In Smith v. Café Asia, No. 07-621 (RWR/JMF) (D.D.C. Oct. 2, 2007), the D.C. District Court ordered the plaintiff in a sexual orientation discrimination case to preserve allegedly lewd images stored on his personal cell phone and to permit inspection of those images by a designated attorney for the defendant, because they were potentially probative of whether the conduct of which plaintiff complained was unwelcome and subjectively offensive. The Court, denying defendant’s motion to compel the images outright, instead crafted a remedy that it believed appropriately balanced the defendant’s right to discovery and plaintiff’s right to privacy. Noting that the images were subject to challenge if offered as evidence at trial, the magistrate judge hearing the discovery motion ordered preservation and limited inspection of the images so that the trial judge could rule on questions of admissibility pre-trial or in limine.
Plaintiff was formerly employed as a host and waiter at Café Asia, a restaurant located in Washington, D.C. Plaintiff’s complaint alleged sexual orientation discrimination, and assault and battery based on unwanted touching. Plaintiff specifically alleged that: (1) kitchen staff verbally taunted him based on his sexual orientation; (2) kitchen staff subjected him to humiliating physical harassment; (3) that the management was aware of, tolerated and encouraged the kitchen staff’s behavior; and (4) one of his managers sent him an e-mail containing six pornographic images.
In discovery, defendant sought the production and copying of images stored on plaintiff’s cell phone which they alleged portrayed graphic sexual images involving the plaintiff and his sexual partners. Defendant argued that such images were reasonably calculated to lead to the discovery of admissible evidence regarding: (1) whether plaintiff invited a hostile work environment; and (2) whether he was subjectively offended by defendant’s alleged conduct.
The Court noted that while parties are afforded broad leeway in discovery, that does not provide carte blanche
to any party, and that the images sought were only discoverable if they were reasonably calculated to lead to the discovery of admissible
evidence. The Court went on to reason that to the extent defendant was seeking the production of the images to prove plaintiff’s own standard of conduct they may be inadmissible at trial. However, the Court noted that evidentiary rulings were best left to the discretion of the trial judge and therefore ordered that the images be preserved. The Court also ordered limited inspection of the images by a designated attorney for the defendant, noting that there was no urgency regarding production because the plaintiff had admitted that the images existed. Finally, the Court determined that its proposed remedy also satisfied plaintiff’s concerns that the images were more prejudicial than probative, and were neither discoverable nor admissible for that reason.