Sanchez v. Albertson's LLC
Sanchez v. Albertson's LLC
2021 WL 3572679 (D. Nev. 2021)
June 9, 2021

Albregts, Daniel J.,  United States Magistrate Judge

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Summary
The court granted in part and denied in part the defendant's motion to compel the plaintiff to produce complete copies of his social networking accounts. The court ordered the plaintiff to download a complete copy of his Facebook and Twitter accounts from a year before the incident to the present and to produce any written communication between him and four named individuals relating to the incident. The plaintiff was also ordered to provide a copy of his Facebook accounts with redactions and a privilege log.
Additional Decisions
VICTOR SANCHEZ, Plaintiff,
v.
ALBERTSON'S LLC, a foreign limited liability company; DOES 1 through 100; and ROE CORPORATIONS 101 through 200, Defendants
Case No. 2:19-cv-02017-JAD-DJA
United States District Court, D. Nevada
Filed June 09, 2021

Counsel

Jordan P. Schnitzer, The Schnitzer Law Firm, Gary E. Schnitzer, Kravitz Schnitzer Johnson Watson & Zeppenfeld, Chtd., Ryan Kerbow, Phillips Spallas & Angstadt, Scott Poisson, Bernstein & Poisson, Tyler J. Watson, Kravitz, Schnitzer & Johnson, Chtd., Las Vegas, NV, for Plaintiff.
Xiao Wen Jin, Jacquelyn Michelle Franco, Jack P. Burden, Backus Carranza, Las Vegas, NV, for Defendants.
Albregts, Daniel J., United States Magistrate Judge

ORDER

*1 Before the Court is Defendant Albertson's, LLC's motion to compel Plaintiff Victor Sanchez to produce complete copies of his social networking accounts, arguing that meet-and-confer efforts have been futile. (ECF No. 32). Because the Court finds that Plaintiff has been evasive in responding, but that some of Defendant's requests are too broad, it grants in part and denies in part Defendant's motion to compel. (ECF No. 32). The Court finds these matters properly resolved without a hearing. LR 78-1.
 
I. Background.
Plaintiff alleges that he was shopping in Defendant's store when he opened a freezer door, causing a patio umbrella to fall on his head, resulting in serious injuries. (ECF No. 1-A, at ¶ 7). In his initial disclosures, Plaintiff claimed $115,511.02 in past medical damages and $15,225,835.26 in future medical damages. (ECF No. 32-M, at 13:12-14:6). In his responses to Defendant's first set of interrogatories, Plaintiff claimed that he has sustained injuries to his back, head, hip, and neck, and has problems with his posture and feet. (ECF No. 32-E, at 6). Plaintiff asserts that his social life, personal relationships, and ability to work, play tennis, ping pong, softball, and lift weights have all been impacted. (ECF No. 32-E, at 9). Based on these alleged injuries and damages, Defendant seeks to compel Plaintiff to produce native copies of all Facebook and Twitter accounts associated with him and a business named “Wayde King Water Filtration – for the Whole House” along with Plaintiff's communications with four named individuals. (ECF No. 32, at 4:1-19, 8:1-9:18).
 
Plaintiff has been evasive in his responses to Defendant's requests for his social media content. Defendant first used an investigator to “obtain copies of Plaintiff's public Facebook account,” in February of 2019. (ECF No. 32, at 2:9-13). About one year later, Defendant served its first set of requests for production on Plaintiff. (ECF No. 32, at 2:14-15). These included requests for social media posts regarding Plaintiff's physical or emotional condition—RFP Nos. 13 and 14—to which Plaintiff responded that he was “in process of obtaining.” (ECF No. 32-C, at 4-5).
 
A year later, after Plaintiff had still not supplemented this information, Defendant requested Plaintiff's responses. (ECF No. 32, at 3:12-14). Plaintiff responded with objections. (ECF No. 32, at 3:14-17; ECF No. 32-G). Defendant then requested a meet and confer in which Plaintiff's counsel stated that he would follow up with Plaintiff in producing social media content. (ECF No. 32, at 3:18-22).
 
Defendant propounded its second set of requests for production the same day as the meet-and-confer. (ECF No. 32, at 4:1-2). These included much broader requests for electronic, native copies of both Plaintiff's personal accounts and business accounts. (ECF No. 32-I, at 2-4). These also included requests for all of Plaintiff's communications—including Facebook messenger—with four named individuals. (ECF No. 32-I, at 5-6). Plaintiff objected to these requests. (ECF No. 32-I, at 2-6).
 
*2 After receiving Plaintiff's objections, Defendant again requested a meet-and-confer, during which Plaintiff's counsel explained that Plaintiff was not tech savvy and struggled in obtaining the social media information. (ECF No. 32, at 5:1-5). Defendant offered to retain a third-party IT company to secure the information. (ECF No. 32, at 5:5-7). After receiving no responses, Defendant followed up a few days later, again offering the third-party IT company. (ECF No. 32, at 5:5-9). After a week of not receiving a response, Defendant filed the instant motion, identifying ten requests for production—RFP Nos. 21-25 and 30-33—to which it contends that Plaintiff has failed to respond. (ECF No. 32, at 5:17-20).
 
