Opinion
No. 02-CV-6510T.
October 28, 2004
DECISION ORDER
PRELIMINARY STATEMENT
Plaintiff, William Bolia ("Bolia"), has filed suit against defendant, Mercury Print Productions, Inc. ("Mercury Print"), claiming, inter alia, that Mercury Print terminated his employment due to his age and disability. On March 1, 2004, Bolia's counsel deposed John C. Place, the president of Mercury Print. During the deposition, counsel asked Place whether he had ever been involved in a workplace complaint. Place responded under oath that he had not. (Docket # 126, Ex. A). Subsequent to the deposition, Mercury Print disclosed Place's personnel file, which contained documents referencing complaints of sexual harassment by a former employee against both Mercury Print and Place personally. Currently before this Court is Mercury Print's motion for a protective order prohibiting disclosure of these documents ("the personnel file documents"). (Docket # 123). Also pending before the Court is Mercury Print's motion to seal the personnel file, the memoranda of law filed in connection with defendant's motion for a protective order and portions of the oral argument on the motion that reference the personnel file documents. (Docket # 128).
A more complete discussion of this case is contained in this Court's recent Decision and Order dated September 28, 2004. (Docket # 134).
These documents bear Bates stamp numbers 2331, 2333-35, 2346-53. (Docket # 126, Ex. B).
DISCUSSION
Mercury Print seeks a protective order prohibiting during discovery the use of or reference to discrimination claims other than age and disability discrimination claims. (Docket # 123). Mercury Print also moves to seal the personnel file documents, as well as the memoranda of law filed in connection with the instant motion and portions of the oral argument. (Docket # 128). Bolia opposes both motions. (Docket ## 126, 138).
A. Use Of Documents : Mercury Print initially seeks a protective order prohibiting disclosure of or reference to any non-age or disability discrimination complaints, including the personnel file documents, during the discovery phase of this litigation. Mercury Print claims that such claims are irrelevant because Bolia's Complaint only alleges age and disability discrimination, not gender discrimination or sexual harassment. In response, Bolia argues that he should be permitted to use the personnel file documents to impeach Place's credibility.
Generally, "[o]ther claims of discrimination against a defendant are discoverable [only] if limited to the same form of discrimination, if limited to the same department or agency where plaintiff worked, and if limited to a reasonable time before and after the discrimination complained of." Mitchell v. National Railroad Passenger Corp., 208 F.R.D. 455, 460 (D.D.C. 2002). See Flanagan v. Travelers Inc. Co., 111 F.R.D. 42, 48 (W.D.N.Y. 1986) (requiring discovery of prior discrimination complaints involving same types of discrimination as alleged in complaint); Pleasants v. Allbough, 208 F.R.D. 7, 15 (D.D.C. 2002) (proper scope of discovery regarding other complaints of discrimination is limited in time and limited to those involving the same type of discrimination alleged in the pending lawsuit).
This Court agrees with Mercury Print that Bolia should not be entitled to general discovery relating to discrimination claims of a type other than age or disability, the particular claims at issue in this case. If relevance were the sole basis on which Bolia sought this additional discovery, I would deny the motion. Bolia, however, also seeks to use evidence of these prior sexual harassment complaints to impeach Place's deposition testimony.
Generally, "[p]arties may utilize discovery to obtain information for impeachment purposes," Moss v. Stinnes Corp., 1997 WL 570675, *2 (S.D.N.Y. 1997) (citing United States v. Int'l Business Machines Corp, 66 F.R.D. 215, 218-19 (S.D.N.Y. 1974)), "particularly for uncovering prior acts of deception." Id. (citing Davidson Pipe Co. v. Laventhol and Horwath, 120 F.R.D. 455, 462 (S.D.N.Y. 1988)). Such discovery, however, is not without limit. Indeed, discovery relating to a witness' credibility is constrained in that same manner as other discovery — it must be reasonably likely to lead to admissible evidence. Davidson Pipe Co. v. Laventhol and Horwath, 120 F.R.D. at 462.
