Cory v. George Carden Int'l. Circus, Inc.
Cory v. George Carden Int'l. Circus, Inc.
2016 WL 3475609 (E.D. Tex. 2016)
March 18, 2016

Clark, Ron,  United States District Judge

Facebook
Social Media
Privacy
Failure to Produce
Proportionality
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Summary
The court denied Defendant's Motion to Compel Production of Facebook Message Data due to untimeliness, privacy concerns, and the burden of the proposed discovery outweighing its likely benefit. The court also expressed concern over Defendant's attempts to access all of Plaintiff's emails, both personal and professional, and denied Defendant access to all of Plaintiff's Facebook messages due to privacy concerns.
Additional Decisions
Cheryl Cory, Plaintiff,
v.
George Carden International Circus, Inc., Defendant
CIVIL ACTION No. 4:13-CV-760
United States District Court, E.D. Texas, Sherman Division
Signed March 18, 2016

Counsel

Spencer Paul Browne, Reyes Bartolomei Browne, Dallas, TX, for Plaintiff.
Clinton V. Cox, IV, Justin Neal Bryan, Fee Smith Sharp & Vitullo, LLP, Dallas, TX, for Defendant.
Clark, Ron, United States District Judge

ORDER DENYING MOTION TO COMPEL PRODUCTION OF FACEBOOK MESSAGE DATA

*1 Defendant has filed its Motion to Compel Production of Facebook Message Data (DOC. # 101). On January 21, 2016, Defendant served on Plaintiff a request for production, seeking Plaintiff's “Facebook Data.” Defendant claims that Plaintiff's response is incomplete. Specifically, Defendant claims that Plaintiff may have deleted or is withholding messages that she sent to others via Facebook. In support of this claim, Defendant argues that Plaintiff's production only contains messages dating from January 22, 2016 and onward, apart from a single message dated in November 2015. Defendant states that any missing messages are relevant because (1) they show Plaintiff's ability to use a computer for personal and professional use; (2) they could show collusion between Plaintiff and her expert/factual witnesses; and (3) the messages could be generally relevant as prior inconsistent statements or any other potentially relevant reason.
First, Defendant's request for production is untimely. Defendant served Plaintiff with the request on January 21, 2016. Under the federal rules, Plaintiff had thirty days to respond to Defendant's request. Fed. R. Civ. P. 34(b)(2). All discovery was to have commenced so as to be completed by February 16, 2016, twenty-six days after Defendant served its request for production. (DOC. # 66). While the four day difference is small, it does not change the fact that Defendant's request was untimely or that Defendant should have sought the court's assistance in obtaining this information earlier.
Second, the court has previously expressed concern over significant intrusions into Plaintiff's privacy. (DOC. # 74). Part of these concerns stemmed from Defendant's attempts to access all of Plaintiff's emails, both personal and professional. (DOC. # 74). Allowing Defendant access to all of Plaintiff's Facebook messages presents similar privacy concerns.
Third, under Rule 26 of the Federal Rules of Civil Procedure, the court must consider whether Defendant's request is proportional to the needs of the case, taking into account several factors including “the importance of the 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). As part of its motion, Defendant has provided Facebook data tending to show that Plaintiff is an avid Facebook user and that she manages three Facebook pages relating to her realty business. The court has also previously allowed Defendant to access Plaintiff's browser histories and event logs on her electronic devices. (DOC. # 74). Defendant has had numerous chances to collect substantial evidence of Plaintiff's uses of electronic devices. The content and extent of Plaintiff's Facebook messages therefore have limited importance to resolving whether Plaintiff is still able to use electronic devices. Further, apart from the burden to Plaintiff's privacy interests, Defendant's untimely request comes in the middle of the period for several important pretrial deadlines. The burden on Plaintiff of having to prepare for trial while also performing last-minute discovery outweighs the benefit of that discovery.
*2 Fourth, Defendant argues that Plaintiff's Facebook messages may show evidence of discussions between her and one of her medical providers that will testify at trial, as well as conversations with her ex-boyfriend and family members, who are fact witnesses in the case. Defendant provides no evidence that Plaintiff may be colluding with these fact witnesses over Facebook. Defendant's only evidence of potential collusion with Plaintiff's medical provider is that they are “Facebook Friends.” The court will not enforce an untimely, disproportional intrusion into Plaintiff's privacy, during the period when the Parties should be preparing for trial, based on such bare factual support for Defendant's allegations.
IT IS THEREFORE ORDERED that Defendant's Motion to Compel Production of Facebook Message Data (DOC. # 101) is DENIED.
So ORDERED and SIGNED this 18 day of March, 2016.