*1 This matter is before the Court on Defendant Campbell County Memorial Hospital and Campbell County Health's Motion to Compel Plaintiff's Facebook Information (ECF No. 56) (collectively the Hospital District Defendant). Defendant seeks a Court order compelling Plaintiff to disclose any posts, photos, videos, and comments from Facebook for a period of one year before the alleged injury to the present, that relate to: (1) the injury, any of her alleged injuries and/or treatment of the same; or (2) Plaintiff's social, recreational, physical, and emotional abilities and/or activities. Plaintiff agrees to provide Facebook information pertaining to the first request but disputes the second. (ECF No. 59). The Court finds Defendant's request is not proportional to the needs of the case. For the following reasons, the Court modifies the second request to address only Plaintiff's significant emotional turmoil, any mental disability or ability, or significant events that could reasonably be expected to result in emotional distress the period of one year prior to the surgery to the present.

This is a medical malpractice case. Plaintiff's claims arise from alleged injuries she suffered as a result of nasal surgery performed by Defendant Dr. Ian Swift on October 7, 2014. Plaintiff has brought various claims against Dr. Ian Swift, Wyo ENT P.C., Campbell County Health, and Campbell County Memorial Hospital. Plaintiff also seeks compensatory damages including but not limited to past and future suffering; past and future loss of enjoyment of life; past and future emotional and psychological distress and sociological disruption; and past and future medical and counseling expenses.[1]

Defendants have previously requested Plaintiff's Facebook and social media information through written discovery, Rule 26 disclosures, and communications with counsel. (ECF No. 56, at Exs. B, C, D). In response, Plaintiff has provided a text message from her friend that included a screenshot of a Facebook post about the lawsuit and a Facebook message about the lawsuit. (Id. at Ex. H). Plaintiff asserts this is the only relevant social media material. Defendants claim because they do not have access to Plaintiff's private Facebook account, they cannot confirm whether that is the only relevant post or not.

Defendants now bring the current Motion to Compel and have catered the discovery request to two parts. First, Defendants ask Plaintiff to disclose any posts, photos, videos, and comments from Facebook for a period of one year before the alleged injury to the present, that relate to the injury, any of her alleged injuries and/or treatment of the same. Second, Defendants ask Plaintiff to disclose any posts, photos, videos, and comments from Facebook for a period of one year before the alleged injury to the present that relate to Plaintiff's social, recreational, physical, and emotional abilities and/or activities.[2] Defendants argue Plaintiff has placed her physical, mental, and emotional well-being at issue by seeking damages of past and future suffering; past and future loss of enjoyment of life; past and future emotional and psychological distress and sociological disruption; and past and future medical expenses. Additionally, Defendants argue Facebook may have evidence that Plaintiff or her experts have exaggerated the extent of her injuries.

*2 Plaintiff concedes the first request is relevant and within the scope of Federal Rule of Civil Procedure 26 and agrees to provide such information.[3] However, Plaintiff asserts the second request is vague, ambiguous, unduly burdensome and disproportional to the needs of the case.

Under Federal Rule of Civil Procedure 37, if a party provides evasive or incomplete responses, answers, or disclosures, the party seeking the discovery may move a court to compel a response. Landry v. Swire Oilfield Servs., L.L.C., 323 F.R.D. 360, 383 (D.N.M. 2018); Fed. R. Civ. P. 37(a). The scope of discovery is governed by Federal Rule of Civil Procedure 26(b)(1):

Social media information is subject to discovery if it is nonprivileged, relevant to any party's claim or defense, and proportional to the needs of the case. Brandt v. Von Honnecke, No. 15-CV-02785-RM-NYW, 2018 WL 510277, at 3* (D. Col. Jan. 3, 2018); Locke v. Swift Transp. Co. of Ariz., LLC, No. 518CV00119TBRLLK, 2019 WL 430930, at *2 (W.D. Ky. Feb. 4, 2019). The relevance of information sought through discovery is considered in accordance with principles of proportionality. Edmondson v. Velvet Lifestyles, LLC, 2016 WL 7048363 (S.D. Fla. 2016). Evidence is relevant if it has any tendency to make the existence of a fact more or less probable than it would be without the evidence. Fed. R. Evid. 401. Relevance at this stage means within the scope of discovery and does not need to be admissible in evidence. Fed. R. Civ. P. 26(b). When addressing proportionality the court considers “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 burden of proving disproportionality remains with the party resisting discovery. See Fed. R. Civ. P. 26 (advisory committee notes to the 2015 amendments).

