Articles Posted in Sexual Harassment

The following blog entry is written from a defendant’s position during the early stages of litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment/personal injury case and its proceedings.)

DEFENDANT SHOULD BE SANCTIONED FOR FAILING IN BAD FAITH TO SUBMIT TO AN AUTHORIZED FORM OF DISCOVERY

Nothing excuses the fact that defendant has refused to commit to a date for his deposition.

This assertion highlights the fact that he has acted in bad faith and will continue to do so unless and until the Court orders him to appear for his deposition in this sexual harassment case. As stated above, there is no substantial justification for Defendant not to appear for his deposition before August 2006 and, therefore, sanctions are warranted. (C.C.P. §§2023 and 2025(j)(3)). Moreover, Ms. Brown has been forced to simply take Defendant’s word that he will be available in August. There is no guarantee that Defendant will suddenly become unavailable or on another extended business trip in August, especially in light of the fact that Defendant will not commit to a date in August for his deposition at this time.

California courts have long recognized the potential for discovery abuse and noted, We are also aware the discovery process is subject to frequent abuse and, like a cancerous growth, can destroy a meritorious case or defense … (Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 778.) In adopting this theory, the court in Calcor Space Facility Inc. v. Superior Court (1997) 53 Cal.App.4th 216, added, Our observation of the day to day practice of law leads us to conclude this cancer is spreading and judges must become more aggressive in curbing these abuses. (53 Cal.App.4th at 219-220.)

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The following blog entry is written from a defendant’s position during the early stages of litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment/personal injury case and its proceedings.)

DEFENDANT’S DEPOSITION MUST BE COMPELLED BECAUSE WITHOUT A COURT INTERVENTION DEFENDANT WILL CONTINUE TO DELAY HIS APPEARING FOR DEPOSITION.

Defendant is clearly attempting to postpone the inevitable. Upon the filing of the instant action and the service of a deposition notice, Defendant suddenly became unavailable. When Ms. Brown’s counsel offered to fly to New York so that Defendant’s alleged extended business trip would not be disrupted, Defendant refused. Ms. Brown has begged and pleaded for dates upon which Defendant would be back in Los Angeles and available for his deposition. Ms. Brown has received none.

Rather, Defendant has maintained that he will be available in August. When in August? Ms. Brown has no idea because Defendant refuses to commit to a date at this time. Presumably, Defendant expects Ms. Brown to wait until August and then, upon his return to Los Angeles, attorneys for both sides can schedule a deposition. According to Defendant, such behavior is permissible because no trial date has been set in this sexual harassment matter.

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The following blog entry is written from a defendant’s position during the early stages of litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment/personal injury case and its proceedings.)

LEGAL ARGUMENT
THIS COURT HAS THE AUTHORITY TO COMPEL DEFENDANT TO APPEAR FOR HIS DEPOSITION
California Code of Civil Procedure (hereinafter C.C.P. ) § 2025(j)(3) provides, in relevant part

If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party … without having filed a valid objection under subdivision (g), fails to appear for examination, or to proceed with it, or to produce for inspection any document or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document or tangible thing described in the deposition notice. Id.

Moreover, the Code defines the “misuse” of the discovery process as a failure to respond or to submit to an authorized method of discovery. (C.C.P. § 2023(a)(4)). In the instant action, Ms. Brown properly noticed Defendant’s deposition and Defendant has flatly refused to comply with the deposition notice. To make matters worse, Defendant has refused to provide dates on which he could appear at his deposition in this egregious sexual harassment case. Accordingly, this Court has the power to compel Defendant to attend his deposition forthwith. (See Part 5 of 6.)

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The following blog entry is written from a defendant’s position during the early stages of litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment/personal injury case and its proceedings.)

Three more times on June 8, 2006, Ms. Brown’s counsel requested firm deposition dates for Defendant’s deposition. On or about June 9 and June 10, Ms. Brown’s counsel again requested concrete deposition dates. In response to Ms. Brown’s counsel’s emails, Mr. Steinman responded on or about June 10, 2006 and stated that there was no need to depose Defendant before August since there was no trial date set in this sexual harassment matter.

Ms. Brown’s counsel responded to Mr. Steinman’s email by again offering to fly to New York to take Defendant’s deposition and reiterating that the fact that there has not yet been a status conference or trial date set is of no moment and is not a valid excuse to delay the taking of Defendant’s deposition.

