I. BACKGROUND

On February 21, 2018, Plaintiff, Monat Global Corp. (“Monat”), filed suit against Defendant Toni Miller (“Miller”) in the U.S. District Court for the District of Nevada, Monat Global Corp. v. Toni Miller, Case No. 2:18-cv-00324-APG-GWF, alleging that Miller, a hairstylist, made defamatory statements “about Monat’s hair care products on Facebook to thousands of people, causing damage to Monat’s brand and reputation.” (Doc. 1 at 1.) Monat alleged that Miller made these statements based on information she acquired “from a Facebook group named ‘Monat – My Modern Nightmare’ (the ‘Group’), of which she is a member.” (Id. at 2.) On March 1, 2018, Monat filed an emergency ex parte motion to expedite third-party discovery and for issuance of a subpoena duces tecum to Vicki Nittinger (“Nittinger”), a non-party and alleged administrator of the Group “Monat – My Modern Nightmare.” (See Doc. 1-3.) Monat based its emergency motion on “circumstantial evidence that Nittinger may be working in a common scheme with Miller and Malibu Wellness to defame and disparage Monat’s business” and on information that Nittinger planned to or had engaged in efforts to delete information from the Group. (See id. at 18-19 and throughout.) Monat sought to obtain the following documents and information from Nittinger via its subpoena duces tecum (“Subpoena”):

(Doc. 1-2 at 7.)

The U.S. District Court for the District of Nevada granted Monat’s motion, finding that its “requests are narrow in scope and limited to obtaining evidence that is relevant to the causes of action in this case.” (Doc. 1-4 at 2.) Monat served Nittinger with the non-party subpoena in Jacksonville, Florida, on March 6, 2018 and requested compliance with the subpoena on or before March 13, 2018. (Doc.1-2 at 1.) Nittinger’s counsel, who also represents Defendant Miller in the underlying action, claims to have received the subpoena on March 9, 2018. (Doc. 3 at 3.) Counsel for Nittinger and Monat engaged in discussions regarding Nittinger’s response to the subpoena and agreed to an extension of the response deadline. (Doc. 1 at 5-6.) Monat also offered to pay for an e-discovery vendor, KLDiscovery, to “download and produce all relevant Facebook data” to minimize the burden and expense on Nittinger in responding to the subpoena. (Doc. 1 at 6.) On March 15, 2018, Nittinger’s counsel indicated that Nittinger would “comply with the Subpoena.” (Doc. 1-5 at 9.) On April 3, 2018 counsel for Nittinger informed counsel for Monat that “Ms. Nittinger has decided that she can comply with the subpoena without the necessity of using a vendor. She has already begun the process.” (Id. at 7.)

*2 On May 2, 2018, Nittinger produced a 126-page .pdf document consisting of screenshots from the Group. (Doc. 1 at 6.) Monat’s counsel objected to the response as deficient and, on May 25, 2018, informed Nittinger’s counsel that Monat would “move to compel a full and complete response to its subpoena” unless Nittinger allowed “KLDiscovery, at Monat’s expense, to collect and produce responsive documents.” (Doc. 1-5 at 2.) Nittinger failed to supplement her response and, on June 18, 2018, Monat brought the Motion to compel Nittinger to comply with its Subpoena before this Court pursuant to Rule 45 of the Federal Rules of Civil Procedure. (Doc. 1.) While the Motion at issue was pending before this Court, Defendant Miller moved to transfer the underlying case from the U.S. District Court for the District of Nevada to the U.S. District Court for the Southern District of Florida as a tag-along case to the Multidistrict Litigation action consolidating various class action suits against Monat for alleged damage caused by its hair care products. (Doc. 11-1 at 2.) On October 3, 2018, the U.S. Judicial Panel on Multidistrict Litigation issued a Transfer Order consolidating the underlying action, Monat v. Miller, Case No. 2:18-cv-00324 (D. Nev.) with In re: Monat Hair Care Prods. Mktg., Sales Practices & Prods. Liab. Litig., MDL No. 2841. (See Docs. 11, 11-1, & 11-2.)

