Plaintiff alleges that while attending Defendant's circus, a tiger slide deflated and collapsed on her head. Plf.'s Orig. Pet., DOC. # 7, pg. 4. At the time, the tiger slide contained a number of children. Plf.'s Orig. Pet., DOC. # 7, pg. 4. Plaintiff alleges that she was injured by this incident and has sued Defendant for damages arising out of that injury. On October 2, 2015, Defendant served its Fourth Request for Production on Plaintiff asking for access to her mobile phones, computer tablets, computers, and fitness monitoring accessories. (DOC. # 63-2). Plaintiff objected to the request, and Defendant filed the underlying Motion to Compel.

Defendant may serve a request on Plaintiff seeking “to inspect, copy, test, or sample” “electronically stored information” in Plaintiff's control. Fed. R. Civ. P. 34(a)(1)(A). The electronically stored information sought must be “relevant to any parties' claim or defense” and “proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1).[1] The factors the court is to consider are “the importance of the issues at stake, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1).[2]Further, allowing another party direct access to the electronic systems of the other party “may raise issues of confidentiality and privacy.” Fed. R. Civ. P. 34 advisory committee's note to 2006 amendment. The rules are “not meant to create a routine right of direct access” to electronically stored information, and the court should “guard against undue intrusiveness.” Fed. R. Civ. P. 34 advisory committee's note to 2006 amendment. The Fifth Circuit has not directly addressed the requirements for compelling Plaintiff to provide direct access to her electronic devices for copying and review.

*2 Defendant argues that Plaintiff's electronic devices contain evidence negating the extent of Plaintiff's claimed damages. Defendant provides copies of posts made by Plaintiff and Nathan Cory on social media, which state that Plaintiff reached level 685 on a game called “Cookie Jam” and that Plaintiff filled in for Nathan Cory in his profession. (DOC. ## 63-3, 63-4). Based on these posts, Defendant argues that Plaintiff has been engaging in activities that require acute eyesight and that access to Plaintiff's electronic devices would help it determine the extent of Plaintiff's use of those devices and how well she is able to focus on electronic screens. Def.'s Mtn. to Compel, DOC. # 63, pgs. 1. Plaintiff did not file a response to this Motion, and the time to file a response has expired. However, despite Plaintiff's failure to respond, the court determines that the burden of Defendant's request outweighs the benefits and only grants Defendant limited access to Plaintiff's electronic devices.

Defendant's request involves a significant intrusion into Plaintiff's privacy. By allowing a third-party analyst to review all of Plaintiff's electronic devices, the court would be allowing a stranger unlimited access to Plaintiff's emails (both personal and professional), private records, and exercise habits. The Eleventh Circuit has been hesitant to allow such “mirror image” access without a showing that the responding party has failed to fulfill its discovery obligations. See In re Ford Motor Co., 345 F.3d 1315, 1317 (11th Cir. 2003). Most district courts have also required such a showing by the party seeking discovery. See, e.g., A.M. Castle & Co. v. Byrne, Civ. A. H-13-2960, 2015 WL 4756928, at *10 (S.D. Tex. Aug. 12, 2015); In re Weekly Homes, LP., 295 S.W.3d 309, 317 (Tex. 2009) (noting that most federal courts require a showing that “the responding party has somehow defaulted on its obligation to search its records and produce the requested data” prior to allowing direct access to “a party's electronic storage device”). The courts that have allowed such “mirror imaging” of a plaintiff's electronic devices have done so based on evidence that requesting the data from the responding party would not be useful given the party's past discovery history. See, e.g., Simon Prop. Grp. LP v. mySimon, Inc., 194 F.R.D. 639, 641 (S.D. Ind. 2000) (noting “troubling discrepancies with respect to [the responding party's] document production); Playboy Enters., Inc. v. Welles, 60 F. Supp. 2d 1050, 1051 (S.D. Cal. 1999) (allowing direct access to the plaintiff's computer system based on evidence that plaintiff was deleting emails that should have been produced). Though not binding, these are illustrative on how the court is to fulfill its role of guarding against undue intrusiveness. Fed. R. Civ. P. 34 advisory committee's note to 2006 amendment.

Defendant has not presented any evidence that Plaintiff has failed in her discovery obligations. Further, the only other motion to compel filed by Defendant against Plaintiff, sought to compel answers to Defendant's Fifth Request for Production, and only sought answers to two of the four requests for production that were served on Plaintiff with Defendant's Fifth Request. (DOC. # 62). This suggests that Plaintiff has largely been cooperative with Defendant during the discovery process. The court concludes that Defendant's request for mirror imaging of Plaintiff's electronic devices is an unnecessary intrusion into Plaintiff's privacy and is not proportional to the needs of the case.

However, in this case it is the use made of the devices rather than the particular information that could tend to rebut Plaintiff's claims. For example, evidence that Plaintiff, who claims loss of eyesight, is spending significant amounts of time viewing programs or applications that require unimpaired vision is relevant regardless of the actual content. Likewise a mobile app that indicates Plaintiff performs strenuous activities may be relevant to claims of injury or disability. Plaintiff failed to reply to Defendant's motion, so is not in a good position to complain about loss of privacy. Therefore, the court orders Plaintiff to provide the following:

If a dispute arises between the parties while Plaintiff is providing the above access, the parties are directed to call the Discovery Hotline ((903) 590-1198) to facilitate prompt resolution of any dispute. Any privileged document to which Defendant may gain access during the course of this procedure will not lose its privileged status due to the fact that it was accessed by Defendant. No privilege or protection under state or federal statutory or common law is waived by any disclosure of information connected with the litigation pending before this court, made in accordance with the terms of this Order, and any such disclosure shall not be deemed to be a waiver of any privilege or protection in any other federal or state proceeding. See Fed. R. Evid. 502. Each party will bear its own costs for any IT professionals they hire to consult on complying with this Order.

IT IS THEREFORE ORDERED that Defendant's Motion to Compel Production of Electronic Media Devices (DOC. # 63) is GRANTED IN PART as outlined by the court above.

IT IS FURTHER ORDERED that Plaintiff shall have until March 7, 2016 to comply with this Order.

So ORDERED and SIGNED this 5 day of February, 2016.

The “proportional to the needs of the case” language of Rule 26 was added to the scope of discovery by an amendment that became effective on December 1, 2015. In the past, courts have usually applied the amended Federal Rules of Civil Procedure after they became effective even if the discovery dispute existed prior to the rules' effective date. See W.E. Aubuchon Co., Inc. v. BeneFirst, LLC, 245 F.R.D. 38, 42 (D. Mass. 2007). Under the former rules, the proportionality requirement existed though it was found under a different section of the rule. FED. R. CIV. P. 26(b)(2)(C)(iii). The court concludes that it is just and practicable to apply the new Rule 26 to Defendant's Motion to Compel.

Rule 26 also allows a party to object to a request for electronically stored information on the basis that the information is “not reasonably accessible because of undue burden or cost.” Fed. R. Civ. P. 26(b)(2)(B). If the objecting party proves that it will be unduly burdensome or costly, then the party seeking discovery must show there is good cause for compelling production. Fed. R. Civ. P. 26(b)(2)(B). Since Plaintiff did not respond to Defendant's Motion to Compel, the court presumes that the electronically stored information is reasonably accessible.