Williams v. District Court, Second Judicial District, City & County of Denver

Justice MULLARKEY

delivered the Opinion of the Court.

The petitioner, Bruce P. Williams (Williams), brought this original proceeding pursuant to C.A.R. 21 to seek reversal of a discovery order entered by the trial court requiring Williams to respond to written interrogatories concerning his sexual history. We issued a rule to show cause why the requested relief should not be granted and now make the rule absolute.

I

Williams, an airline pilot with Continental Airlines, filed an action against the defendants, Continental Airlines, Inc., four employees of Continental, and the corporate counsel and director of Continental. In this action, Williams seeks both compensatory and punitive damages for alleged defamation per se, breach of contract, breach of the covenant of good faith and fair dealing, negligence, negligent supervision, vicarious liability, invasion of privacy and outrageous conduct.

Two flight attendants brought information to Continental, alleging that Williams forced one of them to have sexual intercourse with him and made unwanted sexual advances to the other flight attendant in January 1991. In his second amended complaint, Williams alleges that Continental failed to conduct a timely workplace investigation of these charges, resulting in a republication of the defamatory statements about him throughout Continental.

The defendants served Williams with a detailed set of written interrogatories and requests for production of documents on October 8,1992. Some of these interrogatories sought information pertaining to Williams’ prior sexual contacts and relationships with women. For example, the interrogatories at issue in this case required Williams to supply the following information:

[INTERROGATORY NO.]8. Please provide the following information for every person with whom Plaintiff has had, or has attempted to have, sexual intercourse in the past five years, no matter how casual or inconsequential the relationship (for purposes of this Interrogatory, “sexual intercourse” means sexual penetration, eun-nilingus, fellatio, anilingus, or anal penetration; “attempted” means any effort toward the goal of sexual intercourse, including, but not limited to, flirtations, acts of force and incidents which did not result in intercourse due to impotence):

a. The person’s name;

b. The person’s last known address;

c. The person’s last known telephone

number;

d. The person’s age or approximate age;

e. The person’s gender;

f. Where the incident referred to occurred;

g. Whether Plaintiff had actual sexual intercourse with the named person.

[INTERROGATORY NO.]9. Please provide the following information for every person with whom Plaintiff has had, or has attempted to have, sexual contact in the past five years, no matter how casual or inconsequential the relationship (for purposes of this Interrogatory, “sexual contact” means kissing or touching anywhere on the person with the purposes of sexual arousal, gratification or abuse, including the knowing touching of the clothing covering the immediate area of the person’s intimate parts):

a. The person’s name;

b. The person’s last known address;

c. The person’s last known telephone number;

d. The person’s age or approximate age;

e. The person’s gender; and

f. Where the incident referred to occurred.

[INTERROGATORY NOJIO. Please provide the names, present address and telephone number, and age or approximate age for every person Plaintiff has dated in the past five years.

For the purposes of this Interrogatory, “dated” is defined as an appointment to meet socially with a member of the opposite sex.

[INTERROGATORY NO.]ll. Please list the names, last known addresses and last known telephone number of every Continental employee whom Plaintiff has dated, as defined in Interrogatory No. 10 above.

Williams objected to these interrogatories primarily on the grounds that the information sought was not relevant to his defamation lawsuit and would be inadmissible character evidence under CRE 404(b).¹ He also claimed that the interrogatories were designed improperly to harass and annoy him, and sought confidential information infringing upon the privacy rights of others.

On December 9, 1992, the defendants filed a motion to compel Williams to answer the challenged interrogatories pursuant to C.R.C.P. 26(b) and 37(a). As grounds for their motion, the defendants argued that (1) Williams placed his reputation in the community at issue by bringing a defamation claim; and (2) the discovery requests related directly to information about Williams’ conduct with other women, thus seeking information pivotal to one of the essential issues in the case.

In a written order, the trial court directed Williams to respond to the interrogatories.² The court reasoned that

the requested discovery may lead to admissible evidence permitted by C.R.E. 404(b) and 608, as well as evidence of general reputation as to Plaintiffs claimed damages in his defamation claim. This evidence could be in the form of evidence under C.R.E. 404(b) which tends to show “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

Such evidence may also be in the form of any “impairment to the plaintiffs reputation and standing in the community and injury to his feelings which he incurred as a result of the defendant’s statement.”

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In sum, the Court finds that the discovery requests, though unique, apply directly and specifically to the Plaintiffs claims for relief and to the essential issues concerning Plaintiffs conduct with women. The requests therefore are reasonably calculated to lead to the discovery of admissible evidence.

