Free Uncategorized - District Court of Arizona - Arizona

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

MARCELA JOHNSON, Plaintiff, vs. CHARLES SCHWAB CORPORATION, Defendant.

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CIV 04-790 PHX JWS ORDER AND OPINION [Re: Motions at dockets 49, 50, 53, 64, 66, 69, and 70]

I. MOTIONS PRESENTED At docket 49, defendant Charles Schwab Corporation ("Schwab") moves for an order requiring plaintiff Marcela Johnson ("Johnson") to disclose information which Schwab asserts is needed to determine what, if any, damages Johnson would be entitled to recover in the event that she establishes Schwab's liability. At docket 50, Schwab moves pursuant to Federal Rule of Civil Procedure ("Federal Rule") 37 to compel Johnson to respond to various discovery requests and to recover the reasonable expenses incurred in bringing the motion. At docket 53, Schwab moves for a protective order relating to Johnson's notice of Schwab's Rule 30(b)(6) deposition. At docket 64, Johnson moves for a protective order prohibiting Schwab "from engaging in discovery regarding the name of her current employer and information relating to her

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past sexual conduct."1 At docket 66, Johnson moves to strike what she describes as new arguments in one of Schwab's reply memos. At docket 69, Johnson moves for an expedited "comprehensive conference to consider pre-trial issues. Finally, at docket 70, Schwab moves to extend certain pre-trial deadlines. All motions, except the motion at docket 69, are opposed.2 The motion at docket 69 is only partially opposed by Schwab. Oral argument would not be of material assistance to the court in connection with any of the motions.

II. BACKGROUND Schwab employed Johnson, but her employment was terminated on November 5 or November 6, 2003.3 Asserting that termination of her employment was an act of sex discrimination, Johnson filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on November 10, 2003. She amended her complaint on December 5, 2003, to include a claim that her termination was based on her national

1

Doc. 64 at p. 1.

All opposed motions are fully briefed with the exception that the time for filing Schwab's reply in support of the motion at docket 70 has not yet run. However, in light of the disposition of the motion at docket 69 requesting a planning and scheduling conference, the court has concluded that it is unnecessary to spill more ink on the reply memo regarding docket 70. In her First Amended Complaint, Johnson alleges that she was terminated on November 5, 2003. Doc. 2 at ¶ 17. Schwab's answer asserts that her employment was terminated on November 6, 2003. Doc. 5 at ¶ 17. For purposes of the pending motion, it does not matter which party is correct.
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origin­Johnson is Hispanic.4 On January 26, 2004, the EEOC issued Johnson a rightto-sue letter.5 On April 22, 2004, Johnson filed a complaint in this court against Schwab,6 and then filed a First Amended Complaint7 which pleads five claims against Schwab. Four of the claims are based on alleged violations of Title VII of the Civil Rights Act of 1964:8 Count I alleges that Johnson was sexually harassed; Count II alleges that she was the subject of discrimination based on sex; Count III alleges she was the victim of discrimination based on her national origin; and Count V alleges that she was the subject of unlawful retaliation. The remaining claim, Count IV, alleges a violation of the Civil Rights Act of 1866.9 In addition to her civil rights claims, Johnson charged Schwab with an unfair labor practice in a complaint filed with the National Labor Relations Board ("NLRB").10 There, she alleged Schwab had committed an unfair labor practice by infringing the right to engage in activities with other employees guaranteed by § 7 of the National Labor Relations Act.11 More specifically, the NLRB Complaint charged that in response
4

Doc. 2 at ¶¶ 19, 20, and doc. 5 at ¶¶ 19, 20. Id. at ¶ 21. Doc. 1. Doc. 2. 42 U.S.C. § 2000e, et seq. 42 U.S.C. § 1981.

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A copy of the "NLRB Complaint" is found at doc. 11, exh. B, and another copy is located at doc. 16, exh. B.
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29 U.S.C. § 157.

