*1 Defendant CARite Corporate, LLC moves to compel plaintiff Stephanie Baxter to “produce a complete download of her Facebook page for the period from November 2016 to present.” (Dkt. 49). This information falls within CARite's Request for Production No. 47, part of its second set of document requests served by mail on February 4, 2019.

The parties had various communications regarding the production of the Facebook “page” (or “file” or “profile,” as it has variously been described in their communications).[1] These communications are pertinent to evaluating the motion to compel and thus the court describes them in some detail. The court will then provide a synopsis of the claims in this case, evaluate the relevance of the requested Facebook page, and provide its ruling on the motion to compel.

I. Communications Between Counsel Regarding Production of the Facebook Page or Profile

Counsel first discussed production of Ms. Baxter's Facebook page[2] on March 7, 2019, after participating in a discovery conference with the magistrate judge to address disputes surrounding her responses to CARite's first set of interrogatories and document requests. During their March 7 call, which was memorialized in an email written by CARite's counsel, the parties discussed the second document requests, including the request for Ms. Baxter's entire Facebook page. They had no apparent disagreements about the second document requests, and plaintiff's counsel said he would provide the Facebook file and the other documents (certain Facebook message histories) requested in the second document requests. The plaintiff's counsel did not, at that time, serve a written response to the second document requests because counsel had agreed that the plaintiff would produce the requested documents in her possession or control.

Later, however, after meeting with Ms. Baxter, the plaintiff's counsel realized that he had not understood the breadth and scope of the request for Ms. Baxter's Facebook file, i.e., that it encompasses everything within Ms. Baxter's personal Facebook account for the 10+ years she has had an account. On March 20, 2019—about two weeks after the parties’ first discussion regarding the second document requests—the plaintiff's counsel advised CARite's counsel in writing of the objection to production of the entire Facebook file and the agreement to produce only the Facebook messages sought by CARite via different, earlier discovery requests. The plaintiff's counsel cited this court's decision in EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind. 2010), to support the refusal to produce the Facebook file. In response, on March 21, 2019, CARite—also relying on Simply Storage—limited its request to things in Ms. Baxter's Facebook profile from November 2016 to the present “that reveal, refer or relate to the events relevant to the case, employment with CARite, or that ‘could reasonably be expected to produce a significant emotion, feeling, or mental state.’ ” Dkt. 50-14 at p. 3. CARite insisted that plaintiff's counsel respond to this proposal by the following day, a Friday. The plaintiff's counsel responded the following Monday morning that he needed until Wednesday to respond so that he could discuss the matter with his client, conduct any additional research and analysis, and make a decision. CARite responded that it would wait until Wednesday afternoon to file its motion to compel. At 12:30 p.m. on Wednesday, CARite filed its motion to compel.

II. Synopsis of Claims

*2 This is a Title VII sex discrimination case. Ms. Baxter began working for the defendant—a used car dealer—as a salesperson at the defendant's Muncie, Indiana location in December 2016. She alleges that the defendant tolerated a work environment hostile to women in general and to Ms. Baxter in particular. She complains that one employee in particular regularly made extremely crude and offensive sexist and sexual remarks to Ms. Baxter. She alleges that the defendant's general manager excused that employee's behavior by saying that the employee was not used to working with and around women. She further alleges that the manager himself engaged in various conduct in retaliation for Ms. Baxter's complaints about the work environment.

A hostile work environment claim requires proof that a work environment was objectively hostile or abusive and that the plaintiff subjectively perceived the environment was abusive. Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993). The plaintiff is not required to show that the work environment seriously affected her psychological well-being, i.e, that she suffered a tangible psychological injury, but she is not prohibited from doing so. Id. at 21-22. In addition to her Title VII claim, Ms. Baxter has brought a claim under Indiana law for intentional infliction of emotional distress. That claim requires proof that the defendant engaged in conduct so outrageous, extreme, and atrocious that it goes beyond “all possible bounds of decency” and that the plaintiff suffered severe emotional distress caused by the conduct. Westminster Presbyterian Church v. Cheng, 992 N.E.2d 859, 870 (Ind. Ct. App. 2013).

