[00:00:10] Speaker 04:
Good morning, Your Honors.

[00:00:11] Speaker 04:
Kristen O'Connor on behalf of Appellant Robert Cleveland, and I'd like to reserve two minutes for a bottle, if I may.

[00:00:18] Speaker ?:
Sure.

[00:00:19] Speaker 04:
Your Honors, in 2011, the U.S.

[00:00:22] Speaker 04:
Supreme Court in a case called Fox v. Vice gave an important admonition, and that is this.

[00:00:28] Speaker 04:
The District Court has wide discretion when, but only when, it calls the game by the right rules.

[00:00:36] Speaker 04:
This is a sexual harassment case, Your Honors.

[00:00:38] Speaker 04:
There are rules that govern evidence of a plaintiff's sexual behavior, stereotypical assumptions that lack empirical foundation and are, as this Court has made clear in BKB v. Maui Police Department,

[00:00:52] Speaker 04:
lurid and prejudicial.

[00:00:54] Speaker 04:
I refer to the Federal Rule of Evidence 412, which forbids the admission of evidence of a plaintiff's sexual behavior or sexual predisposition in civil sexual harassment cases, unless two very specific things happen that did not happen in this case.

[00:01:09] Speaker 04:
One, the party seeking to admit the evidence must file a pretrial motion, and that motion must be filed 14 days before trial.

[00:01:16] Speaker 04:
under seal and this is a highly specific line item by line item itemized motion.

[00:01:25] Speaker 04:
And two, the district court must conduct an in-camera review of that evidence and for each piece of evidence, again this is line item by line item, exhibit by exhibit analysis, determine its admissibility on a very stringent balancing test.

[00:01:42] Speaker 04:
And what happened at trial was that the behemoth didn't follow the rules.

[00:01:46] Speaker 04:
The behemoth attempted to transgress the limitations of the federal rule of evidence by flouting rule 412 entirely.

[00:01:54] Speaker 04:
And the result was prejudice on a substantial scale.

[00:01:56] Speaker 04:
The result was a moral indictment of my client such that juror bias was sealed.

[00:02:02] Speaker 04:
Here's what's undisputed in this case.

[00:02:04] Speaker 04:
The behemoth did not file its pretrial 412 motion.

[00:02:07] Speaker 04:
There was no in-camera hearing or analysis.

[00:02:10] Speaker 04:
The district court ordered before trial that 412 did not apply to this case.

[00:02:16] Speaker 04:
Thereafter, the behemoth in the theater of trial paraded a relentless barrage of character-maligning evidence in front of the jury over appellant, vigorous objections to present to the jury that my client was a foul-mouthed, godless, sexual deviant who watched pornography and engaged in group sex acts.

[00:02:35] Speaker 04:
Now none of this, this is very important, none of this is relevant to the type of hostility that Mr. Cleveland was alleging offended him.

[00:02:43] Speaker 04:
None of this was relevant to the hostility that precipitated this action.

[00:02:47] Speaker 04:
This action was based on my client's exposure to harassing, pedophilic, and violent sexual messaging in connection with his work duties.

[00:02:56] Speaker 04:
My client was molested as a child by a man in a relationship with his mother.

[00:03:01] Speaker 04:
He alleged that in connection with his work duties on premises, the behemoth allowed violent and pedophilic messaging by its celebrated voiceover actor, Will Stamper, to permeate Mr. Cleveland's work environment.

[00:03:14] Speaker 04:
This included descriptions of forcibly sodomizing babies, raping little boys in the mouth, and other lurid, disgusting evidence.

[00:03:22] Speaker 04:
And this messaging of material, which my client alleged he was exposed to again at work in connection with his work duties,

[00:03:29] Speaker 04:
My client recorded in real time in writing to his supervisor that it enraged him.

[00:03:34] Speaker 04:
He wrote to his supervisor that it sent him into a rage.

[00:03:38] Speaker 04:
This was in evidence and presented at trial.

[00:03:40] Speaker 00:
Can I stop you for a minute because I think the rule for 12 is an interesting issue.

[00:03:48] Speaker 00:
I think what we have to unpack here is the purpose for which your client's statements related really to subjective offense or whether they related to matters covered by Rule 412.

[00:04:07] Speaker 00:
So what was it that in your view was admitted that related to the victims, that's your client, sexual predisposition?

[00:04:18] Speaker 04:
Oh, a litany of evidence, Your Honor.

[00:04:20] Speaker 04:
Discussions of his personal sex life, him referring to his aunt and politicians and forgive my language.

[00:04:27] Speaker 04:
This was the evidence that was submitted to the jury as a cunt sexual connotation.

[00:04:31] Speaker 04:
which this court has held in BKB versus Maui Police Department, that lurid language, sexual language, falls within the 412 ambit, discussions of sexual preferences, that he likes group sex, how long it's been since he's had sex, replete references like that, that injected sexual innuendo into the fact-finding process, which was squarely within the 412 ambit and in total contravention of the statute.

[00:04:58] Speaker 00:
In terms of other sexual behavior since

[00:05:03] Speaker 00:
The behavior here really relates primarily to the third party contractors materials.

[00:05:11] Speaker 00:
What was your client's other sexual behavior that was at issue?