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to the fact that Johnson engaged in activity for the mutual aid and protection of Schwab employees by discussing sexual harassment and hostile sexual environments in the workplace and complaining to Schwab about the same, Schwab imposed a rule prohibiting such discussions and then terminated Johnson's employment.12 The NLRB Complaint was the subject of a hearing before an administrative law judge in the fall of 2004 in Phoenix. Concluding that Schwab had not violated the NLRA, the administrative law judge dismissed the NLRB Complaint in a detailed written decision.13 This court has ruled that the NLRB decision does not collaterally estop prosecution of Johnson's complaint in this court, but information from the NLRB proceeding does shed light on issues which are within the scope of discovery in this litigation. In particular, the record in the NLRB proceeding shows that Johnson may have claimed that she was sexually harassed by Schwab employee Ed Steinart, because he reported that Johnson was having an affair with another employee, Brad Allen. Allen testified on behalf of Johnson in the NLRB proceeding.

III. STANDARDS OF REVIEW The Federal Rules of Civil Procedure relating to discovery of information are predicated on the notion that discovery of facts and circumstances related to claims and defenses is desirable. Toward that end, each party is required to voluntarily disclose certain information in what are known as initial disclosures.14 In the case of a plaintiff
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NLRB complaint at ¶ 4. A copy of the NLRB Decision is found at doc. 11, exh. A. FED . R. CIV . P. 26(a).

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who seeks to recover damages, the voluntary disclosure must include "a computation of any category of damages," and it must include provision of any non-privileged and discoverable materials on which the computation is based.15 The scope of discovery permitted by the Federal Rules of Civil Procedure is quite broad. Discovery of any non-privileged matter relevant to any claim or defense asserted by any party may be obtained.16 Relevance is also broadly defined: "`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable."17 Moreover, the information sought "need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence."18 A party believing that an interrogatory response or response to a request for production of documents has been improperly withheld or provided in a manner which is evasive or incomplete may, after first attempting to resolve the matter by conferring in good faith with the non-responsive party, move for an order compelling an adequate response.19 If successful, the party seeking the order is entitled to recover "the reasonable expenses incurred in making the motion, including attorney's fees."20

15

Id. FED . R. CIV . P. 26(b)(1). FED . R. EVID . 401. FED . R. CIV . P. 26(b)(1). FED . R. CIV . P. 37(a). FED . R. CIV . P. 37(a)(4)(A).

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A party may seek a protective order limiting discovery that would otherwise be appropriate. To succeed, the party must show good cause that justice requires protection from "annoyance, embarrassment, oppression, or undue burden or expense."21

IV. DISCUSSION A. Motion at docket 49 One concern underlying the motion at docket 49 is Schwab's assertion that Johnson failed to provide the computation of damages required by Rule 26(a). Johnson's response to this is that until she takes Schwab's Rule 30(b)(6) deposition to learn the value of the benefits which she would have had were her employment not terminated, she cannot provide a calculation. The parties are engaged in a dispute over the appropriate scope of that deposition. Even if Schwab has the better argument over the scope of the deposition, the court agrees that for Johnson to do a thorough job with her computation, she needs to know the value of the Schwab benefits that she lost when her job was terminated. Johnson will not be required to provide the damage computation now, but she will be required to provide that computation within 20 days from the conclusion of the Schwab Rule 30(b)(6) deposition. Schwab asserts that it is entitled to learn about unemployment and workers' compensation benefits received by Johnson. It asks that the court issue an order authorizing the appropriate agencies to allow examination of their files regarding

21

FED . R. CIV . P. 26(c).

