*1 Before the Court is a Second Motion to Compel (R. Doc. 74) filed by the Defendant seeking an Order for production of (1) Plaintiff's complete, unaltered social media production for January 15-17, 2021; (2) native copies of the photos and videos contained in Plaintiff's entire social media production; (3) three additional days of Takeout[1] and Extraction[2], including the date of the alleged factory reset and one day before and after; (4) additional content from Takeout and Extraction after the crash, obtained via a list of developed search terms; and (5) Kevin Brown's unredacted report of January 15-17, 2021. The Motion is opposed. R. Doc. 83. The Motion was heard on March 6, 2024.

I. Background

This litigation arises from the Federal Employer's Liability Act, 45 U.S.C. § 51, et seq (“FELA”), to recover damages for personal injuries sustained by an employee based on the alleged negligence of their employer. R. Doc. 1.

At the time of the incident in controversy, Elmer Keller was employed by Union Pacific, a common railway carrier, as an Hours-of-Service Carman Utility-Employee. Id. On January 17, 2021, Plaintiff's left work after a 16-hour workday and while driving on Louisiana Highway 77 collided with large roadside farm equipment. R. Doc. 1. According to officers on the scene after the collision, Plaintiff's vehicle left the roadway in a straight line with no sign of any correction attempts by the driver. R. Doc. 83. R. Doc. 84-2.

As a result of the incident, Plaintiff alleges that he sustained significant physical injuries in the collision. R. Doc. 1. Kellar alleges that the collision occurred due to fatigue, incapacity, and unconsciousness caused by Union Pacific's negligence. Id. More specifically, he alleges that Union Pacific failed to provide a reasonably safe workplace, resulting in his fatigue, incapacity, or unconsciousness behind the wheel moments after leaving work. Id.

Plaintiff alleges that for the calendar month preceding this incident, Union Pacific repeatedly failed to allow him the minimum of 10 consecutive hours off duty during 24-hour period before reporting to work. R. Doc. 1. As a result, Kellar contends he was forced to exceed the maximum of 267 hours of work during these months in violation of the Hours-of-Service Law, 49 U.S.C. § 21011, et seq (“HOS”).[3] Id.

In response, Union Pacific asserts that Plaintiff was not asleep at the wheel at the time of the collision. R. Doc. 73. Namely, Union Pacific asserts that data from Plaintiff's Samsung 20 phone suggests he was using his phone behind the wheel immediately prior to the collision. Id.[4]

*2 On June 7, 2023, Union Pacific filed a Motion to Compel. R. Doc. 26. Therein, Union Pacific asserted that the parties had agreed to jointly retain a digital forensics expert, Kevin Brown, and provide Plaintiff's phone to him to be copied in its entirety. R. Doc. 26-1. Union Pacific further asserted that despite this agreement, Plaintiff's phone had not been produced to Mr. Brown. Id. However, prior to the hearing on this matter the parties purportedly resolved the issue by providing approximately 600 pages of social media content and delivering the phone to Mr. Brown. R. Doc. 28. R. Doc. 34. Consequently, Union Pacific's request to compel production of such evidence was denied as moot in the subsequent Order from this Court on October 17, 2023. R. Doc. 55.

On February 20, 2024, Union Pacific filed a Second Motion to Compel R. Doc. 74. Union Pacific also filed a concurrent Motion for Spoliation Damages in light of this purported destruction of Plaintiff's phone data. R. Doc. 73.

In the present Motion, Union Pacific alleges that Plaintiff's cellphone was factory reset on or about October 14, 2021, and that Plaintiff has failed to provide the requested cell phone data and information. R. Doc. 74. Union Pacific asserts that Plaintiff has not provided (1) Plaintiff's complete, unaltered social media production for January 15-17, 2021; (2) native copies of the photos and videos contained in Plaintiff's entire social media production; (3) three additional days of Takeout[5] and Extraction[6], including the date of the alleged factory reset and one day before and after; (4) additional content from Extraction and Takeout after the crash, obtained via a list of developed search terms; and (5) Kevin Brown's unredacted report of January 15-17, 2021. Id.

Union Pacific further asserts that the parties have been discussing discovery issues regarding Plaintiff's phone since June 2023 and that that the last communication occurred via a phone call on September 22, 2023. R. Doc. 74. Union Pacific does not provide an explanation for the delay between discovering the purported data loss in September 2023 and filing the present Motion on February 20, 2024, after the initial discovery deadline had passed. Id.