II. Standard.
The Court has broad discretion to permit or deny discovery. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). Parties are entitled to discover non-privileged information that is relevant to any party's claim or defense and that is proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). The Court will consider: (1) the importance of the issues at stake in the action; (2) the amount in controversy; (3) the parties' relative access to relevant information; (4) the parties' resources; (5) the importance of discovery in resolving the issues; and (6) whether the burden or expense of the proposed discovery outweighs its likely benefit. See Fed. R Civ. P. 26(b)(1).
 
III. Discussion.
a. Request for Production Nos. 21-25.
The Court grants in part and denies in part Defendant's motion to compel a response to RFP Nos. 21-25. When a party moves to compel discovery, the resisting party must show—for each request—how each of its objections is applicable by “providing the relevant standard for each objection and a meaningfully developed argument as to how the standard has been met.” Hinostroza v. Denny's Inc., No. 2:17-cv-02561-RFB-NJK, 2018 WL 3212014, at *1 (D. Nev. June 29, 2018) (citing Kor Media Group, LLC v. Green, 294 F.R.D. 579, 582 n.3 (D. Nev. 2013) (stating that courts only address arguments that are meaningfully developed)). “Relevance,” in discovery, means “material that is reasonably calculated to lead to the discovery of admissible evidence.” See Oppenheimer Fund v. Sanders, 437 U.S. 340, 351 (1978). “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1).
 
Courts in the Ninth Circuit have found that a plaintiff's social media content is “directly relevant to allegations of a serious physical injury and loss of enjoyment of life.” See Hinostroza, 2018 WL 3212014, at * 6-7; (quoting Dewidar v. Nat'l Railroad Passenger Corp., No. 17-cv-62-CAB(RBB), 2018 WL 280023, at *5 (S.D. Cal. Jan. 3, 2018) (internal quotations omitted)). These courts have compelled broad—but not unfettered—requests into a plaintiff's social media data where a plaintiff has put his or her physical or emotional impairment at issue and where the request was narrowed by websites or platforms, time-period, and content related to the case. See e.g., Dewidar, 2018 WL 280023 at *15 (compelling social media discovery in a personal injury case consisting of “social media files and photographs of the trip, which gave rise” to the action); see also Roberts v. Clark Cnty. Sch. Dist., 312 F.R.D. 594, 608 (D. Nev. 2016) (limiting social media discovery in an employment discrimination case to, inter alia, “content that contains a reference to this lawsuit, ... [the plaintiff's] state of mind, [and] the plaintiff's emotional or physical response or reaction to his transgender transition...”); Voe v. Roman Catholic Archbishop of Portland, No. 3:14-cv-01016-SB, 2015 WL 12669899 at *4–7 (D. Or. Mar. 10, 2015) (limiting social media discovery in a sexual abuse case to, inter alia, events alleged in the plaintiff's complaint, any mental health or substance abuse treatment, the plaintiff's sobriety, and the plaintiff's alleged anxiety and depression); Robinson v. Jones Lang LaSalle Ams., Inc., No. 3:12-cv-00127, 2012 WL 3763545, at *6–7, (D. Or. Aug. 29, 2012) (compelling social media discovery in an employment discrimination case consisting of communications, “including profile postings, messages, status updates, [and] wall comments, ... that reveal, refer or relate to any significant emotion, feeling, or mental state allegedly caused by defendant's conduct or ... that could reasonably be expected to produce a significant emotion, feeling, or mental state allegedly caused by defendant's conduct”).
 
*3 RFP Nos. 21-25 seek an “electronic, native copy of the information available on each page of” Plaintiff's Facebook accounts under “Victor Sanchez,” “Vic Sanchez,” and “Wayde King Water Filtration – for the Whole House” along with Plaintiff's Twitter accounts under “Wayde King Water Filtration – for the Whole House” and “VIC.” Defendant seeks these items “for the period of time beginning one year before the incident (April 14, 2017) up to (and including) the present.” (ECF No. 32-I, at 2:11-4:2). Plaintiff objects that the requests are overbroad, that “electronic, native copy” is ambiguous, and—for the requests for the Facebook accounts for “Victor Sanchez” and “Vic Sanchez”—that the information is “apparently already within the custody or control of Defendant's counsel...” Id.
 
Plaintiff's resistance to these requests fail for four reasons. First, Plaintiff has not specifically addressed these requests for production in his response to Defendant's motion to compel, instead generally referring to “Defendant's request.” (ECF No. 35, at 2:25-28). Without providing the relevant standard for each objection or meaningfully developing his arguments as to how the standard has been met, Plaintiff has failed to meet his burden.
 
Second, Plaintiff's social media information is relevant because it is reasonably calculated to lead to the discovery of admissible evidence. Defendant has already demonstrated through the information it gathered from Plaintiff's once-public personal account that Plaintiff posted about his social life, personal relationships, and engagement in leisure activities. Similarly, Plaintiff's business profiles are likely to indicate the impact that the incident had on Plaintiff's ability to work. Although this information may or may not be admissible at trial, it is relevant at this stage.
 