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Johnson or order Johnson to sign the releases previously provided so that Schwab can obtain the information directly from the government agencies. The Ninth Circuit instructs that unemployment benefits are collateral benefits and cannot be used to offset a Title VII back-pay award.22 Furthermore, it appears that, except to the extent they are paid by, or perhaps on behalf of the defendant employer itself, workers' compensation payments are considered a collateral benefit which cannot be used to reduce an award of damages in a Title VII case.23 Johnson overlooks the fact that the scope of discovery extends to information which, while itself inadmissible, may lead to the discovery of admissible evidence. Even if Johnson is correct that the amounts paid to her would not constitute admissible evidence, examining the records relating to unemployment and workers' compensation benefits would establish when she was receiving particular benefits and why. Among other things, examining the records would allow Schwab to better ascertain those periods of time when Johnson could have been, or perhaps actually was, at work, who were her employers, and any diminution of her earning capacity due to injury. Given the broad scope of discovery, Johnson is obligated to provide the information regarding her receipt of unemployment and workers' compensation benefits. The court will order Johnson to execute the releases so that Schwab may obtain the information from the appropriate state agencies.

22

Kauffman v. Sidereal Corporation, 695 F.2d 343, 347 (9th Cir. 1983). McLean v. Runyon, 222 F.3d 1150, 155-56 (9th Cir. 2000).

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Johnson, but not Schwab, sought an award of expenses in connection with the motion at docket 49. Johnson did not prevail. She is not entitled to an award. B. Motion at docket 50 Among the defects alleged in Johnson's discovery responses, Schwab points to the fact that she did not verify her interrogatory answers. Schwab filed its motion on November 9, 2005. Johnson belatedly provided verifications to her interrogatory answers on November 18, 2005, although it is not clear that she verified the second set of interrogatory answers.24 Johnson's lawyer contends that, because there is no Ninth Circuit case holding that verifications must be provided at a specific time, Johnson's failure to provide verified answers is excusable. It is often hard to find an appellate court decision disposing of a silly argument; most lawyers avoid making them. Johnson's argument is foreclosed by the rule in point, which is perfectly clear: "Each interrogatory shall be answered separately and fully in writing under oath[.],"25 and the answering party "shall serve a copy of the answers and objections if any, within 30 days."26 To contend that the rule does not require the service of verified answers within 30 days scarcely rises to the level of pettifogging, and it certainly is without merit. Providing verifications after Schwab made its motion to compel the same does not relieve Johnson of liability for the expenses Schwab incurred in seeking such
24

Compare the letter dated November 18, 2005, sent by Dawn Valdivia to C. Mason and M. Ganz attached to doc. 63 with the representation of Schwab's counsel in the second paragraph on page 8 of doc. 67.
25

FED . R. CIV . P. 33(b)(1). FED . R. CIV . P. 33(b)(3).

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relief.27 Furthermore, because it is not clear that Schwab ever received a verification for the second set of interrogatories, Johnson will send (or re-send) that verification within ten days from the date of this order. Schwab asks the court to compel Johnson to provide more complete answers to Interrogatory Nos. 6, 8, 11, and 16 in its first set of interrogatories. The court will address each in turn. Interrogatory No. 6 asks Johnson to "identify all arrests, criminal charges, indictments and/or prosecutions in which you were identified as the arrestee, suspect, and/or defendant." It also seeks detailed information about each such incident. Johnson's response and supplemental response disclose that she has never been convicted of a felony and has never been convicted of any crime involving dishonesty or false statement. Having so responded, Johnson asserts that she has given an answer to the interrogatory which is co-extensive with its legitimate reach. Schwab concedes that so far as admissible evidence is concerned, the responses are facially adequate.28 Schwab contends, however, that seeking information about other incidents is within the broad scope of discovery. Certainly, Schwab is correct to say that if Johnson has been convicted of a crime, Schwab is entitled to learn of it, so that it can make its own assessment of whether that type of crime involved "dishonesty or false statement." Schwab also points to Federal Rule of Evidence 608(b) which prohibits introduction of evidence of specific instances of bad conduct (not admissible under Rule 609), but

27

FED . R. CIV . P. 37(a)(4)(A). See, FED . R. EVID . 609(a).