In all, Defendant has contended that he must not appear for his deposition before August 2006 because: 1) he is on a business trip in New York; 2) this case has not been set for trial; and 3) Ms. Brown will not be prejudiced if forced to wait. None of these excuses are legitimate reasons as to why Defendant’s deposition should be postponed for months. Moreover, to this day, defendant has failed to give Ms. Brown concrete dates upon which he would be available for his deposition.

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The following blog entry is written from a defendant’s position during the early stages of litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment/personal injury case and its proceedings.)

STATEMENT OF FACTS.

On or about June 1, 2006, Ms. Brown properly noticed Defendant’s deposition to take place on or about June 24, 2006. Defendant refuses to appear for his deposition. In order to avoid the need for Court intervention, Ms. Brown has made numerous attempts to meet and confer with Defendant to no avail. Ms. Brown’s counsel and Defendant’s counsel made numerous exchanges via email in attempt to meet and confer.

On or about June 6, 2006, Joel Steinman (hereinafter “Mr. Steinman”), counsel for Defendant, notified Ms. Brown’s counsel that his client was unavailable for his deposition on June 24, 2006. On or about June 7, 2006, Mr. Steinman again reiterated that Defendant would be unavailable until August 2006. Mr. Steinman also stated that Ms. Brown would not be prejudiced by this delay since a trial date was not yet set.

Later that day, Ms. Brown’s counsel sent Mr. Steinman an email in again asking for concrete dates for Defendant’s deposition. Ms. Brown’s counsel also reminded Mr. Steinman that Ms. Brown need not show that she would be prejudiced by the delay under the Code.

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The following blog entry is written from a defendant’s position during the early stages of litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment/personal injury case and its proceedings.)

This motion is made pursuant to California Code of Civil Procedure §§ 2025(o) and 2023 on the grounds that Defendant Doug Jeremy refuses to appear for his properly noticed deposition and continues to contend that he is unavailable for his deposition until August 2006 at the earliest. At this time, Defendant refuses to commit to a date for his deposition.

Plaintiff brings this Motion because Defendant Jeremy’s reasons for failing to make himself available for deposition are unreasonable and constitute a blatant attempt on Defendant’s part to impede Plaintiff’s right to conduct discovery in this matter. Plaintiff has made reasonable efforts to meet and confer in order to avoid the need for court intervention to no avail.

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION.

Defendant Doug Jeremy (hereinafter Defendant ) is accustomed to getting what he wants on his own terms. As the outspoken owner of Defendant Universal Design, Inc., Defendant sets his own rules. In fact, if one were to look at his behavior, he or she would conclude that Defendant answers to no one. Whether he is “playing with himself’ in front of a Jane magazine reporter, prancing around in his “dick and ball cover” in front of his employees, or walking around the office in his underwear, one thing remains clear: no one tells Defendant what he can or cannot do.

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The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment case and its proceedings.)

Ms. Black’s Prior Sexual Behavior With Individuals Others Than Plaintiff Has No Probative Value And Is Unduly Prejudicial.

Evidence Code section 352 provides:

The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or misleading the trial. Evidence Code Sec. 352.

In the instant matter, the clear intent and likely result of inquiring into and introducing evidence of Ms. Black’s prior sexual conduct is to prejudice the jury against Ms. Black and XYZ. Such evidence, however, has no probative value and no place in this trial. Indeed, as stated most eloquently by the California Legislature:

The Legislature concludes that the use of evidence of a complainant’s sexual behavior is more often harassing and intimidating than genuinely probative, and the potential for prejudice outweighs whatever probative value that evidence may have. Absent extraordinary circumstances, inquiry into those areas should not be permitted, either during discovery or at trial. Id. at 14 (citing Stats. 1985, ch. 1328, § 1, pp. 4654-4655.)

No such extraordinary showing has or can be made here. On the other hand, the prejudicial effect of such testimony is quite apparent in light of the issues of this case.

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The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment case and its proceedings.)

