Free Uncategorized - District Court of Arizona - Arizona

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Quarles & Brady Streich Lang LLP
Firm State Bar No. 00443100 Renaissance One Two North Central Avenue Phoenix, AZ 85004-2391
TELEPHONE 602.229.5200

Lonnie J. Williams, Jr. (#005966) ([email protected]) Dawn C. Valdivia (#020715) ([email protected]) Attorneys for Plaintiff Marcela Johnson IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Marcela Johnson, Plaintiff, v. Charles Schwab Corporation, Defendant. NO. CV 04-0790 PHX-JWS PLAINTIFF'S MOTION FOR PROTECTIVE ORDER REGARDING THE NAME OF PLAINTIFF'S CURRENT EMPLOYER AND INFORMATION RELATING TO PAST SEXUAL CONDUCT

Plaintiff Marcela Johnson moves this Court pursuant to Rule 26(c), Fed. R. Civ. P., for an order prohibiting Defendant Charles Schwab Co., Inc., ("Schwab") from engaging in discovery regarding the name of her current employer and information relating to her past sexual conduct. Ms. Johnson makes these requests out of fear of retaliation from her current employer, to avoid embarrassment and annoyance, to preserve her privacy, and to prevent Schwab from seeking information that is more prejudicial than probative to the issues in this case. This motion is accompanied by the following memorandum of points and authorities. MEMORANDUM OF POINTS AND AUTHORITIES I. Factual Background During the course of discovery, Schwab issued several harassing discovery requests and engaged in other techniques, including issuing subpoenas to Ms. Johnson's current and former employers, that have caused her embarrassment and annoyance. Although Ms. Johnson has been willing to provide relevant and discoverable information

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to Schwab, she must draw the line when Schwab's requests subject her to potential retaliation by her current employer, invade her privacy, cause her embarrassment, and seek information that is more prejudicial than probative. A. Ms. Johnson Asks this Court to Issue an Order Prohibiting Discovery Regarding the Name of Her Current Employer.

During Discovery, Schwab requested the names, addresses, and telephone numbers of each employer with whom Ms. Johnson has been employed since her termination from Schwab. [Exhibit A to Schwab's Motion to Compel.] Ms. Johnson complied with the request and provided responsive information. [Exhibits D, K, and N to Schwab's Motion to Compel; Letter to Michelle Ganz from Dawn C. Valdivia dated October 10, 2005 attached as Exhibit A.] Without notice to Ms. Johnson's attorneys, Schwab issued subpoenas, on August 9 and August 15, 2005, to each of those employers seeking extensive, and irrelevant, information.1 [Exhibit B hereto.] On August 19, 2005, Ms. Johnson's counsel learned that Schwab had issued the subpoenas when Ms. Johnson's current employer received the subpoena and questioned her about it.2 [Declaration of Dawn C. Valdivia attached as Exhibit C.] Ms. Johnson subsequently changed employers on August 22, 2005. [Exhibit K to Schwab's Motion to Compel.] Based on her previous employer's actions and comments, Ms. Johnson is fearful that if her current employer learns that she is involved in an employment litigation dispute she may suffer retaliation, including termination. As a single mother of twins, it is important that she remain employed. [Exhibit C hereto.] Thus, when she supplemented her discovery, Ms. Johnson withheld the name of her employer, but disclosed all other relevant information including date of hire, salary, hours worked, and any benefits received. [Exhibits K and N to Schwab's Motion to Compel.] Ms. Johnson agreed to provide other information, including the name of her employer, if

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In fact, Schwab issued similar subpoenas to employers with whom Ms. Johnson was employed prior to Schwab. Ms. Valdivia immediately contacted Schwab's counsel to determine why they had not forwarded copies of the subpoenas to her. Although Schwab's counsel claimed that they had sent copies of the subpoenas to Ms. Johnson's counsel on August 9 and 15, 2005, when they were issued, Ms. Johnson's counsel did not receive them until August 19, 2005, after notifying Schwab's counsel and after several documents had been produced. [Exhibit B]

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Schwab agreed not issue a subpoena to her current employer. Schwab never responded and instead filed a motion to compel. [Exhibit C hereto.] Ms. Johnson withheld the name of her employer for good cause. See Dole v. International Association Managers, Inc., 1991 WL 270194, 120 Lab.Cas.P 35, 544 (D. Ariz.) citing Hodgson v. Charles Martin Inspectors of Petroleum, Inc., 459 F.2d 303, 305 (5th Cir. 1972) (recognizing the possibility of retaliation against employee's and applying the informer's privilege to employees who issued complaints to the Department of Labor); see also Does I thru XXIII v. Advanced Textile Corporation, 214 F.3d 1058 (9th Cir. 2000) (permitting plaintiff's in a collective action under the FLSA to conceal their identities because of a reasonable fear of retaliation). Moreover, Ms. Johnson has

provided Schwab with all the information necessary regarding her current wages and benefits. Schwab has not, and cannot, show that it has been prejudiced because it does not have the name of Ms. Johnson's current employer. Accordingly, Ms. Johnson

respectfully requests this Court to issue an order precluding the discovery of the name of her current employer. B. Ms. Johnson Asks this Court to Issue an Order Prohibiting Discovery Regarding Her Past Sexual Conduct.

