Douglas v. Riverwalk Grill, LLC

Filing 23

ORDER After In Camera Inspection regarding 15 MOTION to Compel filed by Riverwalk Grill, LLC. Signed by Magistrate Judge Charles E. Binder. (JBro)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
BRYAN DOUGLAS,
Plaintiff,

CASE NO: 11-15230

v.

DISTRICT JUDGE THOMAS L. LUDINGTON
MAGISTRATE JUDGE CHARLES E. BINDER

RIVERWALK GRILL, LLC,
Defendant.
/

ORDER AFTER IN CAMERA INSPECTION
This order is entered under the authority given to this magistrate
judge in an order of reference issued by United States District
Judge Thomas Ludington pursuant to 28 U.S.C. § 636(b)(1)(A).

Defendants filed a motion to compel discovery on June 27, 2012. (Doc. 15.) After a hearing
held August 2, 2012, other aspects of this motion were granted in part and denied in part (Doc. 21),
and the Court ordered the contents of Plaintiff’s Facebook account from January 1, 2011, through
March 31, 2012, produced for in camera inspection in the most cost effective form. The next day
Plaintiff’s counsel responded, producing the Facebook entries in a series of documents in PDF
format attached to e-mails. The attachments total over 250 pages. The Facebook entries have now
been reviewed and the matter is ready for decision.
Plaintiff argues that a request for all Facebook entries for a 15-month period is plainly
overbroad. Defendant asserts that the Facebook entries are relevant, particularly to the issues of
constructive discharge and mitigation of damages. Defendant argues that “informal” discovery of
portions of Plaintiff’s Facebook account indicate that he is tolerant of the “n” word and a regular
user of this term, thus, in Defendant’s view, undercutting Plaintiff’s allegations of constructive

discharge. According to Defendant, this “informal” discovery has also revealed that after leaving
Defendant’s employment, Plaintiff found other work, which he apparently had not previously
revealed, and which therefore may impact mitigation of damages.
Under Rule 26(b) of the Federal Rules of Civil Procedure, “the scope of discovery is as
follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense . . . .” Fed. R. Civ. P. 26(b)(1). “Relevant information need not be
admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of
admissible evidence.” Id. However, Rule 26(b) does require a “threshold showing that the
requested information is reasonably calculated to lead to the discovery of admissible evidence.
Otherwise, the [party] would be allowed to engage in the proverbial fishing expedition, in the hope
that there might be something of relevance” in the information sought. Tompkins v. Detroit Metro.
Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012) (emphasis in original). Therefore, “[d]istrict courts
have discretion to limit the scope of discovery where the information sought is overly broad or
would prove unduly burdensome to produce.” Surles v. Greyhound Lines, Inc., 474 F.3d 288, 305
(6th Cir. 2007).
In conducting the in camera inspection of literally thousands of entries, I note at the
threshold that a majority of the entries bear absolutely no relevance to this case. Many of them
were not in fact created by Plaintiff at all, since Facebook allows “friends” to freely comment and
“write” entries on other friends’ “pages.” As a result, I conclude that the only entries which could
be considered discoverable are those written by Plaintiff himself. These entries could be in the
form of “comments” he made on a status posted by another, or updates to his own “status.”

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Having these facts in mind, along with the inherent difficulties in proving and defending
against allegations of constructive discharge, and, utilizing the standards set forth above, the Court
concludes that certain entries may bear relevance to issues of constructive discharge and mitigation
of damages.
Accordingly, the motion is GRANTED IN PART and DENIED IN PART as follows:
Plaintiff shall produce the following Facebook entries (references are to the e-mail
attachment name, and are listed by page and time of entry):
Part 1
Page 19

3:57 pm

comment on a “status”

Page 33

9:05 pm

comment on a “link”

Page 38

3:59 pm

update to “status”

Page 42

2:39 pm

addition to “timeline”

Page 5

2:22 pm

update to “status”

Page 27

1:22 pm

second comment on a “status”

Page 3

3:16 pm

comment on his own “status”

Page 14

1:02 pm

update to “status”

Page 24

12:47 pm

comment on a “link”

Page 19

3:17 pm

comment on a “status”

Page 22

1:22 am

comment on a “status”

Part 2

Part 3

Part 4

3

Page 28

1:24 am

entry on Michael B’s “wall”

Page 32

6:20 pm

comment on a “status”

Page 34

1:15 am

comment on a “status”

Page 34

10:10 am

comment on a “status”

Page 35

6:51 pm

comment on a “status”

Page 36

12:26 am

update to “status”

Page 4

10:28 am

comment on a “status”

Part 5

Plaintiff shall produce the entries listed above within 14 days of this order. The Facebook
entries will be retained for 28 days from the entry of this order, at which time they will be deleted.
Review of this order is governed by 28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 72, and E.D.
Mich. LR 72.1(d).

 C

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harles`
inder
s/
CHARLES E. BINDER
United States Magistrate Judge

Dated: August 24, 2012

CERTIFICATION
I hereby certify that this Order was electronically filed this date, and electronically served on Julie Gafkay,
Travis Dafoe and Richard Vary.
Date: August 24, 2012

By
s/Jean L. Broucek
Case Manager to Magistrate Judge Binder

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