Smith v. Cafe Asia brings into focus the competing nature of privacy rights and discoverable material.

How do one’s privacy rights coincide with the right under Fed. R. Civ. P. 26(b)(1) to discover “any matter relevant to the subject matter involved in the action”? In Smith v. Cafe Asia, 2007 WL 2849579 (D.D.C. Oct. 2, 2007), the court set out to walk the delicate line between these two competing forces.

Plaintiff, a former employee of defendant-restaurant, brought suit for gender discrimination in violation of the District of Columbia Human Rights Act (“DCHRA”), alleging among other things, that he was subjected to gender-based assault and battery in the form of unwanted touching, verbal taunts, and offensive e-mail sent by the restaurant’s manager. Defendant, on the other hand, asserted that this behavior was welcomed, encouraged, and instigated by plaintiff’s prior actions. Defendant claimed that, contained on plaintiff’s personal cell phone, were digital images including plaintiff’s genitalia in different stages of arousal and graphic images of other men purported to be plaintiff’s sexual partners. These images, defendant contended, were shown at work by plaintiff to his co-workers.

Defendant claimed that these images were discoverable because they are relevant to show whether the plaintiff invited the hostile work environment and was subsequently offended by the defendant’s alleged conduct. Plaintiff, however, claimed that these images contain highly personal information and they were never intentionally shared with any of his co-workers. Magistrate (add first name) Facciola, granted in part and denied in part defendant’s motion to compel production of the aforementioned images.

Invoking discretion vested by Fed. R. Civ. P. 26(b)(1) Judge Facciola ruled that, because of the extreme personal nature of the information sought, the typical scope of discovery would be slightly altered. The court held that the plaintiff would be required to preserve the images on his cell phone and that defendant would be able to designate one attorney to view the images only so far as necessary to fully inform its discovery and trial preparation.

The case is most significant for the court’s explanation that the admissibility of the images is inextricably bound to their admissibility at trial; that is, if the prejudice wrought by these graphic images outweighs their probative value there is no basis for discovery:

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.

The court in this case constructed a mechanism for the delicate balance between highly private material and the exigencies of the discovery process. Access to the images was limited, and the ultimate determination as to broader access and admissibility left to the trial judge. As technology makes it easier to intertwine images private to one’s personal life and privately held(as distinguished from, say, publication on My Space or Face Book) with co-existence in the workplace, issues such as these will continue to puzzle courts across country.

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