The scope of Facebook discovery “presents some unique challenges to courts.” Gordon v. T.G.R. Logistics, Inc., 321 F.R.D. 401, 403 (D. Wyo. May 10, 2017). Facebook is a medium to “connect with friends and the world around you.” See Facebook, https://www.facebook.com (last visited Nov. 4, 2020). Facebook members create a “profile” to share basic information about themselves. Facebook, About, https://www.facebook.com/help/basics/learn-about-facebook (last visited Nov. 4, 2020). Users can restrict who can view their profile to only those accepted as a “friend” on Facebook. Id. However, courts generally do not consider Facebook to be truly “private.” See Marquez v. Bd. of Cty. Comm'rs, No. CIV 11-0838 JAP/KBM, 2015 U.S. Dist. LEXIS 192601, at *3–4 (D.N.M. 2015). Additionally, users can share updates about their lives with other Facebook users by posting “status updates,” photos, videos, and comments on other posts. Id.

*3 While “it is conceivable that almost any post to social media will provide some relevant information concerning a person's physical and/or emotional health,” the Court must maintain proportionality when determining the proper scope of social media discovery. Id. Even though a user's information can be can be downloaded quickly and inexpensively in just a few clicks, much of that may be immaterial, burdensome, and potentially personal or humiliating. Still, the party requesting social media discovery may have a legitimate need to obtain the information to defend claims and damages, or to argue that an individual is lying or exaggerating injuries. Id. The goal of discovery is to learn the facts before trial to promote fairness and avoid surprise in the adversarial process. See Hickman v. Taylor, 329 U.S. 495, 501 (1947). Thus, in determining the scope of Facebook discovery, the Court must balance the interests between preventing undue burden and embarrassment on the Plaintiff, and Defendant's interest in discovery which is important to the claims and damages against them.

Defendant has brought two discovery requests. Because Plaintiff has agreed to supplement and produce documents related to Plaintiff's injury, or any of her alleged injuries and/or treatment of the same, Defendant's first request is moot. The Court will only address the Defendant's second request for “any posts, photos, videos, and comments from Facebook for a period of one year before the alleged injury to the present that relate to Plaintiff's social, recreational, physical, and emotional abilities and/or activities.” The Court will analyze this request as to the content and the time frame.

1) Posts, photos, videos, and comments from Facebook that relate to Plaintiff's social, recreational, physical, and emotional abilities/activities.

The Court finds that discovery of Plaintiff's Facebook posts, photos, videos, and comments is relevant and proportional. This Court has previously denied discovery related to “search history, location, and direct messages”, but found “posts, photos, videos, and comments” reasonably narrow. See Tyler Rowe v. Helmerich & Payen International Drilling Company; Case No. 19-cv-019-R. However, regarding the content of the posts, photos, videos, and comments, the Court finds the phrase “social, recreational, physical, and emotional abilities/activities” vague, broad, and disproportionate to the needs of the case. Arguably almost anything Plaintiff has posted on Facebook could fall under the category of “social,” “physical,” “recreational,” or “emotional.” In many ways, this request is the equivalent of seeking unrestricted access to Plaintiff's social media and “unfettered access to social networking accounts-even when temporally limited- would permit [a party] ‘to cast too wide a net’ for relevant information.” Gordon, 321 F.R.D. at 402. Much of Plaintiff's social, recreational, and physical activity may be embarrassing, personal, and unlikely to led to relevant information. Additionally, simply because Plaintiff has engaged in social or recreational activities is not necessarily probative of her emotional or mental health matters in this case, “rather it is the substance of the communication that determines the relevance.” Locke v. Swift Transp. Co. of Ariz., LLC, 2019 WL 430930, at *2 (W.D. Ky. Feb. 4, 2019) (internal quotations and citations omitted); see Equal Employment Opportunity Commission v. Simply Storage Management, LLC, 270 F.R.D. 430, 434 (S.D. Ind. 2010).

On the other hand, Plaintiff has placed her emotional and mental health at issue and the Defendants are entitled to Facebook discovery that weighs on those issues. Plaintiff is seeking significant damages including past and future suffering; past and future loss of enjoyment of life; past and future emotional and psychological distress and sociological disruption; and past and future medical and counseling expenses. Plaintiff's Facebook content could provide information about how her alleged injuries have impacted her. Discovery is broad under the Federal Rules of Civil Procedure and the discovery does not have to meet the standards of admissibility. Additionally, Defendants assert Plaintiff's Facebook could show that Plaintiff and her experts may be exaggerating the extent of her alleged injuries. “Information in social media which reveals that the plaintiff is lying or exaggerating his or her injuries should not be protected from disclosure.” Gordon, 321 F.R.D. at 404.