Third, Plaintiff's objection that “electronic, native copy” is ambiguous, and that Defendant already has the information for the accounts under “Victor Sanchez,” and “Vic Sanchez” are unconvincing. Defendant provided detailed instructions on how to obtain the “electronic, native copy” of the Facebook accounts and offered an IT company to download the information. And although Defendant appears to have retrieved some of Plaintiff's content from his Facebook account under “Victor Sanchez,” Plaintiff has since hidden his profile from public view. (ECF No. 32, at 7:13-15). Defendant did not claim to have received any data from the account under “Vic Sanchez.”
 
Fourth, Plaintiff's tactics are evasive. Plaintiff responded to Defendant's first set of interrogatories asking him to identify his social media accounts by stating simply, “I have an active Facebook account.” (ECF No. 32-E, at 10-22). Plaintiff responded to Defendant's first set of requests for production for social media content regarding the incident and Plaintiff's physical and emotional condition by stating that “Plaintiff is in process of obtaining this information.” (ECF No. 32-C, at 4-5). Despite these answers, meet-and-confer efforts, and Defendant's re-asserted requests for production, Plaintiff has produced no social media content over a year later.
 
Plaintiff's objection that Defendant's requests are overbroad, however, does have some merit. Unlike its previous requests (ECF No. 32, at 2:14-3:4), which more narrowly requested items related to Plaintiff's physical or emotional condition—to which Plaintiff did not object—the instant requests seek everything from the accounts. Defendant casts too wide a net and must limit these requests to content related to the incident, Plaintiff's injuries, or the impact of the incident on Plaintiff's personal relationships, his ability to work, or his ability to engage in activities he had previously enjoyed.
 
The Court thus orders that Plaintiff download a complete copy of his Facebook accounts under the names “Victor Sanchez,” “Vic Sanchez,” and “Wayde King Water Filtration – for the Whole House,” along with the Twitter accounts under the names “Wayde King Water Filtration – for the Whole House,” and “VIC” from between April 17, 2017 (a year before the incident) to the present and provide them to his counsel. If Plaintiff is unable to perform this download on his own or with the help of his counsel, the parties must agree on a third-party discovery or IT company to obtain the data.
 
*4 Plaintiff's counsel must then review the documents, preserve the account for additional review, and produce the items which discuss or show the incident, Plaintiff's injuries, or the impact of the incident on Plaintiff's personal relationships, his ability to work, or his ability to engage in activities he had previously enjoyed. Plaintiff's counsel must produce a copy of Plaintiff's Facebook accounts with redactions where Plaintiff's counsel has withheld items. Plaintiff's counsel must also produce a privilege log showing each redaction and giving an explanation why each redacted item was withheld.
 
b. Request for Production Nos. 30-33.
The Court grants Defendant's motion to compel RFP Nos. 30-33. These requests seek “any and all written communication including but not limited to text messages, Facebook messenger, and/or email between” Plaintiff and Carrie Comrie, David Lack, Michael Escobedo, and Celia Reynolds “relating to this subject incident.” (ECF No. 32-I, at 5:9-6:5). Plaintiff has conceded that he “agreed to respond to Requests for Production 30, 31, 32, and 33.” (ECF No. 35, at 2:17-21). But Plaintiff's counsel requests that Defendant define “relating to this subject incident” as “regarding the incident or his injuries sustained in the incident,” before he responds. Id. Because the Court sees no meaningful difference between the term Defendant used and the term Plaintiff suggests, it grants Defendant's motion to compel a response to RFP Nos. 30-33.
 
IV. Conclusion.
IT IS ORDERED that Defendant's motion to compel (ECF No. 32) is granted in part and denied in part;
 
IT IS FURTHER ORDERED that Plaintiff must download complete copies of his Facebook accounts under the names “Victor Sanchez,” “Vic Sanchez,” and “Wayde King Water Filtration – for the Whole House” along with complete copies of his Twitter accounts under the names “Wayde King Water Filtration – for the Whole House,” and “VIC” from April 14, 2017 (a year before the incident) up to and including the date that Plaintiff downloads the data;
 
IT IS FURTHER ORDERED that Plaintiff must provide his counsel with these complete copies of his Facebook and Twitter accounts and that Plaintiff's counsel must then review the documents, preserve the account for additional review, and produce the items which discuss or show the incident, Plaintiff's injuries, or the impact of the incident on Plaintiff's personal relationships, his ability to work, or his ability to engage in activities he had previously enjoyed;
 
IT IS FURTHER ORDERED that Plaintiff's counsel must produce a copy of Plaintiff's Facebook accounts with redactions where Plaintiff's counsel has withheld items to Defendant's counsel. Plaintiff's counsel must also produce a privilege log showing each redaction and giving an explanation why each redacted item was withheld;
 
IT IS FURTHER ORDERED that Plaintiff provide responsive documents to RFP Nos. 30-33; and
 
IT IS FURTHER ORDERED that Plaintiff provide all of these responses within 14 days of this Order.