The Volokh Conspiracy
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From Rapp v. Fowler, decided today by Judge Lewis A. Kaplan:
This is an action for alleged sexual assault by defendant [Kevin] Fowler, better known as Kevin Spacey, on plaintiff [Anthony] Rapp in about 1986, when Rapp was about 14 years of age…. Kevin Spacey is a widely known and acclaimed actor who recently starred in the highly popular television series, House of Cards. Rapp too is a prominent actor and perhaps is best known for his role in the highly successful Broadway production of Rent….
Rapp, through counsel, now proposes to question Spacey in deposition about intimate details of Spacey's romantic and sexual life over a span of many years and, most particularly, about the identities of his partners. He admittedly hopes to find evidence of prior acts that could be used against Spacey in this action….
The court reasoned:
First, Spacey asserts that any inquiry should be limited to events and relationships that were not consensual. He maintains—with justification—that any consensual behavior is no one's business but his own and that of his partners. Nonetheless, Spacey and his attorneys cannot properly be left to determine what was consensual and what was not.
Second, Spacey contends that this case involves an alleged assault on a minor and that any disclosure ought to be limited to comparable circumstances, i.e., to incidents and relationships that involved minors at the time they occurred. In the Court's judgment, however, that draws too fine a line. The Court can not properly exclude the possibility that an incident involving a non-consenting adult would be relevant and perhaps admissible here.
Third, the interests of non-parties weigh heavily in the balance here. As an initial matter, persons who may have had private, consensual relations and relationships with Spacey and who do not wish to be identified to, much less questioned by, total strangers are entitled to substantial consideration. There may even be persons who had interactions with Spacey that were involuntary, or not entirely consensual, who nevertheless place a substantial premium on their anonymity and their privacy, even where testifying might assist Rapp in pursing this civil lawsuit.
Fourth, the Court appreciates Rapp's proposal … of an order that would prevent both parties "from publicly disclosing the name of any witness who alleges that he or she was sexually harassed, abused or assaulted by … Spacey." But such an order would not protect anyone who had relations or a relationship with Spacey and who makes no such claim. It would not protect anyone who was mistreated by Spacey, but who nevertheless wishes to remain silent, from becoming an unwilling subject of approaches by Rapp's counsel and investigators, from being served with subpoenas, from being required to give a deposition, and from being called as a witness at trial. And while this and other courts have had considerable success in maintaining the confidentiality from the public of a great deal of sensitive information … the fact remains that complete and permanent success cannot be guaranteed, especially in the information age in which we now live.
Finally, the allegations of sexual assault by Rapp and his former co-plaintiff, C.D., have been publicized widely at least since the last quarter of 2017. There has been much publicity about other alleged misconduct by Spacey. Individuals who claim to have been victimized by Spacey and are willing to come forward almost inevitably have had, and will continue to have, ample opportunity to do so. Moreover, Rapp and his counsel readily can determine the identities of people who have interacted with Spacey professionally throughout his career and speak to those who are willing to speak to them. Those who are willing could be sources of information about other people who might have relevant information. In these circumstances, it is questionable whether the discovery that Rapp seeks from Spacey would be proportional to the genuine needs of his case or likely to be fruitful. It is doubtful also that Rapp would be seriously handicapped in pursuing his claim here in the absence of the sort of discovery that he seeks despite some serious cost to legitimate interests of others….
Accordingly, … [d]uring discovery, plaintiff shall not inquire of the defendant concerning his prior sexual or romantic experiences or encounters, if any, with anyone unless the identity of the person in respect of whom inquiry is made (the "Subject") has been disclosed by the Subject or otherwise become public, in either case in connection with a claim, published report in mainstream media, or public allegation that any such sexual or romantic experience or encounter was not in all respects consensual. Any such Subject [presumably any Subject whose identity has not yet been voluntarily or publicly disclosed -EV], and the defendant, have substantial privacy interests in their most intimate personal relationships that outweigh any legitimate interest of the plaintiff in pursuing those matters unless the foregoing condition is satisfied.
During discovery, plaintiff shall not inquire of the defendant concerning his prior sexual or romantic experiences or encounters, if any, with former plaintiff C.D. C.D. has dismissed his claim against the defendant with prejudice rather than publicly disclose his identity. In the event plaintiff were to inject C.D.'s allegations into this case, fairness would require that defendant be permitted to conduct a full and fair investigation into C.D,'s allegations, which at least to some extent likely require or result in public disclosure of C.D.'s identity. C.D.'s interest in preserving his anonymity and defendant's interest in a full and fair trial outweigh any legitimate interest of the plaintiff in going in to C.D.'s allegations in the absence of affording defendant the ability to meet such contentions, which likely could not be accomplished without compromising C.D.'s legitimate privacy interests….