HIGGINS et al v. KOCH DEVELOPMENT CORPORATION
ORDER granting 127 Motion to Compel Discovery Response to Defendant's Second Request for Production. Rachel Taylor and Sarah Taylor will have thirty (30) days from this entry to respond to Defendant's Request. Signed by Magistrate Judge William G. Hussmann, Jr., on 7/5/2013. (NRN)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
KENT HIGGINS and
JENNIFER HIGGINS, Individually and as
Parents and Natural Guardians, and Next
Friend on behalf of AH and NH, Minors, and
JOHN TAYLOR and SARAH TAYLOR,
Individually and as Parents and Natural
Guardians, and Next Friend on behalf of JT,
A Minor, and RACHEL TAYLOR,
Holiday World & Splashin’ Safari,
ENTRY ON DEFENDANT’S MOTION TO COMPEL
Plaintiffs, Kent Higgins, Jennifer Higgins, John Taylor, Sarah Taylor, and
Rachel Taylor, individually and on behalf of their minor children, AH, NH, and
JT (collectively, “Plaintiffs”), have sued Defendant, Koch Development
Corporation d/b/a Holiday World and Splashin’ Safari (“Koch”). Plaintiffs
accuse Koch of improperly maintaining its chemical filter pumps and electrical
breakers, causing the Plaintiffs, visitors to Koch’s theme park, to suffer serious
injuries. Koch has filed a Motion to Compel the production of the Facebook
archives of Sarah Taylor (“Sarah”) and Rachel Taylor (“Rachel”). (Docket No.
127). For the reasons set forth below, Koch’s motion is GRANTED.
On June 20, 2009, Plaintiffs visited Holiday World & Splashin’ Safari and
used an attraction called the “Bahari River,” which had “muratic acid and
liquid bleach filtered into the water by a filter pump that was connected to a
breaker.” (Complaint ¶ 10). Plaintiffs allege that a Koch employee negligently
turned the electric breaker on without checking the amount of acid and bleach
that would be released as a result. (Id. ¶ 12). As a result, Plaintiffs were
exposed to high concentrations of acid and bleach, suffered serious personal
injuries, and developed breathing disabilities. (Id. ¶¶ 13, 15-22). Plaintiffs
filed suit on May 9, 2011. Jurisdiction and venue are proper in this court. 28
U.S.C. §§ 1332, 1391.
On April 29, 2013, Sarah and Rachel were deposed and testified that
they maintained Facebook pages. Koch requested access to the content, and
Sarah and Rachel used Facebook’s “download your information ‘Expanded
Archive’ mechanism” to preserve their Facebook data in electronic format.
(Defendant’s Motion ¶ 1). Immediately thereafter, Koch served on Sarah and
Rachel Defendant’s Second Request for Production, requesting their Facebook
information. (Id. ¶ 2; see also Defendant’s Ex. A). Sarah and Rachel objected,
claiming that the Request violates their privacy, since their respective pages are
set up so that only the people they choose could view their profiles. They also
claimed that the privacy of non-parties was violated because photographs and
information uploaded by non-parties and published on Sarah and Rachel’s
pages, through a process known as “tagging,” would be discovered. (Id. ¶ 4;
see also Defendant’s Ex. B). Sarah and Rachel also objected on more
traditional grounds, claiming that the request was “overly broad, vague and
ambiguous, and not limited in time and scope . . . irrelevant, unrelated, and
not reasonably calculated to lead to the discovery of admissible evidence.” (Id.).
Additional facts will be supplied as necessary.
Federal Rule of Civil Procedure 26 dictates that parties engage in broad,
liberal discovery encompassing “any matter that bears on, or that reasonably
could lead to other matter that could bear on, any issue that is or may be in
the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct.
2380, 57 L. Ed. 2d 253 (1978); FED. R. CIV. P. 26. Any relevant, nonprivileged
information must be disclosed, but the moving party must show that the
material sought is “reasonably calculated to lead to the discovery of admissible
evidence.” FED. R. CIV. P. 26(b)(1). “Where relevance is in doubt, [Rule
26(b)(1)] indicates that the court should be permissive.” Truswal Sys. Corp. v.
Hydro-Air Eng’g, Inc., 813 F.2d 1207, 1212 (Fed. Cir. 1987); see also Heat &
Control, Inc. v. Hester Indus., Inc., 785 F.2d 1017, 1024 (Fed. Cir. 1986)
(“[r]elevance under Rule 26(b)(1) has been construed more broadly for discovery
than for trial.”).
Postings on Facebook and other social media present a unique challenge
for courts, due to their relative novelty and their ability to be shared by or with
someone besides the original poster. Nonetheless, a court may compel
production of a party’s Facebook information if the party seeking disclosure
makes a threshold relevance showing. Equal Emp’t Opportunity Comm’n v.
Simply Storage Mgmt., LLC, 270 F.R.D. 430, 434-35 (S.D. Ind. 2010) (“EEOC”);
see also Potts v. Dollar Tree Stores, Inc., 2013 WL 1176504 (M.D. Tenn. Mar.
20, 2013); Tompkins v. Detroit Metro. Airport, 287 F.R.D. 387, 388 (E.D. Mich.
The court must evaluate two issues in ruling on Defendant’s Motion to
Compel: (A) whether Koch has made a prima facie showing that the materials
sought will reasonably lead to the discovery of admissible evidence; and (B)
whether the privacy rights of parties or non-parties would be violated by
disclosing the information.
