Sciortino v. Allstate Ins. Co.
Sciortino v. Allstate Ins. Co.
2012 WL 12930579 (E.D. Mich. 2012)
March 19, 2012

Majzoub, Mona K.,  United States Magistrate Judge

LinkedIn
MySpace
Twitter/X
Social Media
Facebook
Failure to Produce
Photograph
Proportionality
Cloud Computing
Download PDF
To Cite List
Summary
The Court denied Defendant's motion to compel Plaintiff to produce Facebook and other social networking site information, finding that the request was overly broad, unduly burdensome, and not limited to relevant time frames or information. The Court also found that Defendant had not shown how the majority of the information requested would lead to admissible evidence.
Sherrie SCIORTINO, et al., Plaintiffs,
v.
ALLSTATE INSURANCE COMPANY, Defendant
Civil Action No. 11-12579
United States District Court, E.D. Michigan, Southern Division
Signed March 19, 2012

Counsel

Craig S. Romanzi, Craig S. Romanzi Assoc., Heather J. Atnip, Romanzi Atnip, P.C., Waterford, MI, for Plaintiffs.
Karen W. Magdich, Magdich Law, Livonia, MI, for Defendant.
Majzoub, Mona K., United States Magistrate Judge

ORDER

*1 Plaintiff Sherrie Sciortino has filed this case against Defendant Allstate Insurance Company for breach of contract and declaratory relief. (Dkt. 1, Compl.) Defendant was Plaintiff's insurance provider under an automobile policy when Plaintiff was involved in a car accident on February 8, 2010. (Compl. ¶¶ 6, 7.) Plaintiff alleges that she sustained injuries from her accident. (Id. ¶ 8.) Because of these injuries and the circumstances resulting from them, Plaintiff sought, and/or is seeking, personal protection insurance benefits from Defendant. (Id. ¶ 9.) She alleges that Defendant has refused or is expected to refuse paying these benefits. (Id.)
Before the Court is Defendant's motion to compel Plaintiff to produce Facebook and other social networking site information from Plaintiff. (Dkt. 12.) The Court has been referred this motion for determination pursuant to 28 U.S.C. § 636(b)(1)(A). (Dkt. 13.) The Court has reviewed the pleadings, dispenses with a hearing, and issues this order.[1]
Defendant served the following interrogatories on Plaintiff; Plaintiff's responses are under the interrogatories:
12. Please produce a complete electronic copy of Plaintiff's Facebook page. (Note: To download Plaintiff's Facebook information, Plaintiff needs to go to her Account Settings page on Facebook, click the “learn more” link beside “Download Your Information.” Plaintiff then needs to, clink the “Download” button.)
Answer: Plaintiff objects to Interrogatory No. 12, in that it is vague and ambiguous, overly broad, and overly burdensome. Further, this Interrogatory is not reasonably calculated to lead to the discovery of admissible evidence pursuant to [Rule 26(b)(1).]
13. Please produce electronic copies of all other profiles on social networking sites or other internet sites that Plaintiff has posted on in the past five years, including, but not limited to Facebook, Twitter, MySpace, LinkedIn, Google Plus, Friendster, Orcut, Bebo, Hi5, Ning, Match.com, eHarmony, plentyoffish.com, and OkCupid.
Answer: Plaintiff objects to Interrogatory No. [13], in that it is vague and ambiguous, overly broad, and overly burdensome. Further, this Interrogatory is not reasonably calculated to lead to the discovery of admissible evidence pursuant to [Rule 26(b)(1).]
14. Please produce any and all pictures, emails, written documents, journal entries and any other information for the past five (5) years on Plaintiff's hard drives, on an online service such as Gmail, Yahoo, Hotmail, Facebook, Twitter, MySpace, LinkedIn, Google Plus, Friendster, Orcut, Bebo, Hi5, Ning, Match.com, eHarmony, plentyoffish.com, and OkCupid that:
1. refer or related to the allegations set forth in the complaint
2. refer or relate to any facts or defenses raised in the answer
3. reveal, refer or relate to any emotion, feeling or mental state
4. reveal, refer or relate to events that could be reasonably expected to produce significant emotion, feeling or mental state.
*2 This request includes, but is not limited to all online profiles, postings, messages (including, without limitation, tweets, replies, re-tweets, direct messages, status updates, wall comments, groups joined, activity streams, blog entries, photographs, videos) and other online communication.
Answer: Plaintiff objects to Interrogatory No. [14], in that it is vague and ambiguous, overly broad, and overly burdensome. Further, this Interrogatory is not reasonably calculated to lead to the discovery of admissible evidence pursuant to [Rule 26(b)(1).]
The scope of discovery under the Federal Rules of Civil Procedure is traditionally quite broad. Lewis v. ACB Bus. Servs., 135 F.3d 389, 402 (6th Cir. 1998). Parties may obtain discovery on any matter that is not privileged and is relevant to any party's claim or defense if it is reasonably calculated to lead to the discovery of admissible evidence. Fed.R.Civ.P. 26(b)(1). “Relevant evidence” is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401. But the scope of discovery has its limits. “District courts have discretion to limit the scope of discovery where the information sought is overly broad or would prove unduly burdensome to produce.” Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007).
Defendant argues that Plaintiff's Facebook and other social networking site information is discoverable. Defendant states,
[t]he scope of discoverable information from a plaintiff's Facebook information [sic] encompasses not only information that references matters alleged in a plaintiff's complaint, but also information inconsistent with a plaintiff's allegations of injury as well as information pointing to other potential causes of the injury alleged.... Discoverable Facebook information therefore includes postings, messages, photographs, and other entries that reveal, refer, or relate to any emotion, feeling or mental states, as well as communications that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling or mental state.