[00:05:17] Speaker 04:
It was communications with positional peers, coworkers, but who were not Will Stamper, this is critical to the analysis, who were not Will Stamper or any managing agent of the behemoth.

[00:05:29] Speaker 04:
It's important to understand what was central and germane and salient to what was actually being alleged as hostile to here by Mr. Cleveland.

[00:05:38] Speaker 04:
Mr. Cleveland alleged the work environment was hostile because it was being polluted, permeating with this pedophilic messaging that was being propagated by Will Stamper.

[00:05:47] Speaker 04:
Not that he was offended by sex in general, or that he was offended by four-letter words, or he was some kind of sexual agnostic.

[00:05:54] Speaker 04:
He alleged that as a sex abuse survivor, this pedophilia, which was rampant in his work environment, was offending him.

[00:06:01] Speaker 00:
So when he reported it to management, he says he's not offended.

[00:06:05] Speaker 00:
How does that play in?

[00:06:07] Speaker 04:
Well, actually, he did report to management that he was offended.

[00:06:09] Speaker 04:
In real time, before he sent his formal email, he recorded in writing to his manager, Jay Fernandez, this was a trial exhibit, that he had sent him into a rage and he said the words, it actually really offends me for anybody in our company to be talking about kids like this.

[00:06:24] Speaker 04:
So we did say it offends him.

[00:06:26] Speaker 04:
And then his manager says to him, do you want to make a formal complaint?

[00:06:30] Speaker 04:
And he says, yes.

[00:06:31] Speaker 04:
And when he writes that email to the behemoth, he uses the words harassment and pedophilia,

[00:06:36] Speaker 04:
And he also says it was the thing with kids that finally caused me to send this email, that precipitated the sending of this email.

[00:06:44] Speaker 04:
So that's what the hostility was about.

[00:06:46] Speaker 00:
He says, I'm not offended by that, doesn't he?

[00:06:50] Speaker 04:
No, not in the same email.

[00:06:51] Speaker 04:
He doesn't say, I'm not offended.

[00:06:53] Speaker 04:
Yeah, there are multiple communications.

[00:06:54] Speaker 04:
He actually had four communications with both his supervisor and the formal email.

[00:06:59] Speaker 04:
But no, he in real time recorded that he was offended that it sent him into a rage.

[00:07:02] Speaker 04:
And actually, we don't have to wonder in the abstract about how he felt about this or what his subjective reaction was.

[00:07:08] Speaker 04:
His own supervisor, Mr. Jay Fernandez, put in writing,

[00:07:12] Speaker 04:
Bobby is visibly distraught.

[00:07:14] Speaker 04:
Mr. Cleland is visibly distraught by this.

[00:07:16] Speaker 04:
Mr. Fernandez, his supervisor, also wrote to the behemoth, hey, this is affecting the team.

[00:07:23] Speaker 04:
This is affecting the work environment.

[00:07:25] Speaker 04:
Multiple people have come forward and said they are offended by this, and this is outrageous.

[00:07:34] Speaker 01:
Counsel, to be objectionable conduct is not automatically discrimination because sex merely because words are used or sexual content.

[00:07:52] Speaker 01:
We've already held that in a fine opinion written by Judge McEwen.

[00:07:58] Speaker 01:
I don't see how you get over the hurdle.

[00:08:01] Speaker 04:
Yes, Happy.

[00:08:02] Speaker 04:
Thank you for the question, Judge Wallace.

[00:08:04] Speaker 04:
This is not unlike the Sharp versus SNS activeware for which Judge McEwen recently authored the opinion in which the environment itself was polluted with sexual hostility.

[00:08:16] Speaker 04:
It wasn't directed at plaintiff in the same way it wasn't directed at the plaintiff in Sharp.

[00:08:20] Speaker 04:
but it was permeating the work environment.

[00:08:22] Speaker 04:
It was polluting the work environment such that it was hostile.

[00:08:25] Speaker 04:
This is no different than someone walking around the warehouse floor in that case, propagating sexually hostile messaging.

[00:08:35] Speaker 04:
In that case, it involved music.

[00:08:37] Speaker 04:
So harassment can be because of sex and based on sex.

[00:08:41] Speaker 04:
If it is aural, if it is ambient, if it is being used as a weapon for sex in the workplace.

[00:08:48] Speaker 04:
And we certainly do not want to imagine a scenario or a future reality which totally contravenes this court's holding in Steiner, which is simply because this vile content offends everybody, that it should nullify or eliminate Title VII protections for both genders.

[00:09:05] Speaker 01:
So you would have that to try to distinguish sharp against SNS?

[00:09:12] Speaker 04:
I'm sorry, I didn't hear the question, Your Honor.

[00:09:14] Speaker 01:
Pardon?

[00:09:15] Speaker 04:
I didn't hear the question, Your Honor, I'm sorry.

[00:09:16] Speaker 01:
I said you would have us write that in order to distinguish sharp against S and S, which seems to be somewhat different from your argument.

[00:09:26] Speaker 04:
I actually don't think it's distinguishable.

[00:09:28] Speaker 04:
I think it's very analogous.

[00:09:30] Speaker 04:
The issue in Sharp was music penetrating the workplace on a warehouse floor.

[00:09:38] Speaker 04:
Very much like that, this was messaging coming in through the company's own Discord server, its own digital server that Mr. Cleveland was required to access every day.

