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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

KATHERINE DALLAS and 

ALISA JONES,

Plaintiffs,

v. Case No.: 5:10cv258/RS/EMT

CALHOUN COUNTY SCHOOL DISTRICT,

Defendant.

_______________________________/

O R D E R

This cause is before the court upon Defendant’s Motion to Compel Discovery (and attached

deposition transcript of Edward Thomas, a non-party witness), filed April 29, 2011 (docs. 38, 38-1),

and Plaintiffs’ response in opposition thereto (doc. 41),1 filed May 4, 2011. Also before the court

are partial transcripts of Plaintiffs’ deposition testimony, which were provided directly to the

undersigned’s chambers as ordered (see docs. 43, 48). In short, in the instant motion Defendant

seeks an order compelling Edward Thomas to answer certain questions that were posed to him

during his deposition but were not answered. Plaintiffs oppose the relief sought by Defendant.

Background

Plaintiffs Alisha Jones and Katherine Dallas (hereinafter “Jones” and “Dallas”) initiated this

action by filing a complaint against Defendant Calhoun County School District (“CCSD”), alleging

race discrimination under Title VII, 42 U.S.C. § 2000e, et. seq. (doc. 1). More particularly, Jones

and Dallas, who are both Caucasian, allege they were hired by CCSD in August 2008 (Jones) and

August 2005 (Dallas) and fired by CCSD in May 2009 (Jones) and June 2009 (Dallas) due to their

close “association” with Edward Thomas, an African American male employed by CCSD (id.; see

also doc. 41 at 1).

1

 Plaintiff’s response is a combined response and motion, titled “Motion for Protective Order and Response

in Opposition to Motion to Compel” (see doc. 41 at 1).

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On April 15, 2011, Jones and Dallas were deposed by Bob Lynn Harris, counsel of record

for CCSD in this action; attorney Don Freeman appeared at the depositions on behalf of Jones and

Dallas.2

 Attorney Harris posed questions to Jones and Dallas about the nature of their “association”

with Edward Thomas, including questions about the existence or extent of any sexual relationship

between them. In response to these questions Jones testified that she dates Mr.

Thomas—exclusively—and has been dating him since “after late 2006.” Jones explained that when

she was working for CCSD she and Mr. Thomas were “first . . . just associates,” but then they

started going to “the bar,” became closer friends, and began dating.3 Jones testified that Dallas and

Mr. Thomas were also good friends during Dallas’ employment with CCSD and that nearly

“everyone at the school” knew that both Jones and Dallas were good friends with Mr. Thomas. 

Jones stated that she tried to keep her dating relationship with Mr. Thomas a secret (but not the fact

of their friendship). Notwithstanding, Jones testified she is convinced people at school knew about

the dating relationship because she and Mr. Thomas were seen “hanging out” and there were rumors

circulating around the school. One of these rumors, she testified, concerned her, Dallas, and Mr.

Thomas being involved in sexual “threesomes.” After Jones mentioned the threesomes, Attorney

Harris stated, “Tell me about that.” Jones then testified that she, Dallas, and Mr. Thomas had

engaged in at least one, “but no more than” two, threesomes. Thereafter, Jones answered questions

posed by Attorney Harris concerning the threesomes, such as when and where they occurred. 

Neither Jones nor Attorney Freeman voiced any objection to the questions (except once based on

the “form of the question”). Moreover, in the midst of Attorney Harris’ questioning in this subject

area, Attorney Freeman stated to Jones as follows: “I know it’s difficult and I know this isn’t a

conversation you want to have, but you do have to answer the question[s].” Finally, and relevant

to the instant dispute, Jones acknowledged that in her complaint filed with the Florida Commission

on Human Relations (“FCHR”), she alleged discrimination by CCSD due to her “romantic

2

 Marie A. Mattox is the only counsel of record for Jones and Dallas in this action (although Attorney Freeman,

according to the cover sheets of the deposition transcripts, is affiliated with Ms. Mattox’s law firm). 

3

 Jones testified at her deposition, seemingly inconsistently, that: 1) she began dating Mr. Thomas “after late

2006,” and 2) she did not begin dating Mr. Thomas until after her employment with CCSD, which

employment—according to the complaint—began in August 2008. 

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relationship with Mr. Thomas.” She also testified that she “possibl[y]” told people at school that

she was “physically intimate” with Mr. Thomas and that she believes “Principal Miller knew of [her]

romantic relationship with Mr. Thomas.”

As previously noted, Attorney Harris pursued a similar line of questioning during Dallas’

deposition. Dallas described the nature of her relationship with Mr. Thomas as a “very good

friendship,” which friendship was “established” and “fully developed” in late 2005 and early 2006. 