In response, Plaintiff asserts it has already provided Union Pacific with a “mountain” of cell phone data. R. Doc. 83. More specifically, Plaintiff asserts that it has already provided: (1) all Geolocation data from January 15-17, 2021; (2) a Forensic Analysis of Plaintiff's phone in excess of 1,000 pages; (3) a Facebook download of Plaintiff's Activity Log from January 15-17, 2021; (4) a Facebook download of over 100 pdf pages of photos and messages created by Plaintiff before the accident; and (5) over 100 pages of Key Word search results indexed to show the exact manner in which Plaintiff analyzed his social media data. Id.

Plaintiff asserts that the approximate two-minute timeframe between his departure from work at Union Pacific and the time of the crash should be the focus of discovery, not three years of cell phone and social data. R. Doc. 83. Plaintiff also asserts that he has a significant privacy interest that must be weighed against Union Pacific's massive discovery requests. Id.

Since the filing of the present Motion, the Court has granted Plaintiff's Motion to Continue the Trial and Pre-Trial Deadlines on February 29, 2024. R. Doc. 80. The Court's Order on this motion set a scheduling conference for March 14, 2024 and reset the expert discovery deadline for June 14, 2024. Id. The Court further ordered that any Daubert-related motions regarding the admissibility of expert testimony must be filed in sufficient time to be submitted no later than July 10, 2024. Id.

II. Standard of Review

*3 Federal Rule of Civil Procedure 26(b)(1) sets the scope of discovery to include “any non-privileged matter that is relevant to any party's claim or defense.” Fed. R. Civ. P. 26(b)(1). Rule 26(b)(1) further specifies that “[i]nformation within the scope of discovery need not be admissible in evidence to be discovered.” Rule 26(b)(1) also specifies that discovery must be “proportional to the needs of the case, considering the important 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.” Id.

Under Rule 26(b)(2)(C), discovery may be limited if: (1) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from another, more convenient, less burdensome, or less expensive source; (2) the party seeking discovery has had ample opportunity to obtain the discovery sought; or (3) the proposed discovery is outside of the scope permitted under Rule 26(b)(1).

Pursuant to Rule 34, a party may serve a request to produce “any designated ... electronically stored information--including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations--stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form” within the scope of Rule 26(b) on any other party. Fed. R. Civ. P. 34(a)(1)(A). Under this rule, a party must produce the requested electronically stored information or documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request. Fed. R. Civ. P. 34(b)(2)(E)(i). If the request does not specify a form for producing electronically stored information, the responding party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. Fed. R. Civ. P. 34(b)(2)(E)(ii).

III. Analysis

Union Pacific did not provide any responsive discovery requests[7] in the present Motion but cited to their First Motion to Compel. R. Doc. 74-1. In the First Motion to Compel, Union Pacific asserted that it propounded Requests for Production on Plaintiff on April 22, 2022. R. Doc. 26-1. Union Pacific further asserted that Plaintiff's responses were not provided until October 10, 2022 and were inadequate. Id. Namely, Union Pacific contested the sufficiency of Plaintiff's responses to RFP Nos. 12, 13, 27, 28, and 29. R. Doc. 26-1.

Therefore, the Court analyzes the contested discovery in the present Motion under these formal discovery requests propounded by Union Pacific.

A. Plaintiff's complete, unaltered social media production for January 15-17, 2021

Union Pacific asserts that it requested Plaintiff's Facebook activity from January 15-17, 2021 months ago, and that Plaintiff has failed to provide it in the requested format. R. Doc. 74-1. Union Pacific asserts that the current production is in pdf format, which removed relevant metadata for the requested social media production. R. Doc. 74-1.

In response, Plaintiff asserts that Plaintiff's Facebook Activity Log for January 15-17, 2021 was provided to Union Pacific on June 19, 2023. R. Doc. 83. Plaintiff further asserts that Union Pacific's request for production of the entirety of his social media information in native format is overly burdensome and not proportionate to the needs of the case. Id. Plaintiff alleges that their production shows no evidence of tampering or unreliability and that the pdf data includes appropriate time stamps. Id.

*4 RFP No. 13 requested “an electronic, native copy of the information available on each page of your Facebook account (if you maintain one) for the period of time beginning one year before the incident up to (and including) the present.[8]” R. Doc. 26-1.

In response to RFP No. 13, Plaintiff objected “on the grounds that this information is not reasonably calculated to the lead to the discovery of admissible and the request is not reasonably proportional to the needs of the case.” Id.

The Court sustains Plaintiff's objection of non-proportionality, on the basis that four years of all of Plaintiff's Facebook activity goes beyond the question of whether Plaintiff was using his phone behind the wheel immediately prior to the collision in controversy. However, the Court finds that Plaintiff's Facebook activity from January 15-17, 2021 is directly relevant and proportional to the needs of this case. Additionally, RFP No. 13 specifically requests a “native” copy of such information. Therefore, the Court grants Union Pacific's request to compel production of Plaintiff's complete, unaltered social media production for January 15-17, 2021 pursuant to Union Pacific RFP No. 13.

