Morrow v. Tyson Fresh Meats, Inc.
Morrow v. Tyson Fresh Meats, Inc.
2021 WL 7285895 (N.D. Iowa 2021)
April 29, 2021
Roberts, Mark A., United States Magistrate Judge
Summary
The court ruled that Plaintiff must produce medical and mental health records from the relevant time period, as well as social media content using search terms proposed by Plaintiff. The court noted that ESI, such as social media content, is within the scope of discovery and must be produced if it is relevant, but must be described with “reasonable particularity” and a reasonable time, place, and manner for the inspection.
Additional Decisions
TONY MORROW, Plaintiff,
v.
TYSON FRESH MEATS, INC., Defendant
v.
TYSON FRESH MEATS, INC., Defendant
No. 20-cv-2033-CJW
United States District Court, N.D. Iowa, Eastern Division
Filed April 29, 2021
Counsel
Melissa Carol Hasso, Emily Elaine Wilson, Sherinian and Hasso Law Firm, Des Moines, IA, Menaka Fernando, Pro Hac Vice, Outten & Golden LLP, San Francisco, CA, Aliaksandra Ramanenka, Pro Hac Vice, Tammy Marzigliano, Pro Hac Vice, Outten & Golden LLP, New York, NY, for Plaintiff.Michael R. Reck, Kelsey J. Knowles, Mariah L. Slocum, Erika Lauren Bauer, Belin McCormick PC, Des Moines, IA, for Defendant.
Roberts, Mark A., United States Magistrate Judge
ORDER
*1 Before me is a Motion to Compel filed by Defendant Tyson Fresh Meats, Inc. on March 19, 2021. (Doc. 36.) Plaintiff Tony Morrow timely filed a resistance. (Doc. 37.) On April 16, 2021, I held a telephone hearing at which counsel for both parties participated. (Doc. 39.) At the conclusion of the hearing, I stated my intention to grant in part and deny in part Defendant's motion. I requested the parties meet and confer in an effort to resolve certain remaining issues and provide me notice of the issues that remain for resolution. The parties provided their notices on April 26, 2021. (Docs. 41 and 42.)
I. DISCUSSION
Plaintiff was employed by Defendant from August 2012 through August 2019. She alleges she was subject to workplace harassment because of her gender and sexual orientation and seeks, among other things, damages for emotional distress. Plaintiff has obtained an opinion from her expert witness regarding the nature of her injuries, their cause, and anticipated treatment. Defendant claims it requires additional medical and mental health records to respond to this report and prepare its defense. Defendant also contends it needs all of Plaintiff's social media content for these purposes.
Rule 26(b)(1) of the Federal Rules of Civil Procedure provides:
Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.
Rule 34(a) provides for discovery by production requests “within the scope of Rule 26(b).” A party may obtain, as of right, discovery “relevant to any party's claim or defense.” 8 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2008 (3d ed. 2010).
A. Mental Health and Medical History Records
Defendant's request for production of documents no. 19 seeks all Plaintiff's medical and mental health treatment records since January 1, 2010. (Doc. 36-3 at 7.) Plaintiff objected to producing these records on the basis that they are not from the relevant time period and invaded her privacy. Plaintiff nevertheless produced documents she deemed relevant to the medical conditions at issue in this case during the time period she deemed relevant.
In the instant case, a protective order is in place. Because Plaintiff has placed her mental and physical health at issue in this case by asserting a claim for emotional distress, these records are relevant to the cause, nature, and extent of any emotional distress. See Schoffstall v. Henderson, 223 F.3d 818, 823 (8th Cir. 2000) (addressing psychotherapist-patient privilege and holding that when patient placed medical condition at issue, patient waived privilege). This request covers the time Plaintiff was employed by Defendant, as well as a short period prior thereto. I conclude it is reasonable to obtain records for this short period prior to her employment because these records may disclose preexisting symptoms or help establish a baseline of Plaintiff's mental and physical health prior to the commencement of her employment with Defendant. Moreover, as I stated at the hearing, Plaintiff would have the option of obtaining and producing the records at her own expense or providing Defendant with waivers so it could obtain them. This would reduce the burden on Plaintiff. Therefore, Plaintiff's objections to request no. 19 are overruled and Defendant's motion to compel is granted on this issue.