Sarah and Rachel claim that, as a result of exposure to the acid and
bleach, each has suffered “serious personal injuries to her eyes, throat, nose,
and lungs, including the development of serious breathing disabilities.”
(Complaint ¶¶ 20, 22). Consequently, Rachel alleges that she can no longer
swim and jog and that her life is impacted by temperature changes and odors.
(Defendant’s Reply ¶ 10). Sarah claims she cannot “participate in or enjoy her
son’s sporting events . . . use certain cleaning products or enjoy perfumes or
candles or other strong odors . . . [and] heat and humidity affect her breathing
and she can no longer work in her yard.” (Id. ¶ 11). Both Rachel and Sarah
allege hundreds of thousands of dollars in future impaired earning capacity.
(Id. ¶ 12). Koch claims that Rachel and Sarah’s Facebook content may reveal
relevant information as to the extent their injuries have impacted their
“enjoyment of life, ability to engage in outdoor activities, and employment,”
along with their “claims regarding permanent injuries, lack of pre-existing
symptoms, and impairment of future earnings capacity.” (Id. ¶ 13). Since the
extent of Rachel and Sarah’s losses in these areas directly impacts the
appropriate damages award, the court finds this information relevant.
Party and Non-Party Privacy
Rachel and Sarah argue that Koch’s Request for Production violates their
right to privacy, since they have their accounts set to the highest level of
privacy. (Plaintiffs’ Response ¶ 7). However, they cite no cases supporting the
proposition that setting a Facebook profile to “private” entitles a person to a
greater expectation of privacy or can act as a shield to discovery. In fact, the
EEOC court expressly ruled that the opposite is true. 270 F.R.D. at 434. The
cases Plaintiffs cite, Potts and Tompkins (Plaintiffs’ Response ¶ 6), are
inapposite. In those cases, the courts ruled that defendants had failed to make
a threshold relevancy showing of the need for the private information, and thus
their requests were more akin to “fishing expeditions” than a calculated request
that would lead to relevant information. Potts, 2013 WL 1176504, at *3;
Tompkins, 278 F.R.D. at 388. Koch, as discussed supra, has shown that the
information in Rachel and Sarah’s private profiles is relevant to ascertaining
proper damages. Koch, moreover, has taken sufficient steps to avoid unduly
invading Rachel and Sarah’s privacy by, for example, not requesting their
passwords on record during the deposition. (Defendant’s Motion ¶ 1). The
court thus finds that Rachel and Sarah’s expectation of privacy does not
dictate denying the Motion to Compel.
Rachel and Sarah’s claim that Koch’s Request violates the privacy of
their Facebook friends who have posted on their “walls” and “tagged” them in
posts or other pictures is similarly unfounded. In Davenport v. State Farm Mut.
Auto. Ins. Co., the court held that tagged photos may be discoverable when, as
in this case, the photos are relevant. 2012 WL 555759, at *2 (Feb. 21, 2012).
The court also held that once the plaintiff was tagged in the photos, they
became in the plaintiff’s “possession, custody, or control.” Id. n.4 (citing FED.
states that all posting is done at one’s own risk. See Romano v. Steelcase, Inc.,
907 N.Y.S.2d 650, 656 (N.Y. Sup. Ct. 2010). The court finds Davenport
instructive and concludes that these non-parties limited any expectation of
privacy they had when they tagged Rachel or Sarah. Therefore, Rachel and
Sarah’s alternative request to exclude any tagged photos is denied.
Scope of Request
Rachel and Sarah finally claim that Koch’s request is overly broad.
(Plaintiffs’ Response ¶¶ 3, 9). Therefore, they argue, the Motion to Compel
should either be denied or limited “to those posts, comments, etc [sic] and
photographs that are relevant and related to Plaintiffs’ claims of lung and
respiratory problems from the date of the incident[,] June 20, 2009[,] to the
date of the archive[,] April 29, 2013.” (Id. ¶ 10). Since Koch seeks information
on the effects of Plaintiffs’ injuries, the court finds that only the material dated
on or after the incident would be relevant to their claim. The court therefore
limits the production of Rachel and Sarah’s Facebook archives to material
dated between June 20, 2009, and April 29, 2013. Moreover, Koch only claims
that communications “relating to the Plaintiffs enjoyment of life, ability to
engage in outdoor activities, and employment activities . . . [are] directly
relevant.” (Defendant’s Reply ¶ 13). The parties do not appear to disagree
about what materials within Rachel and Sarah’s Facebook archives would be
relevant. The court therefore grants Koch’s motion as to any material between
June 20, 2009, and April 29, 2013, concerning Rachel and Sarah’s lung and
respiratory injuries and their employment activities, outdoor activities, and
enjoyment of life reasonably related to those injuries and their effects.
For the foregoing reasons, Defendant’s Motion to Compel Discovery
Response to Defendant’s Second Request for Production (Docket No. 127) is
GRANTED. Rachel Taylor and Sarah Taylor will have thirty (30) days from this
entry to respond to Defendant’s Request.
IT IS SO ORDERED the 5th day of July, 2013.
William G. Hussmann, Jr.
United States Magistrate Judge
Southern District of Indiana
Served electronically on all ECF-registered counsel of record.