Electronic Discovery Law
Plaintiff Ordered to Preserve Graphic Images Stored on Cell Phone
Plaintiff was formerly employed as a host and waiter at Café Asia, a restaurant located in Washington, D.C. Plaintiff claimed that he was the victim of discrimination based on his sexual orientation, and that he was the subject of assault and battery in the form of unwanted touching. Among other things, plaintiff alleged that the kitchen staff routinely harassed him, that management tolerated and encouraged the verbal and physical harassment, and that one manager had sent him an email containing pornographic images portraying homosexual acts. The defendant restaurant responded that all of the alleged incidents were welcomed, encouraged and instigated by plaintiff.
Defendant requested that it be permitted to inspect and make copies of images stored on plaintiff's cell phone. Defendant alleged that the images portray plaintiff's genitalia at various states of arousal, and graphic images of other men purported to be plaintiff's sexual partners. Defendant argued that the images were relevant to whether plaintiff invited a hostile work environment and whether he was subjectively offended by defendant's alleged conduct.
Plaintiff conceded that his cell phone contained “intimate, highly personal” and “unclothed images,” but denied having willingly shared the images with his co-workers.
Magistrate Judge John M. Facciola ruled that, balancing defendant’s need for the images against plaintiff’s valid privacy concerns, plaintiff would be required to preserve the images and permit inspection by one attorney designated by defendant only so far as necessary to fully inform its discovery and trial preparation.
The judge stated that admissibility of the images was an issue that the trial court would need to decide:
One important constraint is the admissibility of the discovery being sought. Defendant asserts that the images, if relevant, are discoverable under Rule 26 even if inadmissible at trial. This holds true, however, only if the images “appear[ ] reasonably calculated to lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1). . . .
To the extent that defendant aims to use the graphic content of the images to establish plaintiff's “ own standards of behavior,” Mot. to Compel at 1 (emphasis in original), the images themselves are the “end game” of the discovery request. As such, the question of discoverability is inseparable from admissibility, and a determination is necessary of whether, under Federal Rules of Evidence 403 and 412(b)(2), the probative value of the images substantially outweighs their prejudice. This determination is best made by the trial judge either pre-trial or in limine at trial, and for that reason I will order that the images be preserved pending a ruling on their admissibility by Judge Robertson. Moreover, because Judge Robertson is entitled to a robust and fully informed debate over the admissibility of the images -- a debate that cannot occur where only one party has the benefit of having seen them -- I will order plaintiff to permit one attorney, designated by defendant, to inspect the images.
The analysis differs where the discovery is sought by defendant to corroborate the testimony of its witnesses that plaintiff willingly shared the images. Defendant believes that the images, if flaunted by plaintiff, are probative of whether the taunts (however tasteless) were innocuous teasing, and whether the Yim e-mail (however lewd) was playfully welcome. Plaintiff, however, denies having willingly shared the images with his co-workers. The specific content of the images may speak to the credibility of defendant's witnesses' testimony as to the nature of the images, and as to the nature of discourse between plaintiff and his coworkers.
(Footnotes and citations to the record omitted.)
The court further noted that Fed. R. Evid. 412 was relevant to the analysis, but concluded that whether the images fell neatly into the definition of sexual behavior or sexual predisposition under that rule was ultimately beside the point since it had discretion under Rule 26 to balance the parties' respective needs and concerns.
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