In this case, plaintiff's counsel inquired of Place during his deposition whether Mercury Print had ever been a party to a litigation. Without objection, Place responded under oath, "Not that I am aware of, No." Immediately following that response, counsel asked whether Place had ever been involved in a workplace complaint, to which Place responded, "Myself, No." (Docket # 126, Ex. A).
Bolia contends that neither response was truthful because Mercury Print has previously been sued in federal court and because the personnel file documents, which were not produced until after Place's deposition, reveal that Place was named as a respondent in a 1994 complaint alleging sexual harassment filed with the New York State Division of Human Rights. (Docket # 126, Ex. B). It is Bolia's position that he should be able to question Place, as well as other witnesses, about the personnel file documents in order to develop evidence impeaching Place's credibility, namely, that he lied under oath. Defendant disagrees that such questioning is proper, maintaining that such evidence is not relevant.
I find that Bolia is entitled to use the personnel file documents to question Place. The subject matter of the questions — whether the company or its president has ever been involved in a litigation or a workplace complaint — is a proper subject for deposition discovery. For example, such experiences, if they occurred, may lead to the discovery of admissible evidence concerning the company's policies and practices concerning workplace complaints. Even if, as defendant's counsel argues, the subject matter of the deposition questions were considered to be collateral, the trial court may exercise its discretion under rule 608 of the Federal Rules of Evidence to permit counsel to cross-examine Place about his deposition testimony using the personnel file documents. Fed.R.Evid. 608(b). See Davidson Pipe Co. v. Laventhol and Horwath, 120 F.R.D. at 461-62 ("although prior acts may not be independently proven solely for purposes of impeachment, they may serve as the foundation for cross-examination of a witness, and they are therefore discoverable on that basis") (citations omitted). Thus, counsel should be permitted to use the personnel file documents to explore whether Place provided untruthful testimony in his deposition. See, e.g., Tisby v. Buffalo General Hosp., 157 F.R.D. 157, 170 (W.D.N.Y. 1994) ("Disclosure that may reveal information that affects the credibility of a witness' trial testimony may be found to be discoverable"); Davidson Pipe Co. v. Laventhol and Horwath, 120 F.R.D. at 461 ("[T]he far more common and logical analysis is that `[i]nformation showing that a person having knowledge of discoverable facts may not be worthy of belief is always relevant to the subject matter of the action'") (quoting 8 Wright Miller, Federal Practice and Procedure: Civil § 2015 (1970)) (citations omitted); United States v. Int'l Business Machines Corp., 66 F.R.D. 215, 218 (S.D.N.Y. 1974) ("[O]ne of the purposes of discovery is to obtain information for use on cross-examination and for the impeachment of witnesses. . . . The credibility of a witness' testimony is of the utmost importance since to evaluate the state of proof one must determine which evidence and what testimony is believable") (citations omitted).
On the record before me, I conclude that Bolia may continue Place's deposition in order to question him about the personnel file documents and the sexual harassment complaints they reference. With respect to depositions of other witnesses that have not yet occurred, counsel may question those other witnesses generally to determine whether they have knowledge of any prior complaints filed against Mercury Print or Place personally, but he may not, at this time, show the particular personnel file documents to the witnesses or ask specific questions that reveal details of the prior complaints. If, after such general questioning, counsel reasonably believes that a particular witness may have relevant information, counsel shall notify the Court and request permission to question the witness more specifically or to show the witness the personnel file documents. In my view, this two-staged approach strikes the appropriate balance between Place's privacy interests and Bolia's right to explore relevant evidence regarding Place's credibility.
The Court has suggested to counsel that they should make arrangements for the remaining depositions to be conducted in this courthouse so that the Court may be available to supervise the depositions and rule on any disputes that may arise. In addition, prior to such depositions, Bolia's counsel should submit to this Court a list of the general questions he seeks to pose to the witnesses concerning their knowledge of complaints of other types of discrimination.
