Courts

Can You Post Nude Pictures On The Federal Docket? This Attorney Tries To Find Out!

The judge seems a little annoyed.

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Nude businessman isolated on white“That it is necessary to inform an attorney of this court that he may not file nude photographs on the public docket is startling.” So begins an exasperated Judge Denise Cote in an order slapping a $1000 sanction on attorney Jeffrey Chabrowe after not once but twice attempting to slip nude pictures of his clients’ adversary into the public record.

Charbrowe’s clients allegedly stole millions from their former boss. They’ve counterclaimed that he actually owes them money for a variety of reasons. Most relevant to the subject of nudes is a sexual harassment claim. Charbrowe included a number of nude and semi-nude pictures in a motion seeking a stay, requesting that some but not all of the photos be filed under seal. Judge Cote went ahead and sealed them all.

[UPDATE: Charbrowe reached out with the following comment:

In fact, on August 14, 2023, I requested a sealing order related to a Stay motion for Exhibits A-C, but not Exhibit D. I sought sealing of Exhibits A-C, which contrary to your coverage, were not photos, but testimonial and email exhibits, out of an abundance of caution, as they were arguably subject to a protective order. Explicitly excluded from this request was Exhibit D. (See DCKT. 74, fn 1, “This [sealing motion] includes Exhibits A-C of Defendants’ Stay motion, but not Exhibit D, which consists of text messages between the parties, produced by the defendants, which are not subject to any protective order”) (emphasis in original). Exhibit D included text messages and photographs, including photos Plaintiff Schottenstein texted to Defendant Chan—namely, two semi-nude (genitals covered) pictures of himself, as well as various pictures of Schottenstein’s (clothed) crotch.

Because of this, Charbrowe argues that he “misunderstood/inadvertently overlooked that an Order to seal the photos had nevertheless been issued.” Judge Cote did not seem receptive to this argument.]

Fast forward to the summary judgment motion and he filed more “sexually explicit” photographs, including images that had already been filed under seal the first time. At this point, Judge Cote lost her patience and issued a show cause order.

Mr. Chabrowe’s October 10 response contained no acknowledgement that he has acted improperly, and accordingly on December 5 the Court issued a second order “to show cause why he should not be sanctioned for twice filing on the public docket sexually suggestive photographs of the plaintiff.” In a December 6 letter, Mr. Chabrowe argues in part that he “is not aware of any per se law or rule that precludes the filing of semi-nude photos or clothed pictures of crotches on the public docket.” A hearing was held on the record on December 8.

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The transcript of the hearing is not available on PACER, but you can imagine how it went from the following footnote in Judge Cote’s order:

Mr. Chabrowe also argued that he does not consider the photographs to be nude photographs. This argument is without merit.

[UPDATE: Charbrowe reiterated this argument to us thusly:

The subject photos were not of Schottenstein completely “nude.” They were not per se “obscene.” Most were clothed pictures of Schottenstein’s crotch. Two were of Schottenstein without clothes, with his genitals covered. As such, the “nudes” were no more revealing than pictures of someone in a swimsuit, or numerous mainstream magazine covers featuring celebrity models semi-nude, with their intimate parts covered. For example:

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Judge Cote clearly disagreed with the idea that it’s not “sexually suggestive” just because Kim Kardashian appeared naked on a cover with text covering key parts.]

In addition to being stupid, Judge Cote concluded that the defendants were using these photos in a bid to “humiliate and place improper pressure on the plaintiff” and rejected Charbrowe’s claim that he wasn’t acting in bad faith.

Mr. Chabrowe need only consider how his own clients would feel if the shoe were on the other foot.

Probably wouldn’t have chose a colloquialism about putting on articles of clothing here, but full credit to Judge Cote.

Order on the next page…

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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