APPLER v. MEAD JOHNSON & COMPANY, LLC

Filing 38

ORDER granting in part and denying in part 30 Motion for Protective Order. Hearing on issues (a) through (e) as discussed in this Order is set for 10/21/2015 at 09:00 AM Telephonic before Magistrate Judge William G. Hussmann, Jr. Signed by Magistrate Judge William G. Hussmann, Jr., on 10/1/2015.(NRN)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION
LORI B. APPLER
Plaintiff,
v.
MEAD JOHNSON & COMPANY, LLC
d/b/a MEAD JOHNSON and d/b/a
MEAD JOHNSON NUTRITIONALS,
Defendant.

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3:14-cv-166-RLY-WGH

ORDER ON DEFENDANT’S MOTION FOR PROTECTIVE ORDER
Plaintiff, Lori B. Appler (“Appler”), has sued Defendant, Mead Johnson
Company, LLC (“Mead Johnson”). Appler accuses Mead Johnson of unlawful
employment actions causing Appler to suffer numerous injuries. In response to
three of Mead Johnson’s interrogatory requests, Appler had filed a Motion for
Protective Order to limit the scope of discovery regarding Appler’s social media
accounts and activities. (Filing No. 23).
Appler then retorted with her Second Discovery Requests, with requests
mirroring the Defendant’s three interrogatories she had objected to, but with
her request directed at Mary Engelland1 (“Engelland”), Appler’s immediate

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While both Plaintiff and Defendant spell Mary’s last name as “Engellend” throughout their
briefs, it appears that “Engelland” is the correct spelling. This is how Mary’s last name appears
both typed and signed in her Declaration. (Filing No. 31-3). It is also how Defendant spells
Mary’s last name in its brief where it has copied excerpts of the Plaintiff’s Interrogatories.
(Filing No. 31 at EFC pp. 3-5).

supervisor, and Christopher Bernfeld (“Bernfeld”), a human resources
representative of the company. Appler contends that these two individuals were
key decision makers in the decision to terminate her employment. Mead
Johnson filed a Motion for Protective Order (Filing No. 30), claiming that these
requests are not seeking relevant information and that Engelland and
Bernfeld’s privacy rights outweigh any discovery entitlements to the
information. (Filing No. 31). The matter is fully briefed. (Filing No. 31; Filing No.
35). For the reasons set forth below, I, Magistrate Judge William G. Hussmann,
ORDER a hearing on the issues discussed.
I.

Background
On December 5, 2014, Plaintiff filed her Complaint against Defendant,

alleging causes of action for violation of the ADA/ADAAA; for violation of the
ERISA; for retaliation; and the intentional infliction of emotional distress.
Plaintiff agreed to dismiss and no longer pursue her ERISA claim.
As to the remaining claims, Plaintiff contends she was fired because of
her narcolepsy or other sleep disorder and that Defendant refused to engage in
an interactive process to determine appropriate accommodations as required
by the ADA/ADAAA.
Defendant sought, through three interrogatories, to obtain Plaintiff’s
social media activity. Plaintiff objected to these interrogatories and filed a
Motion for Protective Order. (Filing No. 23). This court granted in part and
denied in part Plaintiff’s Motion for Protective Order. (Filing No. 36). Before that
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ruling was docketed, however, Plaintiff sent her own Second Discovery
Requests seeking social media activity of her supervisor, Engelland, and the
human resources representative, Bernfeld. Defendant then filed their own
Motion for Protective Order, objecting to the following requests:
Request No. 1: Provide all messages, photographs or videos
posted on any social networking site including, but not limited to,
Facebook, MySpace, LinkedIn, Vine, etc., by Mary Engelland, or
anyone on her behalf regarding Plaintiff or any other employee or
former employees of Defendant that held the same or similar job title
and/or performed the same or similar job duties as Plaintiff
held/performed.
***
Request No. 2: Provide copies of any and all online profiles,
postings, messages (including, without limitation, tweets, replies,
retweets, direct messages, status updates, wall comments, groups
joined, activity streams and blog entries) photographs, videos, and
online communications from Mary Engelland’s social media sites
that:
(a)
Refer or relate to the allegations set forth in the
Complaint;
(b)
Refer or relate to any facts or defenses raised in the
Answer;
(c)
Reveal, refer or relate to any mental state pertaining to
Plaintiff or people with disabilities generally; or
(d)
Reveal, refer or relate to events that could reasonably
be expected to produce a significant emotion, feeling, or
mental state relating to Plaintiff or people with
disabilities generally.
***
Request No. 3: Produce a download of Mary Engelland’s
complete Facebook Profile. To do so, go to the Account Settings page
(arrow button located next to the “Home” button) and click the
“Download Your Information” button (located at the bottom of the
general settings page). Once the page loads, click the “Start My
Archive” button. Once Facebook verifies Plaintiff’s identity, an email
will be sent to Mary Engelland advising that a zip file is ready for
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download. Once the zip file is received, please produce it to Plaintiff’s
counsel. Defendant is hereby put on notice that deleting anything
from Mary Engelland’s account from this point forward (including
but not limited to posts, status updates, mail messages,
photographs, friends, links, etc.) is considered spoliation of evidence
and Defendant’s counsel has an ethical obligation to ensure that all
evidence is preserved. Additionally, noting the fact that portions of
Mary Engelland’s profile might be publically available is an
insufficient response to this Request.
***
Request No. 4: Provide all messages, photographs or videos
posted on any social networking site including, but not limited to,
Facebook, MySpace, LinkedIn, Vine, etc., by Christopher Bernfeld
or anyone on his behalf regarding Plaintiff or any other employee or
former employees of Defendant that held the same or similar job title
and/or performed the same or similar job duties as Plaintiff
held/performed.
***
Request No. 5: Provide copies of any and all online profiles,
postings, messages (including, without limitation, tweets, replies,
retweets, direct messages, status updates, wall comments, groups
joined, activity streams and blog entries) photographs, videos, and
online communications from Christopher Bernfeld’s social media
sites that:
(a)
Refer or relate to the allegations set forth in the
Complaint;
(b)
Refer or relate to any facts or defenses raised in the
Answer;
(c)
Reveal, refer or relate to any mental state pertaining to
Plaintiff or people with disabilities generally; or
(d)
Reveal, refer or relate to events that could reasonably
be expected to produce a significant emotion, feeling, or
mental state relating to Plaintiff or people with
disabilities generally.
***
Request No. 6: Produce a download of Christopher Bernfeld’s
complete Facebook Profile. To do so, [see Request No. 3, above].
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The same legal standards apply to the analysis of Defendant’s Motion for
Protective Order that also applied in Plaintiff’s previous Motion for Protective
Order. The court will reiterated that standard as it is written in its Order
granting in part and denying in part Plaintiff’s Motion for Protective Order,
(Filing No. 36), and then proceed to apply it to this new situation.
II.

