Thursday, May 15, 2014

A bird in the hand? Court refuses to compel lewd picture in harassment case

Laverne Battle claimed that her supervisor at the District of Columbia Metro Police Department texted from his cell phone to her cell phone, a picture of him holding his penis is his left hand. To support her sexual harassment claim, battle sought to compel seeks to compel the supervisor to produce a photograph of his left hand and penis for the purpose of comparison. 

In Battle v. District of Columbia, the court weighed the need for the photo versus the privacy interest of the alleged harasser. On balance, the court refused to order the production of a picture of his penis. The hand, however, was a different story. 

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. Nor is the Court satisfied that there is no less intrusive alternative to requiring Sergeant Pope to produce a photograph of his penis. The Court 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.
Bravo for creativity, but let me suggest a less intrusive, and more conclusive, alternative to the racy pic. How about a forensic exam of the phone that sent the photo?