*1 In this putative class action, Plaintiff alleges that DirecTV targets small-business owners by arranging for DirecTV service to be installed at their business, intentionally misclassifies those accounts as lower-cost residential accounts, and then conspires with an auditing company, SAI, and law firm, LLO, to sue those businesses. See Dkt. 181, Third Amended Complaint (“TAC”) ¶¶ 5, 8, 17, 18. Plaintiff alleges that her own DirecTV service, which was classified as residential service, was installed at her business. See id. ¶ 84.

Before the Court are three discovery disputes. See Dkts. 327, 328, 330. The Court issued tentative rulings and held a telephonic hearing with the parties. The Court now rules as follows. The parties are encouraged to read the order carefully as the final version may differ from the tentative rulings.

DirecTV's Communications with LLO (Dkt. 327)

Before the Court is Doneyda Perez's (“Plaintiff” or “Perez”) Supplemental Briefing Regarding Certain Entries on DirecTV's Privilege Log: Communications With LLO (“Motion”), accompanied by the declaration of Lisa Clay (“Clay Decl.”) and supporting exhibits. See Dkt. 327. DirecTV, LLC (“DirecTV”) opposed (“Opposition”), accompanied by the declaration of Matthew Marmolejo (“Marmolejo Decl.”) and supporting exhibits. See Dkt. 352.[1] Plaintiff replied (“Reply”). See Dkt. 354. For the reasons stated below, the Motion is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

Plaintiff requested that DirecTV produce all communications with LLO related to commercial misuse claims against 25 establishments that Plaintiff selected for a “pilot” sample. DirecTV produced pilot packet documents on June 8 and 9, 2020, along with a privilege log (the “Log”) identifying email communications with LLO for certain establishments included in the pilot production. See Clay Decl., Ex. 1.

II. DISCUSSION

Plaintiff argues that (1) the Log is inadequate; (2) the communications are not privileged; and (3) if the communications are privileged, they qualify for in camera review to determine whether the crime-fraud exception should apply. The Court evaluates each argument in turn.

A. The Attorney-Client Privilege

Federal privilege law applies in this federal question case. “The attorney-client privilege protects from discovery “confidential communications between attorneys and clients, which are made for the purpose of giving legal advice.” United States v. Richey, 632 F.3d 559, 566 (9th Cir. 2011). The party asserting the privilege “has the burden of establishing the relationship and privileged nature of the communication.” Id. The attorney-client privilege exists where:

*2 Id. (alteration and citation omitted).

B. Whether DirecTV's Log is Adequate

Plaintiff argues that the Log is inadequate and asks the Court to order production of the communications or, at the very least, order DirecTV to provide a supplemental log. See Motion at 3-5.

When a party asserts the privilege to withhold documents, it must “expressly make the claim” and “describe the nature of the documents ... in a manner that ... will enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A). A privilege log is an accepted method for doing so. See In re Grand Jury Investigation, 974 F.2d 1068, 1071 (9th Cir. 1992). What a privilege log must contain is somewhat open-ended under Rule 26. The Ninth Circuit has cited with approval a log that identified the attorney and client involved, the nature of the document, all persons or entities shown on the document to have received or sent the document, and the date the document was generated, prepared, or dated. See id.

Here, entries 1-127 identify the date the communication was generated, the name and email address of each sender and recipient, although not their position, and a description that each communication is “regarding pending litigation.” See Clay Decl., Ex. 1. As it stands, the Log is deficient in two respects. First, it does not identify who the named individuals are and whether they are attorneys. Second, the description of “pending litigation” is vague and conclusory. Accordingly, DirecTV is ORDERED to provide Plaintiff with a supplemental privilege log (or other document) that includes additional information. Especially for communications between non-attorneys, DirecTV should endeavor to provide a sufficiently detailed description such as to allow an individual reviewing it to assess the appropriateness of the privilege claim.

For entries 128-142, DirectTV explains that it has produced these communications to Plaintiff and logged its privilege-based redactions within the communications. See Opposition at 3-4. That is enough.