[00:09:46] Speaker 04:
It's important to remember, these digital platforms that they're using at work, they function as an extension of the business operations.

[00:09:52] Speaker 01:
When you look at these cases, they won't be exactly the same.

[00:09:56] Speaker 01:
But the logic I'm having difficulty with is why we shouldn't follow Sharp versus SNS.

[00:10:03] Speaker 01:
It is not the same case.

[00:10:05] Speaker 01:
The facts are somewhat different.

[00:10:07] Speaker 01:
But it seems to me your position is difficult to put aside Sharp versus SNS and not see a conflict.

[00:10:16] Speaker 04:
I think Sharp versus SNS is supportive of our position, which is harassment can be because of sex if there is a polluted work environment that is not necessarily directed at a plaintiff, but is used as a weapon in the workplace for sex.

[00:10:32] Speaker 04:
It's ambient, in other words.

[00:10:33] Speaker 04:
It's part of the fabric of the work environment, although it's not directed at the plaintiff.

[00:10:39] Speaker 04:
A Title VII claim can still lie.

[00:10:41] Speaker 01:
Yes.

[00:10:41] Speaker 01:
What is the difference?

[00:10:42] Speaker 01:
It's just a question of whether it's distinguishable difference.

[00:10:45] Speaker 02:
I guess one question to follow up on Judge Wallace's question is that, as I understand Sharp, this was actually literally fed through the company's platform.

[00:10:54] Speaker 02:
Here, this was by this independent contractor who was doing this on non-company software.

[00:11:00] Speaker 02:
It was on the Twitter account or X, whatever it's called now.

[00:11:03] Speaker 02:
Isn't that a significant difference?

[00:11:07] Speaker 04:
No.

[00:11:07] Speaker 04:
In fact, it was coming in through company software.

[00:11:10] Speaker 04:
It's a huge distinction.

[00:11:11] Speaker 04:
So the behemoth likes to focus on the fact that this was originally posted on Mr. Stamper's Twitter.

[00:11:17] Speaker 04:
But the salient fact in this case is that it was being recapitulated, reposted on the company's own Discord server that Mr. Cleveland has to access every single day.

[00:11:27] Speaker 04:
This is a person

[00:11:28] Speaker 04:
who the company is touting around to video game conventions, having him sign behemoth autographs on behalf of the behemoth, wearing the behemoth t-shirt.

[00:11:37] Speaker 04:
They're having Q&As on this Discord server, which my client's got to be on every single day.

[00:11:42] Speaker 04:
Multiple witnesses testified as to that fact at trial.

[00:11:44] Speaker 04:
They're having Mr. Stamper do Q&As and fan engagement on this platform, and these messages are being reposted on Discord, which my client accesses every single day in the work environment.

[00:11:55] Speaker 04:
So the fact that it originated on Twitter, this fact that the behemoth often touts as Mr. Cleveland originally followed Mr. Stamper on his Twitter account, by the way, that was at the direction of his supervisor,

[00:12:07] Speaker 04:
And then he stopped.

[00:12:09] Speaker 04:
It's a totally immaterial point that is a distractor.

[00:12:12] Speaker 04:
This stuff was being recapitulated in the Behemoth's own Discord platform, which my client was using every single day.

[00:12:19] Speaker 04:
We saw evidence of that at trial that he was forced to clean up this material.

[00:12:23] Speaker 04:
that the Behemoth community manager, Megan Lamb, was indicating to the Behemoth workers that this stuff was being reposted in the Behemoth Discord server.

[00:12:32] Speaker 04:
So this was permeating the work environment.

[00:12:34] Speaker 04:
My client's given a penis doll simulating ejaculation on day one of his work environment, and it's got Will Stamper's name on it.

[00:12:42] Speaker 04:
And his supervisor tells him, that's your HR manager.

[00:12:46] Speaker 00:
Let me ask you if the district court made an error in not analyzing it under the Rule 412 and didn't do the weighing, would we still on appeal be able to determine whether it was harmless or prejudicial?

[00:13:02] Speaker 04:
Absolutely, Your Honor.

[00:13:04] Speaker 04:
This is harmless.

[00:13:05] Speaker 04:
This is harmful and prejudicial because of the very type of evidence this is.

[00:13:09] Speaker 04:
This is exactly like the evidence in BKB versus Malley Police Department in which this court held sexual discussions with coworkers, but not the alleged harasser are lurid and so stunningly prejudicial that it warrants reversal in a new trial.

[00:13:23] Speaker 04:
It's important to note in this case that in the Ninth Circuit in the BKB decision, the district court had actually realized

[00:13:31] Speaker 04:
that this 412 evidence came in in contravention of 412.

[00:13:34] Speaker 04:
The district court said, I'm not going to allow a retrial because I'm going to give a curative instruction.

[00:13:39] Speaker 04:
I'm going to strike the testimony and I'm going to sanction the defendant.

[00:13:43] Speaker 04:
We didn't get the benefit of any of those three things.

[00:13:45] Speaker 04:
This stuff was just paraded at trial.

[00:13:47] Speaker 04:
OK, this court held the Ninth Circuit held that that type of evidence is so substantially prejudicial.

