Civ Pro 2 Notes 10/27/04

We left off discussing compliance. We could go over a lot of different problems, but the important stuff is that you need to look at both Rule 37 and Rule 26(c) and (g). Is it better strategically to seek protective orders to prevent having to answer discovery, or is it better to object and wait for the other side to file motions to compel and then raise the same issues you would raise in a protective order? Yeazell says that it’s better not to rush for the protective order. You might be able to defuse a discovery dispute that will be enflamed by filing a protective order motion. (But to whose advantage is such strategy? The client? The attorney? “Justice?”)

Discovery and privacy – Stalnaker v. Kmart Corp.

This is a “fair employment practices” case. But it wasn’t reported in the Federal Supplement. It’s a run-of-the-mill case. What has Ms. Stalnaker done? She has sued Graves and Kmart for sexual harassment. She has claimed a hostile work environment. She’s trying to get discovery from a bunch of other Kmart employees—she wants to depose them. Kmart objects by filing a protective order under Rule 26(c). What justifies the use of a protective order here? The defendants claim that there is no allegation that the other women had any sexual relationship with the plaintiff or harassed her. Would the Rules of Evidence allow you to admit evidence about the past sexual behavior of parties? No, in general. But it turns out that what others are doing in the workplace is relevant. But doesn’t this seem pretty invasive? There’s a restriction, though: the results of discovery must be kept secret. The court won’t stop any inquiry about voluntary conduct with Graves. What does this ruling mean? Voluntary consensual sexual activities with people other than Kmart employees in places other than at Kmart are irrelevant. Sexual harassment by Graves is relevant, too.

Under this order, what questions can be asked? How can you phrase a question about sexual activity with Graves so that it’s not objectionable? You make the call! To play it safe, make the language as close to the judge’s order as possible. Did the third party Kmart employees have their own lawyers? They probably couldn’t afford it. They were just Kmart employees! Kmart tries to keep out the evidence to protect its own interests. Kmart’s lawyers may be protecting the deponents’ interests in this case.

Can the magistrate judge’s order be appealed? The discovery order isn’t dispositive of anything except what’s before you. So generally, there will be no appellate review of this kind of discovery dispute. But the statute that creates the magistrate judge’s jurisdiction does have an out for interlocutory review of matters that are “clearly erroneous”. If the magistrate makes a really bad mistake, you can ask the district court to review and reverse that mistake.

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