She also described her relationship with Mr. Thomas as a “solid friendship outside the professional

realm” and noted that Mr. Thomas was a “confidante” and “mentor.” She testified that Jones’

relationship with Mr. Thomas began the same way hers did, but Jones’ relationship “grew into a

more - - more loving” and “boyfriend-girlfriend” type of relationship in approximately early 2007. 

Dallas testified that some school employees were aware of Jones and Mr. Thomas’ “boyfriendgirlfriend” relationship, but she [Dallas] “did not directly tell anybody about the[ ] relationship.” 

Dallas surmised the school employees’ knowledge must have been based on gossip. Dallas noted

that a cafeteria worker joked around with Jones and Dallas, not only about Jones and Mr. Thomas’

dating relationship, but also about gossip concerning Jones, Mr. Thomas, and Dallas, as well as

gossip concerning a romantic relationship between Mr. Thomas and Dallas. Dallas was then asked

by Attorney Harris whether she ever had a sexual relationship with Mr. Thomas. In response, she

testified that she never “sle[pt] with Mr. Thomas” and was never “romantically involved” with Mr.

Thomas. Attorney Freeman stated no objection to this line of questioning. 

Three days later, on April 18, 2011, Edward Thomas was deposed by Attorney Harris, but

at his deposition Attorney Sassan Achtchi (who is also affiliated with Ms. Mattox’s law firm but not

listed as counsel of record in this action) appeared on behalf of Jones and Dallas. Attorney Harris

began questioning Mr. Thomas about the nature of his relationship with Jones and Dallas. Mr.

Achtchi did not object when Attorney Harris asked Mr. Thomas if had ever dated Jones and Dallas,

but when he asked Mr. Thomas if he had ever been “romantically involved” with Jones and Dallas,

Attorney Achtchi objected (Attorney Harris asked questions concerning Mr. Thomas’ “romantic

involvement” with Jones or Dallas three times, and Attorney Achtchi objected each time; the first

time he objected based on relevancy grounds, and the second and third times he objected based on

“the form of the question”) (see doc. 38-1 at 3–4). Following the third question regarding “romantic

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involvement” and objection thereto, Attorney Achtchi instructed Mr. Thomas to answer the question

(id. at 4). Mr. Thomas then testified that he was romantically involved with Jones but not Dallas,

and he admitted to having a sexual relationship with Jones (id. at 4–5). Attorney Harris then asked,

“Just so there is no question or confusion about what intimate means[,] did you have a sexual

relationship with Ms. Jones?” (Id. at 5). Mr. Achtchi instructed Mr. Thomas to not answer the

question and stated, “I will be moving for a protective order with regard to any sexual relationship

that the witness has had. I don’t see the relevance of this. We can take this up with the judge.” 

(Id.).

CCSD then filed the instant motion to compel, in which it seeks an order compelling Mr.

Thomas to answer questions concerning the nature and extent of his association with Jones and

Dallas, including whether a sexual relationship existed with either or both. In support, CCSD notes

that in the complaint Jones and Dallas allege they were discriminated against, and ultimately fired,

based solely on their association with Mr. Thomas; thus, CCSD asserts, the existence, nature, and

extent of their association (and who may have known about their association) is relevant. 

Additionally, CCSD contends that Attorney Achtchi improperly instructed Mr. Thomas to not

answer deposition questions because a witness can only be so instructed “‘when necessary to

preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule

30(d)(3)’” (doc. 38 at 6) (citing Fed. R. Civ. P. 30(c)(2)). Finally, CCSD points to discrepancies

between the testimony of Jones and Dallas regarding the nature and extent of their association with

Mr. Thomas and asserts that CCSD should be permitted to question Mr. Thomas about the same

matters in an effort to ascertain the truth.

In opposing CCSD’s motion, Jones and Dallas acknowledge that Attorney Achtchi could not

instruct Mr. Thomas to not answer a question based on relevancy grounds (or, apparently, based on

“the form of the question”), but they contend CCSD “is being disingenuous in its implication that

relevance was the only basis presented for such instruction,” since Attorney Achtchi also stated he

intended to file a motion for protective order, “which he has done herein [i.e., by filing the instant

response to CCSD’s motion to compel and incorporated motion for protective order]” (doc. 41 at

4). Jones and Dallas, asserting that their motion for protective order is timely, contend that Mr.