[00:13:55] Speaker 04:
that it does not overcome those curative efforts.

[00:13:58] Speaker 04:
We didn't get any of those benefits.

[00:14:00] Speaker 04:
412 exists because sexual innuendos being injected into the fact-finding process is prejudicial.

[00:14:08] Speaker 04:
It's intrinsic to its nature.

[00:14:10] Speaker 04:
And with that, I'd like to reserve, unless there's another question, the rest of my time for rebuttal.

[00:14:14] Speaker 01:
There is a question.

[00:14:15] Speaker 01:
I'd hate to run you over, but it's important to me because it may cause some difficulty for us.

[00:14:27] Speaker 01:
The question is about awarding costs.

[00:14:33] Speaker 01:
Your opposition was awarded costs in this and you have argued under California law that we should reverse the district court.

[00:14:45] Speaker 01:
But the question is whether California law applies or whether it's under rule 54D that we should apply that rule.

[00:14:57] Speaker 01:
What's your position on that?

[00:14:59] Speaker 04:
Yes, thank you for your question Judge Wallace.

[00:15:01] Speaker 04:
We don't need to reach that question because Ninth Circuit Law under Title VII allows us to consider the merits of the case and whether the case was frivolous for purposes of awarding a prevailing defendant costs.

[00:15:14] Speaker 04:
This court held in the Mexican-American Association case that the district court is allowed to consider the merits of the case, which is functionally synonymous with frivolity.

[00:15:24] Speaker 04:
This court also held in the early versus key...

[00:15:27] Speaker 01:
You're using California law for your position.

[00:15:31] Speaker 01:
I'm suggesting to you it's a federal question and your argument under California law does not hold.

[00:15:40] Speaker 01:
You understand, you've read the various textbooks that we look at all the time.

[00:15:47] Speaker 01:
They're all against you.

[00:15:49] Speaker 01:
We've got this Hankel versus Chicago, where the U.S.

[00:15:55] Speaker 01:
Supreme Court is against you.

[00:15:58] Speaker 01:
How are you going to get around that?

[00:16:02] Speaker 01:
That is, you may have a good argument, but it's under California law, and we have to go by federal law.

[00:16:10] Speaker 04:
My response, your honor, is that under federal law, the court is allowed to consider the merits of the case.

[00:16:17] Speaker 04:
And this case was not frivolous.

[00:16:19] Speaker 04:
There was not a single dispositive motion filed in this case.

[00:16:22] Speaker 04:
And the behemoth has never advanced an argument that this case was frivolous.

[00:16:26] Speaker 04:
Also, under Stanley,

[00:16:27] Speaker 01:
What case do you have that states that we would not follow Rule 54D and we would follow California law?

[00:16:37] Speaker 01:
What case overrules all these other cases, Charlie Wright and all the rest of them, that in this case we are going to go a different direction?

[00:16:48] Speaker 04:
I don't mean to suggest that we should follow California law.

[00:16:51] Speaker 04:
I believe that under federal law, costs should not be awarded.

[00:16:55] Speaker 04:
And this court held in Stanley that the financial delta between the parties allows the consideration, overcomes the presumption under rule 54 under federal law.

[00:17:09] Speaker 04:
And also that the court is permitted to consider things like- What's your best case?

[00:17:14] Speaker 04:
that would be the stanley case the stanley case in the association of mexican-american educators for which the court is allowed to consider the financial delta between the parties for which this is substantial and the merits of the case for which the behemoth has never advanced an argument that this case is not meritorious just to be clear what you're saying then is that

[00:17:32] Speaker 02:
You're saying we should follow federal law.

[00:17:34] Speaker 02:
I'm not sure federal law has the frivolity aspect that state law does.

[00:17:37] Speaker 02:
I think that's where some of the confusion is lying here.

[00:17:39] Speaker 02:
So to answer Judge Wallace's question, you're agreeing that frivolity is not the standard, correct, under the federal rule?

[00:17:45] Speaker 04:
Well, actually, under Early v. Keystone, this court did apply a frivolity standard in considering Title VII costs.

[00:17:50] Speaker 04:
Now, that was an unpublished decision.

[00:17:52] Speaker 04:
But this court also considered, in the Mexican-American Educators case, which was a published decision, that you should consider the merits of the case.

[00:18:01] Speaker 02:
And the disparity that I get, I'm going to, I'm going to, unless we have any other questions, I'm going to stop you here, but I'm going to give you two minutes for rebuttal.

[00:18:06] Speaker 04:
Excellent.

[00:18:06] Speaker 04:
Thank you so much.

[00:18:16] Speaker 03:
Good morning and may it please the court Kendra Hall on behalf of the behemoth as to the rule for 12 issue, the store, the starting point is the claim in this case.

[00:18:26] Speaker 03:
And at page 45 of the opening brief.

[00:18:29] Speaker 03:
The appellant concedes the facts and circumstances of this case do not involve prototypical direct sexual harassment.

[00:18:38] Speaker 03:
And I think that that's really a fundamental starting point for the entire analysis of the Rule 412 issue.

[00:18:46] Speaker 03:
We're not talking about physical contact or propositioning that was directed at the appellant.

[00:18:51] Speaker 03:
We're not talking about whether he invited the conduct of which he complains.