B. Plaintiff's Social Media
*2 Requests for production nos. 24, 25, and 26 seek all of Plaintiff's social media. This would include all “postings,” communications, and other categories of information posted by Plaintiff or on her behalf since she began working for Defendant. It expressly requests Plaintiff download all information available to her on Facebook. (Doc. 36-3 at 8.) As, I stated at the hearing, I find the cases cited by Plaintiff in favor of limiting the extent of discovery into a party's social media to be persuasive. As in Mailhoit v. Home Depot U.S.A., Inc., I am troubled by the lack of particularity of the request. 285 F.R.D. 566, 570 (C.D. Cal. 2012). 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. Fed. R. Civ. P. 34(b)(1–2). As Mailhoit noted, “The test for reasonable particularity is whether the request places a party upon ‘reasonable notice of what is called for and what is not.’ ” 285 F.R.D. at 570 (quoting Bruggeman ex rel. Bruggeman v. Blagojevich, 219 F.R.D. 430, 436 (N.D. Ill. 2004) (quoting Parsons v. Jefferson–Pilot Corp., 141 F.R.D. 408, 412 (M.D.N.C. 1992)). While it may be technically possible to download and produce all of this information, Defendant's requests are akin to a request in a commercial dispute that simply asks for all of an opponent's records located at the opponent's headquarters. In a way, an individual's Facebook account, for example, is a personal data repository that includes communications with third parties, public or semi-public pronouncements (“posts” and “likes”), photographs and videos of almost anything, and a stream of wanted and unwanted news, information and advertisements.
I quote at some length the helpful reasoning of Mailhoit regarding discovery of social media:
The Court recognizes that social networking site content may be subject to discovery under Rule 34. “Generally, SNS [social networking site] content is neither privileged nor protected by any right of privacy.” However, “[d]iscovery of SNS requires the application of basic discovery principles in a novel context.” In particular, several courts have found that even though certain SNS content may be available for public view, 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.”
Where discovery requests seek SNS communications in connection with claims involving the responding party's mental or emotional health, several courts have also found that “the simple fact that a claimant has had social communication is not necessarily probative of the particular mental and emotional health issues in the case. Rather, it must be the substance of the communication that determines relevance.” As one court reasoned, “To be sure, anything that a person says or does might in some theoretical sense be reflective of her emotional state. But that is hardly justification for requiring the production of every thought she may have reduced to writing, or, indeed, the deposition of everyone she may have talked to.” Thus, while a party may conduct discovery concerning another party's emotional state, the discovery itself must still comply with the general principles underlying the Federal Rules of Civil Procedure that govern discovery.
“A court can limit discovery if it determines, among other things, that the discovery is: (1) unreasonably cumulative or duplicative; (2) obtainable from another source that is more convenient, less burdensome, or less expensive; or (3) the burden or expense of the proposed discovery outweighs its likely benefit.” “The district court enjoys broad discretion when resolving discovery disputes, which should be exercised by determining the relevance of discovery requests, assessing oppressiveness, and weighing these factors in deciding whether discovery should be compelled.”
Id. at 570–71 (citations omitted; first set of brackets inserted.)
I share these same concerns about the broad and intrusive nature of Defendant's requests and, therefore, urged the parties to meet and confer to develop search terms calculated to narrow the requests by making them more particular and better calculated to lead to the discovery of relevant evidence.
*3 The parties' most recent submissions (Docs. 41 and 42) show their efforts to resolve the issue of Plaintiff's social media. Each party has proposed I order further search and production of Plaintiff's social media using different search terms and procedures. Obviously, Defendant seeks to cast a broader net and urges that the requests seek relevant information. I do not doubt that the request could lead to the discovery of relevant evidence – but so would a search of all the records at a corporate headquarters in the above hypothetical commercial dispute. The problem posed by using Defendant's proposed search terms (e.g., happy, sad, friend, family, good, great, time, love, today, yesterday, tomorrow, and other extraordinarily common terms) is that they do not seem calculated to weed much – if anything – out of the search results. Rather, it seems likely Defendant's proposed searches might yield almost as much as its original request, but only with the investment of additional time and expense.
On balance, Plaintiff's proposed search terms seem to add particularity to the request and would tend to limit the production of irrelevant material. (Doc. 42.) As urged by Plaintiff, I “adopt” her proposal for the further provision of documents in response to requests for production nos. 24, 25, and 26. (Id.) Thus, I sustain in part Plaintiff's objections to those requests and grant in part Defendant's motion to compel discovery on this issue.
II. CONCLUSION
Defendant's Motion to Compel against Plaintiff (Doc. 36) is granted in part and denied in part as explained above.
Discovery is scheduled to end on April 30, 2021. It is further ordered that discovery in accordance with this order shall be completed by May 7, 2021. The parties have not requested the discovery deadline be extended for any other purpose.
IT IS SO ORDERED this 29th day of April, 2021.