This is a product liability action wherein Complainants seek damages for the wrongful death of their 28 year-old son, Jeffrey Cusimano, who died from water contaminated with naegleria fowleri[2] that resulted in his death on June 7, 2011[3]. (R. Doc. 1, p. 2). The Complainants allege that the use of NeilMed's NasaFlo Neti Pot (“Neti Pot”) with water contaminated with naegleria fowleri from the Residential Outdoor Gas Tankless Water Heater caused Jeffrey Cusimano to contract primary amebic meningoencephalitis(“PAM”)[4] which lead to his death. Id. at 3.

Complainants allege that NeilMed's Neti Pot infected Jeffrey Cusimano when he used it to wash his nasal cavity.[5] Id. Complainants contend that NeilMed's product allows naegleria fowleri and/or other dangerous organisms to infect people. Id. at 4. The Complainants have made claims under Louisiana Products Liability Act, (“LPLA”) La. Rev. Stat. § 9:2800.51 et seq., as well as under breach of warranty against redhibitory defects, breach of warranty of fitness for use, breach of implied warranty of merchantability and fitness, and negligence. See (R. Doc. 1).

During discovery, NeilMed propounded Rule 33 and 34 discovery requests upon Complainants on January 28th and 29th, 2013.[6] (R. Doc. 40–3). Therein, NeilMed specifically sought, in Request No. 35, full account information from a third party for unlimited access to the decedent's Facebook page from January 1, 2009 to the present. (R. Docs. 40–3, p. 2). NeilMed states that as a practical matter, Claimants can access Jeffrey Cusimano's Facebook account through his friends.[7] (R. Doc. 49–2, p. 4). NeilMed requests such information, because there may be evidence suggesting that Jeffrey Cusimano contracted naegleria fowlerifrom some other method or evidence documenting Jeffrey Cusimano's use of the Neti Pot on his Facebook account. (R. Doc. 40–1, p. 6).

*2 Complainants objected to Request for Production of Documents No. 35, because the request sought information that was not reasonably calculated to lead to the discovery of admissible evidence and was also not in the possession custody or control of the Complainants.[8] (R. Doc. 44, p. 2). Complainants would later allege in their opposition to NeilMed's motion to compel that Jeffrey Cusimano's Facebook page had been memorialized. Id. at 3.

Memorialization of a Facebook page “allows confirmed friends of the decedent to post comments to the page, with the idea that the page will serve as a tribute site to the decedent.” Jason Mazzone, Facebook's Afterlife, 90 N.C. L. REV. 1643, 1644–45 (2012). However, access to information in the Facebook account after it is memorialized, “depend[s] on the privacy settings of the deceased person's account.” (R. Doc. 44–3, p. 2).[9]

NeilMed argues that despite communications between the two parties to resolve this dispute, no agreement could be made as to Request No. 35 regarding the deceased's Facebook information. Id. at 6. NeilMed submitted to the court on May 21, 2013 a Certificate of Rule 37 Compliance stating that NeilMed made several attempts to resolve the discovery dispute herein. (R. Doc. 40–2, p. 1). As to the instant motion, NeilMed seeks an order from the court compelling Complainants to produce information from Jeffrey Cusimano's Facebook page. (R. Doc. 40). The motion is opposed.

Federal Rule of Civil Procedure (“Rule”) 26(b)(1) provides that “[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense.” Rule 26(b)(1). The Rule specifies that “[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Id. The discovery rules are accorded broad and liberal treatment to achieve their purpose of adequately informing litigants in civil trials. Herbert v. Lando, 441 U.S. 153, 177 (1979). Nevertheless, discovery does have “ultimate and necessary boundaries.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (quoting Hickman v. Taylor, 329 U.S. 495, 507 (1947)). Further, it is well established that “control of discovery is committed to the sound discretion of the trial court ...” Freeman v. United States, 556 F.3d 326, 341 (5th Cir. 2009); Coleman v. Am. Red Cross, 23 F.3d 1091, 1096 (6th Cir. 1994).

Under Rule 26(b)(2)(C), discovery may be limited if: (1) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from another, more convenient, less burdensome, or less expensive source; (2) the party seeking discovery has had ample opportunity to obtain the discovery sought; or (3) the burden or expense of the proposed discovery outweighs its likely benefit. Id. In assessing whether the burden of the discovery outweighs its benefit, a court must consider: (1) the needs of the case; (2) the amount in controversy; (3) the parties' resources; (4) the importance of the issues at stake in the litigation; and (5) the importance of the proposed discovery in resolving the issues. Id. at 26(b)(2)(C)(iii).

