into these matters at this stage is premature, given the broad scope of discovery under Fed.R.Civ.P. 26(b) and the opportunity for the trial judge to weigh the probative value of the evidence at the time of trial. Therefore, reconsideration of my previous order is warranted in that limited discovery will be allowed into Plaintiffs sexual activity outside the workplace, tailored so that Defendants may obtain information relevant to their defenses while affording Plaintiffs as much privacy and sparing them as much embarrassment as possible. See e.g., Sanchez v. Zabihi, 166 F. R. D. 500 (D.N.M. 1996) (considering both Rule 26(b) and Fed.R.Evid. 412, and allowing limited discovery into plaintiffs personal or sexual relationship under seal). Further, the limitations imposed in this Order apply only in the context of the discovery stage of the action and do not pertain to the admissibility of this information at trial under Rule 412.
Plaintiffs attempt to distinguish Sanchez by pointing out that in that case defendants raised a sexual aggressor defense. However, I find that although Defendants here have not raised such a defense, McDaniels involvement in certain conduct by Plaintiffs outside work is critical to Defendants defense in establishing whether at least some of McDaniels alleged harassment could be viewed as welcome. I also find Sanchez instructive in the safeguards imposed by the Court to ensure minimum intrusiveness into plaintiffs privacy interests.
WHEREFORE,
IT IS ORDERED that this Courts Memorandum, Opinion and Order filed April 5, 2001 [docket # 83] is hereby VACATED;
IT IS FURTHER ORDERED that Defendants Joint Motion for Reconsideration Due to Recent Deposition Testimony [docket #98] is hereby GRANTED IN PART under the following conditions:
1. Defendants may question Plaintiff(s) regarding sexual conduct out of work limited to those occasions where Defendant McDaniel was present when Plaintiff(s) engaged in such conduct;
3. that those portions of the depositions concerning Plaintiff(s) sexual conduct be sealed and bound under separate cover, and filed with the Court. Defense counsel may retain one copy to be secured from all other individuals, for purposes of preparing the litigation of this case; and 4. that defense counsel and their clients are prohibited from divulging any information from the sealed portions of the depositions to anyone without an order from the Court.