*4 The Court agrees the Facebook discovery is relevant and important to many of the claims in this case. However, granting access to all the Facebook information requested is unduly burdensome and would provide minimal relevant information to evaluate and diagnose any conditions. Defendant has provided no support that Plaintiff's social, physical, and recreational posts on Facebook are probative of her mental or emotional state. Much of what someone posts on Facebook could be contradictory to their reality. Further, the claims Defendants are facing generally make up a small part of damage claims. Gordon 321 F.R.D. at 405–06. The injuries and damages reflected in those claims will be calculated using expert witnesses and proven testing protocols, not social media posts. Id.

The Court finds the current request is unduly burdensome given the needs of the case and the issues to be resolved. The Court will modify Defendant's request in order to avoid exceeding the proper limits of proportionality in this case. A court may constrain discovery where it “determines that the desired discovery is unreasonably or unduly burdensome given the needs of the case, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.” Simpson v. Univ. of Colo., 220 F.R.D. 354, 356 (D. Colo., 2004). Rather than order the production of all “social, recreational, physical, and emotional posts,” Plaintiff is ordered to produce all posts, photos, videos, and comments from Facebook that relate to “Plaintiff's significant emotional turmoil, any mental disability or ability, or relate significant events which could reasonably be expected to result in emotional distress.” Gordon, 321 F.R.D. at 404, n.2 (explaining the term “significant” is to avoid disclosure of “transient and trivial” emotional distress). Plaintiff should err on the side of disclosure. If unsure, Plaintiff shall provide relevant Facebook information the Court for an in camera review.

2) The time period of one year before the alleged injury to the present

Defendants have sufficiently limited the time frame of discovery for Plaintiff's Facebook material. The Court finds the discoverable social media information is relevant for the time period of one year before the surgery to the present. Plaintiff is seeking damages regarding enjoyment of life, emotional and psychological distress, and sociological disruption. Defendant is entitled to the discoverable social media information, if any exists, to compare Plaintiff's well-being prior to the surgery to after. The narrowed scope of the discoverable content of the Facebook information will protect Plaintiff from undue disclosure, while Defendant can obtain a complete picture of Plaintiff's overall psychological, mental, and emotional health, and potentially refute the extent of the alleged injuries. Plaintiff is ordered to produce all posts, photos, videos, and comments from Facebook that relate to Plaintiff's significant emotional turmoil, any mental disability or ability, or relate to significant events that could reasonably be expected to result in emotional distress for the period of one year prior to the surgery to the present.

The district court has broad discretion over the control of discovery. Cummings v. Gen. Motors Corp., 365 F.3d 944, 952 (10th Cir. 2004). In order to balance the burden to Plaintiff and interest of the Defendants, the Defendant's Motion to Compel is GRANTED in the following respects:

IT IS ORDERED that Plaintiff shall produce posts, photos, videos, and comments related to or concerning the surgery or any of her alleged injuries and/or treatment of the same.

IT IS FURTHER ORDERED that Plaintiff shall produce posts, photos, videos, and comments regarding Plaintiff's significant emotional turmoil, any mental disability or ability, or relate to significant events that could reasonably be expected to result in emotional distress the period of one year prior to the surgery to the present.

*5 The Defendant's Motion to Compel Discovery is DENIED in all other respects.

Dated this 9th day of November, 2020.

On October 1, 2020 the Court granted in part and denied in part the Hospital's Motion for Partial Summary Judgment (ECF Nos. 39, 61). The Court found the Hospital was entitled to judgment as a matter of law in its favor on Plaintiff's punitive damages claim under governmental immunity. See Wyo. Stat. Ann. § 1-39-101 et. seq. Thus only compensatory damages against the Hospital remain. “Compensatory damages are awarded to reimburse an individual for losses suffered as a result of another's failure to perform some duty.” Alexander v. Meduna, 2002 WY 83, P36, 47 P.3d 206, 217–218 (citing Hollon v. McComb, 636 P.2d 513, 516 (Wyo. 1981)).

This request is modified from Defendant's initial Request for Production No. 1. Defendants previously requested Plaintiff to “download and provide in electronic format, a full and complete copy of your Facebook profile or any other form of social media. If you maintain multiple profiles, please provide the following documentation for every profile maintained by you in the last 10 years.” (ECF No. 65 at Ex. A).

Plaintiff also argues Defendants wasted judicial economy because they failed to comply with Local Rule 37.1(b). It is clear there is both a misunderstanding and misinterpretation surrounding the phone conference with the Court on August 14, 2020. In the interest of judicial economy, the Court declines to weigh in on this procedural dispute and will decide the issue on the merits.