Walker et al v. Corizon Health, Inc. et al

Filing 81

MEMORANDUM AND ORDER granting 72 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 12/17/18. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SHERMAINE WALKER, et al.,

)
)
Plaintiffs, )
)
v.
)
)
CORIZON HEALTH INC. f/k/a
)
CORRECTIONAL MEDICAL
)
SERVICES, et al.,
)
)
Defendants. )
_______________________________)

Case No.: 17-2601-DDC-KGG

MEMORANDUM & ORDER ON MOTION TO COMPEL
Now before the Court is the Motion to Compel Discovery filed by
Defendant Paul Corbier, M.D. (hereinafter “Defendant”). (Doc. 72.) Having
reviewed the submissions of the parties, Defendant’s motion is GRANTED as
more fully set forth below.
BACKGROUND
Plaintiffs are the surviving natural relatives of decedent Marques Davis.
They bring the present case alleging deliberate indifference to his serious medical
need and failure to provide medical care, failure to train, inadequate supervision,
and wrongful death of Davis while he incarcerated at the Hutchinson, Kansas,
Correctional Facility. (See Doc. 4.)

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Defendant Corbier noticed depositions for Plaintiff Shermaine Walker and
then-Plaintiff Erika Flowers for October 15-16, 2018.1 The notices included a
Fed.R.Civ.P. 30(b)(2) request for document production. (Docs. 50, 51.) The Rule
30(b)(2) requests seek documents, including internet/online postings, audio/video
recordings, photographs, text messages, and electronic communications, relating to
the events in this lawsuit, Marques Davis, and/or the minor child I.D.F. (Docs. 50,
51.) Category 7, for instance, seeks “[c]opies of any written, recorded or electronic
communications, including phone calls, text messages, emails or electronic chat
messaging, in your possession or control which in any way relate to Marques
Davis.” (Id.)
Both Walker and Flowers testified that they never provided with
Defendant’s request for production. (Doc. 73-1, at 2; Doc. 73-2, at 2.) Counsel for
the parties agreed that Plaintiffs’ counsel would provide the documents after the
conclusion of the depositions, which would be held open for further questioning if
necessitated by the document production. (Doc. 73-1, at 3; Doc. 73-2, at 3.)
Defense counsel wrote Plaintiff’s counsel on October 18, 2018, asking
whether Plaintiffs’ counsel would provide the documents before the November 1,
2018, and reminding Plaintiff’s counsel of the November 16, 2018, deadline for
Defendant to file a motion to compel. (Doc. 73-3.) Defendant received no

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Flowers is the biological mother of Davis’s surviving child, the minor Plaintiff I.D.F.
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response to this communication. Defendant thus files the present motion to
compel.
Plaintiffs respond that at the time of the depositions, Ms. Walker and Ms.
Flowers “testified that the only documents responsive to Defendant’s Notice they
would have in their possession might be letters or postcards to and from Marques
Davis, photographs of Marques Davis and/or his daughter, Plaintiff I.D.F., and
social media posts about Marques Davis.” (Doc. 75, at 1.) Plaintiffs’ counsel
indicates that Walker and Flowers “have been unable to locate any letters or post
cards to and from Marques,” but will “gladly produce any such letters or postcards
if and when they are discovered.” (Id.) Further, Walker has provided screenshots
containing photographs of Marques and/or I.D.F, which were “being concurrently
delivered to counsel for defendants” at the time Plaintiffs filed their response. (Id.,
at 2.) Plaintiff’s counsel also agreed to provide any photographs provided by
Flowers, who is no longer a party to this case. (Id.) Plaintiffs indicate that they
provided their Facebook information to opposing counsel at their depositions.
Plaintiffs contend that because both Facebook profiles are “public,” the
information is equally accessible to Defendants. (Id.)
Defendants’ reply is concerned only with the issue of Facebook information,
including private instant messaging on that social media platform. (See Doc. 77.)

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As such, the Court considers any other disputes to have been resolved between the
parties.
In this context, Defendants contend
Walker testified to having two Facebook accounts, one of
which is referenced in Plaintiffs’ response brief. Ms.
Walker also testified to having a messenger function
associated with the accounts, and that she had received
information through the messenger program related to
Marques Davis. This information is responsive to
paragraph 7 of the deposition notice, and is not equally
available.2
In addition, Plaintiffs’ public Facebook
information may not contain the entirety of the
responsive information. As demonstrated below,
Facebook allows a user to exempt certain information
from the public profile, while allowing that information
to be seen by ‘friends.’
(Doc. 77, at 2.) Defendants argue that they “cannot determine the totality of the
responsive information by viewing the public profile, and Plaintiffs should be
compelled to provide the entirety of the requested information.” (Id.)
ANALYSIS
I.

Legal Standards.
Fed.R.Civ.P. 26(b) states that
[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim
or defense and proportional to the needs of the case,

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Category No. 7 seeks “[c]opies of any written, recorded or electronic communications,
including phone calls, text messages, emails or electronic chat messaging, in your
possession or control which in any way relate to Marques Davis.” (Doc. 50, 51.)
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considering the importance of the issues at state 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. Information within this
scope of discovery need not be admissible in evidence to
be discoverable.
As such, the requested information must be nonprivileged, relevant, and
proportional to the needs of the case to be discoverable. Holick v. Burkhart, No.
16-1188-JTM-KGG, 2018 WL 372440, at *2 (D. Kan. Jan. 11, 2018).
Given the broad scope of relevancy in the discovery process, the Court finds
that the social media activity at issue may lead to relevant information. Further,
the Court notes that Plaintiffs have raised no actual objection to providing this
information. (See generally Doc. 75.) Rather, Plaintiffs merely state that “to the
extent Defendant seeks information that can be found on Plaintiff Shermaine
Walker and Ms. Flower’s [sic] Facebook pages, Defendants have been provided
identifying information for those public Facebook pages, and therefore have equal
access to such information.” (Doc. 75, at 2.)
Defendants reply that “Walker testified to having two Facebook accounts,
one of which is referenced in Plaintiffs’ response brief.” (Doc. 77, at 2; Doc. 77-1,
at 2.) Defendants also point out that Walker testified to having a messenger

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function associated with the accounts, and that she had received information
through the messenger program related to Marques Davis. (Doc. 77-1, at 5.)
The Court finds that any of Ms. Walker’s Facebook messenger
communications, from any account she maintains, regarding Marques Davis or the
events at issue in this case are relevant and discoverable. Further, to the extent
either of Ms. Walker’s Facebook and/or social media accounts have privacy
settings limiting public access to her pages or postings, Defendant shall be
provided with copies of any postings, whether publicly or privately posted, on any
social media account, whether made by Walker or posted by someone else on her
Facebook page(s), “which in any way relate to the matters involved in this
lawsuit.” This information shall be produced to Defendants within thirty (30)
days of the date of this Order.
IT IS THEREFORE ORDERED that Defendants’ Motion to Compel
(Doc. 72) is GRANTED. All supplemental responses, including responsive
documents, shall be served by Defendant within thirty (30) days of the date of
this Order.
IT IS SO ORDERED.
Dated this 17th day of December, 2018, at Wichita, Kansas.
S/ KENNETH G. GALE

HON. KENNETH G. GALE
U.S. MAGISTRATE JUDGE
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