II. STANDARD

Under Rule 45 of the Federal Rules of Civil Procedure, “parties may issue subpoenas commanding non-parties to, inter alia, produce documents, and appear and testify at depositions.” Costa v. Metro. Life Ins. Co., No. 6:17-CV-714-ORL-40TBS, 2018 WL 1635642, at *2 (M.D. Fla. Apr. 5, 2018). “The scope of discovery under Rule 45 is the same as the scope of discovery under Fed.R.Civ.P. 26.” Id. Under Rule 26,

Fed.R.Civ.P. 26(b)(1). A subpoena to a non-party must be issued “from the court where the action is pending.” Fed.R.Civ.P. 45(a)(2). However, “the servicing party may move the court for the district where compliance is required for an order compelling production or inspection.” Fed.R.Civ.P. 45(d)(2)(B)(i). The party bringing a motion to compel discovery “bears the burden of demonstrating that the information it seeks is relevant.” Costa, 2018 WL 1635642, at *2. The subpoenaed non-party may serve written objections to the subpoena,[1] but “[t]he objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served.” Fed.R.Civ.P. 45(d)(2)(B); see also Cadle v. GEICO Gen. Ins. Co., No. 6:13-CV-1591-Orl-31-GJK, 2014 WL 12639859, at *3 (M.D. Fla. Aug. 29, 2014) (“Typically, failure to serve written objections to a subpoena in the time provided by Rule 45, Federal Rules of Civil Procedure, waives any objections the party may have.”). “However, waiver is not automatic, as circumstances surrounding the untimely disclosure may militate against a finding of waiver.” Cadle, 2014 WL 12639859, at *3.

III. DISCUSSION

Monat moves this Court to order Nittinger to “fully comply” with the Subpoena “by allowing KLDiscovery access to the Group to collect and download the responsive data and by ordering her to produce the other responsive documents not contained in the Group.” (Doc. 1 at 11.) Monat argues that Nittinger failed to object to the subpoena within the prescribed time, and thus waived her objections. (Doc. 1 at 11.) The Court agrees with Plaintiff that Nittinger failed to object to the Subpoena within the time provided under Rule 45. Rather than file objections or a motion to quash the Subpoena, Nittinger, through counsel, represented that she would comply with the Subpoena. (Id.) While failure to file timely objections does not automatically result in waiver, Nittinger has failed to advance any compelling reasons why this Court should entertain objections to the Subpoena now when the time to do so has expired.[2] In light of the fact that the issuing court found the Subpoena to be reasonable and narrow in scope, that Nittinger has repeatedly indicated that she is willing to respond to the Subpoena and has failed to file any objections or a motion to modify or quash the Subpoena, and that Monat is willing to bear the expense of collecting the Facebook Group data, thereby diminishing the cost and burden on Nittinger, the Court is inclined to grant Plaintiff’s Motion. Even considering Nittinger’s objections, the Court is unpersuaded that the Motion should be denied.[3]

A. Request for Facebook Group Information

*3 “Generally, social media content is neither privileged nor protected by any right of privacy.” Palma v. Metro PCS Wireless, Inc., 18 F. Supp. 3d 1346, 1347 (M.D. Fla. 2014) (citing Davenport v. State Farm Mut. Auto. Ins. Co., No. 3:11–cv–632–J–JBT, 2012 WL 555759, at *1 (M.D. Fla. Feb. 21, 2012); Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012)). However, the requesting party “does not have a generalized right to rummage at will through information that [a responding party] has limited from public view.” Id. (internal citations and quotations omitted). The materials sought by Monat in its Subpoena, “all posts, comments, messages, or other statements created or otherwise made in the Group” and “all posts, comments, messages, or other statements created or otherwise made by [Nittinger] regarding Monat or its products,” are discoverable and relevant to the underlying case. The Court finds that Nittinger’s May 2, 2018 production of Facebook materials was deficient.[4]

The undersigned also finds that the request is proportional to the needs of the case when considering the factors listed under Rule 26. Here, Nittinger was the administrator of the Facebook Group, whose name, “Monat – My Modern Nightmare,” illustrates that the focus of the Group was Monat and its products. The requested Facebook Group materials are relevant and important to Monat’s underlying claims and allegations that it suffered financial harm as a result of the statements posted on the Group page. The Court agrees with Monat that the evidence it “seeks is probative of the extent to which Miller has damaged Monat through her [allegedly] false representations, Miller’s basis (if any) for making those representations, and her intent in making them.” (Doc. 1 at 10.) The subpoena request for Facebook Group data is not disproportionate to the needs of the case given that Monat seeks damages in excess of $225,000. As the Group administrator, Nittinger has access to the requested Facebook materials. Considering the parties’ resources and the burden or expense, these factors tip in Monat’s favor since Monat will bear the cost of collecting the Facebook Group information. Moreover, as Monat indicated, Nittinger’s response was deficient and these deficiencies demonstrate the need for an e-discovery vendor to assist with the collection and production of responsive materials. As such, the Court is due to grant Monat’s Motion with respect to the use of KLDiscovery to collect and download responsive materials to the Subpoena from Nittinger’s Facebook account. To the extent Nittinger raised privacy concerns regarding her Facebook account, “[t]his Court trusts that [Monat] and its counsel will handle [Nittinger’s] social media discovery in an appropriate, considerate, and professional manner.” See Anderson v. City of Fort Pierce, No. 14-14095-CIV, 2015 WL 11251963, at *2 (S.D. Fla. Feb. 12, 2015).

