Scott v. United States Postal Service et al

Filing 35

RULING AND ORDER granting in part 25 Motion to Compel Discovery. Plaintiff shall provide complete responses to Interrogatory No. 21 and Request for Production No. 10 consistent with this Ruling, without further objection (with the exception of any objections pertaining to any applicable privileges and/or immunities), no later than 14 days from the date of this Order. Upon further review, the Court finds that oral argument on the Motion to Compel is no longer necessary. As such, IT IS FURTHER ORDERED that the Motion Hearing set for December 28, 2016 at 10:30 a.m. is CANCELLED. Signed by Magistrate Judge Erin Wilder-Doomes on 12/27/2016. (SGO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

MADELINE SCOTT

CIVIL ACTION

VERSUS

NO. 15-712-BAJ-EWD

UNITED STATES POSTAL
SERVICE, ET AL.

RULING AND ORDER ON MOTION TO COMPEL DISCOVERY
Before the Court is a Motion to Compel Discovery, filed by defendant United States of
America (“Defendant”).1 The Motion is opposed2 and Defendant has filed a Reply.3 For the
reasons that follow, the Motion is GRANTED in part.4
I.

Background
This matter arises out of a June 6, 2014 automobile accident involving a vehicle driven by

a United States Postal Service worker who was allegedly acting within the course and scope of her
employment at the time of the accident.5 As a result of the accident, Plaintiff filed a Complaint in
this Court on October 26, 2015, asserting claims under the Federal Tort Claims Act against Ashley

1

R. Doc. 25.
R. Doc. 28.
3
R. Doc. 32.
4
Magistrate judges may “hear and determine” non-dispositive pre-trial motions pursuant to 28 U.S.C. § 636(b)(1)(A).
“A motion to compel is a nondispositive, pretrial discovery motion.” State Farm Mut. Auto. Ins. Co. v. Friedman,
2002 WL 649417, at *1 (N.D. Tex. Jan. 14, 2002) (citing Castillo v. Frank, 70 F.3d 382, 385 (5th Cir. 1995)). See,
Turner v. Hayden, 2016 WL 6993864, at *1 (W.D. La. Nov. 29, 2016) (“The decision by Magistrate Hornsby to deny
Turner’s Motion to Compel Discovery is a non-dispositive matter.”); United States v. Toney, 2012 WL 2952768, at
*1 (W.D. La. July 19, 2012) (“The Court must apply a ‘clearly erroneous’ or ‘contrary to law’ standard of review to
a magistrate judge’s ruling on a nondispositive pre-trial motion, such as a motion to compel.” (citations omitted)); In
re Tex. Bumper Exchange, Inc., 333 B.R. 135, 138 (Bankr. W.D. Tex. 2005) (holding bankruptcy court’s order
granting motion to compel discovery was an interlocutory order as the order concerned a nondispositive discovery
issue and did not dispose of the merits of litigation).
5
R. Doc. 1 at 1.
2

M. Delone and Defendant, “as the proper party to represent the United States Postal Service as the
employer of Ashley M. Delone.”6
Defendant asserts that it propounded its First Set of Interrogatories and Requests for
Production of Documents on the Plaintiff on May 4, 2016 via email, a copy of which was also
mailed to and received by Plaintiff’s counsel on May 5, 2016.7 According to Defendant, Plaintiff’s
discovery responses were mailed on July 8, 2016, but were not received by counsel for Defendant
until July 14, 2016.8 Although Defendant found several of the responses problematic, Defendant
asserts the only remaining dispute involves Plaintiff’s use of social media and vacations Plaintiff
has taken since the underlying accident. The discovery requests at issue include the following:
INTERROGATORY NO. 21:
Identify any and all social media (including but not limited to
Facebook, Instagram, Twitter) you have used since June 6, 2014.
As part of your response, please identify your usernames and the
time period of use of each social media account listed.
INTERROGATORY NO. 22:
Provide any and all vacations and travel outside of Baton Rouge,
Louisiana, from June 6, 2014 to present. For each travel listed,
please provide the following:
a. Location of travel;
b. Duration of the travel; and
c. Place of lodging.
REQUEST FOR PRODUCTION NO. 10:
Produce all postings related to any type of physical or athletic
activities from June 6, 2014, to present on all social media websites,