[00:18:57] Speaker 03:
And in fact, the tweets of which he primarily complains were sought out by him on his private time after work hours.

[00:19:07] Speaker 03:
The email that he sent to Mr. Fernandez provides his watchdogging on his own time of Mr. Stamford, who he chose to follow.

[00:19:19] Speaker 03:
It was not a part of his work duties.

[00:19:21] Speaker 03:
And contrary to the arguments that were vigorously made here today, the record does not support that those stamper tweets infiltrated the work environment at the behemoth.

[00:19:33] Speaker 03:
In fact, they had very strong policies about cleaning up

[00:19:37] Speaker 03:
anything that trickled onto their discord, public-facing platform, and if something came in that was not appropriate, it was removed.

[00:19:50] Speaker 00:
This company was— Are you denying that some of these third-party tweets didn't transform themselves and get onto the company platform?

[00:19:59] Speaker 03:
no I'm not I'm saying if they did they were removed but when were they removed there was an employee named Lucia who was tasked with reviewing what was coming in and they were immediately removed what I'm having trouble here some discord in the evidence in terms of

[00:20:19] Speaker 00:
using that discord server that Mr. Cleveland is saying that no, this was on company servers and I saw it and I was offended and

[00:20:33] Speaker 00:
These are the reasons that I was offended.

[00:20:36] Speaker 03:
So I believe the evidence showed there was one single tweet or reposting of something that Mr. Stamper said that Mr. Cleveland took a picture of the all the other

[00:20:49] Speaker 03:
information was not from within the company it was some it was information that mr. Cleveland was providing that he had searched out on his own time outside of work and they had nothing to do with his job responsibilities the testimony was also that there was a different employee who said listen I don't want to monitor discord

[00:21:10] Speaker 03:
And he was removed from that job task and did not have to do that.

[00:21:16] Speaker 03:
Mr. Cleveland made no such complaints.

[00:21:19] Speaker 03:
And as Your Honor pointed out, in Exhibit 37, the complaint that he did make was, hey, quote, I'm not personally complaining.

[00:21:29] Speaker 03:
I don't expect you to do anything.

[00:21:31] Speaker 03:
It's not like he didn't say Stamper.

[00:21:34] Speaker 03:
He works here.

[00:21:35] Speaker 03:
I love it here.

[00:21:37] Speaker 03:
I love Stamper.

[00:21:39] Speaker 03:
Those are the words that were used by the appellant in this case.

[00:21:43] Speaker 03:
And those are the words that support the jury's finding that there just was not a sexual, a hostile work environment in this case.

[00:21:51] Speaker 00:
What then is, if there's not a hostile work environment, but so much of the trial is focused on these statements by Mr. Cleveland about who he is and what he believes and what he feels, why isn't the jury basically

[00:22:08] Speaker 00:
led to believe that the trial is in part about Mr. Cleveland's situation, not about the tweets.

[00:22:19] Speaker 00:
And that seems to me to be the potential prejudice.

[00:22:23] Speaker 03:
I guess two responses on that.

[00:22:26] Speaker 03:
The issues are his subjective response to these vulgar communications.

[00:22:32] Speaker 03:
Another issue is he didn't just have a garden variety emotional distress claim.

[00:22:38] Speaker 03:
He brought claims for negligent and intentional infliction of emotional distress, the parties designated psychiatric experts, and so a fundamental issue in the case were his claimed damages for severe emotional distress, which put directly into issue his thoughts on sexual communications, his views on that, how

[00:23:03] Speaker 03:
you know, whether he used vulgar speech, because to claim that you've been emotionally distressed and suffered a psychiatric diagnosis as a result of that, it would absolutely have hamstrung the company to not have been able to come back and say, jury, weigh whether this is an individual

[00:23:24] Speaker 03:
who is avoidant of vulgar communications.

[00:23:30] Speaker 00:
It seems to me the kind of evidence that you have here some of it falls into permissible for one purpose and maybe impermissible for another under rule 105 but the jury was never instructed take a look at his personal situation when you're assessing whether there was emotional distress or damages but that that's not proper for when you're looking at

[00:23:53] Speaker 00:
the hostile environment claim.

[00:23:57] Speaker 00:
So that's the concern I have.

[00:23:59] Speaker 03:
I understand.

[00:24:00] Speaker 03:
I think there was no request for that instruction.

[00:24:08] Speaker 03:
The jury was instructed to look at whether he subjectively had an altered work environment.

[00:24:18] Speaker 03:
So in terms of what potentially was a dual purpose, I'd say the majority of the evidence that came in was communications within the workplace.

[00:24:30] Speaker 03:
to the extent there may have been communications that qualified as relating to sexual predisposition, I would say that that was harmless error, that there is quite a bit of evidence that has not been challenged on appeal, that still came in, and that's outside of what we're looking at here in the court.

[00:24:51] Speaker 03:
So, for example, trial exhibit 350 was an email from Mr. Cleveland to a coworker in which he says, look at my pentacorn.

[00:25:02] Speaker 03:
And he's talking about it in a sexually bantering, funny way.

[00:25:08] Speaker 03:
I mean, he's illustrating what he felt about that pentacorn and his humor about it.

[00:25:13] Speaker 03:
In Exhibit 20, Mr. Cleveland was not challenged here on appeal.

