Feaster v. Dopps Chiropractic Clinic, LLC et al

Filing 115

MEMORANDUM AND ORDER granting in part and denying in part 96 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 3/13/17. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES EX REL
MARCUS FEASTER, and
MARCUS FEASTER, Individually,

)
)
)
)
Plaintiffs,
)
)
v.
)
)
DOPPS CHIROPRACTIC CLINIC, LLC )
and JOHN DOPPS,
)
)
Defendants,
)
___________________________________ )

Case No.13-1453-EFM-KGG

ORDER ON DEFENDANT’S MOTION TO COMPEL
Now before the Court is the Motion to Compel filed by Defendant Dopps
Chiropractic Clinic, LLC (“Defendant”). (Doc. 96.) For the reasons set forth
below, Plaintiff’s motion is GRANTED in part and DENIED in part.
BACKGROUND
This lawsuit contains causes of action for employment discrimination and
violations of the Federal False Claims Act. (See generally Doc. 32.) Plaintiff
Feaster alleges that Defendants committed Medicare fraud. He also contends that
Defendants constructively discharged him from his employment in violation of
federal law. The present motion relates to Plaintiffs’ objections to Defendant’s
discovery request regarding Plaintiff’s deleted social media postings.

DISCUSSION
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, 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 both nonprivileged and relevant to be
discoverable. Within this framework, the Court will review the contested
discovery response.
Defendant’s Interrogatory No. 10 asks Plaintiffs to “identify and describe
each . . . social media post . . . you have deleted, altered, or removed, or caused to
be deleted, altered or removed since July 8, 2013.” (Doc. 96, at 4.) Plaintiffs
object that the request is vague, overly broad, violates Plaintiff Feaster’s privacy
interests, and is not reasonably calculated to lead to the discovery of admissible
evidence.1 (Id.) Plaintiff also objects that request is not proportional to the needs

1

The Court notes that the “reasonably calculated” standard is no longer part of the
appropriate Rule 26(b) analysis. Rather the test to be applied is whether the information
is relevant to any party’s claims or defense and is proportional to the needs of the case.
See 2015 Amendment to Fed.R.Civ.P. 26(b).
2

of the case. (Id., at 5.)
Defendant contends that the request has been reasonably limited temporally
as it “seeks only information and documents from July 8, 2013 (the day Feaster
resigned from John Dopps Chiropractor, P.A.) to the present.” (Id.) Defendant
further contends the request is limited in scope as it asks only for social media
posts Feaster “deleted, altered, or removed since that date.” (Id.)
Plaintiff responds that he has already produced every post and message
referencing his work” with Defendant “as well as his entire professional Facebook
page.” (Doc. 100, at 5.) According to Plaintiff, the documents requested are not
relevant and Defendant is requesting a “general rummaging” through his deleted
postings. (Id.) Plaintiff continues that “[d]iscovery of social media must be
limited to discrete issues related to suit.” (Id.)
Smith v. Hillshire Brands is a recent decision from this District discussing
limitations on the discovery of social media. No. 13-2605-CM, 2014 WL
2804188, at *4-5 (D. Kan. June 20, 2014). The Smith court noted that while
“[i]nformation on social networking sites is not entitled to special protection,”
discovery requests seeking this information should be tailored so as not to
constitute “the proverbial fishing expedition in the hope that there might be
something of relevance” in the respondent’s social media presence. Id.
3

The Smith court relied on the out-of-district decision of Ogden v. All–Star
Career School, which held that “Defendant is no more entitled to such unfettered
access to plaintiff’s . . . social networking communications than it is to rummage
through the desk drawers and closets in plaintiff’s home.” Id. (citing Ogden, No.
13-406 2014 WL 1646934, at *4 (W.D. Pa. April 23, 2014)). Similarly, allowing
Defendant in the present case to have unfettered access to all of Plaintiff’s deleted
and altered social networking postings would be akin to allowing Defendant
unfettered access to rummage through Plaintiff’s garbage.
That is not to say, however, that all discarded social media postings are
undiscoverable. To the extent Plaintiff mentioned Defendants or his employment
with them in any such discarded or altered social media postings, the same are both
relevant and discoverable. Given the severity of the allegations contained in
Plaintiff’s Second Amended Complaint, this information is also proportional to the
needs of this case. Plaintiff is, therefore, instructed to review any and all deleted,
altered, or removed social media postings from July 8, 2013, and produce any and
all that in any way reference Defendants or Plaintiff’s employment with
Defendants.

IT IS THEREFORE ORDERED that Defendant’s Motion to Compel
4

(Doc. 96) is GRANTED in part and DENIED in part as more fully set forth
above. Plaintiff shall serve his supplemental responses on or before April 13,
2017.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 13th day of March, 2017.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

5