Morgan et al v. Bevin
Filing
49
MEMORANDUM OPINION & ORDER: 1. Plaintiffs' Motion to Compel Production of the Relevant Documents ( 41 at 2], described above, is GRANTED. Within seven (7) days of the issuance of this Order, Defendant shall provide Plaintiffs with the fo llowing: a. copies of the documents responsive to Plaintiffs Requests for Production Nos. 7, 8, 15, and 17, including the screenshots identified in response to Plaintiffs Interrogatory Nos. 7 and 8; b. the email and text message exchanges previ ously identified as responsive to Plaintiffs Requests for Production Nos. 7, 8, and 15; and c. the Facebook keyword filter list identified as responsive to Plaintiffs Request for Production No. 17. 2. Plaintiffs Motion to Compel Governor Bevins Deposition ( 41 at 8) is DENIED. IT IS FURTHER ORDERED: 3. Defendants Motion for Oral Argument 47 is DENIED. Signed by Magistrate Judge Edward B. Atkins on 12/3/2018.(CBD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
FRANKFORT
CIVIL ACTION NO. 3:17-CV-00060-GFVT-EBA
DREW MORGAN and MARY HARGIS,
V.
PLAINTIFFS,
MEMORANDUM OPINION AND ORDER
MATT G. BEVIN, in his official capacity
as Governor of Kentucky,
DEFENDANT.
*** *** *** ***
I.
INTRODUCTION
This matter comes before the Court upon Plaintiffs Drew Morgan and Mary Hargis’s
(“Plaintiffs”) Motion to Compel Governor Matt G. Bevin (“Defendant”) to produce certain
categories of documents, as well as a limited deposition of the Defendant [R. 41]. This matter
is ready for ruling, following Plaintiffs’ Reply [R. 46] to Defendant’s Response in Opposition
to Plaintiffs’ Motion to Compel [R. 45]. All discovery disputes have been referred to the
undersigned for a decision pursuant to 28 U.S.C. § 636(b)(1)(A). [R. 35 at 2-3 ¶ 3(c)].
Accordingly, having considered the matter fully, and being otherwise sufficiently advised,
IT IS ORDERED that Plaintiffs’ Motion to Compel [R. 41] be GRANTED IN PART
AND DENIED IN PART. IT IS FURTHER ORDERED that Defendant’s Motion for Oral
Argument [R. 47] be DENIED.
II. FACTS AND PROCEDURAL HISTORY
This action arises from Plaintiffs’ allegations that their First Amendment rights under
the freedom of speech clause were violated as a result of their social media accounts being
1
blocked, or banned from accessing, Defendant’s official Twitter and official Facebook pages.
Plaintiffs allege that their postings were “non-threatening, non-obscene, and non-defamatory
comments about matters of public concern,” and thus, Defendant’s basis for blocking
Plaintiffs from his official accounts were “unrelated to the viewpoints they expressed in these
public forums.” [R. 1 at 2]. Plaintiffs have pled two claims: (1) that the Governor’s practice
and/or policy of blocking users from his official Twitter and Facebook accounts is facially
unconstitutional; and (2) an as-applied challenge resulting from the Plaintiffs being blocked.
[Id. at 12-13].
On July 12, 2018, Plaintiffs served their First Set of Discovery Requests [R. 41-1-]. On
August 22, 2018, Defendant served his Responses to Plaintiffs’ First Set of Discovery
Requests [R. 41-2]. The next day, on August 23, 2018, Defendant supplemented his response
to Interrogatory Number 2. [Id. at 20]. As a result of the Governor’s objections and his refusal
to produce any of the requested documents, Plaintiff alleges that the parties’ “ultimately
reached an impasse,” and filed this underlying motion to resolve the ongoing dispute [R. 41
at 2].