III. Reasonable Discovery about Ms. Baxter's Emotional State

Rule 26 of the Federal Rules of Civil Procedure permits the discovery of nonprivileged matter “that is relevant” to a party's claim or defense and “proportional” to the needs of a case, considering the importance of the issues at stake, the importance of the discovery in resolving those issues, the amount in controversy, and the weighing of burdens and benefits. See Rule 26(b)(1). The court has wide discretion in discovery matters, including the settling of discovery disputes, determining the scope of discovery, and otherwise controlling the manner of discovery. See Thermal Design, Inc. v. American Soc'y of Heating, Refrigerating and Air-Conditioning Engrs., Inc., 755 F.3d 832, 839 (7th Cir. 2014) (citation and quotation omitted) (“District judges enjoy broad discretion in settling discovery disputes and in delimiting the scope of discovery in a given case.”); GCIU-Employer Retirement Fund v. Goldfarb Corp., 565 F.3d 1018, 1026 (7th Cir. 2009) (decisions on discovery matters are within the district court's discretion).

Before addressing the relevance of the information sought by CARite, the court first addresses CARite's argument that Ms. Baxter waived her objections to its second set of discovery. The court rejects that argument. As set forth in Section I, supra, the parties began communicating with one another about the plaintiff's responses to the second document requests before responses were even due. And while the plaintiff did not believe at that time that there would be a problem in producing information from the Facebook page (not understanding, apparently, the breadth of the information sought), the plaintiff notified the defendant in writing about an objection and gave detailed written reasons for the objection about nine days after the written responses originally were due. The court finds that these circumstances should not trigger a waiver. The court now turns to evaluating the merits of the discovery dispute.

Because Ms. Baxter is seeking recovery for severe psychological injury—her state law claim requires that element and her federal law claim allows such proof—CARite is entitled to reasonable discovery to defend against any evidence or testimony that Ms. Baxter may assert in this case about the nature and severity of her psychological injury.

*3 As the parties addressed with each other in communicating about discovery of Ms. Baxter's Facebook page, this court addressed this very discovery issue in a similar Title VII case nearly 10 years ago. EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind. 2010). The court sees nothing within advancements in technology or any changes in the law that detract from the principles, rationale, and ruling in Simply Storage. Though the 2015 changes in Rule 26(b) highlighted the need for proportional discovery, the same proportionality factors have been part of Rule 26(b) since 1983. See Noble Roman's, Inc. v. Hattenhauer Distrib. Co., 314 F.R.D. 304, 307-08 (S.D. Ind. 2016) (tracing amendments to the discovery “scope and limits” in Rule 26(b)).

The court reaches the same conclusion here that it reached in Simply Storage. That is, where—as here—the plaintiff contends that the defendant's conduct caused severe emotional distress (as opposed to a case where the plaintiff will seek damages only for “garden variety” emotional distress)[3]—the plaintiff must produce from her Facebook page/profile those postings, messages, status updates, comments, causes joined, groups joined, activity streams, pictures, and videos “that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.” 270 F.R.D. at 436. The temporal period of discovery extends from November 1, 2016 (about seven weeks before Ms. Baxter started working for CARite) to the present.

Further, as in Simply Storage, the court allows the plaintiff's counsel to review the Facebook page/profile and determine, in good faith but erring in favor of production, which parts of the profile fit within the above guidelines for production. Counsel has an obligation to comply with this court's guidelines—not his client's and not his own. But if the plaintiff's counsel believes he is incapable of discerning whether items within the Facebook profile meet the court's guidelines (i.e., things reasonably expected to produce a significant emotion, feeling or mental state”), then the defendant's counsel must be given access to the Facebook profile to make these determinations. At this time, the court relies on the obligations of plaintiff's counsel as an officer of the court to comply with the court's order and err on the side of production, and it rejects CARite's insistence that its attorney be provided access to Ms. Baxter's entire Facebook content. If further developments—following depositions, for example—suggest that the plaintiff's counsel has not acted in good faith and has not erred in favor of production, that issue may be brought to the court's attention.

In addition to producing from her Facebook profile the items “that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state,” Ms. Baxter must also produce from her Facebook profile, from November 1, 2016, to the present, any CARite-related or lawsuit incident-related Facebook status updates, postings, comments, causes joined, groups joined, activity streams, messages, pictures, or videos.

*4 The plaintiff's counsel must act promptly to obtain Ms. Baxter's entire Facebook profile, review the profile thoroughly and in detail, and produce the information outlined in this order. That production must be made within 14 days of this order.

For the foregoing reasons, CARite's motion to compel (Dkt. 49) is GRANTED IN PART AND DENIED IN PART.

The court denies CARite's request for attorneys’ fees under Rule 37(a)(5). CARite's motion was not wholly successful, and the court agrees with Ms. Baxter that CARite filed its motion to compel before exhausting good faith efforts to resolve the dispute about production of Ms. Baxter's entire Facebook profile.

So ORDERED.

Distribution:

All ECF-registered counsel of record by email through the court's ECF system