[00:25:19] Speaker 03:
He actually forwarded a Volga tweet from Mr. Stamper to another employee.

[00:25:26] Speaker 03:
Exhibit 44, he addresses rape droats and the fact that he believes anything can be made funny.

[00:25:35] Speaker 03:
He talks about the two Bobbies.

[00:25:38] Speaker 03:
And last, in Exhibit 345, he talks about a sex session with a Russian hooker.

[00:25:44] Speaker 03:
And so this is all evidence that supports the jury's findings that has not been challenged on appeal.

[00:25:52] Speaker 03:
And so to the extent that there may have been evidence that was subject to 412, I think it's harmless error.

[00:26:01] Speaker 03:
I think the fact that there wasn't a hearing

[00:26:03] Speaker 03:
Um, also recall nine months prior to trial that Mr. Cleveland brought, uh, um,

[00:26:12] Speaker 03:
preemptive motion knowing that these communications were there.

[00:26:17] Speaker 03:
And I think a fundamental point here is we're talking about Mr. Cleveland's own written communications.

[00:26:23] Speaker 03:
This isn't like the B case where you get a third party witness coming in and all of a sudden all this testimony comes in that no one could have expected.

[00:26:32] Speaker 03:
We're talking about his own undisputed written communications of which the district court

[00:26:39] Speaker 03:
was provided summary information, was provided links to videos that he had been sending in the workplace during work time.

[00:26:47] Speaker 03:
And so the district court did have information regarding the type of communications we were talking about.

[00:26:55] Speaker 03:
And I think we cited the Beard versus Flying Jay case in which the court said, listen,

[00:27:01] Speaker 03:
the lack of a hearing and complying with the specific formalities was harmless error because it was known what the information was.

[00:27:10] Speaker 03:
And certainly there's no indication on the record as in the BKB case and several others where the trial judge

[00:27:17] Speaker 03:
was sort of taken aback as to how things had played out during trial.

[00:27:21] Speaker 03:
We just don't have that here.

[00:27:22] Speaker 03:
And the court was clear all along and seemed to be aware of what information was coming in.

[00:27:29] Speaker 03:
And Council for Behemoth, I recall on the record on the Friday before information was going to be coming in on a Monday, again sought confirmation from the district court.

[00:27:39] Speaker 03:
I want to make sure this is your order.

[00:27:40] Speaker 03:
We're intending to produce this material.

[00:27:43] Speaker 03:
And so there's no lying in the weeds here in terms of

[00:27:47] Speaker 03:
throwing information out, it was known.

[00:27:50] Speaker 01:
Before you get going, can I ask you a question?

[00:27:54] Speaker 01:
There's something that bothers me about the jury instructions.

[00:27:57] Speaker 01:
I'm wondering whether the district court committed error in declining the party's proposed special instructions and therefore not instructing the jury on the meaning of based on and because of sex.

[00:28:14] Speaker 03:
So I think, first, there was no objection to instruction number 32, which is the FIHA instruction.

[00:28:23] Speaker 03:
And there's no dispute that instructions were given on all of the plaintiff's claims, and there were no misstatements.

[00:28:31] Speaker 03:
The question is, should there, as you've indicated, have been this clarifying additional instruction number 23?

[00:28:38] Speaker 03:
And I think that the-

[00:28:39] Speaker 03:
Exactly.

[00:28:40] Speaker 03:
And I think I have a couple of responses to that.

[00:28:45] Speaker 03:
We're not talking about an arcane legal term that requires additional, you know, explanation to a jury.

[00:28:53] Speaker 03:
We're talking about use of the terms because of, based on, which I think arguably a jury is able to understand what that means.

[00:29:03] Speaker 03:
I think the complaint, the allegations in the complaint were that Mr. Cleveland was harassed because he is a man.

[00:29:12] Speaker 03:
And so instructing consistent with that certainly makes sense.

[00:29:18] Speaker 03:
And I think the primary problem with the instruction that was given by Mr. Cleveland, the proposed instruction, is that it wanted to open up this issue of sexual orientation, which was not pled in the complaint.

[00:29:33] Speaker 03:
And it was not exhausted as a part of the FIHA filing.

[00:29:39] Speaker 03:
And so the district court had actually granted a motion in limine in which it said we're not going to be getting into any sexual orientation claims.

[00:29:49] Speaker 03:
And that has not been challenged on appeal.

[00:29:52] Speaker 03:
So to try and hamstring in a jury instruction, I think you would have had to go back to the propriety of that order as well.

[00:30:01] Speaker 02:
Let me jump in with a question about costs.

[00:30:03] Speaker 03:
Okay.

[00:30:04] Speaker 02:
Um, I understand that one of the arguments being made is that the declaration or the evidence being put forth by Mr. Cleveland was insufficient.

[00:30:14] Speaker 02:
I certainly it could have been, there could have been more.

[00:30:16] Speaker 02:
I have no doubt about that.

[00:30:18] Speaker 02:
But if we assume what he put in the declaration is true, I don't think there's any reason to doubt it.

[00:30:26] Speaker 02:
I mean, this does seem very harsh for a guy making whatever, $65,000 a year to impose basically more than he's going to make after taxes in costs.

[00:30:38] Speaker 02:
And it seems to me that the argument that opposing counsel was making, there's some weight to it.