III. STANDARD OF REVIEW
Fed. R. Civ. P. 26(b)(1) provides that — unless otherwise limited — “[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.” The information sought need not be
admissible at trial so long as it appears reasonably calculated to lead to the discovery of
admissible evidence. Id. This language is broadly construed to include “any matter that bears
on, or that reasonably could lead to other matters that could bear on, any issue that is or may
be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). The scope of
2
discovery, however, is not without limitation. It is “well established that the scope of
discovery is within the sound discretion of the trial court.” Chrysler Corp. v. Fedders Corp., 643
F.2d 1229, 1240 (6th Cir. 1981) (citing H. K. Porter Co., Inc. v. Goodyear Tire and Rubber Co.,
536 F.2d 1115 (6th Cir. 1976)). As such, “[a] ruling by the trial court limiting or denying
discovery will not be cause for reversal unless an abuse of discretion is shown.” Id. (citing
Fed. R. Civ. P. 26(b); H. L. Moore Drug Exch., Inc. v. Smith, Kline and French Lab., 384 F.2d 97
(2d Cir. 1967)).
Where a party refuses to provide information requested by any other party, which is
thought by the requesting party to be within the scope of Fed. R. Civ. P. 26(b)(1), the
requesting party may move the court in which the action is pending to compel disclosure of
the requested information. Fed. R. Civ. P. 37(a)(3)(B). Such a motion to compel generally
may be filed where a party has failed to provide mandatory disclosure; failed to answer or
admit an interrogatory or request for admission; or failed to produce discoverable
information, materials, or documents — electronic or otherwise. See generally Fed. R. Civ. P.
37. A failure to disclose, answer or admit, or produce includes disclosures, answers or
admissions, or productions that are “evasive or incomplete.” Fed. R. Civ. P. 37(a)(4). Prior
to so moving, however, a party seeking to compel disclosure or discovery must in good faith
confer or attempt to confer with the opposing party “failing to make disclosure or discovery
in an effort to obtain it without court action.” Fed. R. Civ. P. 37(a)(1). Should the court
determine the matters sought to be compelled fall within the scope of Fed. R. Civ. P. 26, the
motion shall be granted.
3
IV. DISCUSSION
A.
Plaintiffs’ Motion to Compel Production of Documents under Rule 26
The three sets of documents that Plaintiffs have requested Defendant to produce, and
that are at issue here, fall into three categories: 1) screenshots of blocked individuals’ accounts;
2) emails and text messages about Defendant’s office policy and/or practice of blocking
accounts from his official pages; and 3) a Facebook keyword filter list. Plaintiffs argue that
production of these documents is critical because, “[a]t the heart of this case” is whether
Defendant’s official Facebook and Twitter accounts are either classified as designated public
fora or limited public fora [R. 41 at 3].
Plaintiffs argue that Defendant’s social media accounts constitute designated public
fora, and thus, must be scrutinized under a higher standard of review than under classification
of limited public fora. Accordingly, if labeled content-based speech, Defendant’s accounts and
his policy of regulating speech by blocking individuals from his pages, “must be necessary to
serve a compelling state interest and be narrowly drawn to achieve that interest.” [R. 41 at 3
¶ 2 (citing Miller v. Cincinnati, 622 F.3d 524, 534 (6th Cir. 2010))]. In the alternative, if labeled
content neutral, the restrictions “must serve a significant government interest, be narrowly
tailored to achieve that interest, and leave open ample alternatives for communication.” [Id.].
On the other hand, Defendant argues that his social media pages serve as limited public fora;
thus, a review of Defendant’s restrictions of speech on his accounts are not subject to any type
of strict scrutiny review. Instead, “such restrictions ‘must not discriminate on the basis of
viewpoint, and [they] must be reasonable in light of the purpose served by the forum.’ ” [Id.
at 14 (quoting Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106-07 (2001))].
The three categories of documents that Plaintiffs seek to compel, they argue, are
directly relevant to its first claim, which is a facial challenge to Defendant’s official policy
4
and/or practice of regulating his social media accounts. [R. 41 at 3]. Additionally, Plaintiffs
argue that these documents are also relevant for properly determining whether Defendant’s
official social Twitter and Facebook accounts should be reviewed under the analysis of either
designated public fora or that of limited public fora [Id. at 4]. In turn, Defendants have argued
that the three categories of documents have no relation to Plaintiffs’ claims, and thus, are
“outside the permissible scope of discovery.” [Id. at 4 (citing Fed. R. Civ. P 26(b)(1))].