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allows inquiry about such instances on cross-examination where the court concludes they are probative of truthfulness or untruthfulness. However, the mere fact that a person has been arrested, indicted or prosecuted in a matter that did not result in a conviction is not ordinarily probative of truthfulness or untruthfulness. Indeed, to suppose otherwise debases the presumption of innocence which is central to the administration of American justice. Schwab is entitled to be told about any convictions so that it can make its own assessment of whether the conviction was for a crime which involved dishonesty or false statement. It is entitled to no more. Interrogatory No. 8 asked Johnson to provide the name, address, and phone number for all of her employers and her immediate supervisors for the period after January 1, 2000. Incredibly, Johnson has simply refused to provide that information about the employer (by now it could be employers) for whom she has worked since August 22, 2005. The information sought is well within the scope of discovery, and Johnson will be ordered to provide it. Interrogatory No. 11 seeks information about loan and credit applications made by Johnson since January 1, 2000. Johnson objects that what is sought is irrelevant. It is not. Such documents are very likely to contain information about Johnson's earnings and, thus, are relevant to her damages claim. She will be ordered to respond to this interrogatory. Interrogatory No. 16 seeks to require Johnson to identify any Schwab employee with whom she has had any communication since she left Schwab's employ. Johnson objects that the inquiry is overly broad. The court agrees. An interrogatory limited to those, if any, with whom Johnson has spoken regarding the topics involved in her -10-

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lawsuit would have been appropriate, but the interrogatory actually used is not so limited. Schwab is not entitled to an answer to this interrogatory. Schwab also seeks an order compelling Johnson to respond or further respond to its Requests for Production Nos. 2, 8, 13, 14, and 21. The court will address each in turn. Request No. 2 asks for all documents relating to the question posed in Interrogatory No. 6. Nothing was supplied, and with respect to the original and supplemental answer, there was nothing to provide. To the extent that in giving the additional response to Interrogatory 6, Johnson must identify one or more crimes of which she has been convicted, she shall also provide any non-privileged documents she may possess, such as a copy of the judgment. Beyond that, Schwab is entitled to no further relief with respect to Request No. 2. Request No. 8 asks for complete copies of Johnson's federal and state tax returns and related reports of earnings (1099 forms, W-2 forms, etc.) for the years 2000 through the present. Johnson supplied a copy of a 2004 tax return,29 but it appears that she provided nothing else. She also objected to having to provide earnings reports relating to her employment with Schwab itself. Her response is inadequate. Johnson will provide complete tax and earnings report information to Schwab. She may choose not to provide copies of earnings reports from Schwab, but if she does so, she will be foreclosed from contesting the accuracy of Schwab's copies of those forms at trial.

29

Exhibit J to doc. 50

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Request Nos. 13 and 14 seek documents relating to an alleged affair between Johnson and Brad Allen and to communications between them. Nothing was produced on the basis that the information sought is irrelevant. Given Allen's status as a witness for Johnson and a possible motive for fabricating the claim against Steinart, the objection is without merit. Johnson will be ordered to respond to these requests. Request No. 21 seeks documents from the NLRB proceeding relating to this case. Johnson has produced nothing on the grounds that Schwab has what she has. Schwab is correct to assert that this response is inadequate. Johnson will either make all of her non-privileged materials available for inspection and copying by Schwab's counsel, or she will provide a list of every document she has, so that Schwab can ascertain that it already has copies. Finally, the court must address Schwab's request for an award of reasonable expenses including attorneys' fees. Where, as here, the moving party has prevailed on nearly all disputed points, and especially given the dubious nature of many of the nonmoving party's objections, an award of reasonable expenses, including attorneys' fees is appropriate.30 However, the parties have not yet had an opportunity to address the size of the award. Schwab may file a properly supported request for an award of reasonable expenses including attorney fees within 14 days from the date of this order. Johnson may file a response in which she may challenge the reasonableness of the amount requested, but not Schwab's entitlement to an award of an appropriate amount. No reply may be filed unless requested by the court.

30

See, FED . R. CIV . P. 37(a)(4)(A) and (C).