C. Whether the Communications are Privileged

Plaintiff argues that the communications are unlikely to be privileged because she “has no reason to believe that the documents being withheld are any different in content than” the DirecTV-LLO emails relating to Plaintiff, which involved “routine administrative account matters” between non-lawyers, not legal advice. Motion at 6.

DirecTV's production of emails concerning Plaintiff does not establish that separate emails to other subscribers are necessarily non-privileged. As noted above, the Log describes the communications as “regarding pending litigation.” And DirecTV avers that several of its commercial misuse cases against the pilot establishments resulted in settlement agreements and at least one resulted in a filed complaint. See Opposition at 5. DirecTV has met its burden of proving that the privilege applies.

D. Whether the Court Should Conduct In Camera Review

Plaintiff asks the Court to review the communications in camera to determine if the crime-fraud exception applies. See Motion at 6-10.

*3 The attorney-client privilege does not extend to attorney-client communications which solicit or offer advice for the commission of a crime or fraud. See In re Grand Jury Investigation, 974 F.2d 1068, 1071 (9th Cir. 1992). To invoke the crime-fraud exception, a party must satisfy a two-part test. “First, the party must show that the client was engaged in or planning a criminal or fraudulent scheme when it sought the advice of counsel to further the scheme. Second, it must demonstrate that the attorney-client communications for which production is sought are sufficiently related to and were made in further of the intended, or present, continuing illegality.” In re Napster, Inc. Copyright Litig., 479 F.3d 1078, 1090 (9th Cir. 2007) (alterations and citations omitted).

1. The Zolin Standard for In Camera Crime-Fraud Review

In United States v. Zolin, 491 U.S. 554, 565 (1989), the Supreme Court held that in camera review of privileged information may be used to establish whether the crime-fraud exception applies. The Court set forth a two-step analysis for determining whether in camera review is appropriate in a given case. First, there must be a showing of a “factual basis adequate to support a good faith belief by a reasonable person” that review “may reveal evidence to establish the claim that the crime-fraud exception applies.” Id. at 572. “[T]he threshold showing to obtain in camera review may be met by using any relevant evidence, lawfully obtained, that has not been adjudicated to be privileged.” Id. at 575.

If this initial hurdle is overcome, then the court has the discretion to conduct an in camera review. See id. at 572. The court should make that decision in light of the volume of materials to be reviewed, the relevance of the alleged privilege material to the case, and the likelihood that in camera review will reveal evidence to establish the applicability of the crime-fraud exception. See id.

2. Analysis

The Court finds that in camera review is not warranted at this time.

Plaintiff points to allegations in the TAC that Defendants engaged in a fraudulent scheme and that the communications at issue may be evidence of that fraud. See Motion at 8. But Plaintiff's mere incantation of her core allegations does not establish a factual basis supporting a good faith belief that further review is warranted. Additionally, Plaintiff argues that the documents produced relating to her demonstrate that the DirecTV-LLO emails were not in furtherance of litigation, but “were account instructions related to the Scheme.” Id. (citing Clay Decl., Ex 2). The Court disagrees with Plaintiff's assessment of those communications. Had the emails regarding Plaintiff been noteworthy, the Court may have exercised its discretion to conduct in camera review. As it stands, the emails indicate it would be extremely unlikely that in camera review would reveal evidence to establish the applicability of the crime-fraud exception, and so tips the scale the other way. See Grand Jury Investigation, 974 F.2d at 1073 (instructing district courts to consider likelihood that in camera review would reveal evidence of crime-fraud in deciding whether to exercise discretion). Plaintiff also suggests that DirecTV's inadequate Log is fishy, such that the Court should review the communications “and see for its own eyes” what Defendants “are up to.” Motion at 9. In camera review under those circumstances would not promote “respect for the attorney-client privilege.” Grand Jury Investigation, 974 F.2d at 1072.

