Another Source of ESI: Cell Phone Images
Magistrate Judge Facciola rules for preservation and limited inspection of cell phone images in response to a motion to compel in Smith v. Café Asia, 2007 WL 2849579 (D.D.C.) As background, plaintiff, Andrei Smith, was formerly employed as a host and waiter at Cafe Asia, a restaurant located in Washington, D.C. The restaurant owned by defendant is located at 1720 Eye Street DC Hospitality, LLC ("Cafe Asia"). Plaintiff claimed he was the victim of discrimination based on his sexual orientation, in violation of the District of Columbia Human Rights Act and that he was the subject of assault and battery in the form of unwanted touching. Specifically, plaintiff alleged that:
(1) the kitchen staff routinely verbally taunted him based on his sexual orientation;
(2) the kitchen staff repeatedly subjected him to humiliating physical harassment;
(3) the management tolerated and encouraged this verbal and physical harassment; and
(4) Ms. Joey Yim, one of the managers, sent him an email containing six pornographic images portraying homosexual sex acts (the "Yim e-mail").
This discovery dispute focuses on defendant's request that it be permitted to inspect and make copies of images stored on plaintiff's cell phone. Defendant alleged that these images portray:
(1) plaintiff's genitalia at various states of arousal; and
(2) graphic images of other men purported to be plaintiff's sexual partners
Plaintiff concedes that his cell phone contains "intimate, highly personal" and "unclothed images," but denies having willingly shared the images with his co-workers.
Defendant asserted that even if the images where not admissible at trial, they were discoverable. The court, however, observed that this is true only if the images led to other discoverable evidence. Here, since the defendant sought to use the graphic content of the images to establish plaintiff's own standards of behavior, the images themselves are the “end game” of the discovery request. Therefore, the ultimate issue was whether the images would be admissible at trial. Specifically, the court stated that a determination of whether the probative value of the images outweighed their prejudice was required under F.R.E. 403 and 412(b)(2). Because this determination was best made by the trial judge, the court ordered the images to be preserved.
Judge Facciola also noted that the “analysis differs where the discovery is sought by defendant to corroborate the testimony of its witnesses that plaintiff willingly shared the images,” as plaintiff had denied sharing the images with co-workers. Although F.R.C.P. 26(b)(1) usually allows production of any matter relevant to the subject matter of the litigation, plaintiff argued that F.R.E. 412 required that defendant must establish that the probative value outweighed prejudice to plaintiff. The court found that it had “the discretion under Rule 26 to balance defendant’s need for the images against plaintiff’s valid privacy concerns.” Thus, in addition to ordering the preservation of the images, the court also ordered that one defense attorney be allowed to inspect the images, “only so far as necessary to fully inform its discovery and trial preparation.”