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C. Motion at docket 53 Rule 30(b)(6) provides that a party may take the deposition of an entity such as Schwab and shall describe with reasonable particularity in the deposition notice those matters on which examination is requested. Johnson gave such notice. In it she described ten matters or categories concerning which she desired to make inquiry. Schwab objected to all ten categories and filed the motion at docket 53 pursuant to Rule 26(c) asking the court to substantially restrict the topics on which inquiry will be permitted. The court will address each category in the order listed in the deposition notice. Categories 1 and 2 The objection that category 1 is overbroad in geographical, temporal, and topical scope lacks merit. The category is limited to the State of Arizona, is limited to a fiveyear period which is a relevant period, and is limited to topics that touch upon or concern subjects relating to Johnson's claim. Upon careful consideration, the court finds all the other objections, save two, to be equally without merit. For a litigant so quick to find fault with its adversary's misunderstanding of the broad scope of discovery under the Federal Rules of Civil Procedure, it is surprising to see Schwab make such a litany of objections. The first objection which raises a legitimate concern is the objection that disclosure of the information sought may impinge on the privacy interests of third persons. For that reason, while the court will require Schwab to respond to category 1, the court will also require that the parties and their counsel shall not divulge the names of any persons learned at the deposition to anyone not actively engaged in the -13-

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prosecution or defense of this litigation. Furthermore, all such persons to whom the names are divulged shall be prohibited from disclosing them to others. References to the individuals which may be necessary in this litigation shall be made by using the initials of the individuals rather than the names. If more than one individual has the same initials, then the initials shall include a separate identifying number. For example, if portions of a deposition transcript which include the name of such an individual are to be filed in this case, they shall first be redacted to substitute the appropriate initials for the names.31 In the unlikely event that a party deems it necessary to divulge the name of any such individual, the party seeking to do so shall first file a motion under seal seeking permission from the court. The second objection which has merit is that the category as described could sweep within it matters which are within the attorney-client privilege or constitute attorney work product. At the deposition, no witness will be required to divulge communications between Schwab and its counsel, or any of its counsel's work product. Category 3 Category 3 was not artfully described by Johnson's counsel. The court will impose the following two changes: First, the date of November 31, 2005, must be changed to November 31, 2003. Second, the request shall be limited to investigations of complaints or reports made by an employee in Arizona which relate to events which happened in Arizona (an employee transferred into Arizona might make a complaint

The potential number of redactions would be reduced if, after first learning a name at the deposition, subsequent questions and answers at the deposition which concern the person use the initials instead of the name.

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about events which happened elsewhere). The objections registered by Schwab to this category as it has been altered by the court are hereby resolved precisely as they were for categories 1 and 2. Category 4 The court reads this category to be a subset of category 3. There is no need to separately address it. Category 5 Once again the description of the category is a bit problematic. The court will impose the following change: The false complaints or reports are limited to false complaints or reports relating to events which happened in Arizona. With that modification, the objections are hereby resolved in the same fashion as they were for categories 1 and 2. Category 6 Schwab need not provide testimony relating to this precise category. Johnson will have learned which of those who made complaints or reports were terminated. She is entitled to conclude that those identified as having made reports or complaints who were not terminated could have continued to work for Schwab. Whether they did so, or went elsewhere is not material to this litigation, and forcing Schwab to look for the status of all such persons imposes an unnecessary burden. Thus, the court agrees that it would be unduly burdensome to require Schwab to investigate the employment status of any persons identified in response to the preceding categories on the date which is one year after making the complaint or report.

