Archive: November 21, 2007

Plaintiff Ordered to Preserve Graphic Images Stored on Cell Phone

Plaintiff Ordered to Preserve Graphic Images Stored on Cell Phone

Smith v. Cafe Asia, 246 F.R.D. 19 (D.D.C. 2007)

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. Read More

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