Plaintiff reliance on this Court's order in United Studios of Self Defense, Inc. v. Rinehart, No. 18-1048, 2019 WL 6973521 (C.D. Cal. Sept. 13, 2019), is misplaced. In Rinehart, defendants submitted factual evidence, including declarations, to support their claim that plaintiff, with the help of counsel, had obstructed justice by instructing a witness to falsely testify at his deposition. The Court found that defendants' allegations of obstruction satisfied “the minimal standard of proof in Zolin such as to justify limited in camera review,” ultimately concluding that the crime-fraud exception did not apply. Id. at *5-7. In contrast to Rinehart, Plaintiff has submitted virtually no facts beyond the bare allegations of the FAC to support a belief that attorney services were utilized in furtherance of an ongoing, unlawful scheme.

*4 The Court declines to exercise its discretion in favor of in camera review. Plaintiff may renew her request if she develops more evidence in support through depositions or other means.

III. CONCLUSION

DirecTV is ORDERED to provide Plaintiff with a supplemental privilege log consistent with this Order within seven (7) days. Plaintiff's Motion is otherwise DENIED.

LLO Pilot Packet Privilege Log (Dkt. 328)

Before the Court is Doneyda Perez's (“Plaintiff” or “Perez”) Supplemental Briefing Regarding the Lonstein Law Office (“LLO”) Pilot Packet Privilege Log (“Motion”), accompanied by the declaration of Lisa Clay (“Clay Decl.”) and supporting exhibits. See Dkt. 328. DirecTV, LLC (“DirecTV”) opposed (“DirecTV Opposition”), accompanied by the declaration of Matthew Marmolejo (“Marmolejo Decl.”) and supporting exhibits. See Dkt. 351. LLO also opposed (“LLO Opposition”), accompanied by the declaration of Alina Antounian (“Antounian Decl.”), and supporting exhibits. See Dkt. 345. Plaintiff replied (“Reply”). See Dkt. 355. For the reasons stated below, the Motion is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

In early 2020, Plaintiff moved to compel LLO to produce call notes summarizing their conversations with Plaintiff. At the hearing, LLO explained that it makes telephone calls to business owners regarding their alleged misuse of services and potential liability. LLO legal assistants take notes of the call (the “Calls Logs”). On March 5, 2020, the Court granted Plaintiff's motion:

Dkt. 231. On June 8, LLO produced a privilege log regarding the pilot sample, which primarily withheld LLO Call Logs related to the pilot packet subscribers based on work product protection. See Clay Decl., Ex 1. As one example, the log contains the following document description, which the Court has redacted for privacy reasons: “Call notes regarding telephone calls between [name] (owner) and [name] (LLO legal assistant) re [company's] piracy of DirecTV services – November 2, 2015.” Id. at 1. The privilege claimed is: “Attorney work product. Fed. R. Evid. 501, Fed. R. Civ. P. 26(b)(3), Hickman v. Taylor, 329 U.S. 495 (1947).” Id.

Plaintiff now seeks production of the Call Logs.

II. WORK PRODUCT DOCTRINE

“The work product doctrine, codified in Federal Rule of Civil Procedure 26(b)(3), protects from discovery documents and tangible things prepared by a party or his representative in anticipation of litigation.” In re Grand Jury Subpoena, 357 F.3d 900, 906 (9th Cir. 2004) (citation omitted). The party claiming work product immunity has the burden of proving the applicability of the doctrine. See United States v. City of Torrance, 163 F.R.D. 590, 593 (C.D. Cal. 1995).

III. DISCUSSION

*5 Plaintiff argues that (1) the Call Logs are not privileged; (2) assuming a privilege applies, the Call Logs constitute fact and not opinion work product; (3) Plaintiff has shown a substantial need for the Call Logs; and (4) the Court should review the Calls Logs in camera to determine if the crime-fraud exception applies.

A. Whether the Call Logs Qualify as Work Product

Plaintiff argues that there is no evidence the Call Logs were prepared in anticipation of litigation. See Motion at 8-10. Defendants disagree, with LLO noting that the Call Logs “memorialized communications between LLO and pirates in an effort to resolve DirecTV's commercial misuse claims against the violating entities.” LLO Opposition at 9.