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Category 7 The court has concluded that this category is a subset of category 2. It need not be separately addressed. Category 8 Once again, Johnson's counsel has referenced the date November 31, 2005. The court will limit this category to November 31, 2003. Although this category may turn out to be a subset of category 5, the court cannot be certain of that. Schwab's objections to this category are hereby resolved in the same fashion as the objections to categories 1 and 2. Category 9 Schwab's objections to this category are utterly frivolous. Schwab shall provide answers to questions in this category. Category 10 With the exception of the objection to answering questions which would disclose privileged communications between Schwab and its counsel or its lawyers' work product, the objections are without merit. Schwab shall provide answers to questions within this category, except that it need not disclose privileged communications or attorney work product. Request for Award of Expenses Finally, it is necessary to address Johnson's request for an award of her expenses incurred in opposing the motion at docket 53. A party who successfully resists a motion for a protective order may be entitled to recover her reasonable

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expenses including attorneys' fees.32 Here, Johnson was largely, but not entirely, successful in resisting Schwab's motion for a protective order. Some of Schwab's objections were prompted by the sloppy drafting of Johnson's counsel, but the court finds that for the most part, Schwab took positions that ranged from clearly frivolous to uncritical invocation of boilerplate objections. Johnson is entitled to an award of reasonable expenses including attorneys' fees in resisting the motion at docket 53.33 The parties have not yet briefed the quantum of an appropriate award. Johnson may file a properly supported request for reasonable expenses, including attorney fees', within 14 days from the date of this order. Schwab may file a response in which it may challenge the reasonableness of the amount requested, but not Johnson's entitlement to an award of an appropriate amount. No reply may be filed unless requested by the court. D. Motion at docket 64 Johnson asks for an order which would prevent Schwab from conducting "discovery regarding the name of her current employer."34 Johnson seeks to recover damages attributable to the termination of her employment by Schwab. The quantum of damages cannot be determined without information regarding her current employment. There is no doubt that discovery of the current employer's identity falls within the scope of discovery under Rule 26. Johnson would shield her employer's identity on the grounds that if Schwab learns the name, it will seek discovery from the
32

FED . R. CIV . P. 26(c) incorporating by reference FED . R. CIV . P. 37 (a)(4). FED . R. CIV . P. 37(a)(4)(A) and (C). Doc. 64 at p. 1.

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employer which in turn will retaliate against Johnson. By attaching copies of subpoenas which Schwab has directed to former employers, Johnson has persuaded the court that Schwab is likely to seek discovery from her current employer. That, however, is unremarkable. One would expect a party in Schwab's position to do so, in order to discover information relevant to the lawsuit. Neither Johnson's provision of the employer's name, nor the discovery that may be directed to the employer as illustrated in the attachments can be characterized as annoying, embarrassing, oppressive, or unduly burdensome or expensive to the employer. Even if it is true­the matter is disputed­that Johnson has provided information about her earnings from the current employer, a party to litigation is not required to accept whatever its adversary says as indisputably true. Johnson's fundamental concern is what her current employer will do when it learns from Schwab's anticipated discovery requests that she is engaged in a dispute arising from a prior employment relationship. She is "fearful" that the current employer will retaliate against her in some fashion. However, Johnson offers no evidence that the current employer will actually do so. Foreclosing legitimate discovery in existing litigation based on speculation about how a third party may react is not, in this court's view, sufficient to show good cause why justice requires a limitation on that discovery. Johnson's motion also asks the court to prevent Schwab from conducting discovery "relating to her past sexual conduct."35 She relies on the commentary to Rule 412 of the Federal Rules of Evidence which indicates that while discovery is still

35

Id.

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governed by Rule 26 of the Federal Rules of Civil Procedure, a court should indulge a presumption in favor of a protective order when discovery is sought which would expose a party's prior sexual activity. Schwab seeks information regarding the sexual relationship between Johnson and Allen, an individual who testified on her behalf in the NLRB proceeding and whose credibility would be a topic of interest when he testifies in this case. Furthermore, it is Schwab's theory of defense that Johnson and Allen cooked up the accusation against Steinart because he had exposed their romantic relationship. The record in the NLRB proceeding is adequate to establish a basis for Schwab's theory. Where, as here, "the evidence sought to be discovered would be relevant under the facts and theories of the particular case"36 the recommended presumption in favor of a protective order is overcome. Johnson has not shown good cause to foreclose discovery of her relationship with Allen. On the other hand, any attempt by Schwab to probe more generally into Johnson's sexual conduct is not supported on the record available to the court. Her request with respect to a protective order regarding her past sexual conduct will be granted in part, but denied with respect to her relationship to Allen. E. Motion at docket 66 This motion is based on the proposition that Schwab raised new arguments in its reply memorandum in support of its motion to compel discovery from Johnson. The court did not read the reply memorandum as raising new arguments, but rather as responding to arguments in Johnson's opposition and giving some examples which, if

36

Advisory Committee Notes to 1994 Amendments to FED . R. EVID . 412.

