The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
This case was referred to me for resolution of discovery disputes. Currently pending before me is Defendant's Motion to Compel Plaintiff to Produce Images Stored on Plaintiff's Cell Phone ("Mot. to Compel"). For the reasons stated herein, defendant's motion will be granted in part and denied in part.
Plaintiff, Andrei Smith, was formerly employed as a host and waiter at Café Asia, a restaurant located in Washington, D.C. The restaurant is owned by defendant 1720 Eye Street DC Hospitality, LLC ("Café Asia"). Plaintiff claims that he was the victim of discrimination based on his sexual orientation, in violation of the District of Columbia Human Rights Act ("DCHRA"), and that he was the subject of assault and battery in the form of unwanted touching.
Specifically, plaintiff alleges 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 e-mail containing six pornographic images portraying homosexual sex acts (the "Yim e-mail"). Defendant responds that all of the alleged incidents were welcomed, encouraged, and instigated by plaintiff.
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 alleges 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. Declaration of Yan Yan Joey ¶ 4 (attached to Mot. to Compel) ("Joey Decl."); Declaration of Kaoru Sawada ¶ 4 (attached to Mot. to Compel) ("Sawada Decl."). Plaintiff concedes that his cell phone contains "intimate, highly personal" and "unclothed images," Affidavit of Andrei Smith ¶¶ 18, 20 (attached to Opp. to Mot. to Compel) ("Smith Aff."), but denies having willingly shared the images with his co-workers.
"For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action." Fed. R. Civ. P. 26(b)(1). Defendant argues that the images are relevant to whether plaintiff invited a hostile work environment and whether he was subjectively offended by defendant's alleged conduct. See Regan v. Grill Concepts-D.C., Inc., 338 F. Supp. 2d 131, 134 (D.D.C. 2004) (holding that DCHRA requires plaintiff to establish that "he has been subjected to unwelcome harassment" in the workplace) (emphasis added) (citing Lively v. Flexible Packaging Ass'n, 830 A.2d 874, 888 (D.C. 2003)).
Defendant rightly notes that the scope of discovery under Rule 26 of the Federal Rules of Civil Procedure is broad. See, e.g., Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1348-49 (D.C. Cir. 1984) (noting the "broad sweep" of Rule 26(b)(1) in allowing discovery of relevant material). Even if this broad scope were to shine a light of relevancy on the images, however, relevancy alone does not entitle a requesting party to carte blanche in discovery. See Crawford-El v. Britton, 523 U.S. 574, 598 (1998) ("Rule 26 vests the trial judge with broad discretion to tailor discovery narrowly."). As with most things in life, Rule 26 is not an all-or-nothing proposition.
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). See also Tequila Centinela, S.A. de C.V. v. Bacardi & Co. Ltd., 242 F.R.D. 1, 6 (D.D.C. 2007) ("discovery of matters not 'reasonably calculated to lead to the discovery of admissible evidence' are not within the scope of discovery.").
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*fn1 pending a ruling on their admissibility by Judge Robertson.*fn2 Moreover, because Judge Robertson is entitled to a robust and fully informed debate over the admissibility of the images -- a debate that cannot occur where only one party has the benefit of having seen them -- I will order plaintiff to permit one attorney, designated by defendant, to inspect the images.*fn3
The analysis differs where the discovery is sought by defendant to corroborate the testimony of its witnesses that plaintiff willingly shared the images. Defendant believes that the images, if flaunted by plaintiff, are probative of whether the taunts (however tasteless) were innocuous teasing, and whether the Yim e-mail (however lewd) was playfully welcome. Plaintiff, however, denies having willingly shared the images with his co-workers. Compare Smith Aff. at ¶¶ 10, 19-21, with Joey Decl. at ¶ 4. The specific content of the images may speak to the credibility of defendant's witnesses' testimony as to the nature of the images, and as to the nature of discourse between plaintiff and his co-workers.
While this would normally be sufficient to permit discovery under Rule 26(b)(1) of the Federal Rules of Civil Procedure, plaintiff argues that, under Rule 412 of the Federal Rules of Evidence, defendant must also establish that the probative value of the images substantially outweigh the harm their production would cause to plaintiff. Rule 412(b)(2) provides, in pertinent part:
In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the ...