Smith v. Café Asia, Case No. 07-621 (D.D.C. October 2, 2007)

In this sexual orientation discrimination case, defendant moved to compel the plaintiff, a former waiter at the defendant café, to produce photos stored on his cell phone. Plaintiff had alleged that the café’s kitchen staff had harassed him based on his sexual orientation, that management tolerated and encouraged the verbal and physical harassment, and that one of the managers had sent him six pornographic images portraying homosexual sex acts. The defendant asserted that the alleged incidents were welcomed, encouraged and instigated by plaintiff. The defendant sought inspection and copying of graphic photos on the plaintiff’s cell phone to corroborate testimony by café employees that plaintiff willingly shared the images, that the taunts leveled at him were innocuous teasing, and that the images sent to him were playfully welcome.

Magistrate Judge John M. Facciola noted that the images may speak to the credibility of defendant’s witnesses as to the nature of the images and as to the nature of the discourse between plaintiff and his coworkers. While this would normally be sufficient to permit discovery, Rule 412 of the Federal Rules of Evidence dictates that defendant must show that the probative value of the images substantially outweighs the harm their production would cause to plaintiff. The court rejected the defendant’s argument that Rule 412 applies only to admissibility, stating that he had the discretion under Rule 26 to balance defendant’s need for the images against plaintiff’s valid privacy concerns.

His solution was to order preservation of the images, and permit inspection by, but not production to, a single defense lawyer. The Judge noted that the admissibility of the images is an issue to be decided by the trial Judge and the plaintiff has valid privacy concerns.

Read the Order