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not explicitly stated in Schwab's original memorandum, were inherent in the topics discussed in the original memorandum. The motion at docket 66 lacks merit. F. Motion at docket 69 Johnson seeks a "comprehensive" pre-trial conference. Schwab does not object to a pre-trial conference, but balks at one which would be "comprehensive." The court concludes that a scheduling conference to address pre-trial activities that need to be accomplished up through the completion of discovery and filing of dispositive motions should be conducted. The conference will be a telephonic conference. It will be held on Wednesday, January 25, 2006, at 8:30 AM Alaska Time (10:30 AM Arizona Time). Each lawyer should place a call at 8:25 AM Alaska Time (10:25 AM Arizona Time) to (907) 677-6247. G. Motion at docket 70 The motion at docket 70 may have some merit. However, because the court will consider scheduling issues at the scheduling conference set by this order, the sensible course is to deny the motion at docket 70 without prejudice to Schwab's ability to advocate extending deadlines at the scheduling conference.

V. CONCLUSION For the reasons set out above: 1) The motion at docket 49 is GRANTED as follows: (a) Johnson shall provide a computation of her damages within 20 days after the conclusion of the Schwab Rule 30(b)(6) deposition; (b) Johnson shall execute the releases already provided by Schwab so that it may obtain records relating to her unemployment and workers' compensation benefits from -20-

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the appropriate government agencies, and shall deliver the same to Schwab's counsel within 10 days from the date of this order.

2) The motion at docket 50 is GRANTED in part and DENIED in part as set out above in the text of this order addressing the motion. As noted there, Schwab may file a properly supported request for an award of reasonable expenses, including attorneys' fees, within 14 days from the date of this order. Johnson may contest the amount, but not Schwab's entitlement to an award in an appropriate amount. No reply shall be filed unless requested by the court.

3) The motion at docket 53 is GRANTED in part and DENIED in part as set out above in the text of this order addressing the motion. As noted there, Johnson may file a properly supported request for an award of reasonable expenses, including attorneys' fees, within 14 days from the date of this order. Schwab may contest the amount, but not Johnson's entitlement to an award in an appropriate amount. No reply shall be filed unless requested by the court.

4)

The parties shall consider entering an agreement pursuant to which

Schwab will forego seeking expenses in connection with the motion at docket 50 and Johnson will forego seeking expense in connection with the motion at docket 53.

5) The motion at docket 64 is GRANTED in part to the extent that Schwab may not inquire into Johnson's past sexual conduct with any person other than her past sexual conduct with Brad Allen and DENIED in part such that Johnson shall provide Schwab the name of her current employer within 10 days from the date of this order, and she shall respond

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to Schwab's inquiries about her relationship, sexual and otherwise, with Brad Allen.

6) The motion at docket 69 is GRANTED as follows: The court will conduct a telephonic scheduling conference on January 25, 2006, at 8:30 AM Alaska Time (10:30 AM Arizona Time) pursuant to the arrangements specified above in this order.

7) The motion at docket 70 is DENIED without prejudice to Schwab's ability to request extended deadlines at the telephonic scheduling conference.

Counsel are each encouraged to turn over a new leaf in this case. The court expects the lawyers to participate in the planning and scheduling conference in a professional and courteous manner worthy of the high regard it entertains for members of the bar. DATED at Anchorage, Alaska this 4th day of January 2006.

/s/ JOHN W. SEDWICK UNITED STATES DISTRICT JUDGE

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