1. Screenshots of Comments and/or Replies of Blocked Accounts
The screenshots at issue concern “[t]he Governor’s Office’s [possession of] screenshots
of many comments that resulted in an account being banned.” [R. 41-2 at 8-9]. Defendant
does not dispute the existence of the screenshots, but instead, acknowledges that several
representatives from Defendant’s office have been deposed about its current practice of
screenshotting the blocked users’ comments or replies. [R. 45 at 7]. Further, Defendant
argues that, because the screenshots are from accounts other than Plaintiffs’ accounts, they
are irrelevant to both of Plaintiffs’ claims. [Id. at 6-8].
Rule 26(b) establishes the scope of discovery, and thus, governs the analysis of the
Motion to Compel. Under Rule 26(b)(1):
Parties 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 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.
Information within this scope of discovery need not be admissible in evidence to
be discoverable.
Fed. R. Civ. P. 26(b)(1) (emphasis added). In this case, the only objection that Defendant
raises against the production of the screenshots is that it is irrelevant to Plaintiffs’ claims and
5
defenses, since the screenshots would not provide any information related to Plaintiffs’
accounts, nor offer any indication as to why their accounts were blocked.
Defendant has failed to persuade the Court that the requested screenshots of the
comments and/or replies of the other, blocked accounts would produce only irrelevant
information. This lawsuit challenges Defendant’s “act, practice and/or policy of
permanently barring individuals and organizations from being able to post comments on
[Defendant’s] official Twitter and Facebook accounts.” [R. 1 at 12]. In arguing that these
documents fall within the parameters of discoverable materials, Plaintiffs argue that they
“must be permitted an opportunity to explore the practices undertaken by the Defendant and
his staff.” [R. 46 at 3]. Plaintiffs contend that their challenge to Defendant’s practice leads to
a host of factual inquiries, which are directly relevant to the forum analysis, as well as the
determination of the constitutionality of Defendant’s practice. [R. 46]. Thus, any
information that will enable Plaintiffs to develop a factual basis as to how Defendant and his
office monitors other social media accounts, they argue, is instrumental and proportional to
the needs of this case. Such information clearly, in the Court's view, falls within the broad
scope of relevant, and thus, discoverable information.
The Court is well aware that discovery has ultimate and necessary boundaries. Though
Defendant believes that Plaintiffs are on a fishing expedition, the Court disagrees. Plaintiffs
are not seeking to amend their pleadings, nor are they seeking to turn this into a class action.
In this instance, Plaintiffs have argued that the screenshots will be relevant to determining
Defendant’s practice of regulating speech, which is the focus of this lawsuit. Defendants have
not asserted that any privilege exists, nor that responding in full to the Plaintiffs' disputed
discovery request would be unduly burdensome and oppressive. In the Court’s view,
6
Plaintiffs’ request is not overly broad, but instead, reasonable in light of the First Amendment
claims and defenses that are at stake.
For these reasons, Plaintiffs’ motion to compel Defendant to produce the screenshots
of comments and/or replies relating to the blocked individuals’ accounts is GRANTED.
2. Emails and Text Messages About Defendant’s Policy or Practice
Next, Plaintiff seeks email and text message exchanges that are responsive to Plaintiffs’
Request for Production Nos. 7, 8, and 15. These requests concern production of any forms of
communications, which would shed light on Defendant’s practice or policy of managing his
social media pages [R. 41-2 at 13-14, 16]. Specifically, Plaintiffs request: 1) 10 emails relating
to two email exchanges; and 2) 24 text messages, which concern seven text message
exchanges [R. 41 at 5]. Much like the screenshots, Defendants have refused to produce these
documents on the basis that they do not concern the blocking of Plaintiffs’ accounts [R. 41-5
at 2]. In sum, Defendants have argued that the messages are irrelevant and have nothing to
do with Plaintiffs’ claims. This argument is unpersuasive.