The Ninth Circuit has adopted the less stringent “because of” test for determining whether materials were prepared in anticipation of litigation. See Grand Jury Subpoena, 357 F.3d at 908-09. Under this approach, a document is eligible for work product protection if “in light of the nature of the document and the factual situation in the particular case, the document can be fairly said to have been prepared or obtained because of the prospect of litigation.” Id. at 907 (citation omitted).

Here, the Call Logs fit the bill. As DirecTV points out, the Call Logs would not have been created at all but for the prospect of litigation. Indeed, for each of the 10 sets of notes, LLO sent a letter to the establishment stating either that the letter pertained to an “important legal matter” or that DirecTV authorized LLO “to take necessary measures to preserve and enforce DirecTV's rights and remedies.” Marmolejo Decl., Ex. A. Additionally, each letter is captioned “DirecTV, LLC v. [establishment].” Id.

Plaintiff suggests the Call Logs reflect debt collection business, not anticipated litigation, and points to the Court's prior analogy between the Call Logs and call notes that might be taken in FDCPA litigation. See Motion at 10-11. But the Court's comparison was with respect to a hypothetical FDCPA plaintiff's substantial need for any call notes, not that LLO was somehow a debt collector.

The Court finds that the Call Logs qualify as work product. However, the Court agrees with Plaintiff that the current privilege log requires more detail. As one example, virtually every email contains a document description of “re: piracy of DirecTV services.” Accordingly, DirecTV is ORDERED to provide Plaintiff with a supplemental privilege log (or other document) that identifies all persons or entities show on the document to have received or sent the document as well as a sufficiently detailed description such as to allow an individual reviewing it to assess the appropriateness of the privilege claim.

B. Whether the Call Notes Constitute Opinion or Fact Work Product

The parties disagree whether the Call Notes constitute opinion or fact work product.

Courts divide work product into two general types: opinion work product and fact work product. Opinion work product is defined as material prepared by an attorney that contains “mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.” Fed. R. Civ. P. 26(b)(3)(B). Put another way, opinion work product consists of the attorney's interpretation of legal theories and the application of those facts to those theories, rather than the bare facts or legal theories alone. Opinion work product is “virtually undiscoverable.” Republic of Ecuador v. Mackay, 742 F.3d 860, 869 n.3 (9th Cir. 2014). Fact work product is all attorney-originated materials that are not opinion work product.

*6 Here, Plaintiff contends that the Call Logs constitute fact work product because they are nothing more than transcripts of conversations. See Motion at 11-13. In support, Plaintiff refers to the Call Logs regarding her that were produced. See Clay Decl., Ex 2. DirecTV argues otherwise, explaining that the Call Logs “reflect LLO attorneys' and staff's mental impressions of their communications and settlement negotiations with potential litigation adversaries.” DirecTV Opposition at 9. DirecTV rejects Plaintiff's characterization of the Call Notes as mere transcripts, stating that they “reflect which statements and positions by the parties LLO deemed legally significant to DirecTV's then-ongoing claims against the establishments to which the notes pertain.” Id.

The Court finds that the Call Logs contain both fact and opinion work product. For example, the 4/7/2016 entry on the Call Log produced to Plaintiff contains nothing more than the date and a short, objective summary of the call. See Clay Decl., Ex. 2 at 1. The 6/25/2015 entry, by contrast, contains mental impressions and are not mere verbatim transcripts. See id. at 5. On this point, the Court disagrees with Plaintiff's argument that “notes regarding phone calls” somehow “do not and cannot contain mental impression and theories.” Reply at 13. Indeed, the main reason the Call Logs have value is because they reveal what LLO employees believed was important enough to record in the log. Plaintiff's other suggestion that the Call Logs cannot be opinion work product because they did not involve LLO attorneys has no basis in law. By its own terms, Rule 26(b)(3) protects materials prepared “by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent).” Fed. R. Civ. P. 26(b)(3).

In these instances, the proper procedure is to produce portions of the documents that are fact work product and redact those that are opinion work product, submitting a description of the excised material that complied with Rule 26 by explaining why the redacted portion qualifies for protection. See, e.g., Underwriters Ins. Co. v. Atl. Gas Light Co., 248 F.R.D. 663 (N.D. Ga. Feb. 19, 2008) (barring discovery of opinion work product contained in insurer's claim file and permitting redaction of opinion work product prior to production, but requiring production of fact work product in light of proof of substantial need and undue burden once the underlying insurance coverage dispute was resolved).

