I. Background

On April 5, 2019, Plaintiff commenced this action against her former employer, alleging violations of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. (Doc. 1.) Plaintiff was employed by Defendant as a Registered Nurse Analyst from January 20, 2015 to February 28, 2019. (Id. at ¶ 7.) Plaintiff underwent surgery in April 2016, February 2017, and apparently in August 2017.[1] (Id. at ¶¶ 10-11, 13.) After her last surgery, Plaintiff took FMLA protected leave from August 28, 2017 to September 12, 2017. (Id. at ¶ 20.) Plaintiff alleges that Defendant required her to work during this period of protected leave, which interfered with her ability to recover properly and efficiently from the surgery. (Id. at ¶¶ 20-21.)

On November 12, 2019, Defendant filed the present Motion, seeking to compel Plaintiff's full and complete response to Defendant's First Request for Production (“RFP”) No. 17, which asks Plaintiff to “[p]roduce for inspection and copying all cellular telephones, smart phones, and any other electronic devices used by Plaintiff for the alleged work-related communications between Plaintiff and [her co-worker,] Ms. Kathleen McCarty, from January 1, 2016 through the present.” (Doc. 15.) Defendant argues that Plaintiff's claims under the FMLA “are based almost entirely on [these] text messages,” which were exchanged during Plaintiff's leave. (Id. at 2.)

Further, during its investigation, Defendant determined that the text messages “were a violation of Defendant's policies related to confidential patient information and likely violated state and federal laws, such as HIPAA.” (Id.) Defendant states:

*2 (Id. at 2-3.)

Defendant's RFP was served on May 15, 2019. (Id. at 1.) Then:

(Doc. 15 at 3-5 (emphasis in original); Doc. 15-2; Doc. 15-3 (“There is nothing to compel – my client is not refusing.”).)

On August 14, 2019, Plaintiff objected to RFP No. 17,[3] stating that “this request seeks information that is not relevant to the claims or defenses asserted in this action or reasonably calculated to lead to the discovery of admissible evidence”[4] and that “this request is overbroad and unduly burdensome and not specific to any time period.” (Doc. 15 at 6.) In addition, without waiving these objections, Plaintiff stated that “before an inspection can occur, there will need to be terms and conditions in place[ ] and agreed upon.” (Id.)

Nevertheless, Plaintiff produced a 661-page PDF document, which was presumably typed by her and purported to include text messages between her and McCarty. (Id. at 7-8.) Defendant argues that this production was inadequate because:

(Id. at 8.)

II. Discussion

The scope of discovery is governed by Rule 26, which allows “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, 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). “The term ‘relevant’ in this definition is to be ‘construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that bears on, any issue that is or may be in the case.’ ” Auto-Owners Ins. Co. v. Se. Floating Docks, Inc., 231 F.R.D. 426, 430 (M.D. Fla. 2005) (citing Oppenheimer Fund v. Sanders, 437 U.S. 340, 351 (1978)).

“The scope of discovery, though, is not without limits.” Id. As stated in Rule 26(c)(1), Fed.R.Civ.P.:

Fed.R.Civ.P. 26(c)(1).

Here, Defendant has shown that the text messages between Plaintiff and McCarty are relevant to the claims and defenses in this action. (See Doc. 15 at 2-3 (stating that “the timing of the exchange of these text messages in relation to Plaintiff's approved FMLA leave, the content of the text messages, and [the] frequency of the messages are relevant to the underlying basis for Plaintiff's claims,” and also the “content of the text messages is further relevant to the reasons for Plaintiff's termination from employment with Novitas”), 10 (stating that the text messages are relevant because “the text messages are the underlying basis for Plaintiff's claims” and their content “is relevant to Defendant's reason for terminating Plaintiff”).)

Although Plaintiff has produced a PDF document that includes some of the text messages exchanged with McCarty, Defendant has shown that there are significant problems with this production:

*5 (Id. at 8-9.)

The Court agrees with Defendant that Plaintiff's production in the form of a typed PDF document undoubtedly raises concerns as to the completeness, accuracy, and authenticity of the discovery. These concerns might have been alleviated by production of screenshots of the text messages, but Plaintiff asserted that it would be overly burdensome to produce screen shots due to the amount of information and the time required to manually create each screenshot. Further, although Plaintiff suggested that an unknown third-party could review the text messages and determine which ones were relevant by utilizing search terms, the Court agrees with Defendant that the use of search terms would not be effective under the present circumstances. (See id. at 5 n.2 (noting that “the forensic expert stated that attempting to utilize search terms within text messages to create a report would be very tedious, difficult and it would be unlikely to capture all relevant information”).) As explained by Defendant:

(Id. at 7.)

