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FRANK v. COUNTY OF HUDSON

January 16, 1996

ROSEMARY FRANK, et al., Plaintiffs,
v.
COUNTY OF HUDSON, et al., Defendants.



The opinion of the court was delivered by: WOLIN

 WOLIN, District Judge

 This appeal presents the Court with an opportunity to apply, for the first time in a sexual harassment and discrimination action, newly enacted Federal Rule of Evidence ("FRE") 415 to a proffer of evidence that a defendant committed prior uncharged acts of sexual assault. While this Court can foresee a situation in which FRE 415 will allow this sort of evidence in a sexual harassment case involving allegations of assault, this is not the appropriate case to establish such a precedent.

 Plaintiffs Julie Nolan, Helen Webb, Patricia Stafford and Patricia Gonzalez appeal Magistrate Judge Pisano's order dated June 30, 1995 and his September 28, 1995 affirmance of that order on reconsideration, in which he granted the motion of defendant Edmond Monti ("Monti") for a protective order prohibiting disclosure or utilization of the written statement of his step-daughter Jane Doe, *fn1" detailing alleged sexual abuse by Monti during her childhood. The Court has considered the matter on the parties' written submissions pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth below, the Court will affirm Magistrate Judge Pisano's decision.

 BACKGROUND

 Plaintiffs in this federal civil rights suit are six female employees of the Sheriff's Office of Hudson County, New Jersey, who allege that defendants the County of Hudson, the County Sheriff's Office and several Sheriff's Office officials sexually harassed and discriminated against them.

 The four above-named plaintiffs (for purposes of this appeal, "plaintiffs") allege that Monti, in his capacity as direct supervisor of the daily operation of the Sheriff's Office, engaged in various harassing and discriminatory actions against them, e.g., that he forced them to view him while masturbating or sexually touching himself; that he sexually touched plaintiffs' shoulders and buttocks; that he made gratuitous sexual comments regarding plaintiffs' food, clothing and appearance; and that he intimidated plaintiffs by repeatedly displaying a shotgun and stating that he would "get even with anyone he thinks hurt him." (Fourth Amended Compl. PP 180, 202, 224, 288)

 Plaintiffs' counsel has obtained a written statement from Monti's stepdaughter, Jane Doe, which details allegations that Monti sexually abused her for nearly ten years beginning when she was in the fifth grade. At the time counsel obtained the statement, FRE 413-415 had been drafted but not yet formally enacted. In accordance with the new rules, however, plaintiffs' counsel notified defendants' attorneys of the statement and made its contents available to Monti's counsel. Neither plaintiffs themselves nor the other defendants or their counsel have seen the statement.

 Monti immediately moved for a protective order barring further disclosure or utilization of the statement. Magistrate Judge Pisano granted the protective order on June 30, 1995, without prejudice to plaintiffs' right to revisit the issue pending final Congressional action on the proposed new rules. On July 9, 1995 FRE 413-415 became effective as drafted. Accordingly, on July 17, 1995 plaintiffs filed a motion for reconsideration of Magistrate Judge Pisano's grant of the protective order.

 In an opinion filed September 28, 1995 Magistrate Judge Pisano analyzed the application of the new evidence rules to this case and affirmed his grant of a protective order prohibiting disclosure of the statement. Plaintiffs appeal that decision.

 DISCUSSION

 I. Standard of Review

 The Federal Magistrates Act and Rule 40D of the General Rules for the District of New Jersey (the "Local Rules") provide that the Court can refer certain non-dispositive matters to the Magistrate Judge for ruling. This Court may only set aside a magistrate's judgment on a non-dispositive motion if it is clearly erroneous or contrary to law. Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1113 (3d Cir. 1986), citing 28 U.S.C. ยง 636(b)(1)(A), cert. denied, 484 U.S. 976, 108 S. Ct. 487, 98 L. Ed. 2d 485 (1987). See also Fed. R. Civ. P. 72(a); Local Rule 40D(4). A finding is clearly erroneous "when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Rodriguez v. American Tel. & Tel. Co., 1991 U.S. Dist. LEXIS 296, 1991 WL 3304, *2 (D.N.J.), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542, 92 L. Ed. 746 (1948).

 Where, as here, the magistrate has ruled on a non-dispositive matter such as a discovery motion, his ruling is entitled to great deference and is reversible only for abuse of discretion. Carey v. Foster Wheeler Corp., 1991 U.S. Dist. LEXIS 1104, 1991 WL 10033, *3 (D.N.J.); Environmental Tectonics Corp. v. W.S. Kirkpatrick & Co., 659 F. Supp. 1381, 1399 (D.N.J. 1987) (citing cases), aff'd in part, rev'd in part, 847 F.2d 1052 (3d Cir. 1988), aff'd, 493 U.S. 400, 110 S. Ct. 701, 107 L. Ed. 2d 816 (1990); see also Schroeder v. Boeing Comm'l Airplane Co., 123 F.R.D. 166, 169 (D.N.J. 1988) (magistrate has wide discretion provided opinion is based upon clearly articulated principles).

 II. General Rules Regarding Scope of Discovery

 The discovery provisions of the Federal Rules of Civil Procedure are quite generous. Under Fed R. Civ. P. 26(b)(1),

 
parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . . It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears ...

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