Cooksey v. Hunt S. Grp., LLC
Cooksey v. Hunt S. Grp., LLC
2019 WL 13128561 (S.D. Miss. 2019)
March 22, 2019

Walker, Robert H.,  United States Magistrate Judge

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Instant Messaging
Cloud Computing
Instagram
Redaction
In Camera Review
Privacy
Scope of Preservation
Text Messages
Mobile Device
Failure to Preserve
Facebook
Social Media
Forensic Examination
Failure to Produce
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Summary
The Court granted the motion to compel with respect to the Keesler Home Improvement Facebook page and directed the parties to discuss and agree to the best method for producing a complete digital copy. The Court also denied Defendants' request for the login information to Ms. Cooksey's personal accounts, but directed Plaintiffs' counsel to review all of Ms. Cooksey's personal Facebook posts, Facebook messages, and posts on any other social media accounts. Additionally, the Court directed Plaintiffs to supplement their discovery responses with respect to text messages and to provide corresponding names for each of the numbers listed on the text logs.
Additional Decisions
JASON COOKSEY et al PLAINTIFFS
v.
HUNT SOUTHERN GROUP, LLC et al DEFENDANTS
CIVIL ACTION NO. 1:18CV49-LG-RHW
United States District Court, S.D. Mississippi, Southern Division
Filed March 22, 2019

Counsel

William Lee Guice, III, Maria Martinez, Randall Scott Wells, Rushing & Guice, PLLC, Biloxi, MS, for Plaintiffs.
Jennifer J. Skipper, Walter H. Boone, Balch & Bingham, LLP, Jackson, MS, for Defendants Hunt Southern Group, LLC, Hunt MH Property Management, LLC.
Alison O'Neal McMinn, Joshua J. Metcalf, Taylor H. White, Forman Watkins & Krutz, LLP, Walter H. Boone, Balch & Bingham, LLP, Jackson, MS, Anthony J. Rospert, Pro Hac Vice, Gregory P. Feldkamp, Pro Hac Vice, William J. Hubbard, Pro Hac Vice, Thompson Hine, LLP, Cleveland, OH, for Defendant Forest City Residential Management, LLC.
Walker, Robert H., United States Magistrate Judge

ORDER GRANTING IN PART MOTION TO COMPEL

*1 Before the Court is Defendants' motion to compel production of certain electronic discovery. Doc. [203]. Defendants seek an order requiring Plaintiffs to produce the entirety of the group Facebook page previously known as the Keesler Home Improvement Page (and later re-named Military Housing Advocacy), relevant text messages via phone production, Plaintiff Heidi Cooksey's personal Facebook posts, as well as her Facebook messages and posts on other social media platforms. Subsequent to Defendants filing the instant motion, Plaintiffs supplemented their discovery responses to include additional text records, Facebook posts, and Facebook messages. See Doc. [230] at 6.

 

Plaintiff Heidi Cooksey created a Facebook page entitled Keesler Home Improvement on October 13, 2016, prior to initiation of this lawsuit. On the Facebook page, she advertised for her attorneys, discussed mold testing and medical issues related to mold, and encouraged people who joined the page to file suit against Defendants. The Keesler Home Improvement page initially was public and had approximately 300 members. At her deposition, Ms. Cooksey admitted that at some point she moved the page to “private” to keep Defendants' employees from viewing the Facebook page. Defendants deposed Ms. Cooksey on July 9 & 10, 2018. Just a few days later, on July 15, 2018, Ms. Cooksey removed herself as administrator of the Facebook page.

 

Defendants seek a complete digital copy of activity on the Keesler Home Improvement Page as well as Facebook messages of the Keesler Home Improvement administrators and all messages sent or received by Plaintiffs regarding Keesler housing, mold, the Hunt Defendants, their employees or former employees, or potential damages. To date, Plaintiffs have produced some pages from the Keesler Home Improvement Facebook group page. Plaintiffs argue that they cannot download a copy of the group page for production but advise “[i]f Defendants know how to download the group page these instructions should have been given to Plaintiff. Defendants would have the information now had they complied with Plaintiff's request.” Doc. [230] at 4. Thus, Plaintiffs appear to concede their willingness to provide a complete digital copy of the group page but have encountered technical difficulties. The motion to compel is granted with respect to the Keesler Home Improvement Facebook page. The parties are directed to discuss and agree to the best method for producing to Defendants a complete digital copy of the group page.

 

Plaintiff also has produced numerous Facebook messages from the page administrators, which in some instances have been heavily redacted. In their response, Plaintiffs argue that information was “redacted due to its non-relevancy, because it included conversations about church, bible study, family issues, conversations with legal counsel and bases other than Keesler Air Force Base.” Doc. [230] at 2. Plaintiffs assert they “are not trying to hide anything and are agreeable to producing all materials in unredacted form to the Court for in camera inspection.” Id. Plaintiff does not assert any privacy or privilege for withholding production of unredacted Facebook messages. In fact, given the public nature of social media and the number of people sharing and viewing the messages in question, it would be difficult to maintain any privacy or privilege argument. See E.E.O.C. v. Simply Storage Management, LLC, 270 F.R.D. 430, 434 (S.D.Ind. 2010); Cusimano v. NeilMed Pharmaceuticals, Inc., 2013 WL 12229114, at *3 (E.D.La. July 8, 2013) (“Facebook account information is generally discoverable.”); Davenport v. State Farm Mut. Auto. Ins. Co., 2012 WL 555759, at *1 (M.D. Fla. Feb. 21, 2012) (“Generally, SNS content is neither privileged nor protected by any right of privacy.”). Instead, Plaintiffs simply argue that the redacted information is not relevant. The Court declines Plaintiffs' invitation to review in camera unredacted copies of the Facebook messages. Rather than placing this burden on the Court, Plaintiffs are directed to provide Defendants with unredacted versions of the Facebook messages, thus placing the burden on Defendants to sift through the information for relevancy.