Before doing that, however, the Court must determine whether Plaintiff is entitled to fact work product or opinion work product, or both.

C. Whether Plaintiff is Entitled to Fact Work Product

Fact work product is discoverable upon a showing of “substantial need” and “undue hardship.” Fed. R. Civ. P. 26(b)(3). Substantial need consists of the relative importance of the information in the documents to the party's case and the ability to obtain that information from other means. “The test is not only relevancy but that there are no other available means by which to secure the same information.” AT&T Corp. v. Microsoft Corp., 2003 WL 21212614, at *6 (N.D. Cal. Apr. 18, 2003). “Undue hardship is demonstrable if witnesses are unavailable or cannot recall the events in question.” Id.

The Court finds that Plaintiff has shown both a substantial need for the Call Logs and that she cannot obtain the substantial equivalent without undue hardship. As the Court reasoned previously, the Call Logs are highly relevant to Plaintiff's claim that LLO engaged in the predicate acts of wire fraud and mail fraud by threatening small business owners with misrepresentations in order to extort settlements from them. See TAC ¶ 111. Additionally, the Call Logs likely cannot be obtained by other available means. DirecTV argues that the information can be obtained through depositions of the LLO employees who made the notes. The Court, however, believes it highly unlikely that those individuals will have a sufficient recollection of the conversations. It would not serve the interests of justice or efficiency to have Plaintiff take depositions of LLO employees that result mostly in “I don't recall” responses. And, once again, the Court is unwilling to put any potential plaintiff in the unenviable position of being deposed about phone calls they barely remember, if at all.

*7 Plaintiff is entitled to fact work product.

D. Whether Plaintiff is Entitled to Opinion Work Product

“Opinion work product, containing an attorney's mental impressions or legal strategies, enjoys nearly absolute immunity and can be discovered only in very rare circumstances.” Garcia v. City of El Centro, 214 F.R.D. 587, 591 (S.D. Cal. 2003). “[O]pinion work product may be discovered and admitted when mental impressions are at issue in a case and the need for the material is compelling.” Holmgren v. State Farm Mut. Auto. Ins. Co., 976 F.2d 573, 577 (9th Cir. 1992).

Plaintiff contends she has a compelling need “both because the communications may be used to establish predicate acts and wire fraud, but also because the Call Logs will be used in depositions.” Motion at 15. Although the Call Logs may be relevant to Plaintiff's RICO claim and used in depositions, Plaintiff does not explain why the LLO employees' mental impressions are directly at issue in the case. See U.S.A. v. Alejandro, 2017 WL 2056019, at *4 (C.D. Cal. May 8, 2017) (finding defendant was not entitled to opinion work product where AUSA's opinions were not directly at issue and there were possible sources of relevant information). Additionally, Plaintiff has alternative ways to probe the opinions of LLO employees, namely, via depositions.

Plaintiff is not entitled to opinion work product.

E. Whether the Court Should Conduct In Camera Review

Finally, Plaintiff asks the Court to review the communications in camera to determine if the crime-fraud exception applies. See Motion at 16-20. Plaintiff's arguments are substantively duplicative of those in her briefing asserting the crime-fraud exception. For the same reasons as set forth in that order, the Court declines to exercise its discretion in favor of in camera review.

IV. CONCLUSION

Plaintiff's Motion is GRANTED IN PART and DENIED IN PART. Within seven (7) days of this Order, Defendants are ORDERED to: (1) provide Plaintiff with a supplemental privilege log and (2) produce portions of the Call Logs that are fact work product and redact those that are opinion work product, submitting a description of the excised material that complies with Rule 26 by explaining why the redacted portion qualifies for protection. Disputes about the sufficiency of Defendants' production will be handled via the existing dispute resolution process.

