Case Report – Pornographic images to be preserved but not produced

On October 2nd, the U.S. District Court for the District of Columbia ordered a plaintiff in a harassment suit to preserve six pornographic images portraying homosexual acts and allow one of the defendant’s lawyers to inspect the images.

Magistrate Judge Facciola accepted that the images were relevant to the defendant’s claim that the alleged harassment was “unwelcome.” (The test for harassment under Canadian law also includes a subjective component.) In the his view, however, relevance alone did not justify production because of the plaintiff’s competing privacy interest and because the images would not clearly be admissible at trial. In response to the defendant’s argument that a party to litigation is entitled to the production of evidence that is “reasonably calculated to lead to the discovery of admissible evidence,” Magistrate Judge Facciola held that the defendant’s purpose for seeking the images (which was to admit them as evidence of the plaintiff’s own standard of behaviour) meant that the issue of discoverability and the issue of admissibility were inseparable.

Smith v. Cafe Asia (2 October 2007, Dist. Ct. D.C.).

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