Thomas should not have to answer questions concerning any sexual relationship he might have had

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with Jones or Dallas because—they appear to contend—the information is not relevant, but even if

it is relevant it is unlikely to lead to admissible evidence (see id. at 4–10 (citing Fed. R. Evid. 412

(which excludes, in some circumstances, evidence regarding a victim’s sexual behavior or

predisposition) and Fed. R. Evid. 403 (which excludes relevant evidence “if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading

the jury”)). Jones and Dallas also contend Attorney Harris should not be permitted to ask deposition

questions of Mr. Thomas solely to determine whether they (Jones and Dallas) were truthful during

their depositions, contending that “the possible perjury of one or the other Plaintiff is neither a claim

nor a defense” in this action (id. at 10–11).

Discussion

The Federal Rules of Civil Procedure allow discovery of any relevant, non-privileged

material that is admissible or reasonably calculated to lead to admissible evidence. Fed. R. Civ. P.

26(b)(1). The overall purpose of discovery under the Federal Rules is to require the disclosure of

all relevant information so that the ultimate resolution of disputed issues in any civil action may be

based on a full and accurate understanding of the true facts, and therefore embody a fair and just

result. See United States v. Procter & Gamble Co., 356 U.S. 677, 682 (1958). Courts construe

relevancy “broadly to encompass any matter that bears on, or that reasonably could lead to other

matter[s] that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v.

Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)). Relevant

information is discoverable even if it is not admissible at trial, “if the discovery appears reasonably

calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). The Federal

Rules of Civil Procedure strongly favor full discovery whenever possible. See id.; Moore v. Armour

Pharmaceutical Co., 927 F.2d 1194, 1197 (11th Cir. 1991). In addition, “discovery is not limited

to issues raised by the pleadings.” Oppenheimer, 437 U.S. at 351. Finally, discovery is expected

to be accomplished voluntarily with minimal judicial intervention. See, e.g., Bell v. Brary and

Gillespie, LLC, No. 6:05-CV-355-ORL-19JG, 2006 WL 923741, *1 (M.D. Fla. 2006).

As an initial matter, regardless of whether Attorney Achtchi’s instruction to Mr. Thomas (to

not answer certain deposition questions) was proper, it is not clear to the undersigned that he had

any authority to give the instruction. Mr. Thomas is a non-party witness, and he is not represented

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by Mr. Achtchi (or anyone else at the Mattox law firm) in this action.4 Likewise, it is unclear

whether Attorney Mattox has standing to seek a protective order on behalf of a non-party. The

court, however, need not decide any issue related to standing, because CCSD’s motion is easily

decided on its merits.

First, it is evident that the information CCSD seeks from Mr. Thomas is relevant. Jones and

Dallas allege they were fired because of their close association with Mr. Thomas and only because

of this association. Thus, whether an association existed is relevant (i.e., if no association existed,

it could not be a basis for Jones and Dallas’ firings). Similarly, if an association existed, the extent,

timing, duration, and nature of the association—including whether it was sexual in nature—is

relevant to questions such as who knew about it, talked about it, observed it, gossiped about it,

reported it to CCSD officials, etc., such that the offiical(s) responsible for firing Jones and Dallas

might have known about the association and used it as a basis to fire them.5

 Moreover, Jones

specifically alleged in her complaint filed with the FCHR that she was fired because of her romantic

or intimate relationship with Mr. Thomas, and she freely testified about that relationship in her

deposition. Jones and Dallas’ argument that Mr. Thomas cannot be questioned about the same

intimate relationship is illogical and unpersuasive. Moreover, Jones volunteered during her

deposition that she engaged in threesomes with Dallas and Mr. Thomas, following which she was

specifically instructed by her counsel to provide further information about them; yet her counsel now

argues that Mr. Thomas, a non-party, cannot be questioned about the same thing that Jones was

specifically instructed to answer. Likewise, Dallas testified at her deposition about her romantic

involvement with Mr. Thomas, or lack thereof, without any objection by her counsel. It thus appears

that Jones and Dallas’ counsel previously recognized the propriety and relevance of Attorney Harris’

questions, as the undersigned does now.

Having determined that the information sought by CCSD is relevant, the next question is

whether it is privileged. Jones and Dallas contend the information is privileged and cite Federal

4

 The Mattox law firm apparently represents Mr. Thomas in a different matter involving the Liberty County

School District (see doc. 38-1 at 4).

5

 This is not to say that graphic or very specific, intimate sexual details in this case would be relevant or

discoverable.

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Rule of Evidence 412 in support. In relevant part, Rule 412 states: “The following evidence is not

admissible in any civil . . . proceeding involving sexual misconduct . . . : (1) Evidence offered to

prove that any alleged victim engaged in other sexual behavior [or,] (2) Evidence offered to prove

any alleged victim’s sexual predisposition.” Fed. R. Evid. 412(a). Initially, this case does not

appear to concern a “proceeding involving sexual misconduct,” such that Rule 412 is applicable. 