The holdings of these California and federal courts, in addition to the California Legislature’s stated intent, clearly apply to the underlying complaint of sexual harassment by Ms Black in this case. Allowing evidence of Ms. Black’s prior sexual conduct, including prior complaints of sexual harassment, with anyone other than the alleged harasser would undermine the clear intent of the California Legislature to prevent the discouragement of complaints and the unnecessary badgering of harassment victims. See Rieger v. Arnold, 104 Cal. App. 4th, at 460. Ms. Black’s conduct with individuals other than the Plaintiff, whether in or out of the workplace, is not relevant to the central issue of whether Plaintiff engaged in conduct that violated XYZ’s sexual harassment policy justifying his termination.

A case based upon the conduct of a [claimant’s] coworkers should not be turned into an investigation of [claimant’s] prior sexual history. Knoettigen v. Superior Court, 224 Cal. App. 3d 11, 15 (1990). In short, Ms. Black’s private life and/or sexual history with individuals other than Plaintiff does not provide lawful consent to the offensive sexual conduct engaged in and acknowledged by Plaintiff in this case, and which resulted in his termination.

Moreover, inquiry into sexual aspects of Ms. Black’s private life not only intrudes upon Ms. Black’s right to privacy, but the privacy of third parties as well. See Mendez v. Superior Court, 206 Cal. App. 3d 557, 568 (1988). Insofar as [Plaintiff] seek[s] to pry into [Ms. Black’s] sexual conduct with others, [he] necessarily seek[s] to pry into the third party’s sexual conduct. (citation). Id. When privacy is implicated, the appellate courts have been vigilant to provide extraordinary relief to prevent impairment of these protections. Knoettigen v. Superior Court, 224 Cal. App. 3d. at 14-15. (citations omitted) While theoretically such third parties could seek to appear in this action and oppose [Plaintiff’s efforts] (citation), such privilege under these circumstances is meaningless…. See Mendez v. Superior Court, 206 Cal. App. 3d at 568.

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The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment case and its proceedings.)

In Rieger, the court found that testimony about a sexual harassment plaintiff’s racy banter, sexual horseplay, and statements concerning prior proposed or planned sexual exploits were subject to exclusion under California Evidence Code section 1106 unless such conduct involved the alleged perpetrator. See id. at 460-467. The Rieger court also noted:

The legislature declared its intent in enacting section 1106 as follows: [I]t is the existing policy of the State of California to ensure that causes of action for…sexual harassment, sexual assault, or sexual battery are given proper meaning. The discovery of sexual aspects of complainant’s [sic] lives, as well as those of their past and current friends and acquaintances, has the clear potential to discourage complaints and to annoy and harass litigants [which] is unnecessary and deplorable. Without protection …, individuals whose intimate lives are unjustifiably and offensively intruded upon might face the … risk of enduring further intrusions into details of their personal lives in discovery, and in open quasi-judicial or judicial proceedings. [ ] … [A] similar state of affairs once confronted victims in criminal prosecutions for rape ….

The Legislature has taken measures to curb those abuses in rape proceedings. It is the intent of the Legislature to take similar measures in sexual harassment … cases. [ ] The Legislature concludes that the use of such evidence of a complainant’s sexual behavior is more often harassing and intimidating than genuinely probative…. (citation omitted). Id. at 460.

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The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment case and its proceedings.)

ARGUMENT
A. Legal Standards Governing Motions In Limine.

A party may bring a motion in limine to exclude evidence on the same grounds as any evidentiary objection that may be made at trial. A court may make an in limine order that counsel and witnesses may not mention objectionable matters before the jury, to avoid creating an improper inference in the jurors’ minds that a subsequent instruction to disregard those matters may not cure. A trial court has inherent power to entertain and grant a motion in limine. 3 Witkin, California Evidence (4th ed.), § 368.369.

B. Inquiry Into And Admission Of Evidence Of Ms. Black’s Prior Sexual Conduct With Individuals Other Than The Harasser Is Irrelevant and Inadmissible.

Under California Evidence Code section 350, no evidence is admissible except relevant evidence. Cal. Evid. Code § 350. Relevant evidence is defined as any evidence having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. Cal. Evid. Code § 210. Defendants anticipate that Plaintiff will attempt to elicit testimony and submit evidence regarding Ms. Black’s prior sexual history and/or conduct with others, including prior complaints by Ms. Black of sexual harassment against individuals other than Plaintiff, in an attempt to show that the conduct complained of by Ms. Black was not unwelcome or offensive and to improperly impugn Ms. Black’s character. Such evidence is not relevant to establishing whether Defendant XYZ discriminated against Plaintiff.

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