B. Motion To Seal : Mercury Print also moves to seal the personnel file documents, both parties' memoranda of law filed in connection with this motion and such portions of the oral argument of the motion that reference the personnel file documents. (Docket # 128, Letter from J. Michael Wood, Esq., dated October 1, 2004). Judicial documents, however, are presumptively accessible to the public. Gambale v. Deutsche Bank AG, 377 F.3d 133, 140 (2d Cir. 2004). Indeed, in Gambale, the Second Circuit recently upheld the district court's unsealing of summary judgment documents that had been filed under seal pursuant to the agreement of the parties on the grounds that such sealing violated the public's common law right of access to judicial documents. Id. at 142. Specifically, the court affirmed:
The public's exercise of its common law access right in civil cases promotes public confidence in the judicial system. . . . As with other branches of government, the bright light cast upon the judicial process by public observation diminishes the possibilities for injustice, incompetence, perjury, and fraud. Furthermore, the very openness of the process should provide the public with a more complete understanding of the judicial system and a better perception of its fairness.Id. at 140 (quoting United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995) (citations omitted). Notwithstanding the common law right of public access, each court retains the right to control its own files to ensure their proper use. Nixon v. Warner Comm., Inc., 435 U.S. 589, 598 (1978). In balancing the public right of access against a party's privacy interest, a court should consider "the degree to which the subject matter is traditionally considered private rather than public." United States v. Amodeo, 71 F.3d 1044, 1051 (2d Cir. 1995). For the reasons stated below, Mercury Print's motion to seal is granted in part and denied in part.
Mercury Print's request to seal portions of the oral argument conducted before this Court on September 27, 2004 that reference the personnel file documents is denied. That request was not made prior to the argument, and defendant did not move to close the courtroom. Thus, the argument, which occurred in open court, was open and accessible to the public. Accordingly, I find that the strong presumption of public access to court proceedings outweighs any interest that Mercury Print may maintain in the confidentiality of the personnel file documents. See Stanley Works v. Newell Co., 1993 WL 151298, *3 (D. Conn. 1993) (sealing of transcript not appropriate merely to prevent business hurt or embarrassment).
In any event, very few details concerning the personnel file documents were discussed during oral argument.
With respect to Mercury Print's motion to seal in their entirety the memoranda of law filed in connection with this motion, that request is denied. My review of Mercury Print's memorandum reveals no specific details concerning the personnel file documents. Sealing of that memorandum is simply unnecessary to prevent disclosure of the matters referenced in the personnel file documents.
During oral argument on this motion, the Court instructed Mercury Print to identify specific portions of Bolia's memorandum of law that it believed should appropriately be sealed from public view. In response, Mercury Print has identified the second paragraph (except for the final sentence) on page one of Bolia's memorandum. (Letter from J. Michael Wood, Esq., dated October 1, 2004).
Bolia's memorandum of law discloses particular details of the prior complaints only in one sentence — the second sentence of the second paragraph on the first page. Without revealing those details in this decision, I find that that sentence reveals information that is appropriately considered private rather than public. That sentence shall be redacted and sealed from public disclosure, as shall be the personnel file documents themselves, which are attached as Exhibit B to Docket # 126. Such sealing reflects my finding that Place's privacy rights outweigh the public's need for access to the specific details of the prior sexual discrimination complaints.
CONCLUSION
For the foregoing reasons, it is the decision of this Court that defendant's motion for a protective order prohibiting disclosure of the documents in Place's personnel file (Docket # 123) is DENIED. Counsel may use those documents during the deposition of John C. Place, but may not use them during depositions of other witnesses without further leave of Court. It is the further decision of this Court that defendant's motion for sealing (Docket # 126) is GRANTED IN PART and DENIED IN PART.
IT IS SO ORDERED.