B. Native copies of the photos and videos contained in Plaintiff's entire social media production

United Pacific asserts that it requested the native format versions of the photos and videos in the pdf social media content produced by Plaintiff, and that Plaintiff has failed to provide them to date. R. Doc. 74-1. Union Pacific asserts that this includes a selfie taken hours before the crash and various videos of Plaintiff filmed afterward that were purportedly deleted by his phone's reset. Id.

In response, Plaintiff asserts that photos were included in its June 19, 2023 social media production. R. Doc. 83. Plaintiff further asserts that Union Pacific's request for such photos in native format is overly burdensome and not proportionate to the needs of the case. Id.

The Court finds that Plaintiff's social media production from January 15, 2021 through February of 2023 is relevant to the question of whether Plaintiff was on his phone at the time of the collision, and proportional to the needs of the case. The Court further finds this request also falls within RFP No. 13's request for “native” copies of the information available on Plaintiff's Facebook account from one year before the incident up through the present. R. Doc. 26-1. Therefore, the Court grants Union Pacific's request to compel production of native copies of the photos and videos contained in Plaintiff's entire social media production pursuant to RFP No. 13.

C. Three additional days of Takeout and Extraction, including the date of the alleged factory reset and one day before and after

*5 At oral argument, counsel for Union Pacific acknowledged that Union Pacific's request for three additional days of Takeout and Extraction is based on an informal agreement between the parties and not a formal discovery request.

In the absence of a formal discovery request, there is no mechanism for the Court to compel production of such documents. Therefore, Union Pacific's request to compel production of three additional days of Takeout and Extraction is denied.

D. Additional content from Extraction and Takeout after the crash, obtained via a list of developed search terms

Counsel for Union Pacific acknowledged that their request for additional content from the Extraction and Takeout of Plaintiff's phone is also based on an informal agreement between the parties. Therefore, the Court denies Union Pacific's request to compel production of additional content from Takeout and Extraction based on search terms provided by counsel for the reasons provided above

E. Kevin Brown's unredacted report of January 15-17, 2021

Union Pacific asserts that Plaintiff redacted several Google searches and three videos from the report prepared by the parties’ jointly retained expert, Kevin Brown. R. Doc. 74-1. Union Pacific asserts that the videos should be produced to determine who is in them, why they were made, and whether they are linked to Plaintiff's phone activity prior to the accident. Id.

In response, Plaintiff asserts that he was not on duty at the time of any of these redacted entries and the information in these entries is wholly irrelevant, not proportionate to the needs of the case, and prejudicial. R. Doc. 83. Plaintiff further asserts that these were the only redactions in Mr. Brown's 1,141-page report and consisted of pornography searches and financial transactions. Id. at 8-9.

Upon review of Kevin Brown's unredacted report, the Court finds that the redacted videos are relevant and proportional to the needs of the case. The metadata included in Kevin Brown's report suggests that some of the redacted videos were viewed on Plaintiff's phone in the twenty-four hours preceding the collision in controversy, while Plaintiff was purportedly working his sixteen-hour shift with Union Pacific. However, Kellar acknowledged on questioning that on the day of the incident he received an email inquiring about buying his Samsung 10 phone. Therefore, the pornographic videos redacted from Kevin Brown's report are clearly relevant and discoverable.

Regarding the redacted financial transactions, the Court finds that such transactions are discoverable. Evidence of when Plaintiff sold his prior cell phone is relevant to Union Pacific's claim for spoliation damages. Namely, such evidence goes to the question of where and how Plaintiff's data was possibly destroyed and whether it can still be retrieved. At oral argument, Plaintiff could not recall when he sold his prior cell phone or whether it was sold to an individual or traded in at Best Buy. Therefore, the financial transactions redacted from Kevin Brown's report are relevant evidence and must be produced.

Therefore, the Court grant's Union Pacific's request to compel production of Kevin Brown's unredacted report.

IV. Conclusion

Accordingly,

IT IS ORDERED that the Defendant's Second Motion to Compel (R. Doc. 74) is GRANTED IN PART and DENIED IN PART.

*6 IT IS GRANTED to the extent that Defendant's request to compel production of Plaintiff's complete, unaltered social media production for January 15-17, 2021; native copies of the photos and videos contained in Plaintiff's entire social media production; and Kevin Brown's unredacted report of January 15-17, 2021 is GRANTED.

IT IS DENIED to the extent that Defendant's request to compel production of three additional days of Takeout and Extraction, including the date of the alleged factory reset and one day before and after; and additional content from Takeout and Extraction after the crash, obtained via a list of developed search terms is DENIED.

IT IS FURTHER ORDERED that Plaintiff shall supplement its responses no later than fourteen (14) days from the signing of this Order.