Plaintiff's Social Media Accounts (Dkt. 330)

Also before the Court is DirecTV, LLC's (“Defendant” or “DirecTV”) Motion for Entry of Order Regarding Social Media Accounts and Photographs (“Motion”), accompanied by the declarations of Matthew H. Marmolejo (“Marmolejo Decl.”), JoAnne S. Jennings (“Jennings Decl.”), and supporting exhibits. See Dkt. 330.[2] Doneyda Perez (“Plaintiff” or “Perez”) opposed (“Opposition”), supported by the declarations of Katherine J. Odenbreit (“Odenbreit Decl.”), Andrew S. Garrett (“Garrett Decl.”), Perez (“Perez Decl.”), and supporting exhibits. See Dkts. 347-50. DirecTV replied (“Reply”), accompanied by the declarations of Marmolejo (“Marmolejo Reply Decl.”), Julian Ackert (“Ackert Decl.”), and supporting exhibits. See Dkt. 356. For the reasons stated below, the Motion is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

*8 On November 22, 2019, DirecTV served requests for production of all photographs of the exterior of Plaintiff's residence and the interior and exterior of Plaintiff's business. See Marmolejo Decl., Ex. C. Plaintiff produced one photograph of her business and a set of photographs of her residence that were posted to Zillow when she sold her house in 2019. See id., Ex. H.

On March 10, 2020, during her first day of deposition, Plaintiff testified that she had not searched her social media accounts for responsive documents because she was “not going to find anything there.” Id., Ex. E at 57:21-22. DirecTV's counsel then showed Plaintiff a photograph it obtained from her public Facebook account, which depicted a satellite dish affixed to her roof. See id. at 152:8-154:24. Plaintiff testified that she was unaware if the dish was there when she bought the home or was already installed. See id. at 154:5-7. On her second day of deposition, Plaintiff testified that she had deleted photographs the night before:

Id. at 314:8-315:12. Later, Plaintiff testified that she deleted photos “From Facebook” and “From an album.” Id. at 322:12-21.[3] Plaintiff testified that she did not remember if her Facebook account included pictures of her home. See id. at 320:5-9. Shortly after, Plaintiff's counsel terminated the deposition. See id. at 330:20-331:7.

On March 19, the Court ordered Plaintiff to produce “all non-privileged material deleted from [her] phone from February 26, 2020 until the taking of a forensic image of the device.” Dkt. 251. The Court noted that Plaintiff's deletion(s) raised questions concerning spoliation of evidence and her adequacy as a class representative. See id. That same day, DirecTV served its first set of Demands for Inspection. See Marmolejo Decl., Ex. K. Request No. 3 sought Plaintiff's “Facebook profile, albums, and posts as of the date of inspection specified above.” Id. at 6. Plaintiff objected that the request was overbroad, harassing, unduly burdensome, implicated privacy issues, and failed to describe items with reasonable particularity. See id., Ex. N at 7-8.

II. LEGAL STANDARD

Parties may obtain discovery regarding any matter that is not privileged and is relevant to the claim or defense of any party involved in the pending action. See Fed. R. Civ. P. 26(b)(1). The information sought need not be admissible at trial as long as it appears reasonably calculated to lead to the discovery of admissible evidence. Id.

*9 A party may request documents “in the responding party's possession, custody, or control.” Fed. R. Civ. P. 26(b)(1). Rule 34(b) requires the requesting party to describe the items to be produced with “reasonable particularity” and specify a reasonable time, place, and manner for the inspection.

Discovery of social networking site (“SNS”) content under Rule 34 “requires the application of basic discovery principles in a novel context.” Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566, 570 (C.D. Cal. 2012) (citation omitted). The Federal Rules “do not grant a requesting party a generalized right to rummage at will through information that [the responding party] has limited from public view but instead require a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence.” Id. (citation omitted). Accordingly, a “request for discovery [of SNS content] must still be tailored ... so that it ‘appears reasonably calculated to lead to the discovery of admissible evidence.’ ”) Davenport v. State Farm Mut. Auto Ins. Co., 2012 WL 555759 at *1 (M.D. Fla. Feb. 21, 2012) (quoting Fed. R. Civ. P. 26(b)(1)).

