## Facts

- An employee sued her employer under Title VII alleging sexual harassment and a hostile work environment, primarily based on unwanted touching and other conduct by a coworker in the receiving department.
- After the employee reported the alleged harassment to management, she alleged no further direct harassment by the coworker but claimed supervisors and coworkers treated her coldly and made her uncomfortable.
- In discovery, the employee noticed depositions of several nonparty witnesses and sought to ask about (1) alleged harassment by the coworker and (2) the witnesses’ voluntary romantic and sexual relationships, including conduct unrelated to the employee or the coworker.
- The employer moved for a protective order under Federal Rule of Civil Procedure 26(c), asserting that inquiry into nonparties’ private sexual histories was irrelevant, intrusive, and embarrassing.
- The court addressed only the discovery dispute, not the merits of the Title VII claims.

## Issues

1. In a Title VII hostile-environment case, to what extent may a plaintiff obtain discovery from nonparty witnesses about sexual conduct and relationships consistent with Rule 26(b)(1) relevance limits and Rule 26(c) protections against undue embarrassment and intrusion?

## Decision

- The court granted the protective-order motion in part and denied it in part.
- The plaintiff was permitted to discover information about sexual conduct involving the plaintiff and the alleged harasser and alleged harassment or unwanted sexual conduct by the alleged harasser toward the nonparty witnesses.
- The plaintiff was prohibited from discovering the nonparty witnesses’ unrelated, consensual sexual activities or romantic relationships that did not involve either the plaintiff or the alleged harasser.

## Legal Principles

- Rule 26(b)(1) permits broad discovery of nonprivileged matters relevant to claims or defenses, including information reasonably calculated to lead to admissible evidence, but discovery is not unlimited.
- Under Rule 26(c), courts may issue protective orders for good cause to protect persons from annoyance, embarrassment, oppression, or undue burden, including orders limiting or forbidding specific inquiry.
- The movant for a protective order bears the burden to show good cause with a particularized factual showing, not conclusory assertions, though privacy interests weigh heavily when discovery seeks intimate sexual details from nonparties.
- In sexual-harassment litigation, discovery into other incidents involving the alleged harasser can be relevant to hostile-environment proof, corroboration, employer notice, and credibility; inquiry into nonparties’ sexual histories unrelated to the alleged harasser or plaintiff is generally irrelevant and unduly intrusive.
- Protective orders should be tailored to permit necessary discovery while preventing unnecessary disclosure of private, consensual sexual conduct of nonparties.

## Conclusion

The court balanced broad Title VII discovery against nonparty privacy interests, allowing deposition questions tied to the alleged harasser’s conduct and alleged harassment of others while barring inquiry into witnesses’ unrelated consensual sexual relationships and sexual histories.


Stalnaker v. Kmart Corp., 950 F. Supp. 469 (D. Kan. 1996)