Legal Standards
Federal Rule of Civil Procedure 26 dictates that parties engage in broad,

liberal discovery encompassing
any nonprivileged matter that is relevant to any party’s claim or
defense—including the existence, description, nature, custody,
condition, and location of any documents or other tangible things
and the identity and location of persons who know of any
discoverable matter. For good cause, the court may order discovery
of any matter relevant to the subject matter involved in the action.
Relevant information need not be admissible at the trial if the
discovery appears reasonably calculated to lead to the discovery of
admissible evidence.
Fed. R. Civ. P. 26(b)(1).
Social media content presents a unique challenge for courts due to its
relative novelty and their ability to be shared by someone besides the original
poster, and the multifarious privacy settings that may be constructed to allow
specifically limited viewing. Nonetheless, a court may compel production of a
party’s Facebook information if the party seeking disclosure makes a threshold
relevance showing. See Equal Emp’t Opportunity Comm’n v. Simply Storage
Mgmt., LLC, 270 F.R.D. 430, 434-35 (S.D. Ind. 2010) (“EEOC”); Potts v. Dollar

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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. 2012).
The challenge arises in applying traditional discovery rules and
standards to the new amorphous context that is social media. While the
relevancy bar for discoverable content is liberal, it is not limitless; the basic
limits of discovery still apply. Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D.
566, 571 (C.D. Cal. 2012) (discovery requests should “put a ‘reasonable person
of ordinary intelligence’ on notice of which specific documents or information
would be responsive to the request, [in order] to satisfy Rule 34(b)(1)(A)'s
requirement that production requests be stated with reasonable particularity”);
Simply Storage, 270 F.R.D. at 434 (“Discovery of SNS [social networking sites]
requires the application of basic discovery principles in a novel context”);
Davenport v. State Farm Mut. Auto. Ins. Co., No. 3:11-CV-632-J-JBT, 2012 WL
555759, at *1 (M.D. Fla. Feb. 21, 2012) (A request for discovery [of SNS
content] must still be tailored . . . so that it ‘appears reasonably calculated to
lead to the discovery of admissible evidence”) (quoting Fed. R. Civ. P. 26(b)(1)).
III.