The question before this court is whether the trial court abused its discretion in ordering Williams to respond to the interrogatories concerning his sexual history. We agree with the trial court that the information sought by the interrogatories is both relevant and reasonably likely to lead to the discovery of admissible evidence. However, we find that the trial court abused its discretion by failing to balance the defendants’ need for this information against the privacy interests of Williams and the other persons with whom he may have been sexually involved.

II

Under the Colorado Rules of Civil Procedure, the scope of discovery is very broad. Kerwin v. District Court, 649 P.2d 1086, 1088 (Colo.1982). For example, C.R.C.P. 26(b)(1) provides that “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” In addition, when resolving discovery disputes, we construe the rules of civil procedure liberally to effectuate the full extent of their truth-seeking purpose. Smith v. District Court, 797 P.2d 1244, 1248 (Colo.1990); National Farmers Union Property & Casualty Co. v. District Court, 718 P.2d 1044, 1046 (Colo.1986); Hadley v. Moffat County Sch. Dist. RE-1, 681 P.2d 938, 945 (Colo.1984). In close cases, the balance must be struck in favor of allowing discovery. Smith, 797 P.2d at 1248 (quoting Hawkins v. District Court, 638 P.2d 1372, 1375 (Colo.1982)). For this reason, a motion to compel discovery is committed to the discretion of the trial court, and the court’s determination must be upheld on appeal absent a clear abuse of discretion. Gagnon v. District Court, 632 P.2d 567, 569 (Colo.1981). See also Bond v. District Court, 682 P.2d 33, 40 (Colo.1984); In re Marriage of Mann, 655 P.2d 814, 816 (Colo.1982).

Although the scope of discovery is very broad in Colorado, Williams argues that the trial court abused its discretion in ordering him to respond to interrogatories concerning his sexual history. According to Williams, the information sought by the defendants is not relevant or reasonably calculated to lead to the discovery of admissible evidence at trial, since any information con-ceming Williams’ past sexual history would be inadmissible character evidence under CRE 404(b).³ We disagree.

Our case law clearly holds that the standard of relevance for purposes of discovery under C.R.C.P. 26(b)(1) is not equivalent to the standard for admissibility of evidence at trial. Martinelli v. District Court, 199 Colo. 163,168, 612 P.2d 1083, 1087 (1980). In fact, the rule specifically provides that “[i]t is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” C.R.C.P. 26(b)(1). Thus, the fact that evidence pertaining to Williams’ past sexual history may not be admissible at trial under CRE 404(b) does not preclude discovery of this information.

Moreover, in our view, it is clear that information pertaining to Williams’ sexual history is relevant, without regard for its eventual admissibility at trial under CRE 404(b). As the defendants argued and as the trial court found, the requested discovery is relevant to the issue of Williams’ damage claims. See Bond, 682 P.2d at 40.

Williams is seeking compensatory damages in excess of $1,000,000 and has alleged loss of reputation as one of his injuries. While damages are presumed, and need not be proven, in cases involving defamation per se, Stump v. Gates, 777 F.Supp. 808, 825 (D.Colo.1991), aff'd, 986 F.2d 1429 (10th Cir. 1993); Kendall v. Lively, 94 Colo. 483, 485, 31 P.2d 343, 344 (1934); Hayes v. Smith, 832 P.2d 1022, 1024 (Colo.App.1991), cert. denied (July 20, 1992), the jury must still consider any actual impairment to the plaintiff’s reputation in determining the amount of damages. CJI-Civ.3d 22:25.⁴ Moreover, a defendant in a defamation action may present any evidence which tends to mitigate damages. Gomba v. McLaughlin, 180 Colo. 232, 237-38, 504 P.2d 337, 339 (1972). Such evidence can include any publications by third persons dealing with the same subject, made before or at about the same time as the date of the publishing by the defendant. CJI-Civ.3d 22:24. In this case, information concerning his past sexual history may lead to evidence of Williams’ reputation, and whether it has been harmed by the alleged actions of the defendants.

Ill

When determining whether, and the extent to which, information sought to be discovered should be protected from disclosure, relevancy is not the end of the inquiry. This court has frequently recognized that the broad discovery permitted by C.R.C.P. 26(b)(1) may lead to discovery abuses. See Leidholt v. District Court, 619 P.2d 768, 770 (Colo.1980). For this reason, C.R.C.P. 26(e) allows the trial court to issue protective orders as justice requires “to protect a party ... from annoyance, embarrassment, oppression, or undue burden or expense.” Howev-. er, the party opposing discovery has the burden of establishing the need for a protective order. Belle Bonfils Memorial Blood Center v. District Court, 763 P.2d 1003, 1010 (Colo.1988); Bond, 682 P.2d at 40; Leidholt, 619 P.2d at 771.