Similar to the screenshots, the Court is under the impression that Plaintiffs’ challenged
discovery request clearly falls within the ambit of discoverable information: it is reasonably
calculated to lead to the discovery of admissible evidence. See Fed. R. Civ. P. 26(b)(1). In fact,
it is yet to be determined whether or not Plaintiffs can ultimately prevail on the claims asserted
in this action. Nonetheless, in this instance, it is immaterial that the email and text message
exchanges do not relate to the blocking of Plaintiffs’ accounts, especially since the
communications amount to general discussions concerning Defendant’s overall practice of
blocking content on his social media pages.
Therefore, Plaintiffs’ motion to compel Defendant to produce the withheld emails and
text messages is GRANTED.
7
3. Facebook Keyword Filter List
Lastly, Plaintiffs seek to compel Defendant to produce a list of words in Facebook’s
“keyword filter function, which automatically hides from public view comments that contain
specific words determined by [Defendant’s] [o]ffice.” [R. 41 at 5-6]. This request is directly
responsive to Plaintiffs’ Request for Production No. 17. [R. 41-2 at 16-17]. Defendant
responded to this request, arguing that, although Defendant uses this word-filter function,
“[t]he specific words used in the filter are not relevant.” [Id. at 17]. Plaintiffs have requested
this list on the basis that deposition testimony revealed that Defendant’s office utilizes this
function in order to regulate comments for compliance with their social media policy.
In essence, Defendant has explained that its office is in control of a filter, which
“automatically prevents the posting of commentary that contains certain words, such as
expletives and key words that most commonly appear in off-topic comments and spam.” [R.
11 at 4]. Thus, when a comment falls under one of the categories of words that allegedly
violates Defendant’s social media policy, the comment appears “grayed out,” and is screened
by administrators of the respective page [R. 41 at 6]. Thereafter, if a member of Defendant’s
office deems the comment to have been contrary to Defendant’s stated policy, a screenshot of
the comment is taken. Defendant’s only objection to production of this keyword list is that it
is irrelevant, and bears no relation to Defendant’s social media policy of blocking or banning
a user’s account. This Court disagrees.
At the heart of this case is the regulation of content on Defendant’s social media pages.
Defendant has undertaken the practice of “enforc[ing] a policy of disallowing comments that
are obscene, abusive, clearly off topic, or spam.” [R. 11 at 4]. In doing so, Defendant employs
this keyword filter function in order to regulate compliance. If an administrator of the
Facebook pages determines that the comment or reply is contrary to Defendant’s policy, a
8
screenshot of the comment or reply is taken, which ultimately leads to the user being blocked,
or banned from accessing, Defendant’s official Facebook page. This Court has already
determined that the screenshots fall within the broad parameters of discoverable information.
Accordingly, this Court believes that the Facebook keyword filter list offers further insight
into Defendant’s policy in monitoring his Facebook account, as well as offers documentary
evidence as to the specific words that would trigger the filter.
Thus, because this Court deems that this request is directly relevant to Plaintiffs’ claims
and defenses, and lie central to the First Amendment challenges in this case, Plaintiffs’ motion
to compel Defendant to produce the Facebook Keyword Filter List is GRANTED.
B.
Plaintiffs’ Motion to Compel the Deposition of Governor Bevin
Plaintiffs have requested one hour of testimony on three topics related to Defendant’s
involvement in the creation of his social media policy. As such, they seek to compel the
deposition of the Governor relating to the following topics:
a) his personal role in the formation or implementation of any policies and/or
practices relating to blocking individuals on any of his social media accounts;
b) his personal involvement in the practice of blocking individuals on his social
media accounts; and c) his personal role in setting up and administering his
social media accounts.