III. DISCUSSION

DirecTV requests the Court order Plaintiff to produce the following: (1) a forensic copy of the Facebook account associated with the username doneyda.perez.1 (“Original Facebook Account”); (2) a forensic copy of the Facebook account associated with the username doneyda.perez.3 (“New Facebook Account”); (3) downloaded copies of information from Facebook for both Facebook accounts; (4) forensic copies of each of Plaintiff's additional social media accounts; (5) all documents responsive to RFP Nos. 29, 30, and 38-41; and (6) a list of all data sources and locations where Plaintiff stores photographs. See Dkt. 330-31 (“Proposed Order”).

A. Forensic Copy of Original Facebook Account

At the outset, Plaintiff has agreed to have her electronically stored information (“ESI”) Liaison extract a copy of the Original Facebook Account and produce any relevant documents. See Opposition at 19. However, Plaintiff does not know her password and the recovery mechanism is her phone, which is in the possession of Meridian, the forensic examiner. See id.; Perez Decl. ¶ 5. Plaintiff's ESI Liaison believes he can access Plaintiff's Original Facebook Account either with a forensic copy of the phone's data or the phone itself. See Garrett Decl. ¶ 8. DirecTV's expert responds that Plaintiff could simply ask her mobile phone provider to assign her old phone number to another SIM card, thereby solving the problem. See Ackert Decl. ¶¶ 10-13.

The Court is honored by the thought that it has the technical expertise to determine who is right. Regrettably, it does not. But what the Court does know is that Plaintiff's phone should be returned to her. Plaintiff has been without her phone for several months and a forensic image of the phone has been created. At this point, in a typical criminal case, a digital device belonging to a target of a criminal investigation would have been returned. Plaintiff is not under criminal investigation; she is the lead plaintiff in a class action. The fact that confiscation may have been a problem of Plaintiff's own making does not warrant withholding property until the end of this litigation, particularly when a forensic image of the device has been made.

*10 Next, Plaintiff contends that DirecTV's request to inspect her entire Facebook account is overbroad. See Opposition at 10-15 (“[T]he Request should be denied on the grounds that it seeks all social media information with no limit as to the content and time.”). The Court agrees. The Request seeks virtually unfettered and unlimited access to Plaintiff's Original Facebook Account and is thus overbroad as written. DirecTV responds that courts routinely permit such inspections and productions when the entirety of the account has some bearing on the case, see Reply at 12, but its cases are distinguishable. In Marquez v. Bd. Of Cty. Commissioners Eddy Cty., the court ordered production of plaintiff's entire Facebook account, noting that “where the plaintiff alleges physical, mental, and emotional injuries, the scope of discovery is particularly broad.” 2015 WL 13638613, at *2-3 (D.N.M. Jan. 13, 2015). And in Dwidar v. Nat'l Railroad Passenger Corp., defendant's request was limited in both time and scope, unlike DirecTV's. See 2018 WL 280023, at *5 (S.D. Cal. Jan 3, 2018) (ordering production of all social media data for a three-year period as well as photographs taken during plaintiff's trip, which gave rise to the lawsuit).[4] Accordingly, the Court will modify the request.

This request is GRANTED IN PART. DirecTV's request for production of a forensic copy of Plaintiff's Original Facebook Account is DENIED. Plaintiff's phone shall be returned to her within seven (7) days. Once returned, Plaintiff is ORDERED to produce, within twenty-one (21) days, all non-privileged material deleted from Plaintiff's Original Facebook Account from February 26, 2020 until the present.[5]

B. Forensic Copy of New Facebook Account

After her deposition, Plaintiff allowed her cell phone to be confiscated and forensically examined. See Odenbreit Decl. ¶ 8. She also agreed that her Original Facebook Account would not be accessed by anyone pending the completion of the forensic examination. See id. Sometime in June 2020, Plaintiff created the New Facebook Account, which contains nothing more than a picture of Plaintiff. See Perez Decl. ¶ 9.

