Cherry v. Walkin Billboard, LLC
Cherry v. Walkin Billboard, LLC
2018 WL 11483095 (N.D. Ga. 2018)
September 28, 2018

Larkins III, John K.,  United States Magistrate Judge

Twitter/X
Snapchat
Instagram
Facebook
Video
Mobile Device
Social Media
Photograph
Instant Messaging
Text Messages
Failure to Produce
Forensic Examination
Ephemeral Data
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Summary
The court denied the defendant's motion to compel the plaintiff to produce her social media data and to present her iPhone for imaging. The court found that the requests were overly broad and not proportional to the needs of the case, and that the request for inspection failed to comply with the requirements of Rule 34. The stay was lifted, but three days of discovery remained in the case.
VICTORIA CHERRY, Plaintiff,
v.
WALKIN BILLBOARD, LLC, Defendant
CIVIL ACTION FILE NO. 1:17-cv-3714-LMM-JKL
United States District Court, N.D. Georgia, Atlanta Division
Filed September 28, 2018
Larkins III, John K., United States Magistrate Judge

ORDER

*1 This is an employment discrimination case in which Plaintiff Victoria Cherry contends that her former employer, Defendant Walkin Billboard, LLC, discriminated against her on the basis of her disability, failed to accommodate that disability, and retaliated against her, all in violation of the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12111, et seq. The case is before the Court on Plaintiff's Motion to Lift Stay, Close Discovery, and Set Deadlines for Dispositive Motions [Doc. 45] and Defendant's Motion to Compel Discovery Responses and Forensic Examination [Doc. 46]. For the reasons that follow the Court GRANTS IN PART AND DENIES IN PART Plaintiff's motion and DENIES Defendant's motion to compel.
I. PROCEDURAL BACKGROUND
In March 2018, the Court entered a scheduling order extending the discovery period in the case until June 29, 2018. [Doc. 23.] In late June, soon before discovery was set to close, the parties advised the Court of a dispute relating to: (1) Defendant's request for production of the Plaintiff's social media data (including, most notably, information from Plaintiff's Facebook account), and (2) a demand Defendant made to conduct a forensic examination of Plaintiff's iPhone that she used during the period relevant to this case. On June 26, 2018, the Court held two telephonic hearings regarding the discovery disputes; at the conclusion of which, the Court directed Defendant to file, if it wished, a motion to compel addressing the issues raised at the hearings. [Docs. 38, 39.] The Court also stayed discovery and subsequent deadlines in anticipation of the forthcoming motion to compel. [Doc. 39.] The following day, the Court referred the case to mediation, stayed all proceedings pending completion of the mediation, and ordered the parties to file a dismissal or joint status update no later than five days after the conclusion of mediation. [Doc. 40.] The mediation was held on July 17, 2018; however, the parties were unable to resolve the case. [Doc. 43.]
Over a month later, on August 27, 2018, and with no motion to compel or joint status update having been filed, Plaintiff filed her motion, requesting that the Court lift the stay, close discovery, and set a deadline for dispositive motions. [Doc. 45.] Plaintiff contends that no further discovery is needed in this case, that Defendant should not be permitted to file a motion to compel, and that the Court should instead close discovery and set a briefing schedule for dispositive motions. [Id. at 2-3.] Defendant opposes the motion. [Doc. 7.]
Also on August 27, Defendant filed its motion to compel. [Doc. 46.] In the motion, Defendant requests that the Court order Plaintiff to produce information from her Facebook account, to provide her iPhone to defense counsel for forensic examination, and award Defendant its attorney fees in preparing the motion to compel. [Id.] Plaintiff, in turn, opposes the motion. [Doc. 48.]
Neither party has filed a reply in further support of their respective motions, and the time for doing so has passed. Accordingly, the motions are ripe for resolution.
II. DISCUSSION
A. Request for Social Media Information
*2 The Court first addresses Defendant's motion to compel documents concerning her social media accounts. The pertinent request for production, Defendant's Request for Production No. 3, states:
If you have a Facebook, Instagram, Twitter, or other social media account which allows you and others to post videos, images, or text please provide a copy of your social media accounts for the period during which you worked at Walkin Billboard (for example, Facebook has provided the following directions for doing this: “as a Facebook user, you can download your information through the ‘Account Settings’ drop down menu on your user home page. This tool allows users to download the entire content of his or her account including all archived materials;” and if you have a Twitter account, you can acquire your twitter account data under the “request your Twitter archive” feature in your Twitter account settings).
[Doc. 46 at 5.]
Plaintiff responded and objected to the request as follows:
Plaintiff objects to this request as it is overly broad, is not proportional to the needs of this case, and seeks information that is wholly irrelevant to this litigation. Subject to and without waiving this objection, Plaintiff will produce all non-objectionable documents in her possession, custody or control.
[Id.] Plaintiff produced what appears to be an exchange between Plaintiff and Defendant's Human Resources Director, Haley Putman, using Facebook's messaging service. [See Doc. 46-1 at 38-43.] As best the Court can tell, the document that Plaintiff produced is missing images that Plaintiff and Ms. Putman appear to have sent to each other; however, the text of their exchange is present. [Id.]
Defendant moves to compel production of Plaintiff's entire Facebook account, as demanded in Request No. 3, because, in Defendant's view, it is “directly at issue in this case.” [Doc. 46 at 5.] Defendant argues that Plaintiff's production is incomplete and that complete access to her Facebook account information will likely reveal other communications relevant to this action, including discussions with Ms. Putnam about work, Defendant's employee policies, and Plaintiff's doctors' appointments.[1] [Id. at 5-7.] Defendant also posits that because Plaintiff admitted to sometimes used social media at work and/or during breaks, the Facebook data will show that Plaintiff received a reasonable accommodation in the form of breaks from work, that she took unauthorized breaks, and that she was allowed to go to doctors' appointments without objection from Defendant. [Id. at 6-8.] Additionally, Defendant contends in brief that the request is (1) not overbroad because Plaintiff has placed the issue of breaks into dispute and admitted to using Facebook during breaks, and (2) not unduly burdensome because downloading the Facebook data is “free and easy to use.” [Id. at 6.]
These arguments are not persuasive. Even assuming for the sake of argument that the request itself were limited only to Facebook data, and that Plaintiff's Facebook data would contain the information that Defendant seeks regarding Plaintiff's breaks and access to time off for doctors' appointments, Defendant's request, as drafted, is impermissibly overbroad. According to Facebook's website, there are fifty-three categories of information included when a Facebook account holder downloads information using the “Download Your Info” tool, as suggested by Defendant's request and motion. Reproduced below is a table that appears on Facebook's webpage, which describes each category of information:






See https://www.facebook.com/help/930396167085762 (last visited September 27, 2018). Despite the all-encompassing nature of Facebook's archiving tool, neither Defendant's request nor its motion seeks to limit the production of information from Plaintiff's account.
While Facebook data is by no means off limits from discovery, “[a] party is no more entitled to such ‘unfettered access’ to an opponent's social networking communications than it is to ‘rummage through the desk drawers and closets’ in his opponent's home.” Moore v. Wayne Smith Trucking Inc., No. CIV.A. 14-1919, 2015 WL 6438913, at *2 (E.D. La. Oct. 22, 2015) (quoting Ogden v. All-Star Career Sch., No. 2:13cv406, 2014 WL 1646934, at *1 (W.D. Pa. April 23, 2014)); see also Palma v. Metro PCS Wireless, Inc., 18 F. Supp. 3d 1346, 1347 (M.D. Fla. 2014) (recognizing that the requesting party “does not have a generalized right to rummage at will through information that plaintiff has limited from public view”); Howell v. Buckeye Ranch, Inc., No. 2:11-CV-1014, 2012 WL 5265170, at *1 (S.D. Ohio Oct. 1, 2012) (denying motion to compel when request sought “access to all the information in the private sections of her social media accounts-relevant and irrelevant alike. The fact that the information defendants seek is in an electronic file as opposed to a file cabinet does not give them the right to rummage through the entire file.”). “Otherwise, the Defendant would be allowed to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff's [social media] account[s].” Jewell v. Aaron's, Inc., No. 1:12-CV-0563-AT, 2013 WL 3770837, at *3 (N.D. Ga. July 19, 2013) (citations and quotations omitted) (denying corporate defendant's request for social media data during period of employment to refute claims regarding use of breaks during the working day). Here, Defendant's request for social media data is as all-encompassing as those rejected above. Moreover, at the June 26 hearing, Defendant made clear that it would not accept subject-and data-specific limitations on the production of social media data proposed by the Court and acceptable to Plaintiff.
The Court also finds it significant that even though the identified person with whom Plaintiff had relevant communications using Facebook, Ms. Putman, is an employee of Defendant, Defendant offers no evidence suggesting that there are other conversations missing from the production. Likewise, although it appears that images that Plaintiff and Ms. Putman exchanged over Facebook are missing from Plaintiff's production, there is nothing about the exchange—which appears to be social in nature—that suggests that the images have any bearing on the claims and defenses in this case. And, again, Defendant offers no evidence from Ms. Putman to tending to show otherwise. Defendant questions whether there may be other discoverable communications between Plaintiff and Putman based on Plaintiff's deposition testimony—where Plaintiff stated that she used Facebook to communicate with Ms. Putman about work[2]—but even if Plaintiff's production were materially incomplete, the Court cannot agree that wholesale production of the entirety of Plaintiff's Facebook account information is justified.
*4 At bottom, Defendant demands full compliance with Request No. 3 as written, and it makes no effort whatsoever to narrow the request. Although a court may narrow the scope of an otherwise overbroad request, the Court declines to do so here. Defendant has demonstrated a complete unwillingness to narrow the scope of its request, opting instead to double-down on its demand that the entirety of Plaintiff's Facebook account data be produced. Without meaningful guidance from Defendant as to how its request could be limited, the Court would be left to guess how best to fashion a request that is sufficiently narrow to encompass the information to which Defendant thinks it is entitled and that would be proportionate considering the factors of Federal Rule of Civil Procedure 26(b).[3] Under these circumstances, the Court will not re-craft Plaintiff's discovery request, and DENIES the motion to compel with respect to Request No. 3.
B. Inspection of Plaintiff's iPhone
On March 20, 2018, Defendant served via the Court's ECF system, a “Notice to Inspect Apple Cellphone of Plaintiff Victoria Cherry.” [Doc. 22; see also Doc. 48-1.] The Notice to Inspect demanded that Plaintiff present “the Apple cellphone used by Plaintiff ... either an iPhone 5 or 5s” to Defendant's computer forensic expert for inspection less than three weeks later, on “April 7, 2018[4] through up and until prior to the start of business on April 9, 2018, and continuing every weekend thereafter until finished.” [Doc. 22 at 1-2.] The Notice set out a multi-step process that Defendant would follow to extract communications from the device:
• First, the forensic expert would make an image of the phone and then inspect its contents. [Id. at 2.]
• Second, the expert would “conduct an analysis,” whereby he would identify all communications on the device (including, “without limitation,” text messages and communications made using Facebook and Snapchat) and identify deleted communications that still had a reference in the file system device. [Id.]
• Third, prior to releasing the content of the device to Defendant, the forensic expert would present the information to Plaintiff so she could review the information for privileged communications or attorney work-product. [Id. at 2-3.]
• Fourth, the forensic expert would provide Defendant with the communications extracted from the device subject to Plaintiff's objections. [Id.]
Plaintiff did not did not present her iPhone for inspection at any time between April 7 through 9 as directed, nor did she respond or serve objections to the Notice.
Defendant urges the Court to compel a forensic examination of Plaintiff's iPhone in accordance with its Notice, mainly because Defendant is dissatisfied with the way Plaintiff has produced text message and Snapchat exchanges and because Defendant believes the production of such messages is materially incomplete. [Doc. 46 at 8-10.] The Court disagrees that inspection should be compelled in this instance.
First, Defendant's motion to compel is due to be denied because the request for inspection failed to comply with the requirements of Rule 34. Federal Rule of Civil Procedure 34 authorizes a party to request inspection of an item and requires the party to whom the request is directed to respond within 30 days after service, unless the parties together stipulate to a shorter or longer time under Rule 29 or the Court orders otherwise. Fed. R. Civ. P. 34(a)(1) and (b)(2)(A).[5] “The requesting party has no power to shorten the time allowed by the rule.” See 8B Charles Alan Wright et al., Federal Practice and Procedure § 2212 (3d ed. 2018 supp.). Here, Defendant's Notice sought to command production of the iPhone on April 7 through 9, 2018, less than twenty-one days after the Notice was served. Because the Notice did not give Plaintiff at least thirty days to object, the Notice is not enforceable.[6] See e.g., NovelPoster v. Javitch Canfield Grp., No. 13-CV-05186-WHO(JCS), 2014 WL 7149216, at *13 (N.D. Cal. Dec. 12, 2014) (citing Holliday v. Extex, 237 F.R.D. 425, 427 (D. Haw. 2006)) (disallowing sanctions related to a party's failure to allow inspection at time demanded because an “inspection demand with less than 30 days' notice cannot be enforced”).
*5 But even ignoring the untimeliness of Defendant's Notice, the Court readily concludes that the demand for inspection, like the request for all of Plaintiff's social media data, is vastly overbroad. The request for inspection calls for Plaintiff to surrender her personal phone to a third party hired by Defendant and relinquish every single communication that resides on it, subject only to Plaintiff's privilege or work-product objection. The request is not limited by date or subject matter. Nor is it restricted to certain types of communications (such as text messages, Facebook messages, emails, voicemails, and so on). Defendant's Notice is therefore facially overbroad, and given Defendant's stated objection to more narrow production, the Court will not endeavor to craft a more narrow request now.
For these reasons, the Court DENIES the motion to compel compliance with the Notice to Inspect.
III. CONCLUSION
For the foregoing reasons, the Court DENIES Defendant's motion to compel. [Doc. 46.] Because the Court has resolved the remaining discovery issues in this case, the Court GRANTS IN PART AND DENIES IN PART Plaintiff's Motion to Lift Stay, Close Discovery, and Set Deadlines for Dispositive Motions. [Doc. 45.] The Court LIFTS the stay, but given that neither party complied with the Court's directive to file a joint status update following the mediation, allows that three days of discovery remain in the case based upon when the stay was entered. [See Docs. 23, 39.] Discovery shall close on October 3, 2018. Dispositive motions shall be due on November 2, 2018.
IT IS SO ORDERED this 28th day of September, 2018.