B. Request for Communications Between Nittinger and Miller

*4 Similarly, Monat’s request for communications and messages between Nittinger and Miller regarding “Monat, Monat’s products, Monat’s market partners, the Group, and Malibu Wellness” is relevant to the underlying litigation and, as the issuing court already determined, the request is narrow in scope. Furthermore, Nittinger, in her Response, indicated that she had begun working on responding to the third request in the Subponea and again expressed her intention to comply with the Subpoena with respect to her communications with Miller. (Doc. 3 at 11 (“Ms. Nittinger is still sifting through her text messages, private messages, and other electronic communication to see if there is any non-privileged communication with Defendant Miller that is responsive to Monat’s request. Ms. Nittinger will seasonably supplement once such responsive documents (if any) are found and reviewed by undersigned counsel for privilege.”).) To the extent Nittinger claims that there may be materials subject to the “joint defense privilege,” although she represented none had been found, if Nittinger locates and withholds documents she believes are privileged, she shall prepare a privilege log in accordance with Rule 45(e)(2)(A).[5]

Accordingly, after due consideration, it is

ORDERED:

DONE and ORDERED in Jacksonville, Florida on November 27, 2018.

Under Rule 45(d)(3)(A)(iv), “[a] nonparty may object and move to quash a subpoena on the ground that it imposes an undue burden.” Costa, 2018 WL 1635642, at *5. “The burden is on the nonparty to make this showing.” Id.

To the extent Nittinger objected to the Subpoena, she could have filed a timely motion with this Court to quash or modify the Subpoena. See Fed.R.Civ.P. 45(d)(3).

To the extent Nittinger argues that the Motion should be denied for Monat’s alleged failure to follow Local Rule 3.01(g), the Court is unpersuaded by Nittinger’s arguments. (Doc. 3 at 4-5.) Even if the communications between the parties did not satisfy Local Rule 3.01(g), the Court will waive this requirement given the history of communications between the parties, Nittinger’s woefully deficient response to the Subpoena, and Nittinger’s unreasonable delay in producing the relevant materials. (SeeDoc. 1-5.)

In its Motion, Monat details the deficiencies of Nittinger’s response as follows: Even a cursory review of Nittinger’s “screen shot” production indicates that it falls far short of capturing all the relevant data sought by the Subpoena. See Ex. 6. First, Nittinger repeatedly failed to capture data that must be accessed via Facebook’s “expandable” links. For example, on the very first page of Nittinger’s production there is a screen shot of a Facebook post that includes a “continue reading” link, which indicates there is additional information in that particular post, but such information has not been accessed and produced. Id.at 1. Indeed, there are numerous, un-accessed “continue reading” links throughout Nittinger’s production, indicating significant information has been omitted. Id. at 1, 4, 7, 9, 15, 18, 21, 22, 25, 26, 34. Similarly, Nittinger consistently failed to access “comments” made in response to the various Facebook posts that were produced, resulting in the omission of thousands of such “comments.” Id. at 3, 5, 7-12, 14-16, 18, 20-22, 24, 26, 27, 28, 32, 33. Nittinger also produced numerous posts that are cut-off or incomplete. Id. at 1, 3, 4, 6, 9, 11, 15, 16, 18, 20, 21-23, 27, 28, 32, 33. Still other posts contain photographs that Monat cannot view because Nittinger did not expand those posts, or otherwise did not access them properly. Id. at 1, 4, 5, 10, 11, 13, 23, 26, 28, 29, 31, 34, 35. As a result, there seems to be at least one of the above failures to produce relevant information on nearly every single page of Nittinger’s production.

Pursuant to Rule 45: