Labor & Employment Law Daily Wrap Up, EVIDENCE, DISCOVERY—S.D.N.Y.: Protective order granted in part in sexual harassment suit naming Fox News, (Apr 8, 2025)

By Robert Margolis, J.D.

The court limited the scope of required production concerning the conduct of investigations of complaints.

A federal district court in New York granted in part a motion for a protective order filed by defendants Fox Corporation, Fox News Network, LLC, and a Fox News field producer, holding that the document requests and interrogatories of a former Fox News employee and alleged sexual harassment victim were overbroad and not proportionate to the case. The court instead limited the documents and information the defendants must produce to complaints of sexual harassment, sexual assault, or retaliation made against the field producer himself, for a period beginning when the producer was hired at Fox through two years after the alleged incident, and the logs of notes made by the recipients of those complaints (Delancey v. Wells, No. 1:23-cv-10357-AT-KHP (S.D.N.Y. Apr. 4, 2025)).

To the extent the plaintiff also sought information about the investigation of those complaints, the court found documents concerning the details of investigations to be disproportionate to the needs of the case and held they should not be produced. Instead, questions about the investigations may be asked in a Rule 30(b)(6) deposition of a corporate representative.

Alleged harassment, indifference. The employee alleges that the individual defendant, a Fox News field producer, physically and sexually assaulted him shortly after recruiting him to work for the employer in September 2008. The employee alleged he objected to the conduct, making clear he did not consent, after which the producer allegedly interfered with the employee’s attempts to seek other employment. The employee alleges he told other workers, one of whom also disclosed to him that she was the victim of sexual harassment by the same field producer. The employee also alleges he told his supervisor, the assistant news director, about the alleged assault and harassment, and that the latter allegedly told the employee not to report any concerns to human resources on the grounds that HR could not be trusted.

Lawsuit. The employee sued for hostile work environment, quid pro quo harassment, and retaliation under New York State and New York City laws. He served document requests and interrogatories on the defendants, which were objected to as overbroad, seeking irrelevant information, and as being disproportionate to the needs of the case.

Discovery sought. The employee sought all documents, communications, and/or electronically stored information (ESI) concerning any formal or informal reports, complaints, charges, allegations, arbitrations, or lawsuits concerning sex-based harassment, retaliation, assault, or battery by or against any current or former employees of the employer who worked in the State of New York over an eight-year period. The employee also sought all documents, communications and/or ESI concerning the investigations and resolutions of any such complaints. The employer objected to the requests, and the court held they should be limited.

Typical scope of discovery. The court first noted that where a plaintiff alleges a corporate atmosphere that tolerates harassment and retaliation, courts typically permit discovery of complaints filed by persons other than the plaintiff, though the discovery is limited to complaints involving the same type of conduct as the plaintiff complained about, and limited to the same work unit as involved the alleged wrongdoer. The time-period also is typically limited to one proportionate to the needs of the case.

Some discovery pre-dating employee’s arrival… While the employee’s complaint of sexual harassment was limited to one individual and one incident, his complaint alleged that the individual harassed another employee and the individual retaliated against the employee by interfering with career advancement. In addition, he alleged that the assistant news director was indifferent to his complaint and told the employee HR was similarly indifferent to harassment. These allegations led the court to conclude that some discovery pre-dating the employee’s arrival should be permitted, as should discovery about complaints by others that may have led to the assistant news director’s belief that HR could not be trusted.

Complaints by others against the individual alleged to have harassed the employee, while having no value in proving whether the incident that the employee alleged actually occurred, may show the individual had a pattern of improper conduct toward others, as well as showing whether the employer was on notice of misconduct by that individual, said the court. Further, the employer’s failure to investigate claims of sexual harassment or retaliation generally bear on whether the individual defendant was emboldened to act due to the lack of repercussions for improper sexual conduct or retaliation.

Formal and informal written complaints. Specifically, the court ordered that the employer produce formal and informal written complaints of sexual harassment, sexual assault, or retaliation by any employee against the individual defendant from the start of his employment through two years after the alleged incident with the employee, as well as similar complaints made by employees of the same Fox News show in New York and other New York shows on which the employee worked. The court defined “complaints” to mean “arbitral complaints, administrative charges, emails or other written or electronic communications from employees to [the assistant news director], the employee’s supervisors, or [] human resources alerting them of this type of misconduct.”

The court also ordered production of logs and notes made by the recipients of any such complaints. However, the court granted a protective order request as to documents concerning the details of investigations. It allowed production of the employer’s policies and procedures regarding such investigations during a three-year period starting before and ending after the employee worked for the employer.

The court similarly ordered production of complaints (similarly defined) alleging that the assistant news director failed to report or investigate complaints of discrimination, harassment, and retaliation for the period beginning at the start of his employment through two years after the employee left the employer.

Personnel files. The employee also sought production of the complete personnel files of the individual defendant and the assistant news director, documents and communications concerning the termination of the individual defendant in 2023, and any agreements between the individual defendant and employer. The court held that the only information that could be relevant in these personnel files are complaints against them concerning sexual harassment/assault and/or retaliation, discipline against them for violating fair employment practices policies, management of employees, leadership and communication skills, training received on fair employment practices/anti-harassment policies, pay raises or bonuses after receipt of any complaints of the above-described nature, and/or discipline or poor performance reviews. The terms of their respective employment and job duties during the employee’s employment and for the two-year period after also were relevant, as well as the reason(s) for the individual defendant’s termination, the court found.

All other information in the personnel files was held not to be relevant, and the court granted a protective order as to that other information.

The case is No. 1:23-cv-10357-AT-KHP.

Judge: Parker, K.

Attorneys: Kimberly A. Catala (Filippatos) for Andrew Delancey. Bryan J. Freedman (Liner Freedman Taitelman + Cooley) for Justin Wells.

Companies: Fox Corporation; Fox News Network, LLC

Cases: SexualHarassment Retaliation EvidenceDiscovery Procedure NewYorkNews