[00:30:44] Speaker 02:
So talk me through what more should he have done?

[00:30:46] Speaker 02:
Is there nothing he could have done?

[00:30:48] Speaker 02:
Again, it is a federal question.

[00:30:50] Speaker 02:
It's not a state question.

[00:30:51] Speaker 02:
But what else could he have done other than, I guess, attach bank records saying he actually had zero?

[00:30:57] Speaker 03:
And I think that that, I don't have the cases right in front of me, but the district court order actually does summarize those cases in which there's documentary proof offered.

[00:31:09] Speaker 03:
And I think there's a certain fairness aspect when a party just has a five line declaration, which

[00:31:17] Speaker 03:
You know, it is decently, you can't penetrate that, right?

[00:31:22] Speaker 03:
It's the opposing party.

[00:31:24] Speaker 03:
And so that would be a reason for requiring some documentary evidence.

[00:31:30] Speaker 03:
just to ensure that what is being said is valid.

[00:31:34] Speaker 02:
He did sign under penalty of perjury, I believe.

[00:31:37] Speaker 03:
True.

[00:31:37] Speaker 02:
And so I guess, I mean, in criminal cases, we give people lawyers all the time, based on that type of statement.

[00:31:43] Speaker 02:
I'm just kind of wondering.

[00:31:45] Speaker 02:
So you're saying he should have attached like a statement from Bank of America showing the balance was zero?

[00:31:49] Speaker 03:
I think there should have been documentation.

[00:31:51] Speaker 03:
I think the district court did have discretion to find that that was lacking and certainly the district court who had presided over proceedings saw him testifying in terms of credibility as a witness.

[00:32:02] Speaker 03:
And it was a very long proceeding.

[00:32:04] Speaker 03:
And I agree, you know, $46,000 cost award is a significant amount, but he's not indigent.

[00:32:10] Speaker 03:
He's fully employed.

[00:32:12] Speaker 03:
And the fact that there may be a disparity between the behemoth and him is also not alone enough of a factor to change that.

[00:32:24] Speaker 00:
I mean, I think that exactly what we were warning against in this Escribo case, which is now 10 years old, so we've had inflation.

[00:32:34] Speaker 00:
And there was this disparity, and the result of that is that individuals will be basically discouraged from bringing cases forward if they know they're going to get smacked with a cost bill that basically sinks their income.

[00:32:50] Speaker 00:
So shouldn't, at a minimum,

[00:32:52] Speaker 00:
District Court was basing this on the fact that there wasn't sufficient evidence asked for supplemental documentation.

[00:33:01] Speaker 00:
Wouldn't that have been the appropriate remedy here before ruling?

[00:33:05] Speaker 03:
Perhaps that could have been done.

[00:33:07] Speaker 03:
I mean, I can't say that that would have been unreasonable, Your Honor.

[00:33:13] Speaker 03:
At the same time, I think we are, as the Court well knows, we're talking about an abuse of discretion standard and

[00:33:21] Speaker 03:
The court applied the correct law, it considered the appropriate factors, you know, and it reached a determination that may seem harsh, but certainly this was a drawn out significant litigation against this company.

[00:33:33] Speaker 03:
And, you know, there are costs are not, costs should have been awarded to the behemoths.

[00:33:42] Speaker 01:
It seems to me there's a stronger case for the district judge.

[00:33:45] Speaker 01:
I sort of look at it and the district judge had to handle the position.

[00:33:49] Speaker 01:
There is a presumption in the federal court that if you win, you get costs, period.

[00:33:57] Speaker 01:
There is an exception.

[00:34:00] Speaker 01:
But it's an exception.

[00:34:02] Speaker 01:
And the district court recognized what was said, but thought it didn't know what would overcome the presumption.

[00:34:13] Speaker 01:
It seems to me your argument is stronger relying upon the district judge finding the presumption was not overcome.

[00:34:23] Speaker 01:
Is there something wrong with that approach to settling this issue?

[00:34:29] Speaker 03:
No, Your Honor.

[00:34:31] Speaker 03:
I think, I mean, I think costs should be awarded except for in exceptional circumstances and if I try... Presumption.

[00:34:38] Speaker 01:
the presumption.

[00:34:41] Speaker 01:
That presumption binds the district court to look at differently, not just how much damage done, but does it overcome the presumption.

[00:34:50] Speaker 01:
So what is the plaintiff that failed to win have to show to overcome the presumption?

[00:35:03] Speaker 03:
A chilling effect and the

[00:35:09] Speaker 03:
the limited financial resources.

[00:35:12] Speaker 03:
Those are the two things.

[00:35:14] Speaker 03:
And so the quantum of evidence was not found to be sufficient.

[00:35:18] Speaker 03:
And this was not found to be a case that would result in a particular chilling effect to other litigants.

[00:35:26] Speaker 01:
So the district court found the facts did not overcome the presumption.

[00:35:31] Speaker 01:
So we would have to find the district court was clearly erroneous in its fact finding.

[00:35:36] Speaker 01:
Correct.

[00:35:37] Speaker 01:
Isn't that the issue?

[00:35:38] Speaker 03:
Correct.

[00:35:39] Speaker 03:
Okay.

