Preventing Re-Victimization of Sexual Harassment Victims: The Limits of Discovery of Plaintiff's Intimate Past in Sexual Harassment Suits.

AuthorHollifield, Travis R.

While the most recent claims surrounding New York's governor have yet to play out, it remains an unfortunate reality that instances of people in power over others using that power to perpetrate sexual harassment happen all too often. In the wake of the #MeToo and Time's Up movements of recent years, and as more victims weigh the potential costs and benefits of coming forward with claims of sexual harassment in the workplace, many are concerned about how much of their past intimate lives may be subject to scrutiny during the litigation process. Some victims who fear that their past sexual histories will be scrutinized by their employer's counsel, the court, the media, and even a jury, often question whether to come forward at all. This article analyzes the extent of this risk through a review of the law regarding the scope of permissible discovery into details of a sexual harassment plaintiff's past intimate encounters outside of the workplace that gave rise to the plaintiff's claim.

Sexual Harassment Plaintiffs May Seek a Protective Order

Perhaps at the urging of a defendant's high-ranking official who has been accused of sexual harassment that the plaintiff was "fine with it," defense counsel will at times seek to delve into the personal sexual histories of sexual harassment claimants. Courts considering this issue have almost universally concluded that such discovery is inappropriate, and that claimants should be protected from questions and tactics that attempt to expose highly personal details not directly related to the claims at issue.

Whether discovery concerning a sexual harassment plaintiff's past intimate life takes the form of an interrogatory, request to produce, request for admission, request for mental examination, or a deposition question, all such inquiries may be scrutinized by a court to ensure that the plaintiff is protected from annoyance, embarrassment, oppression, or undue burden. (1) A sexual harassment plaintiff faced with an inquiry into her past intimate life outside of the workplace should consider moving for a protective order under either Fla. R. Civ. P. 1.280(c) or Fed. R. Civ. P. 26(c) depending on the forum.

The Florida Rules of Civil Procedure directly address motions for protective order that seek to protect a party from "annoyance, embarrassment, oppression, or undue burden...." (2) Rule 1.280 states (emphasis added) in pertinent part:

(c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; and (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court. If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of rule 1.380(a)(4) apply to the award of expenses incurred in relation to the motion.

In Florida state courts, "'A trial court possesses broad discretion in overseeing discovery[] and protecting the parties that come before it.'" (3) Under the parameters of Rule 1.280(c), the circuit court may fashion discovery orders that protect a party from abuses of the discovery process. (4) Courts have the power to regulate discovery; "discovery of relevant, non-privileged information may be limited or prohibited in order to prevent annoyance, embarrassment, oppression or undue burden or expense." (5)

Sexual harassment plaintiffs, through the procedural mechanism of filing a motion for protective order, may call on courts to exercise their authority to protect plaintiffs' privacy interests by prohibiting employers from delving into past intimate lives outside of the workplace. As discussed below, these types of inquiries are routinely held to be unjustified.

Caselaw Establishes Limits on Discovery

Both courts and the legislature have recognized that certain areas of life, such as sexual practices and medical histories, are "sanctuaries of privacy entitled to protection." (6) This does not change because a plaintiff brings a sexual harassment or similar claim against a defendant. To the contrary, courts around the country that have addressed the issue have routinely denied discovery that focuses on past intimate histories.

For example, nearly 40 years ago, a California federal district court explained why, in sexual harassment cases, a plaintiff's past sexual history outside of the workplace is essentially off-limits in discovery:

In the instant action, this Court is concerned with the potential of the requested discovery to harass, intimidate, and discourage the plaintiff in her efforts to prosecute her cause.

Discovery of intimate aspects of plaintiffs' lives, as well as those of their past and current friends and acquaintances, has the clear potential to discourage sexual harassment litigants from prosecuting lawsuits such as the instant one. For those more hearty souls who are determined to have their day in court, it has the potential to annoy and harass them significantly. This Court has read excerpts from the transcript of plaintiff's deposition in which...

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