But even if this case is construed as such, Jones and Dallas have failed to establish that Mr. Thomas

is a “victim,” as that term is used in Rule 412. Thus, evidence concerning his sexual behavior or

predisposition is not subject to the exclusions set forth in Rule 412. Indeed the Advisory Committee

Notes to the 1994 Amendments to Rule 412 suggest Mr. Thomas is not a “victim” (stating, in

relevant part, that “Rule 412 does not, however, apply unless the person against whom the evidence

is offered can reasonably be characterized as a “‘victim of alleged sexual misconduct.’”).6

 Finally,

the undersigned concludes that evidence concerning Mr. Thomas’ sexual relationships with Jones

or Dallas is likely admissible or, at a minium, that Mr. Thomas’ testimony about those relationships

is discoverable because it is reasonably calculated to lead to admissible evidence.

For the foregoing reasons, CCSD’s motion to compel will be granted. And, since the

discovery deadline has now passed, the parties shall immediately convene and resume Mr. Thomas’

deposition (at CCSD’s discretion, the deposition may be conducted in-person or telephonically). 

At the deposition counsel for CCSD may question Mr. Thomas about the existence and timing of

any sexual relationship between him and/or Jones and Dallas.

Lastly, the court notes that CCSD has requested an award of fees and expenses incurred in

bringing its motion to compel (see doc. 38 at 10), and the court finds that CCSD is likely entitled

to such an award (see Fed. R. Civ. P. 37). Jones and Dallas, however, will be given an opportunity

to be heard on the matter of an award of fees and expenses before a ruling is made (see id.). 

Accordingly, as set forth in the body of this order, it is ORDERED that:

6

 Jones and Dallas assert that they also are “victims,” and they—along with Mr. Thomas—seek a “protective

order preventing [CCSD] from inquiring into sensitive matters regarding sexual relationships they have had with each

other and/or others” (doc. 41 at 2). Jones and Dallas’ depositions, however, have already concluded, so the undersigned

cannot issue an order preventing CCSD from inquiring into certain matters at deposition. To the extent Jones and Dallas

seek an order prohibiting the admission of trial evidence about their sexual relationships, such an order must be sought

from the district court at the appropriate time. The only matter the undersigned need decide here is whether Mr. Thomas

must answer certain deposition questions. 

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1. Defendant’s Motion to Compel Discovery (doc. 38) is GRANTED.

2. Plaintiffs’ Motion for a Protective Order (doc. 41) is DENIED.

3. On or before JUNE 10, 2011, Defendant shall submit documentation of fees or

expenses incurred in bringing the instant motion to compel. Within TEN (10) DAYS of receipt of

Defendant’s documentation, but no later than JUNE 20, 2011, Plaintiffs may, but are not required

to, file a notice opposing sanctions and outlining therein any objection to the imposition of sanctions

or to the reasonableness of the amounts claimed by Defendant, or both.7

SO ORDERED this 23rd day of May 2011.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

7

 Attorney Mattox asserts that Attorney Harris acted “disingenuously” by suggesting (in the motion to compel)

that Attorney Achtchi’s objections during Mr. Thomas’ deposition were based only on relevance. What Ms. Mattox is

really saying it that Attorney Harris deliberately attempted to mislead the court.

In no case does the court take such accusations lightly. In the instant case, the court is particularly concerned

by Ms. Mattox’s contention because its own review of the deposition transcript reveals that Attorney Harris’

characterization of Attorney Achtchi’s objection is accurate and not misleading. Although Mr. Achtchi mentioned the

possibility of moving for a protective order, he said it in the “same breath” as his objection based on relevance (see doc.

38-1 at 5). He did not assert, as Attorney Mattox now asserts, that a protective order was necessary to “preserve a

privilege,” and he did not state any objection based on a privilege (his objections were based on “relevance” or “form”). 

Moreover, despite the fact that Attorney Achtchi stated he would seek a protective order, no such order was sought until

after CCSD filed the motion to compel. 

Should Jones and Dallas choose to be heard on the matter of an award of fees and expenses to CCSD, they

should be aware that, in light of the record and the above observations, the court finds Ms. Mattox’s representations

extremely troubling. Consequently, absent a compelling argument from Plaintiffs of which the court is not now aware,

the court is very likely to award fees and expenses to Defendant. Such an award would be for all time spent by

Defendant in connection with its motion. In other words, if Defendant replies to Plaintiffs’ response in opposition and

the court ultimately grants Defendant’s request for awards fees and costs, Plaintiffs will be responsible for any additional

accrued fees as well. 

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