[00:35:40] Speaker 03:
Thank you very much.

[00:35:41] Speaker 02:
All right.

[00:35:41] Speaker 02:
Thank you, counsel.

[00:35:42] Speaker 03:
Thank you.

[00:35:43] Speaker 02:
All right.

[00:35:43] Speaker 02:
Two minutes.

[00:35:49] Speaker 04:
Thank you, Your Honors.

[00:35:50] Speaker 04:
I'd like to first address the issue relevant to the 412 issue on appeal.

[00:35:55] Speaker 04:
Council mentioned that the motion in limine, in other words, our preemptive pretrial advocacy, mooted their duty under the 412 law to file their pretrial motion and undergo this very stringent analysis, evidence by evidence analysis.

[00:36:08] Speaker 04:
Let me tell you why that's totally false.

[00:36:10] Speaker 04:
The motion in limine was presented not only under seal, but in a high-level bullet point summary form.

[00:36:18] Speaker 04:
The behemoth actually opposed our motion to seal in this case, and in opposing our motion to seal that motion, the behemoth argued that they were opposing sealing because it was too broad and categorical and lacked any real information.

[00:36:34] Speaker 04:
So as far as I'm concerned, the behemoth should be stopped from arguing now that it was so detailed

[00:36:39] Speaker 04:
and so well colored that it nullified their duty under the law under 412.

[00:36:44] Speaker 04:
Council also argued that this is unlike this court's holding in BKB because this involved communications by the plaintiff.

[00:36:52] Speaker 04:
That is squarely the issue with BKB.

[00:36:55] Speaker 04:
That is squarely what happened here.

[00:36:57] Speaker 04:
The plaintiff in BKB engaged in sexual discussions

[00:37:00] Speaker 04:
both on-premises and off-premises with her co-workers.

[00:37:05] Speaker 04:
If you look at page 9 of Appellant's brief in that case, it summarizes all of the evidence.

[00:37:09] Speaker 04:
Some of it was on-premises, some of it was off.

[00:37:11] Speaker 04:
It was all sexual banter with her co-workers, but not the alleged harassers, squarely within this court's contemplation of BKB.

[00:37:19] Speaker 04:
Also, this court cited the Sheffield versus Hilltop case three times in reaching its BKB decision.

[00:37:25] Speaker 04:
That case also dealt with this very issue of on-premises sexual discussions between plaintiff and his co-worker, her co-workers, but not plaintiff and the harasser.

[00:37:36] Speaker 04:
I tried this case.

[00:37:37] Speaker 04:
This evidence was stunningly cumulative.

[00:37:40] Speaker 04:
There was no basis for the behemoth to wholly forego its duties under the law under 412.

[00:37:46] Speaker 04:
The Beard case that counsel cited is totally distinguishable.

[00:37:50] Speaker 04:
That's an eighth circuit case.

[00:37:51] Speaker 04:
Is that my time?

[00:37:53] Speaker 04:
No.

[00:37:53] Speaker 04:
1986, it's as old as I am, and the plaintiff there affirmatively injected that evidence into the record, not the case here.

[00:38:02] Speaker 04:
And also the court noted that it was limited to discussions between plaintiff and her harassers or plaintiff and her harassers or when her harassers were privy to this conversation.

[00:38:11] Speaker 04:
So again, distinguishable.

[00:38:13] Speaker 04:
As to the jury instruction, I just want to make a very important point.

[00:38:18] Speaker 04:
No, we did not object to the giving of 32, which is the hostile work in my environment cause of action under FEHA, Fair Employment and Housing Act.

[00:38:27] Speaker 04:
We objected on the record to the non-existence of a supplemental defining jury instruction for what based on sex means.

[00:38:37] Speaker 04:
That is not an intuitive term.

[00:38:40] Speaker 04:
I wholly disagree that that is a lay term that an unguided lay jury can go back into deliberations and figure out.

[00:38:47] Speaker 04:
Based on sex, because of sex, does not mean that we have to prove gender animus or that the behemoth was motivated by his male gender.

[00:38:55] Speaker 04:
I'm not arguing that the law actually says based on sex.

[00:38:59] Speaker 04:
I'm arguing that that is quite arcane.

[00:39:01] Speaker 04:
And in fact, this court in Steiner, in SNS versus Sharp versus SNS activeware, we have taken an expansive approach to what this means in this circuit.

[00:39:12] Speaker 04:
It is far from lay.

[00:39:14] Speaker 04:
And it was also compounded by the fact that it was misstated at trial by

[00:39:17] Speaker 04:
by counsel for the behemoth, which I think those things together amalgamated to substantial prejudice, and the jury was not allowed to understand what this actually means.

[00:39:26] Speaker 02:
All right, counsel, so we're a little over.

[00:39:28] Speaker 04:
Are we?

[00:39:28] Speaker 04:
Okay.

[00:39:28] Speaker 02:
Yeah, yeah.

[00:39:29] Speaker 02:
So once it starts going up, that means that when the red light is red, it means stop.

[00:39:33] Speaker 02:
But anyway, I want to say thank you both to counsel in this case for your briefing and argument.

[00:39:37] Speaker 02:
Very interesting case, very interesting issues.

[00:39:40] Speaker 02:
This matter is submitted and this panel in San Diego is adjourned this time.