(Def.'s Mot. at 12) (quotation marks, citation, and emphasis removed). Defendant adds,
[t]here may be relevant information contained in more than just Plaintiff's postings, however, including her comments on her Facebook friends' statuses or postings, communications with friends as part of wall posts, comments on pictures, private messages, and communications on the instant message feature.
(Id.)
The Court denies Defendant's motion to compel as it is overly broad. Defendant is requesting unfettered access into any social networking site with which Plaintiff may possibly participate. Although the Court recognizes that courts have found that social networking information is discoverable, here, Defendant's request is so broad and would be unduly burdensome. In Request 12, Defendant seeks Plaintiff's entire Facebook profile. Yet Defendant has not shown how the entire profile is relevant. While the Court recognizes that pictures in Plaintiff's profile could be relevant, the entire profile would also contain such information as: “likes” and “dislikes;” relationship status, schools the Plaintiff attended, her birthday, etc. Defendant has not stated why any of this information would be relevant or lead to admissible evidence. Defendant further requests all of Plaintiff's social networking information–yet Defendant has not even stated to the Court that Plaintiff has profiles on the various sites. Defendant is just guessing. The Court will not permit such guesswork. As to Requests 13 and 14, the Court finds that they are overly broad as well and that Defendant should not get unfettered access to any of Plaintiff's online profiles, her email, or any hard drive from which she may have accessed a social networking site. For example, the Court does cannot fathom how the majority of the information on a potential dating website such as eHarmony or Match.com would provide relevant information.
*3 Defendant also requests information relating to Plaintiff's “emotion, feeling or mental state.” These requests are also improper. From her complaint, Plaintiff seeks: reasonable and necessary expenses for care, recovery, or rehabilitation; reasonable and necessary attendant care; reasonable and necessary replacement services; wage loss as provided for in the No-Fault Act; and other personal protection benefits in accordance with the applicable no-fault provisions. (Compl. ¶ 8.) Plaintiff represents in her response that she is not seeking an award for “pain and suffering, embarrassment, etc.” (Pl.'s. Resp. at 6.)
While the Court recognizes that pictures of Plaintiff on these social networking sites may be relevant, Defendant has not limited its request to just pictures, and has not limited the request to a relevant time frame. Such requests are therefore overly broad. See Davenport v. State Farm Mut. Auto. Ins. Co., 11-632, 2012 WL 555759 (Md. D. Fla. Feb. 21, 2012)(granting the defendant's motion to compel the production of Facebook photographs in which the plaintiff appeared, but noting and rejecting requests that were overly broad.).
Both parties are correct that, at the time they filed and responded to this motion, no courts in this district had addressed Facebook and discovery. Since that time, though, one court in this district has addressed whether a defendant can compel information from Facebook.
In Tompkins v. Detroit Metropolitan Airport, 10-10413, 2012 WL 179320 (E.D. Mich. Jan. 18, 2012), Judge Whalen held that the defendant was not entitled to discovery from the plaintiff's Facebook page because the defendant had not shown a connection between the plaintiff's Facebook page and the information it requested. The court held that “the [d]efendant does not have a generalized right to rummage at will through information that [the plaintiff] has limited from public view.” Id. at *2. The court found that, “consistent with Rule 26(b) ... there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence.” Id. The court held that the defendant did not make the requisite showing. The court held that the defendant had not shown the relevance of the plaintiff's public postings to the information they requested. Id. The plaintiff's profile picture was of her holding a dog, whereas the defendant sought pictures that she was not injured as she said she was. Id.The court reasoned that the picture of the plaintiff with her dog was not inconsistent with the plaintiff's claim of injury. Id. The court further reasoned, “[i]f the [p]laintiff's public Facebook page contained pictures of her playing golf or riding horseback, [the defendant] might have a stronger argument for delving into the nonpublic section of her account.” Id. The court ultimately held that the defendant had “not made a sufficient predicate showing that the material it seeks is reasonably calculated to lead to the discovery of admissible evidence.” Id. The court added that “the request for the entire account, which may well contain voluminous personal material having nothing to do with this case, is overly broad.” Id.
Here, the Court finds that the discovery sought is overly broad. Plaintiff's physical condition may be at issue, but Defendant seeks way more than evidence relating to her physical condition. Even if the discovery requests were not overly broad, Defendant also has not persuaded the Court, as in Thompkins, as to how the majority of information requested from Plaintiff's Facebook profile, or any social networking site, would lead to admissible evidence.
*4 The Court therefore denies Defendant's motion to compel.
NOTICE TO THE PARTIES
Pursuant to Federal Rule of Civil Procedure 72(a), the parties have a period of fourteen days from the date of this Order within which to file any written appeal to the District Judge as may be permissible under 28 U.S.C. § 636(b)(1).

Footnotes

The Court dispenses with a hearing pursuant to Eastern District of Michigan Local Rule 7.1(f)(2).