Bauer and the woman were alone at the time of the alleged incidents. Yet, in a civil trial scheduled to start in February, other women not present for the alleged incidents potentially could provide key testimony.
Bauer is scheduled for his deposition Thursday, and his accuser gave her deposition earlier this week, an attorney for Bauer said in a hearing Wednesday in U.S. District Court in Santa Ana.
The parties discussed the status of three other women who have made similar allegations against Bauer, one who has agreed to a deposition and two who have not. The two women cooperated with Major League Baseball in its investigation of Bauer, and attorneys for his accuser had hoped Magistrate Judge Autumn Spaeth would order Bauer to turn over documents that would disclose what the two women told the league.
Spaeth did not address that specific issue Wednesday, but she did say that attorneys for his accuser had not shown Bauer failed to comply with court orders about information he needed to disclose.
Testimony from other women could be relevant in showing a pattern of behavior in similar situations, Loyola Law School professor Stan Goldman said.
“If they have enough of it and it was close enough in circumstance,” Goldman said, “they might be able to argue it doesn’t fall under character, which is inadmissible, but falls under habit, which is admissible.”
In a court filing, attorneys for the accuser in this case wrote she needed “critical and highly relevant” information from the two other women interviewed by the league about Bauer’s “alleged sexual assault of multiple women during his tenure as a pitcher with MLB.”
The accuser required a court order, her attorneys wrote, because it is her “sole avenue” to obtaining the information. The two other women declined to appear for depositions, her attorneys wrote, and efforts to get the information from the Dodgers and MLB were “unsuccessful.”
Bauer has denied he assaulted any of the women. He has not been charged with any crime.
In his court filing, Bauer’s attorneys said he complied with the accuser’s request for “statements, interviews and testimony” he provided in connection with the MLB investigation, aside from communication covered under the attorney-client privilege.
“To be sure,” his attorneys wrote, “MLB did interview Bauer in the context of the investigation, but that interview was not videotaped, transcribed, or recorded in any way.”
Beyond that, his attorneys wrote, “Bauer will not produce any documents related to any interviews or investigation conducted by Major League Baseball for which he has a contractual duty to maintain as confidential or are otherwise protected from disclosure.”
Bauer was suspended under baseball’s domestic violence and sexual assault policy, which includes this sentence: “The confidentiality of player information is essential to the success of this policy.”
The policy explicitly forbids disclosure of confidential information aside from a handful of exceptions, including “where disclosure is required by law, including court order.”
If the league receives such a legal demand, the policy requires the league to notify the players’ union so as to “give it an opportunity to intervene and oppose disclosure of the confidential information.”
Both the league and the union would be concerned about a precedent under which witnesses granting interviews with the promise of confidentiality might later find that confidential information provided to legal authorities. Of the 18 players suspended under the policy, Bauer is the only one to challenge his discipline rather than agree to a negotiated suspension.
After the league investigation, MLB Commissioner Rob Manfred suspended Bauer for two years (324 games). An arbitrator later reduced the penalty to 194 games, still the longest for any player suspended under the policy.
The suspension cost Bauer $37.5 million of his $102-million contract with the Dodgers. The team released him last January rather than reinstate him to their roster for the final year of his contract, even though they owed him $22.5 million either way.
No other MLB team signed him, even with the Dodgers liable for the salary. Bauer is currently pitching in Japan.