6

Id.
R. Doc. 25-1 at 1; See, R. Doc. 25-2.
8
R. Doc. 25-1 at 1; See, R. Doc. 25-3.
7

2

including, but not limited to Facebook, Instagram and Twitter.9
In her written discovery responses, Plaintiff objected to each of these requests by asserting that
“the information requested is inclement, immaterial and not reasonably calculated to lead to the
discovery of admissible evidence.”10
Defendant claims that on July 21, 2016, it sent a letter to counsel for the Plaintiff asserting
that Plaintiff’s failure to timely respond to the discovery requests constitutes a waiver of any
objection she may have to the discovery requests.11 In the letter, Defendant also explained that it
has a good faith basis for believing that Plaintiff has posted photographs and other information on
social media about her activities since the accident, which involve physical activity, and that such
information is relevant to the case. As an example, Defendant attached a photograph that Plaintiff
posted to her Facebook account that shows Plaintiff and her fiancé in ski attire on a snow covered
mountain.12 Defendant asserts that after sending the letter, it conferred with Plaintiff’s counsel on
several occasions, but they were unable to resolve the dispute.
Thereafter on September 27, 2016, Defendant filed the instant Motion to Compel
Discovery, asserting that Plaintiff has failed to timely voice adequate objections to the discovery
requests at issue and that Defendant is entitled to the information sought because social media is
generally discoverable.13 Defendant maintains that the information requested is relevant because
Plaintiff alleges continuing, severe personal injuries in this case. Defendant also asserts that the
discovery requests regarding social media and vacations are tailored to inquiries that are likely to

9

R. Doc. 25-2 at 6-8.
R. Doc. 25-3 at 4-5.
11
R. Doc. 25-4.
12
R. Doc. 25-4 at 3-4.
13
R. Doc. 25-1 at 4 (citing Farley v. Callais & Sons, LLC, 2015 WL 4730729 (E.D. La. Aug. 10, 2015) (ordering
plaintiff to provide social media postings to his counsel for determination of whether the postings are relevant and
responsive to discovery requests); Johnson v. PPI Tech. Servs., L.P., 2013 WL 4508128, at *1 (E.D. La. Aug. 22,
2013) (“Generally, [social networking site] content is neither privileged nor protected by any right of privacy.”
(citations omitted)).
10

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produce information that relates to the extent of Plaintiff’s injuries or lack thereof. To support this
claim, Defendant attached two photographs posted to Plaintiff’s Facebook account that show
Plaintiff skiing on or about February 6, 2016.14

Defendant asserts that such postings are

inconsistent with Plaintiff’s claims of “serious and disabling physical injuries” and are particularly
relevant given her claims of residual pain that allegedly require multiple future rhizotomies.15
Although Plaintiff concedes that social networking content is discoverable where it is
relevant to a claim or defense in the case, Plaintiff argues Defendant’s request for all of her social
media photos is overly broad because it will require the production of a significant amount of
irrelevant information.16 Plaintiff asserts that Defendant is not entitled to her entire social media
portfolio of accounts “or a vague request for photos depicting a certain type of activity not confined
to universal meaning.”17 However, Plaintiff waives her opposition to Defendant’s request for her
vacations outside of Baton Rouge after the accident and stated that she will supplement her
response to that discovery request.18
In its Reply Memorandum, Defendant maintains that Plaintiff has waived her objections to
the discovery requests at issue and that Defendant is entitled to the information and documents
requested because they are relevant to Plaintiff’s personal injury claims.19 Although Plaintiff
characterizes the discovery requests as seeking all social media postings and photographs or a
complete social media profile, Defendant asserts that it is only seeking the identification of all
social media used since the accident and all postings related to any type of physical or athletic
activities since the accident. Defendant also claims that it clarified what it meant by “physical and

14

R. Doc. 25-5.
R. Doc. 25-1 at 6.
16
R. Doc. 28 at 1-2.
17
Id. at 4-5.
18
Id. at 6.
19
R. Doc. 32.
15

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athletic activity” in emails sent to Plaintiff’s counsel on August 30, 2016 and September 7, 2016,
explaining that such examples would include Plaintiff “walking a dog, hiking, skiing, playing
soccer, or running a race.”20 Defendant asserts that such information is relevant in this case
because Plaintiff testified during her deposition that she has engaged in such activities as tennis,
running, sky diving, and skiing since the underlying accident and that she has taken several
vacations during which she engaged in similar activities.21
II.