In this case, Williams’ argument is twofold. As discussed above, Williams first argues that the trial court erred in compelling discovery pertaining to his sexual history since the information is not discoverable on grounds of relevancy. Williams also argues, in essence, that the trial court erred in not entering a protective order preventing discovery of his sexual history.⁵ According to Williams, the challenged interrogatories were designed improperly to harass and annoy him, and the answers to the interrogatories would reveal confidential information which will infringe upon the privacy rights of others not before the court.

When determining whether good cause exists for issuance of a protective order in a particular case, the trial court must balance the competing interests that would be served by granting or denying discovery. Belle Bonfils, 763 P.2d at 1010. This balancing test is accomplished by weighing the interests of Williams and the persons with whom he has been involved in protecting the confidentiality of their intimate relationships against the defendants’ interest in obtaining sufficient evidence to contest Williams’ claims. See id.; Direct Sales Tire Co. v. District Court, 686 P.2d 1316, 1319 (Colo.1984); Bond, 682 P.2d at 40; Leidholt, 619 P.2d at 770-71. A three-part balancing inquiry also must be undertaken by the trial court when the right to confidentiality is invoked.⁶ Martinelli, 199 Colo, at 174, 612 P.2d at 1091. This inquiry entails determining whether the party seeking to prevent disclosure has a legitimate expectation that the information will not be disclosed, whether the state interest in facilitating the truth-seeking process through litigation is sufficiently compelling to overcome the asserted privacy interests, and whether disclosure can occur in a less intrusive manner. Id. at 174, 175, 612 P.2d at 1091, 1092. In an appropriate case, the trial court may limit the type of discovery undertaken or otherwise fashion an order to protect the asserted privacy interests. See, e.g., Belle Bonfils, 763 P.2d at 1013-14.

In this case, the trial court simply found the information requested by the defendants to be relevant, and ordered Williams to answer all of the interrogatories. It did not consider any of the other interests involved in this case before it reached this decision. In our opinion, the trial court’s failure to balance the interests of Williams and the defendants, as well as those of the individuals who may have been involved with Williams, requires that we vacate the trial court’s discovery order.

Accordingly, the rule is made absolute, and the case is remanded to the trial court for application of a balancing standard consistent with this opinion.

Justice VOLLACK specially concurs in the result only.

1 . Colorado Rules of Evidence Rule 404(b) provides that

[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

2 . The trial court also ordered Williams to answer interrogatories concerning whether he had been charged with or convicted of a felony or a misdemeanor and whether he had ever been accused of domestic violence or abuse. The court further ordered Williams to respond to several requests for production concerning the basis of his defamation claim against the defendants and whether Williams has a history of domestic violence or other crimes. Williams has not challenged these portions of the court’s order in this proceeding.

3 . In People v. Spoto, 795 P.2d 1314 (Colo.1990), we announced a four-part test governing the admissibility of other acts evidence proffered pursuant to CRE 404(b). This test requires a trial court to consider (1) whether the proffered evidence relates to a material fact; (2) whether the evidence is logically relevant; (3) whether the logical relevance is independent of the intermediate inference that the defendant has a bad character; and (4) whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Id. at 1318.

4 . In Colorado, the elements of a cause of action for defamation are: (1) a defamatory statement concerning another; (2) published to a third party; (3) with fault amounting to at least negligence on the part of the publisher; and (4) either actionability of the statement irrespective of special damages or the existence of special damages to the plaintiff caused by the publication. Stump v. Gates, 777 F.Supp. 808, 825 (D.Colo.1991), aff'd, 986 F.2d 1429 (10th Cir.1993); Walters v. Linhof, 559 F.Supp. 1231, 1234 (D.Colo.1983).

5 . Williams did not file a motion for a protective order with the trial court. Instead, he waited to raise his concerns with the discovery requested by the defendants until they had filed a motion to compel discovery. However, this point is not really significant since C.R.C.P. 37(a)(1) allows the trial court to enter a protective order if it denies a motion for order compelling discovery in whole or in part.

6 . Williams did not specifically raise a constitutional argument before the trial court. Instead, he argued that the challenged discovery constituted an "invasion of privacy.”