The proper inquiry into an alleged sexual-harassment victim's sexual conduct and history in a civil case is governed by Rule 26, Fed. R. Civ. P., and Rule 412, Fed. R. Evid. See S.M. v. J.K., 262 F.3d 914, 918 (9th Cir. 2001), amended by 315 F.3d 1058 (9th Cir. 2003). instructive: Although discovery of victim's past sexual conduct or predisposition in civil cases continues to be governed by Fed. R. Civ. P. 26, "[i]n order not to undermine the rationale of Rule 412 ... 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,
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The advisory committee notes to Fed. R. Evid. 412 are particularly

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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, nonworkplace conduct will usually be irrelevant. Fed. R. Evid. 412, advisory committee notes to 1994 amendments. The commentary to Rule 412 also explains the balancing test regarding the discovery and admissibility of such evidence: [the balancing test] differs in three respects from the general rule governing admissibility set forth in Rule 403. First, it Reverses [sic] the usual procedure spelled out in Rule 403 by shifting the burden to the proponent to demonstrate admissibility rather than making the opponent justify exclusion of the evidence. Second, the standard expressed in subdivision (b)(2) is more stringent than in the original rule; it raises the threshold for admission by requiring that the probative value of the evidence substantially outweigh the specified dangers. Finally, the Rule 412 test puts 'harm to the victim' on the scale in addition to prejudice to the parties. Fed. R. Evid. 412 Advisory Committee notes to 1994 amendments (emphasis in original). Although Rule 412 controls the admissibility of evidence rather than its discoverability, Rule 412 "must inform the proper scope of discovery in this case.... In recognition of the policy rationale for Rule 412, the court must impose certain restrictions on discovery to preclude inquiry into areas that will clearly fail to satisfy the balancing test of Rule 412(b)(2). A.W. v. I.B. Corp, 224 F.R.D. 20 (D. Maine 2004) citing Barta V. City and County of Honolulu, 169 F.R.D. 132, 135 (D. Haw. 1996). Courts have been generally reluctant to permit discovery into a sexual harassment plaintiff's past sexual conduct. See, e.g., B.K.B. v. Maui Police Dep't., 276 F.3d 1091, 1105 (9th Cir. 2002) (courts have held that the probative value of evidence of a victim's sexual sophistication or private sexual behavior with regard to the welcomeness of harassing behavior in the workplace does not substantially outweigh the prejudice to her.); Barta, 169 F.R.D. at 136 (preclusion of inquiry into non-workplace, off-duty sexual contact is appropriate); Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848, 856 (1st Cir. 1998) (trial court did

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not abuse discretion in ruling that evidence concerning sexual-harassment plaintiff's moral character and promiscuity was inadmissible under Rule 412). Charles Schwab seeks information regarding Ms. Johnson's relationship with a former co-worker on the grounds that "information about their relationship may go to his credibility as a witness." [Schwab's Separate Statement of Items in Dispute p. 9, ll. 1-2.] Although Schwab is entitled to establish bias or other credibility issues regarding Mr. Allen, Schwab has not, and cannot, show how "all documents regarding [Ms. Johnson's] affair with Brad Allen" could possibly lead to the discovery of admissible evidence. For example, an email between Ms. Johnson and Mr. Allen regarding their personal relationship is not discoverable or admissible. Schwab is entitled to documents relating to the issues in this lawsuit, but is certainly not entitled to documents to establish the nature or details of the relationship between Ms. Johnson and Mr. Allen. Applying the balancing test to the facts in this case demonstrate that Schwab is not entitled to the requested information. First, Schwab has not met its burden to show that the sought after information is admissible. Second, Schwab cannot show that the

probative value of discovery requests substantially outweigh the prejudicial value to Ms. Johnson and her former co-worker, who is not a party to this action. Finally, the harm suffered to Ms. Johnson far outweighs any prejudice to Schwab. III. Conclusion For the foregoing reasons, Ms. Johnson respectfully requests this Court to enter an order prohibiting the discovery of the name of her current employer and any information relating to her past sexual conduct. RESPECTFULLY SUBMITTED this 29th day of November, 2005. QUARLES & BRADY STREICH LANG LLP

By

s/Dawn C. Valdivia Lonnie J. Williams, Jr. Dawn C. Valdivia Attorneys for Plaintiff Marcela Johnson

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I hereby certify that on November 29, 2005, I electronically transmitted the attached document To the Clerk's Office suing the CM/ECF System For filing and transmittal of Notice of Electronic Filing to the following CM/ECF registrants: Joseph T. Clees Christopher Mason Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 2415 E. Camelback Road Suite 800 Phoenix, AZ 85016 A copy of this document was provided to The Honorable John W. Sedwick
QBPHX\115637.00002\1973644.1

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