Law and Analysis
Under Rule 26 of the Federal Rules of Civil Procedure, 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. Fed. R. Civ. P. 26(b)(1). “For purposes of
discovery, relevancy is construed broadly to encompass ‘any matter that bears on, or that
reasonably could lead to other matters that could bear on, any issue related to the claim or defense
of any party.’” Fraiche v. Sonitrol of Baton Rouge, 2010 WL 4809328, at *1 (M.D. La. Nov. 19,
2010) (quoting Coughlin v. Lee, 946 F.2d 1152, 1159 (5th Cir. 1991); Fed. R. Civ. P. 26(b)(1)).
Motions to compel discovery responses are governed by Rule 37(a) of the Federal Rules
of Civil Procedure. “Rule 37(a)(3)(B) provides that a party seeking discovery may move for an
order compelling production or answers against another party when the latter has failed to produce
documents requested under Federal Rule of Civil Procedure 34 or to answer interrogatories under

20
21

Id. at 4; See, R. Doc. 32-1 at 2-3.
R. Doc. 32 at 4-5.
5

Federal Rule of Civil Procedure 33.” Gondola v. USMD PPM, LLC, 2016 WL 3031852, at *2
(N.D. Tex. May 27, 2016) (citing Fed. R. Civ. P. 37(a)(3)(B)(iii)-(iv)).
“The party resisting discovery must show specifically how each discovery request is not
relevant or otherwise objectionable.”

Gondola, 2016 WL 3031852 at *2 (citing McLeod,

Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990)). In response to
a request for production under Rule 34, “For each item or category, the response must either state
that inspection and related activities will be permitted as requested or state with specificity the
grounds for objecting to the request, including the reasons.” Fed. R. Civ. P. 34(b)(2)(B). Further,
“an objection must state whether any responsive materials are being withheld on the basis of that
objection. An objection to part of a request must specify the part and permit inspection of the
rest.” Fed. R. Civ. P. 34(b)(2)(C). In response to an interrogatory under Rule 33, “Each
interrogatory must, to the extent it is not objected to, be answered separately and fully in writing
under oath.” Fed. R. Civ. P. 33(b)(3). In addition, “The grounds for objecting to an interrogatory
must be stated with specificity. Any ground not stated in a timely objection is waived unless the
court, for good cause, excuses the failure.” Fed. R. Civ. P. 33(b)(4).
Since Plaintiff has voluntarily waived her objection to Interrogatory No. 22, which
requested information regarding vacations she has taken since the underlying accident, the only
discovery requests still at issue are Interrogatory No. 21 and Request for Production No. 10, which
pertain to Plaintiff’s social media accounts. As an initial matter, the Court notes that Plaintiff does
not address Defendant’s argument that her failure to timely voice adequate objections to the
discovery requests constitutes a waiver of any objection she may have to the discovery requests.
The documents submitted with the Motion to Compel show that Defendant propounded its
discovery requests upon Plaintiff’s counsel by email and certified mail with return receipt

6

requested on May 4, 2016,22 which Plaintiff’s counsel received on May 5, 2016.23 Defendant also
submitted documentation showing that it did not receive Plaintiff’s answers to the discovery
requests until July 14, 2016, which were purportedly sent “Via U.S. Mail” on July 8, 2016.24
“As a general rule, when a party fails to object timely to interrogatories, production
requests, or other discovery efforts, objections thereto are waived.” In re United States, 864 F.2d
1153, 1156 (5th Cir. 1989). First, the time period to respond to interrogatories and requests for
the production of documents is thirty (30) days after service under Fed. R. Civ. P. 33(b)(2) and
34(b)(2)(A). Here, Plaintiff did not respond to the discovery requests within the time periods
provided, so any objections to the requests were waived. Further, the Fifth Circuit has held that
conclusory objections that the requested discovery is “overly broad, burdensome, oppressive and
irrelevant” are insufficient to voice a successful objection to an interrogatory or request for
production. McLeod, Alexander, Powel and Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir.
1990) (quoting Josephs v. Harris Corp., 677 F.2d 985, 992 (3d Cir. 1982)). Here, when Plaintiff
finally responded to the discovery requests Plaintiff objected to the two discovery requests at issue
by asserting that “the information requested is inclement, immaterial and not reasonably calculated
to lead to the discovery of admissible evidence.”25 The Court finds such boilerplate language does
not suffice to assert a valid objection to the discovery requests under McLeod. Thus, the Court
finds that the general rule applies here and Plaintiff has waived her objections to Interrogatory No.
21 and Request for Production No. 10. See, Johnson v. PPI Technology Services, L.P., 2013 WL
4508128, at *1 (E.D. La. Aug. 22, 2013) (finding plaintiffs and third-party defendant waived their
objections to defendant’s discovery requests by not objecting to the requests until more than two