 

*2 Defendants next argue that Ms. Cooksey did not produce a single page from her personal Facebook page or Instagram account. Plaintiffs produced some responsive documents after Defendants filed the instant motion; however, Defendants identified other social media content that they contend is relevant, discoverable and has not been produced by Plaintiffs. See Doc.. [239] at 9-11. Defendants argue that Ms. Cooksey has been hiding relevant, discoverable information. Defendants seek an order compelling Ms. Cooksey to provide login information for direct access to her social media accounts. In response, Plaintiffs state that Ms. Cooksey performed a variety of search terms on her personal Facebook posts and Facebook Messenger messages. Based on these searches, she asserts that she produced all personal Facebook page posts that are responsive to Defendants' request. Plaintiffs do not indicate whether they searched any other social media platforms, such as Ms. Cooksey's Instagram account.

 

The Court finds that Plaintiffs' use of term searches is not adequate. However, the Court denies Defendants' request for the login information to Ms. Cooksey's personal accounts, because such unfettered access to Plaintiff's private social media accounts is overly broad, includes clearly irrelevant information, and could reveal personal and private information unrelated to this lawsuit. See Farley v. Callais & Sons LLC, 2015 WL 4730729, at *2-4 (E.D.La. Aug. 10, 2015) (discussing the scope of social media discovery). To avoid future piecemeal production of social media content, Plaintiffs' counsel is directed to review all of Ms. Cooksey's personal Facebook posts, Facebook messages, and posts on any other social media accounts, including Instagram, to identify and produce responsive information. See id. at *4 (directing “that Plaintiff's postings be made immediately available to Plaintiff's counsel and that they be reviewed by Plaintiff's counsel”). Plaintiffs are directed to supplement their discovery response outlining both the process and results of their search. Plaintiffs also should identify all social media platforms on which they have posted commentary about Keesler housing, mold, or other claims related to this lawsuit.

 

Defendants next argue that Ms. Cooksey produced no text messages, despite admitting in her deposition that she texted with other Plaintiffs about this lawsuit. Defendants contend that, even though Ms. Cooksey changed cellphones several times during the pendency of this lawsuit, all her old text messages should have been backed up and available for her review through the iCloud. Although Plaintiffs did not provide any text messages, they did provide a list of numbers logging Ms. Cooksey's texting activity over an 18-month period. Defendants argue that the mobile numbers are illegible. Defendants point out that during a three-month period Ms. Cooksey sent and received 1,926 text messages, many of which were sent to individuals who also have sued Defendants for mold-related injuries. In response, Plaintiffs contend that Ms. Cooksey has owned five cellphones since the litigation was initiated but these cellphones have suffered damage or otherwise malfunctioned. According to Plaintiffs, Ms. Cooksey “reviewed her ICloud account, searched her current phone for text messages, and learned that no messages responsive to Defendants' request are located there”.

 

If Ms. Cooksey discussed her own personal claims and injuries with other individuals, these messages may be discoverable. Ms. Cooksey's deposition testimony at least suggests that there could be relevant, discoverable text messages. Nevertheless, Plaintiffs have not produced any such text messages. From Plaintiff's response, it is unclear whether she could not locate responsive text messages because the messages existed at one time but cannot be accessed, or whether she has access to all past text messages, has reviewed them, and none are responsive to Defendants' discovery request. During her deposition, she stated that she “cleans out” her text messages; but when questioned whether she personally deletes text messages, she explained that she “recently got a new phone. Yes I deleted them.” See Doc. [230-2]. In response to Interrogatory No. 7, Plaintiffs denied deleting any text messages relating to this case. Doc. [203-6] at 2.

 

*3 Based on the foregoing, the Court directs Plaintiffs to supplement their discovery responses with respect to text messages to clarify whether Ms. Cooksey in fact has access to and has reviewed for discovery purposes all her text messages dating back to January 1, 2016: or whether she does not have access to them, and if not, to explain why she does not have such access. The Court denies at this time Defendants' request that Plaintiffs produce all of Ms. Cooksey's damaged or malfunctioning cellphones for forensic examination; however, Plaintiffs are instructed to preserve the cellphones. Plaintiffs also are directed to provide corresponding names for each of the numbers listed on the text logs and to produce a complete text log for all available months.

 

IT IS THEREFORE ORDERED AND ADJUDGED that Defendant's [203] Motion to Compel is GRANTED in part and DENIED in part, subject to the provisions outlined in this Order. Plaintiffs shall supplement their discovery responses by April 5, 2019.

 

SO ORDERED AND ADJUDGED, this the 22nd day of March 2019.