This post describes a federal case which pits a claim of hostile work environment by way of a sexually graphic photo against the privacy interests of the alleged harasser.   Essentially, the decision upholds the right of privacy when a discovery request is too intrusive and speculative.  But oh, that request!

A female employee sued the District of Columbia police department for maintaining a sexually hostile work environment based upon a claim that her supervisor sent her a cell phone picture of his left hand holding his penis.  The problem for plaintiff was that she had no evidence that it was, in fact, her boss who had sent the photo to her.

So in an effort to discover evidence of the identity of her harasser, she moved to compel her boss to produce a photo of his left hand holding his penis so she could compare it to the harassing photo.   She argued that “there is a strikingly close resemblance between [his] left thumb and forefinger and the same body parts depicted” in the offensive photo.   (We will not inquire as to how she knew all of this).  She produced for an in camera inspection by the Court a color copy of the offensive picture.

The Court stated that “[a]fter in camera review of the grainy, poorly-lit photograph at issue, the Court is skeptical of plaintiff’s confidence that a photograph of [the boss’] penis would be of any comparative value.  Nor is the Court satisfied that there is no less intrusive alternative to requiring [him] to produce a photograph of his penis.”

The Court ruled that the federal discovery statute, Federal Rules of Civil Procedure Rule 26, should be construed broadly, but that “the Court retains the discretion under the Rule to balance plaintiff’s need for discovery against defendant’s valid privacy concerns.”   The Court therefore held that “plaintiff’s request is too speculative at this point to overcome defendant’s privacy interests.  However, [his] salient privacy interests do not extend to his hand, which is routinely subject to public view.”

So he must produce a photo — but only of his hand.   At least for now.

Takeaway:  Do not take the law into your own hands!  (Sorry about that!)