*3 Rule 34 provides that parties may request documents and electronically stored information, but requires that a party who requests such information “must describe with reasonable particularity each item or category of items to be inspected.” Rule 34(a)(1)(A). Rule 37 permits a party to move the court to compel discovery “[o]n notice to other parties and all affected persons.” Rule 37(a)(1). “The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” Id.

Rule 37 provides that “[a] party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if: ...(iv) a party fails to respond that inspection will be permitted-or fails to permit inspection-as requested under Rule 34.” Rule 37(a)(3)(B).

Additionally, “[i]f the motion is granted—or if the ... requested discovery is provided after the motion was filed—the court must, after giving an opportunity to be heard, require the party ... whose conduct necessitated the motion ... to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” Id. at 37(a)(5)(A). Rule 37 sanctions are ultimately guided by the purpose of reimbursing the movant and deterring further discovery violations. See Day v. Allstate Insurance Co., 788 F.2d 1110, 1114 (5th Cir. 1986).

It is uncontested that Facebook account information is generally discoverable.[10] However, in this case the issues are whether the digital afterlife of the decedent should be subject to discovery because (1) it is relevant or likely will lead to the discovery of relevant evidence, and (2) the reasonableness of the scope of the request.[11]

In support of its motion, NeilMed argues that the requested information is relevant and/or reasonably calculated to lead to the discovery of admissible evidence for two reasons. The first reason is that it may help identify the source of Jeffrey Cusimano's naegleria fowleri infection. (R. Doc. 49–2, p. 2).

NeilMed contends that naegleria fowleri can be found in fresh water and soil among other things and that Jeffrey Cusimano contracted this infection from some other source than the one alleged by Complainants. (R. Doc. 40–1, pp. 2, 6). NeilMed believes that there is a high probability that if Jeffrey Cusimano did participate in any activities that caused his infection, those activities would have been documented on Facebook. Id. at 6. NeilMed argues that an alternative source of the naegleria fowleri infection might be posted to Jeffrey Cusimano's Facebook account, because he took trips to the beach and perhaps “went swimming in the Gulf...” (R. Doc. 40–3, p. 9). Also, NeilMed contends that Jeffrey had a friend who may have had a boat. Id. NeilMed contended at oral argument that Jeffrey Cusimano or his “friends”[12] could have documented these activities on Facebook.

*4 The second reason NeilMed contends the information requested is relevant because it may provide evidence of Jeffrey Cusimano's use, non-use, or misuse of a Neti Pot. (R. Doc. 49–2, pp. 2–3) Neilmed seemingly suggests that Jeffrey Cusimano may have photographed himself using the Neti Pot, which would be relevant to its defense of misuse of the Neti Pot. Id.

The Complainants, in contrast, contend that the information sought by NeilMed is neither relevant nor likely to lead to the discovery of relevant evidence because it seeks information more than (2) years before the occurrence of the incident. (R. Doc. 44, p. 2).

In considering the positions of the parties, the Court questioned whether there was any evidence developed either through deposition testimony or otherwise regarding whether anyone ever observed Cusimano use the Neti Pot. Counsel confirmed that no witness has provided such testimony. “[T]he object of inquiry must have some evidentiary value before an order to compel disclosure of otherwise inadmissible material will issue.” Sal Ciolino & Assoc. v. First Extended Servs., 2006 WL 1581248, *2 (E.D. La. May 17, 2006)(quoting Zenith Elecs. Corp. v. Exzec, Inc., 1998 WL 9181, *3 (N.D. Ill. Jan.5, 1998)). “Courts have also recognized that ‘the legal tenet that relevancy in the discovery context is broader than in the context of admissibility should not be misapplied so as to allow fishing expeditions in discovery.’ ” Id. As a result the Court found that Neilmed failed to provide evidence that permitting the request would likely lead to the discovery of relevant evidence and amounted to a fishing expedition.

In addition to document's relevancy problems, NeilMed's Request No. 35 seeks Facebook information of the deceased dating from January 1, 2009 to the present, some two (2) years before the incident which resulted in Jeffrey Cusimano's death. (R. Docs. 40–3, p. 2). They further contend that the request is not limited to documents related to any claim or defense. (R. Doc. 44, p. 3).

Complainants assert that naegleria fowleri infection usually precedes death by a period of, at most, twenty-eight days and that NeilMed has no basis for the request for information dating back two (2) years.[13] Id. at 6. The Complainants contend that the deposition material relied on by NeilMed does not indicate that Jeffrey Cusimano participated in freshwater activities resulting in exposure to naegleria fowleri prior to his death, because it is unrelated to the time period around his death.

