                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

                                                     )
LAVERNE BATTLE,                                      )
                                                     )
               Plaintiff,                            )
                                                     )
               v.                                    )        Civil Action No. 12-2012 (ESH)
                                                     )
DISTRICT OF COLUMBIA, et al.,                        )
                                                     )
               Defendants.                           )
                                                     )


                            MEMORANDUM OPINION AND ORDER

       Plaintiff brings this action against the District of Columbia and Sergeant Kevin Pope, her

direct supervisor at the Metropolitan Police Department, alleging, inter alia, that Sergeant Pope

sexually harassed her in violation of Title VII of the Civil Rights Act of 1964. As one example

of that sexual harassment, plaintiff alleges that in June 2010 Sergeant Pope sent a picture

message of his left hand holding his penis to her cellular phone. Having produced a color copy

of the photograph for the Court’s in camera inspection, plaintiff seeks to compel Sergeant Pope

to produce a photograph of his left hand and penis for the purpose of comparison. (Mot. to

Compel Production of Physical Evidence (“Mot.”), Jan. 16, 2014 [Dkt. No. 16].)

       “For good cause, the court may order discovery of any matter relevant to the subject

matter involved in [an] action.” Fed. R. Civ. P. 26(b)(1). Plaintiff argues, and defendant does

not contest, that a photograph of Sergeant Pope’s left hand and penis would be relevant because

it would tend to disprove or prove a material fact in the case: whether Sergeant Pope sent the

lewd picture message to plaintiff’s cell phone and contributed to the allegedly sexually hostile

work environment at the Metropolitan Police Department. (See Mot. ¶ 4.)
       However, “relevancy alone does not entitle a requesting party to carte blanche in

discovery.” Smith v. Café Asia, 246 F.R.D. 19, 20 (D.D.C. 2007). Although Rule 26 “has been

construed broadly to encompass any matter that bears on, or that reasonably could lead to other

matter that could bear on, any issue that is or may be in the case,” Oppenheimer Fund, Inc. v.

Sanders, 437 U.S. 340, 351 (1978), the Court retains the discretion under the Rule to balance

plaintiff’s need for discovery against defendant’s valid privacy concerns. Café Asia, 246 F.R.D.

at 21-22; see also Seattle Times Co. v. Rhinehart, 467 U.S. 20, 35 n. 21 (1984) (noting that

although Rule 26 “contains no specific reference to privacy or to other rights or interests that

may be implicated, such matters are implicit in the broad purpose and language of the Rule.”);

Burka v. U.S. Dep't of Health and Human Servs., 87 F.3d 508, 517 (D.C.Cir.1996) (balancing

“the requester’s need for the information from this particular source, its relevance to the

litigation at hand . . . and the harm which disclosure would cause to the party seeking to protect

the information”).

       Defendants argue that compelling Sergeant Pope to submit a photograph of his left hand

holding his penis would be unjustifiably dehumanizing and embarrassing for him. (See Opp’n to

Mot. to Compel, Feb. 10, 2014 [Dkt. No. 22] at 2.) Plaintiff asserts that any risk of

embarrassment to Sergeant Pope maybe adequately addressed prior to trial. (Reply to Motion to

Compel, Feb. 17, 2014 [Dkt. No. 24] at 2.) In so arguing, plaintiff incorrectly assumes that Rule

26’s implicit privacy protections are limited to the evidence’s ultimate use at trial. Cf. Howard v.

Historic Tours of Am., 177 F.R.D. 48, 51 (D.D.C. 1997) (“This shame and embarrassment

[regarding plaintiff’s sexual history] exists equally at the discovery stage as at trial and is not

relieved by knowledge that the information is merely sealed from public viewing.”) The




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requirement that Sergeant Pope produce the requested photograph is alone dehumanizing and

embarrassing, notwithstanding whether the photograph is ever presented to a jury.

        While good cause may necessitate analogous discovery in another case, the full discovery

requested by plaintiff is not supported by the evidence before the Court at this time. Importantly,

this is not a case where a party seeks to discover the content of lewd photographs that defendant

allegedly shared with co-workers. See Café Asia, 246 F.R.D. at 22. Instead, plaintiff has the

lewd photograph but lacks evidence to support her allegation that Sergeant Pope sent it to her.1

According to the government’s undisputed representations in its opposition, plaintiff received a

new cell phone less than two days before she received the lewd picture message, which came

from a phone number traced to Indiana. (Opp’n at 4.) Because plaintiff cannot connect Sergeant

Pope to the cell phone number, she attempts to connect him to the lewd photograph based on her

sworn assertion that “there is a strikingly close resemblance between Sgt. Pope’s left thumb and

forefinger and the same body parts depicted” in the photograph. (Aff. of Laverne Battle, Feb.

14, 2014 [Dkt. No. 24-1] at 1.) After in camera review of the grainy, poorly-lit photograph at

issue, the Court is skeptical of plaintiff’s confidence that a photograph of Sergeant Pope’s penis

would be of any comparative value.2 Nor is the Court satisfied that there is no less intrusive

alternative to requiring Sergeant Pope to produce a photograph of his penis.3 The Court




        1
          At his deposition, Sergeant Pope denied that the photograph depicted any part of his hand or
penis or that he had ever taken or allowed someone else to take a photograph of his penis. (Dep. of Kevin
Pope, Nov. 20, 2013 [Dkt. No. 16-2] at 122-26.)
        2
          Plaintiff has not provided any evidence that the lewd photograph is clear and detailed enough, or
that the hand or penis depicted are distinctive enough, to provide for effective comparison to another
photograph.
        3
         It is unclear why it is not possible to identify who owned the phone from which the picture
message was sent. After all, the ownership of the phone – not the identity of the person depicted in the
photograph – is the central disputed issue.

                                                    3
accordingly concludes that plaintiff’s request is too speculative at this point to overcome

defendant’s privacy interests.

          However, Sergeant Pope’s salient privacy interests do not extend to his hand, which is

routinely subject to public view. Accordingly, the Court will grant plaintiff’s motion in part and

order Sergeant Pope to produce to the plaintiff and submit to the Court for in camera review a

photograph of his left hand (including thumb and forefinger) held in a similar position as that in

the photograph at issue. (Reply at 2 n.1.)4 The Court will also hold in abeyance any ruling on

plaintiff’s motion to compel Sergeant Pope to produce a photograph of his penis.

          For these foregoing reasons, it is hereby

          ORDERED that plaintiff’s motion compel [Dkt. No. 16] is GRANTED in part; it is

further

          ORDERED that defendant Kevin Pope must by May 8, 2014, produce to plaintiff and

submit to the Court for in camera inspection a photograph of his left hand (including thumb and

forefinger) positioned in a manner similar to the hand in the photograph marked as Exhibit 1 to

Plaintiff’s Motion to Compel; it is further

          ORDERED that any photographs produced as a result of this Order shall be treated as

Confidential Information contemplated by the Protective Order [Dkt. No. 13] previously issued

in this case.

          SO ORDERED.

                                                                     /s/
                                                          ELLEN SEGAL HUVELLE
                                                          United States District Judge

DATE: April 24, 2014


          4
        Contrary to plaintiff’s request, Sergeant Pope will not be required to “pose” for “photo-
documenting” by plaintiff’s counsel. (Mot. at 10.)

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