The Court fails to see how the New Facebook Account is relevant to any claim or defense in this case. DirecTV contends that the Facebook accounts may reveal if Plaintiff deleted evidence and contain other evidence, such as photographs of the exterior of Plaintiff's residence, that indicate where and when she had satellite services. See Motion at 8-9. But the New Facebook Account was created after any supposed deletions and several years after Plaintiff allegedly had DirecTV service. Indeed, the house in question was sold in 2019. The request is also extremely burdensome. The Court is aware that people rely on Facebook to contact friends and family, especially during the COVID-19 pandemic. Plaintiff has already lost one phone and her primary Facebook account. The Court will not force her to give up access to a one-month-old social media account.

This request is DENIED.

C. Downloaded Copies of Information

DirecTV wants “Downloaded copies of information” of the Facebook accounts using Facebook's “Download Your Information” tool. Motion at 8. DirecTV is vague as to what this tool does or why the content it generates is needed. This request also strikes the Court as duplicative of DirecTV's request for production of the Original Facebook Account, which the Court has already allowed in part.

This request is DENIED.

D. Forensic Copy of Additional Social Media Accounts

DirecTV seeks a forensic copy of each of Plaintiff's additional social media accounts, if any, “including but not limited to Instagram, Twitter, TikTok, and similar platforms.” Proposed Order at 1.

*11 As Plaintiff points out, however, DirecTV's post-deposition demand for inspection was limited to Plaintiff's Facebook account. Additionally, aside from potential spoliation, the relevance of other accounts is unclear as they likely have nothing to do with the assertions made in DirecTV's pleadings and briefings. For example, there appears to be no connection between Twitter, a microblogging system, or TikTok, a video-sharing service, and DirecTV's allegations that Plaintiff misappropriated her DirecTV satellite dish. Although DirecTV may have good reasons for being unsatisfied with Plaintiff's production so far, it is both unreasonable and disproportionate to grant it access to Plaintiff's entire social media universe.

This request is GRANTED IN PART. DirecTV's request for production of a forensic copy of each of Plaintiff's additional social media accounts is DENIED. Plaintiff is ORDERED to produce, within twenty-one (21) days, all non-privileged material deleted from Plaintiff's social media accounts from February 26, 2020 until the present.

E. All Documents Responsive to RFP Nos. 29, 30, and 38-41

DirecTV seeks all documents in Plaintiff's possession, custody, and control responsive to RFP Nos. 29, 30, and 38-41. These RFPs relate to photographs, from 2009 to the present, of the house located in Anaheim (the “Residence”) and beauty salon located in Garden Grove (the “Business”):

Marmolejo Decl., Exs. C, L.

Plaintiff does not explicitly oppose these requests, except to intimate that they will not lead to relevant evidence because she had an AT&T U-Verse account at her home from 2012 to 2015. See Opposition at 7-8. But as DirecTV points out, Plaintiff could have installed DirecTV service when she had already had U-Verse, particularly if she intended to move her DirecTV receiver to her business. See Reply at 14-15.

This request is GRANTED. To the extent she has not done so, Plaintiff shall supplement her prior production to include all photographs of the exterior of her Residence and of the exterior and interior of her Business from 2009 to the present within seven (7) days.

F. List of Data Sources

Finally, DirecTV seeks a list of all data sources and locations where Plaintiff stores, maintains, and keeps personal photographs, “including, but not limited to email accounts, social media accounts, cloud storage, mobile phone apps, Devices, hardcopy albums, and the data source used to populate photos onto Plaintiff's New Facebook Account in June 2020.” Proposed Order at 1.

In her opposition, Plaintiff argues that DirecTV has not sufficiently explained why it needs wholesale access to her SNS data. However, this request seeks only the identification of sources of potentially relevant photographs in this action, not the production of any actual ESI. Courts frequently order production of these kinds of lists, which impose a minimal burden on the parties asked to prepare them. See, e.g., Sines v. Kessler, 2020 WL 3428988, at *5 (W.D. Va. June 23, 2020) (ordering identification of “all the Electronic Devices ... that may contain potentially relevant documents, files, or ESI”).

*12 This request is GRANTED. Plaintiff shall produce a list consistent with DirecTV's request within seven (7) days.