In considering the issue, the Court noted that seeking information for 2 years before the incident, based upon the evidence, was overbroad. Counsel for NeilMed was unable to provide any information as to why the request dated back two (2) years before a possible naegleria fowleri infection occurred.

Further the deposition testimony confirms that Jeffrey Cusimano never went out on his friend Gino's boat.[14] (R. Doc. 44–1, pp. 2, 8). Additionally, NeilMed failed to present any proof that substantiates its belief that such evidence would exist. The Court therefore finds that the request was not sufficiently limited in scope, considering the time frame involved with a naegleria fowleri infection and sustains the Complainants' objection of overbreadth. See Meltzer/Austin Rest. Corp. v. Benihana Nat. Corp., 2013 WL 1293718, at *5–6 (W.D. Tex. Mar. 26, 2013) (denying discovery that was too broad in scope when a party requested information outside of the relevant time frame of the incident); see also Hickman, 329 U.S. at 508. Having determined that NeilMed's request for production fails due to the relevancy requirement and that it is overbroad, the Court does not reach the issue of custody.

*5 NeilMed has also requested the expenses associated with this motion be reimbursed by the Complainants. (R. Doc. 40–1, p. 7). Rule 37 provides that the Court must require the party whose conduct necessitated the motion to compel to pay the moving party the reasonable expenses incurred in making the motion, including attorney's fees, unless the Court finds that the opposing party's nondisclosure was substantially justified, or that other circumstances make an award of expenses unjust. See id. at 37(a)(5)(A).

The Court finds Complainants' failure to respond to NeilMed's discovery responses within the applicable legal delays was substantially justified, making an award of reasonable attorney's fees inappropriate. See id.

Accordingly,

IT IS ORDERED that Defendant, NeilMed Pharmaceuticals, Inc.'s, (“Neilmed”) Motion to Compel Production of Social Media Discovery (R. Doc. 40) is DENIED.

Rheem Manufacturing Company and Rheem Sales Company, Inc., were also named as defendants for their liability from their Residential Outdoor Gas Tankless Water Heater product. (R. Doc. 1, p. 1). However, neither of these defendants brought the instant motion to compel production of social media discovery. (R. Doc. 40).

The Complainants state that naegleria fowleri is a free-living excavate form of protist that infects people by entering the body through the nose. Naegleria fowleri travels up the nose to the brain and destroys the brain tissue. (R. Doc. 1, p. 3).

Complainants allege Jeffrey Cusimano died on June 7, 2011. (R. Docs. 1, p. 2). NeilMed states that Jeffrey Cusimano died on June 8, 2011. (R. Doc. 40–1, p. 1).

PAM is a form of parasitic meningitis that causes a fatal brain infection. (R. Doc. 1).

Neti Pot is a product used to irrigate nasal cavities. (R. Doc. 7–1, pp. 1–2).

Complainants have not moved to compel answers to any of their Rule 33 requests in this motion. (R. Doc. 40).

For example, the Complainants stated that the Hon. David Gorbaty's daughter indicated that she could access Jeffrey Cusimano's Facebook page. (R. Doc. 44, p. 3 n.1). However, she did not indicate whether she could access his Facebook page in its entirety, or just access the memorialized version.

The timeliness of Complainant's objections to NeilMed's Rule 34 requests was not argued by NeilMed. (R. Doc. 40).

“Content the deceased person shared (ex: photos, posts) remains on Facebook and is visible to the audience it was shared with.” (R. Doc. 44–3, p. 2).

See E.E.O.C. v. Simply Storage Mgm't, LLC, 270 F.R.D 430 (S.D. Ind. 2010) (permitting discovery of social media communications relevant to plaintiffs' emotional distress claims); In the Matter of White Tail Oilfield Services, LLC, 2012 WL 4857777 (E.D. La. Oct. 11, 2012)(granting a motion to compel discovery request for Facebook information from a plaintiff).

The third issue of whether the parents of the decedent had possession, custody or control of the decedent's Facebook page to access it is not reached by this Court, after determinations were made on the two previous issues.

“Friends” here refers to “Facebook friends”

At oral argument, Complainants contend that they believe the time frame for infection to be closer to 10 days.

During the deposition of Patrice Cusimano, she named Gino as a friend of Jeffrey Cusimano who may have had a boat. (R. Doc. 44–1, p. 8).