Footnotes

Although Request No. 3 is directed to all of Plaintiff's social media accounts, her Facebook account is primarily at issue in the present motion to compel. [See Doc. 46 at 5-8; see also id. at 8 (“[T]his Court should disregard Plaintiff's objections and order Plaintiff to produce her Facebook data.”).]
Defendant refers to deposition testimony; however, it does not provide excerpts of the transcript. Thus, the Court is not in a position to independently review Plaintiff's deposition testimony.
Even if the Court were inclined to limit the request to Defendant's stated purpose, “the burden of requiring all of the [Plaintiff] to review all of [her] postings on potentially multiple social media sites over a period of [ ] years and determine which posts relate to [her] job, hours worked, or this case, would be ‘an extremely onerous and time-consuming task,’ ” and not proportionate to the needs of this case. Palma, 18 F. Supp. 3d at 1348 (quoting Jewell, 2013 WL 3770837, at *3).
April 7, 2018 was a Saturday.
Plaintiff appears to assume that the request for inspection was propounded under Rule 45, which governs subpoenas. [See Doc. 48 at 10.] To the contrary, a request for inspection to a party falls squarely within the ambit of Rule 34. See Fed. R. Civ. P. 34(c) (providing that “nonpart[ies] may be compelled ... to permit an inspection” pursuant to Rule 45). Indeed, the Notice itself states that it is being made “pursuant to Rule 34 of the Federal Rules of Civil Procedure.” [Doc. 22 at 1.]
Given the untimeliness of the request to inspect, the Court rejects Defendant's argument that Plaintiff should be compelled to present her iPhone for imaging because she failed to timely serve objections to the notice.