[R. 41 at 8-9]; [R. 46 at 11-12]. Plaintiffs’ basis in seeking this request comes after having
deposed several witnesses from the Governor’s office, including Chief of Staff Blake
Brickman. As a result of these depositions, Plaintiffs contend that Governor
Bevin must possess “unique, personal, and first-hand knowledge related to the claim being
litigated,” and “that other persons cannot provide — and indeed, have not provided — the
necessary information.” [R. 41 at 9].
Both parties have argued that depositions of high-ranking individuals in their official
capacities should be required only in the most extraordinary of circumstances. Similarly, both
9
parties have pointed to the same applicable rule on this issue. “Depositions of high-ranking
officials may be permitted where the official has first-hand knowledge related to the claim
being litigated.” Boudreau v. Bouchard, No. No. 07–10529, 2008 WL 4386836, at *2 (E.D.
Mich. Sept. 25, 2008). Nevertheless, “discovery is permitted only where it is shown that other
persons cannot provide the necessary information.” Id. (citing In re United States (Holder), 197
F.3d 310, 313-14 (8th Cir. 1999)). In this case, the Court agrees with Defendant: such a
circumstance warranting the Governor’s deposition does not exist.
Plaintiffs argue that this deposition is critical, given that “even after multiple
depositions[,] the nature of [the Governor’s] involvement and [of the Governor’s]
understanding of these issues is still unknown.” [R. 41 at 10]. Plaintiffs further argue that this
insight cannot be obtained from any alternative source, and thus, they believe that this limited
deposition will allow the Plaintiffs to obtain the essential information that only the Governor
can properly answer. However, Plaintiffs have failed to provide more than mere conjecture
and conclusory statements regarding the potential testimony of Governor Bevin, and that he
is the sole source of that information. In sum, not only have Plaintiffs failed to show that the
deposition of Governor Bevin is necessary or proportionate to the needs of this case, but
Plaintiffs have also failed to show that the testimony given by previous witnesses, including
that of Chief of Staff Blake Brickman, was in some way deficient.
For the foregoing reasons, Plaintiffs’ request to depose Governor Bevin is DENIED.
C.
Defendant’s Motion for Oral Argument
Pursuant to Local Rule 7.1(f), Defendant has argued that “Plaintiffs’ Reply in support
of their Motion to Compel contains misstatements of fact and law,” and moves this Court for
Oral Argument “to clarify these and other issues.” [R. 47]. See LR 7.1(f) (“A party may request
10
a hearing or oral argument in a motion, response or reply.” (emphasis added)). Plaintiffs have
objected, citing to the untimeliness of Defendant’s request, and arguing that he should have
raised this underlying request in his response [R. 48]. This Court agrees. Not only does this
Court find Defendant’s Motion inextricably vague, but it was also filed nearly three weeks
after its Response in Opposition to Plaintiffs’ Motion to Compel [R. 45].
Therefore, Defendants Motion for Oral Argument [R. 47] is hereby DENIED.
V. CONCLUSION
For the reasons outlined above, IT IS HEREBY ORDERED AS FOLLOWS:
1. Plaintiffs’ Motion to Compel Production of the Relevant Documents [R. 41 at 2],
described above, is GRANTED. Within seven (7) days of the issuance of this
Order, Defendant shall provide Plaintiffs with the following:
a. copies of the documents responsive to Plaintiffs’ Requests for Production
Nos. 7, 8, 15, and 17, including the screenshots identified in response to
Plaintiffs’ Interrogatory Nos. 7 and 8;
b. the email and text message exchanges previously identified as responsive to
Plaintiffs’ Requests for Production Nos. 7, 8, and 15; and
c. the Facebook keyword filter list identified as responsive to Plaintiffs’
Request for Production No. 17.
2. Plaintiffs’ Motion to Compel Governor Bevin’s Deposition [R. 41 at 8] is
DENIED.
IT IS FURTHER ORDERED:
3. Defendant’s Motion for Oral Argument [R. 47] is DENIED.
This the 3rd day of December, 2018.
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?