Discussion
Preliminarily, I find it important to mention a minor disagreement in

interpretation of Plaintiff’s requests that is easily resolved. It deals with
Defendant’s interpretation of Plaintiff’s Requests 2(c) and 5(c), which seek SNS
content that “relate[s] to any mental state pertaining to Plaintiff or people with
disabilities generally.” (Filing No. 35 at EFC p. 4). I find that Defendant has
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misconstrued these requests. (Filing No. 31 at EFC p. 6). (“Defendant cannot
provide information related to the mental state of Plaintiff or ‘people with
disabilities generally.’ Such information is known only to that individual and
only comes to surface when the individual chooses to share such
information.”) It seems very clear from the context, as Plaintiff says in her
reply brief, that “those requests relate only to posts relaying the authors’ own
mental state concerning Plaintiff, or others with disabilities, and do not
require or invite the authors to perform acts of mentalism.” (Filing No. 35 at
EFC p. 4). Defendant’s attempt to read these request as asking the witnesses
to produce the inner mental workings of Plaintiff and others is not what was
intended by the requesting party. I find these requests are seeking posts by
Engelland and Bernfeld that relate to their own thoughts and opinions
regarding Plaintiff and to people with disabilities generally.
As to the merits of Plaintiff’s Second Discovery Requests, I find that the
balance of relevancy and burden concerning Plaintiff’s requests and
Defendant’s requests is very different. Plaintiff’s SNS content was particularly
relevant because it was very likely to lead to admissible evidence regarding her
disability and emotional distress claim. But the argument for producing
Engelland and Bernfeld’s SNS content is more attenuated.
Plaintiff claims that Engelland and Bernfeld’s SNS content is similarly
relevant because their mental state is relevant circumstantial evidence that
could tend to evince their motivations for firing Plaintiff. Any comments made
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by them on social media regarding “Plaintiff directly, or expressing an
animosity, hostility, or prejudice against, or amusement with or belittlement of,
persons with disabilities in general” could, Plaintiff argues, “go a long way
toward establishing, inferentially, that the adverse action against Plaintiff was
motivated ‘because of’ her disability.” (Filing No. 35 at EFC p. 5).
Defendant argues that Engelland and Bernfeld’s sworn testimony
alleging there are no such social media comments should be enough to obviate
this request. (Filing No. 31 at EFC p. 8). But an essential part of discovery is
allowing the parties to access information that tests the truthfulness and
validity of their opponents’ claims. Loft, Inc. v. Corn Products Ref. Co., 103 F.2d
1, 7-8 (7th Cir. 1939) (“The rationale of this attitude [towards liberal discovery]
is, of course, not only that the court wants to know the truth, but also that it is
good for both the parties to learn the truth far enough ahead of the trial.”).
As a result, and even as Defendant seems to acknowledge in their brief,
at least some of Engelland and Bernfeld’s SNS content—namely, “any
discussions regarding Plaintiff or persons with disabilities”—would be relevant
and therefore discoverable. (Filing No. 31 at EFC p. 8). Defendant contends,
however, that Engelland and Bernfeld have not posted or tied themselves to
anything on social media that would fall within this category. (Id.) (“It is worth
mentioning that a narrowly crafted discovery request for this information would
have yielded the foregoing response [that no relevant SNS content exists] and
obviated the need for Defendant to seek a Protective Order.”).
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I find that Defendant overstates this point; Engelland and Bernfeld’s
deposition testimony is not enough, in this case, to dispose of the conceivable
need for at least some review of the SNS content Plaintiff has requested. Here,
Plaintiff is looking for SNS content that would suggest the decision makers’
opinions on employees, people with disabilities, people who are late to work,
and people with sleep disorders. These are fairly broad and vague categories.
Reasonable people could differ on whether a particular comment was
disparaging. Engelland and Bernfeld could have truthfully responded that they
did not post, write, like, or share the type of content they were asked about,
but Plaintiff’s view of their SNS content might produce a different opinion and,
therefore, different results.
In most employment cases, plaintiffs must establish motivation and
opinion based on indirect and circumstantial remarks. In this particular case,
Engelland and Bernfeld’s depositions do make it seem highly unlikely that
either Engelland or Bernfeld have SNS content with outrageous statements
(e.g. “The useless narc was late to work again today”). However, a collection of
more innocuous content might still be relevant to the Plaintiff’s case (e.g.
sharing an article questioning the existence of sleep disorders, posting
disparaging comments about people who sleep later into the day, or
complaining about Plaintiff in private messages).
For this reason, I see a viable reason for Plaintiff’s counsel to review
Engelland and Bernfeld’s SNS content for such remarks. And as there is
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already a Protective Order restricting the disbursement of discoverable
information, I find that this could be accomplished without undue invasion of
Engelland and Bernfeld’s privacy rights. (Filing No. 35) (“Any party or non-party
who produces protected information in this action may designate it as
“Confidential” or “Attorneys’ Eyes Only” consistent with the terms of this
Order” at Id. at EFC p. 2).
The parties did not discuss the feasibility, burden, or cost of conducting
a search of SNS content for a more limited interrogatory than what the Plaintiff
requests at this time. As such, the court ORDERS a hearing to be scheduled
on the matters of (a) procedures for searching and limiting SNS content to the
relevant categories, (b) the mechanism available for such a search, (c) the cost
involved in such a search, (d) the proper individual(s) to conduct the search
and limiting of SNS content, and (e) who should bear the cost of such a search
and limiting operation.
IV.

Conclusion
For the foregoing reasons, the court GRANTS the Motion in part,

DENIES the Motion in part, and ORDERS a hearing on issues (a) through (e)
as discussed in the paragraph above. The HEARING will be conducted
telephonically on WEDNESDAY, OCTOBER 21, 2015, at 9:00 a.m., Evansville
time (CDT), before Magistrate Judge Hussmann. The information needed by

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counsel to participate in this telephonic conference will be provided by a
separate notification.
IT IS SO ORDERED the 1st day of October, 2015.

Served electronically on all ECF-registered counsel of record.

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