22

R. Doc. 25-2 at 1.
Id. at 2.
24
R. Doc. 25-3 at 1.
25
R. Doc. 25-3 at 4-5.
23

7

and a half months after the requests were propounded); B&S Equipment Co., Inc. v. Truckla
Services, Inc., 2011 WL 2637289, at *4 (E.D. La. July 6, 2011) (finding that defendants had waived
all objections to plaintiff’s discovery requests based on relevance, over breadth, unduly
burdensomeness, or any other objection unrelated to privilege by failing to timely respond to
plaintiff’s discovery requests).
Notwithstanding this ruling, the Court finds that the discovery requests at issue are
overbroad and will therefore limit the requests in accordance with Fed. R. Civ. P. 26(b)(1); See,
Johnson, 2013 WL 4508128, at *1 (despite finding that plaintiffs and third-party defendant had
waived their objections to the discovery requests, the court limited several of defendant’s
discovery requests temporally as they were overbroad in this respect). As Defendant points out,
social media is generally discoverable. See, Farley v. Callais & Sons, LLC, 2015 WL 4730729
(E.D. La. Aug. 10, 2015) (ordering plaintiff to provide social media postings to his counsel for
determination of whether the postings are relevant and responsive to discovery requests); Johnson
v. PPI Tech. Servs., L.P., 2013 WL 4508128, at *1 (E.D. La. Aug. 22, 2013) (“Courts have
recognized that social networking site (‘SNS’) content may be subject to discovery under Federal
Rule of Civil Procedure 34.” (citations omitted)). “Generally, SNS content is neither privileged
nor protected by any right of privacy.” Davenport v. State Farm Mut. Auto. Ins. Co., 2012 WL
555759, at *1 (M.D. Fla. Feb. 21, 2012) (citation omitted). However, a request for discovery must
still be tailored so that it “appears reasonably calculated to lead to the discovery of admissible
evidence.” Id. (quoting Fed. R. Civ. P. 26(b)(1)). “Otherwise, the Defendant would be allowed
to engage in the proverbial fishing expedition, in the hope that there might be something of
relevance in Plaintiff’s [SNS] account[s].” Davenport, 2012 WL 555759, at *1 (quoting Tompkins
v. Detroit Metropolitan Airport, 2012 WL 179320, at *2 (E.D. Mich. Jan. 18, 2012)).

8

In two recent opinions, this Court relied on the foregoing jurisprudence to compel plaintiffs
in personal injury cases to produce social media information and postings like the information
sought in the instant case. In Impson v. Dixie Electric Membership Corp., the Court ordered the
plaintiff to produce “all Facebook or other social media postings” since the date of the accident
that “refer to or discuss” the accident or plaintiff’s alleged injuries and damages. 2015 WL
9413122, at *2-3 (M.D. La. Dec. 22, 2015). Because the document requests were “time and
subject-matter limited,” the Court overruled the plaintiff’s objection that they were overly broad
and concluded that the requests “seek relevant information regarding the accident, Ms. Impson’s
alleged injuries, and/or Ms. Impson’s alleged damages.” 2015 WL 9413122 at *3. In Baxter v.
Anderson, this Court similarly ordered the plaintiff to respond to discovery requests regarding her
social media accounts, concluding that “Movants are seeking relevant information posted on social
media directly pertaining to Plaintiff’s claims in the Petition.” 2016 WL 4443178, at *2 (M.D. La.
Aug. 19, 2016). The Court ordered the plaintiff in Baxter to identify every social networking
website that she had used or accessed since the accident at issue, and to which she had posted
photographs or other information, as well as usernames and the last time she had accessed the
accounts. 2016 WL 4443178 at *3. The Court also ordered the plaintiff in Baxter to produce all
postings, including any photographs and/or writings, since the accident that relate to the claims
and defenses of the litigation, including postings that relate to the physical injuries plaintiff alleged
she sustained as a result of the accident and “postings or photographs that reflect physical
capabilities that are inconsistent with the injuries that Plaintiff allegedly suffered as a result of the
accident.” 2016 WL 4443178 at *4 (citing Farley v. Callais & Sons LLC, 2015 WL 4730729, at
*4 (E.D. La. Aug. 10, 2015)).