In any event, despite Plaintiff's suggestion to use an unspecified third party to review the text messages, Plaintiff has not come up with a specific proposal to that effect and actually agreed with Defendant's suggested protocol until she suddenly changed her mind. As such, it is appropriate to grant Defendant's request for a forensic examination and copying of the text messages exchanged between Plaintiff and McCarty from August 1, 2017 through September 30, 2017, to be performed by Mr. Rosado after Plaintiff hand-delivers or sends her device by courier, no later than December 23, 2019, to Mulholland Forensics, LLC at 221 East Adams Street, Jacksonville, Florida 32202. Mr. Rosado shall return the device to Plaintiff the same day on which he takes possession of it. The manner of delivery will be either by courier or by pick-up at Mulholland Forensics, LLC, whichever Ms. Feige prefers. Mr. Rosado's report will be limited to copies of the text messages and any photographs/images that were part of, sent with, or embedded in the text messages, and relevant metadata for the retrieved text messages and photographs/images, for the period August 1, 2017 through September 30, 2017.

Although Defendant requested the text messages for the period January 1, 2016 through the present, this time period is overbroad, particularly since Defendant asserts that the text messages at issue were exchanged during Plaintiff's leave. (See id. at 2.) Because Plaintiff's leave took place from August 28, 2017 to September 12, 2017, permitting Defendant to access and copy the text messages between Plaintiff and McCarty from August 1, 2017 through September 30, 2017 appears adequate, particularly since Defendant has not provided any specific reason for a lengthier time period.[5] See, e.g., Arndt v. Ford Motor Co., Case No. 2:15-cv-11108, 2016 U.S. Dist. LEXIS 38391, *10-11 (E.D. Mich. Mar. 24, 2016) (finding a subpoena, which sought all phone records for approximately a three-year period, to be overbroad and unnecessarily invasive of Plaintiff's privacy when “the only data likely to yield useful information [were] the text messages between Plaintiff and Mr. Sowers from October 2013 through May 2014”). This protocol should alleviate Plaintiff's concern that Defendant “seeks text messages without limitation” as well as Defendant's concerns regarding preservation of the metadata accompanying the exchanges.

*6 Plaintiff argues that allowing Defendant access to all aspects of her communications with McCarty “would easily encompass very personal, private matters that have nothing whatsoever to do with this case,” because McCarty was not only her co-worker, but also a close friend in whom she confided about her personal life and issues unrelated to her work. (Doc. 18 at 1-3.) Considering the modified timeframe for the text messages, Plaintiff's privacy concerns should be minimal. Nevertheless, if Plaintiff still believes, after reviewing the text messages on her device for the period August 1, 2017 through September 30, 2017, that they encompass matters that should be excluded from production, Plaintiff shall notify the Court by filing an appropriate motion. Still, based on the current record, the Court is satisfied that the benefits of obtaining this targeted and relevant discovery outweigh Plaintiff's privacy concerns, particularly since she has placed the subject text messages at issue. See Ramos v. Hopele of Fort Lauderdale, LLC, Case No. 17-62100-CIV-MORENO/SELTZER, 2018 U.S. Dist. LEXIS 44327, *6 (S.D. Fla. Mar. 19, 2018) (stating that when deciding on the potential intrusiveness of forensic imaging of electronic devices, the court should assess plaintiff's legitimate privacy concerns against defendant's purported need for the requested discovery by considering the scope of the requested inspection and its proffered relevance to the claims and defenses in the case).

Accordingly, it is ORDERED:

The Motion (Doc. 15) is GRANTED to the extent stated herein.

DONE AND ORDERED at Jacksonville, Florida, on December 11, 2019.

The exact date of the last surgery is not alleged, but based on the allegations in the Complaint, the Court infers that it took place in late August of 2017. (See Doc. 1, ¶ 13.)

Defendant's proposed protocol is set forth in its September 9, 2019 email. (Doc. 15-1.) It provides:

Defendant argues that Plaintiff's objections have been waived because they were presented on August 14, 2019, or two days after the parties’ agreed-upon deadline of August 12, 2019 for responding to the RFP. (Doc. 15 at 9 n.5.) While the general rule is that objections to production requests are deemed waived when the party asserting them has failed to timely object, the court can excuse an untimely response for good cause. Wynmoor Cmty. Council, Inc. v. QBE Ins. Corp., 280 F.R.D. 681, 685 (S.D. Fla. 2012).

The phrase “reasonably calculated to lead to the discovery of admissible evidence” has been removed from Rule 26(b)(1), Fed.R.Civ.P, which defines the scope of discovery.

Defendant argues that it has already limited the information it seeks to “Plaintiff's text messages with only two individuals over the time period Plaintiff put at issue in her Complaint.” (Doc. 15 at 9.) However, the time period at issue in the Complaint is from January 20, 2015 to February 28, 2019, not through the present. Further, to the extent Defendant attempts to inject into this Motion the text messages between Plaintiff and her supervisor, Janice Carter, which are the subject of Defendant's Second RFP, Defendant's request is improper. (See id. at 7 n.3 (stating that “the Court's Order on this Motion would provide instruction to the parties regarding Plaintiff's obligations for production under Defendant's pending Second Request for Production and the protocol that should be followed for obtaining the information”).) Defendant concedes that the present Motion concerns only the text messages between Plaintiff and McCarty. (Id.)