Brown et al v. City of Ferguson, Missouri, et al

Filing 182

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that Plaintiffs' Joint Motion for Clarification of Court Order Dated January 4, 2017 [ECF No. 178 ] is GRANTED, in part, and DENIED, in part. Signed by District Judge E. Richard Webber on 1/27/2017. (CBL)

Case: 4:15-cv-00831-ERW Doc. #: 182 Filed: 01/27/17 Page: 1 of 4 PageID #: 1845

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHAEL BROWN, SR., et al.,
Plaintiff,
v.
CITY OF FERGUSON, MISSOURI, et al.,
Defendants.

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No. 4:15CV00831 ERW

MEMORANDUM & ORDER
This matter comes before the Court on Plaintiffs’ Joint Motion for Clarification of Court
Order Dated January 4, 2017 [ECF No. 178].
On January 4, 2017, the Court ordered Plaintiffs to disclose all social media of Plaintiffs
and Michael Brown Jr. for the five years preceding the events occurring on August 9, 2014.
Plaintiffs seek clarification of the order, specifically asking whether Plaintiffs are required to
disclose only the information publicly available on their accounts or their private, personal
communications on Facebook Messenger.
The Court’s analysis of discovery does not change simply because the request involves
social media content. See Giacchetto v. Patchogue-Medford Union Free Sch. Dist., 293 F.R.D.
112, 114 (E.D. N.Y. 2013) (“the fact [] Defendant is seeking social networking information as
opposed to traditional discovery materials does not change the Court’s analysis”); Robinson v.
Jones Lang LaSalle Americas, Inc., No. 3:12-CV-00127-PK, 2012 WL 3763545 at *1 (D. Ore.
Aug. 29, 2012) (“I see no principled reason to articulate different standards for the
discoverability of communications through email, text message, or social media platforms.”).

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The Court treats a discovery request for social media content as it would a request for emails,
text messages, letters, or other documents containing personal communications.
Under Federal Rule of Civil Procedure 26(b)(1), “[p]arties may obtain discovery
regarding any matter, not privileged, that is relevant to the claim or defense of any party.” This
phrase “has been construed broadly to encompass any matter that bears on, or that reasonably
could lead to other matter that could bear on, any issue that is or may be in the case.” Armstrong
v. Hussmann Corp., 163 F.R.D. 299, 302 (E.D. Mo.1995) (quoting Oppenheimer Fund, Inc. v.
Sanders, 437 U.S. 340, 351 (1978)). “A district court is afforded wide discretion in its handling
of discovery matters.” Cook v. Kartridg Pak Co., 840 F.2d 602, 604 (8th Cir. 1988) (citation
omitted).
Plaintiffs assert they have a right to privacy for messages sent privately through
Facebook Messenger. However, generally, social media content is neither privileged nor
protected by a right of privacy. Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566, 570 (C.D.
Cal. 2012).1 Further, “a person’s expectation and intent [] her communications be maintained as
private is not a legitimate basis for shielding those communications from discovery.” E.E.O.C. v.
Simply Storage Mgmt., LLC, 270 F.R.D. 430, 434 (S.D. Ind. 2010). “Even personal diaries are
discoverable if they contain relevant information regarding contemporaneous mental states and
impressions of parties.” Reid v. Ingerman Smith LLP, No. CV 2012-0307(ILG)(MDG), 2012 WL
6720752 at *2 (E.D. N.Y. Dec. 27, 2012). Additionally, any privacy concerns of Plaintiffs are
ameliorated by the parties’ protective order, which has been amended to include information
disclosed pursuant to this discovery request and has been approved by the Court.

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If Plaintiffs believe there is something privileged, or otherwise undiscoverable, a privilege log
should be filed for the Court and Defendants to review.
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The Court will compel Plaintiffs to produce all social media content which has any
relevance to this case, including private messages sent through Facebook messenger. “Although
[] the contours of social communications relevant to a claimant’s mental and emotional health
are difficult to define, that does not mean that everything must be disclosed.” Simply Storage
Mgmt., LLC, 270 F.R.D. at 434. “It is reasonable to expect severe emotional or mental injury to
manifest itself in some [social media] content, and an examination of that content might reveal
whether onset occurred, when, and the degree of distress.” Id. at 435.
As in the Court’s previous order, this disclosure is limited to the five years preceding
August 9, 2014. Information relevant to this case is broad, because Plaintiffs are seeking
damages for loss of love, companionship, affection, care and society, loss of future support,
conscious pain and suffering, and compensatory damages for psychological damage. Thus, any
social media content concerning emotions, feelings, Plaintiffs’ mental state, the relationship
between Plaintiffs and Michael Brown Jr., relationships between Plaintiffs and other family and
friends, the events of August 9, 2014, Plaintiffs’ parenting of Michael Brown Jr. and other
children, Plaintiffs’ relationship with one another, Plaintiffs’ lifestyle before and after August 9,
2014, along with others, is all relevant. Plaintiffs need not disclose the mundane conversations of
everyday life such as wishing a person a happy birthday, or asking how their day is, unless of
course those communications concern a witness in this case or Michael Brown Jr.
The Court expects Plaintiffs’ counsel to take a broad, overly expansive scope in
determining what is relevant and what should be disclosed to Defendants, and for Plaintiffs’
counsel to employ good faith in fulfilling the intent of this Order. If after receiving the discovery,
Defendants believe Plaintiffs’ counsel has not included everything relevant, Defendants may
request the Court require further disclosure, or in camera review of the information not

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disclosed. Plaintiffs’ shall disclose the requested discovery to Defendants within twenty days of
this order.
The parties have agreed, and the Court also agrees with them, passwords for social media
accounts need not be disclosed. This would allow Defendants unfettered access to Plaintiffs’
social media accounts which is not permitted under the Federal Rules of Civil Procedure.
Additionally, Plaintiffs’ counsel has informed the Court neither parent has the password, nor
access, to the social media accounts of Michael Brown Jr. The Court understands Defendants
will be requesting a subpoena for that information.
Lastly, an issue was raised at the hearing on this matter regarding execution of releases
for Michael Brown Jr.’s records at Riverview Gardens School District and the St. Louis Special
School District. Plaintiffs must execute releases for both school districts for all records, academic
and medical, without regard to age, for Michael Brown Jr.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Joint Motion for Clarification of Court
Order Dated January 4, 2017 [ECF No. 178] is GRANTED, in part, and DENIED, in part.
So Ordered this 27th Day of January, 2017.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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