ESI Disclosures May Include Cell Phone Images

Posted by Gregg Mayer on Thursday, March 6th, 2008   

In an employment harassment lawsuit in Washington D.C., the court ordered the photographic images on an employee’s cell phone be preserved so the opposing attorney could inspect them.

As this case demonstrates, disclosures in the world of e-Discovery may reach beyond just desktop and laptop computers.

The case, Smith v. Café Asia, involved an employee suing the company for harassment based on the employee’s sexual orientation. The employee alleged he was taunted by kitchen staff, physically harassed, and that management was complicit in the harassment.

The restaurant countered that the employee instigated and invited the attention. Specifically, the restaurant argued the employee showed the staff explicit photographs of himself on his cell phone.

The employee conceded his phone had personal photos, but denied sharing them with the staff.

The judge ordered the photographs preserved. Moreover, the judge ordered that one of the restaurant’s attorney’s be allowed to inspect those photographs to prepare for arguments over admissibility of photographs at trial.

Although this case’s holding is limited to its facts, it demonstrates that ESI may find its way into the most unlikely places, including employee cell phones. Consequently, if the ESI may be relevant to the litigation, no matter where it is, a court may order it preserved.

Read another analysis, along with the court opinion, here.

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