9

Like in Impson and Baxter, the Court finds that the information and documents requested
by Defendant in this case are relevant to Plaintiff’s claims in the Complaint. The Complaint alleges
that Plaintiff “sustained serious and disabling physical injuries to her person” as a result of the
underlying accident.26 Plaintiff also seeks compensatory damages for past, present, and future
mental and physical pain and suffering, mental anguish and anxiety, residual physical pain and
disability, past, present and future lost wages,27 and loss of enjoyment of life.28 Based on the
photographs submitted by Defendant with the Motion to Compel, the Court finds that Defendant
has shown that the social media information and postings sought are relevant to Plaintiff’s claims.29
Although the Court finds that the information and documents sought by Defendant’s
discovery requests is relevant to the Plaintiff’s claims, the Court recognizes that the Interrogatory
is overly broad to the extent it seeks information regarding “the time period of use of each social
media account listed.”30 Thus, the Court will limit the Interrogatory to identifying all social media
accounts that Plaintiff has used since the underlying accident on June 6, 2014, her usernames,
whether she has accessed the accounts since the accident, and the last time she accessed the
accounts. The Court also finds that the Request for Production is overly broad to the extent that it
seeks all social media postings “related to any type of physical or athletic activities from June 6,
2014, to present . . . .”31 The Court will therefore limit the Request for Production to all of
Plaintiff’s social media postings, including photographs, since the June 6, 2014 accident that: (1)
refer or relate to the physical injuries Plaintiff alleges she sustained as a result of the accident and
any treatment she received therefor; or (2) reflect physical capabilities that are inconsistent with

26

R. Doc. 1 at 3.
In the Motion to Compel, Defendant notes that Plaintiff’s responses to the Interrogatories clarify that she is not
making a wage claim in this case. (R. Doc. 25-1 at 5; See, R. Doc. 25-3 at 4).
28
Id.
29
R. Doc. 25-4 at 4 and R. Doc. 25-5 at 2.
30
R. Doc. 25-3 at 4.
31
R. Doc. 25-3 at 5.
27

10

the injuries that Plaintiff allegedly suffered as a result of the accident. These limitations are similar
to those imposed by this Court in Baxter v. Anderson, 2016 WL 4443178, at *3-4 (M.D. La. Aug.
19, 2016).
To ensure that Plaintiff’s search for responsive information is complete, Plaintiff must, to
the extent possible, download all historical data available from her social networking website
accounts to review for responsive information covered by this Order. If a particular social network
website does not allow for such a review, the responses provided shall include a description of the
steps taken to locate and review and responsive information within any social networking website
account. Plaintiff shall supplement her responses to Interrogatory No. 21 and Request for
Production No. 10 within fourteen (14) days of the date of this Order.
III.

Conclusion
For the reasons set forth herein, IT IS HEREBY ORDERED that the Motion to Compel

Discovery32 filed by defendant United States of America is GRANTED in part. Plaintiff shall
provide complete responses to Interrogatory No. 21 and Request for Production No. 10 consistent
with this Ruling, without further objection (with the exception of any objections pertaining to any
applicable privileges and/or immunities),33 no later than fourteen (14) days from the date of this
Order.
Upon further review, the Court finds that oral argument on the Motion to Compel is no
longer necessary. As such, IT IS FURTHER ORDERED that the Motion Hearing set for
December 28, 2016 at 10:30 a.m. in Courtroom 5 before the undersigned Magistrate Judge is

32

R. Doc. 25.
See, B&S Equipment Co., Inc. v. Truckla Services, Inc., 2011 WL 2637289, at *5 (E.D. La. July 6, 2011) (“[C]ourts
have found that, pursuant to Rule 26(b)(5) which concerns withholding information on the basis of privilege, the
failure to timely object on the basis of privilege does not result in an automatic waiver.” (citation omitted)).
33

11

CANCELLED.
Signed in Baton Rouge, Louisiana, on December 27, 2016.

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

12