*1 Before the Court is [71] Defendant Rite Way's July 31, 2014 motion to compel Plaintiff EEOC to produce documents in response to Defendant's first requests for production in this employment discrimination case based on the allegedly retaliatory termination of Mekeva Tennort's employment by Rite Way in September 2011. Specifically, Rite Way challenges the adequacy of the EEOC's May 1, 2014 responses to three of Rite Way's requests for production in light of recently obtained deposition testimony. EEOC's response to the motion was not due until after discovery expired,[1] however EEOC responded to the motion on August 14, 2014, and Rite Way filed its reply the following day. Docket entries [83] and [86], respectively. The Court will address three requests for production at issue in this motion.

Request number 8 sought production of “all documents, including electronic messages and postings, identified during any deposition in this matter which are, or which could be with reasonable effort in the possession of the Plaintiff, Tennort, or either's agents.” Request number 16 sought “electronic messages composed, sent or received by Tennort (or her agents) since January 2009 relating to any of the claims, defenses or factual objections” in this lawsuit. And Request number 19 sought “any postings on any social media websites made, removed or concealed by Tennort since January 2009 referencing or relating to Tennort's employment with Rite Way, Tennort's termination, and Tennort's mental state, feelings and/or emotions,” as well as an explanation regarding the disappearance or inaccessibility of any such postings which no longer exist or are otherwise inaccessible.

Rite Way states the EEOC produced no documents in response to these three requests. The Court notes that as to request number 8, EEOC stated it did not possess any documents responsive to the request and would supplement during discovery as appropriate, and with respect to requests 16 and 19, the EEOC referred Rite Way to documents produced in response to other requests for production.

Rite Way argues it is entitled to production of certain documents about which Tennort testified in her July 17, 2014 deposition, i.e., text messages exchanged with former Rite Way employee Linda Quarles whom the EEOC has identified as a witness, Facebook communication with Quarles regarding whether Tennort had heard anything (to which Tennort responded in the negative), and social media postings related to Tennort's mental state (“about feeling sad or happy ...”) following her termination. Tennort testified the text messages should still be on the phone she was using at the time, but that she has since replaced that phone because it broke, and she left the broken phone at her father's home in Biloxi. She testified that the Facebook posts should still be on her Facebook page, though she could not remember what they might have said.

*2 Since Tennort's deposition, the EEOC has produced four screen shots of posts to Tennort's Facebook page from 2011, stating it has no other responsive documents in its possession, custody or control. Rite Way argues EEOC has yet to produce any posts related to Tennort's mental state or other communications with Quarles, and has failed to explain why it was unable to obtain such documents about which Tennort testified. Rite Way urges the Court to require EEOC “to provide a certification stating what steps it took to obtain the requested information and the reasons the information is not within the EEOC's custody, control, or possession.” [71, ¶ 13] Rite Way further requests that the Court require EEOC “to explain the steps it took to preserve the at-issue documents,” to detail its preservation efforts for purposes of evaluation of spoliation issues.

In [83] response to the motion to compel, EEOC states that after her deposition, Tennort “searched for Facebook postings responsive to” request number 8, that the four pages of Facebook postings it produced are all she found, and that neither Tennort nor EEOC has any text messages responsive to request number 8. With respect to request number 16, EEOC presents that the phone Tennort used from 2009-2014 is inoperable, and text messages cannot be retrieved from it, and that even if that were not the case, it would be highly burdensome to require Tennort to comb through years of text messages to respond to this request. EEOC further states it has sent a subpoena to T-Mobile, Tennort's former phone service provider, in an effort to obtain text messages from the broken phone. EEOC contends it should not be required to respond further to request number 16 as it expects production from T-Mobile “will likely be voluminous and will contain numerous irrelevant, and highly personal and private communications unrelated to this case.” [83, p. 3] As to request number 19, EEOC reiterates that Tennort searched Facebook postings and the four pages produced are all she found which are responsive to this request; that neither EEOC nor Tennort has any other social media postings responsive to this request.

The Court having fully considered the motion pleadings, the deposition testimony giving rise to the present issues, and the arguments of the parties, finds that EEOC's explanation that Tennort searched her Facebook account and that it has produced the only documents responsive to the discovery requests, and that EEOC has issued a subpoena to T-Mobile in an effort to obtain the text messages from Tennort's phone demonstrate reasonable efforts to secure the information Rite Way seeks.[2] The Court is of the opinion that it is not overly burdensome to require Plaintiff to examine the materials it receives pursuant to the T-Mobile subpoena and to produce to Rite Way those messages responsive to the discovery requests, and Plaintiff is ordered to do so within ten days of the date of this order. Other than this, the Court will not require additional response to the requests at issue, nor will it require further explanation by EEOC as to why it does not have that which it represents to the Court that it does not have. It is therefore,

ORDERED that the motion to compel is granted in part and denied in part as set forth above.

SO ORDERED, this the 22nd day of September, 2014.