Chapman et al v. Hiland Partners, LLC

Filing 172

ORDER by Magistrate Judge Charles S. Miller, Jr. granting in part 139 Motion to Compel. (KT)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHWESTERN DIVISION
Lenny M. Chapman and
Tracy M. Chapman,
Plaintiffs,
vs.
Hiland Operating, LLC, a Foreign
Company, Hiland Partners GP Holdings,
LLC, a Foreign Company, and Hiland
Partners LP, a Foreign Partnership,

Defendants and
Third-Party Plaintiff
(Hiland Operating, LLC),
vs.
Missouri Basin Well Service, Inc., and
B&B Heavy Haul, LLC,
Third-Party Defendants.

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ORDER GRANTING IN PART
MOTION TO COMPEL

Case No. 1:13-cv-052

Before the court is “Defendants’ Motion to Compel Plaintiff Tracy R. [sic] Chapman to
Respond to Defendant’s Discovery Requests” filed by defendant Hiland Operating, LLC (“Hiland
Operating” or “defendant”) on April 15, 2014. Plaintiffs filed a response opposing the motion on
April 21, 2014. On May 23, 2014, the court held a telephonic hearing on the motion. Attorneys
Robert P. Schuster, Bradley L. Booke, and James R. Hoy appeared on plaintiffs’ behalf. Attorneys
Steven E. Oertle, Margaret M. Clarke, and Patrick W. Durick appeared on defendant’s behalf.

I.

BACKGROUND
At issue is plaintiff Tracy M. Chapman’s response to defendant’s Request for Production of

Documents No. 21 served January 8, 2014. The request and Chapman’s response provided in
relevant part as follows:
REQUEST FOR PRODUCTION NO. 21: Produce all written
communications between You and any other individual or entity regarding Lenny
Chapman, the Incident, Hiland, Hiland Partners, Hiland Partners GP, B&B, Missouri
Basin, the lawsuit, or the allegations in the Complaint since October 19, 2011,
including, but not limited to, emails, text messages, instant messages, journal
updates, Facebook postings, notes, cards, and/or memorandums.
RESPONSE
Plaintiff objects to this request for the following reasons:
a.

It violates the attorney client and work product privileges.

b.

Plaintiff objects to this request because it is
unintelligible–and is, accordingly, improperly vague and
ambiguous, requiring plaintiff’s counsel to guess and
speculate as to its meaning. More directly to the point,
discovery items should be drafted in a manner that permits
counsel, the Court, and the jury to be able to have a
reasonably clear understanding of what is requested so that
the response to the request can be informed and appropriate.
This request does not comply with that standard.

c.

To the extent this request is seeking information regarding
Mr. Chapman, counsel for Mrs. Chapman would direct
insurance defense counsel to Mr. Chapman.

d.

It seeks information regarding consulting experts contrary to
the provisions of Rule 26(b) of the Federal Rules of Civil
Procedure. . . .

e.

It is overbroad and seeks information that is not reasonably
calculated to lead to the discovery of relevant or admissible
evidence.

Subject to the objections, plaintiff provides the following response:
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....
Mrs. Chapman had a Facebook account until approximately the spring of
2013 when it was closed. Mrs. Chapman has no further access to the account.
(Docket Nos. 139-1, p.10; 139-2, pp. 15-16).
In Mrs. Chapman’s deposition, she stated that she deactivated her Facebook account in the
spring of 2013 on the advice of her attorney. (Docket No. 139-3, pp. 8-9). She stated that she
attempted to reactive her account to respond to discovery requests but was unable to remember her
password. (Id. at pp. 12-13). She stated that she had not attempted to change her password or
contacted Facebook regarding reactivating her account. (Id. at p.10).
II.

DISCUSSION
In the motion to compel now before the court, defendant requests that Tracy Chapman be

required to produce information from her Facebook account. Plaintiffs resist the motion, arguing
that Tracy Chapman’s Facebook account is unlikely to include relevant information, because, as she
stated in her deposition, she rarely used the account, and when she did it was primarily to
communicate with her nieces and nephews. Plaintiffs further argue that if Tracy Chapman is
required to respond to defendant’s requests regarding her Facebook account, defendant should be
required to respond to plaintiffs’ July 16, 2013 request for social media postings by Hiland
employees present at the Watford City Gas Plant at the time of the explosion.
During the hearing, the time frame over which the Facebook postings were requested, the
scope of the postings requested, and the extent of any access to Tracy Chapman’s Facebook page
by defense counsel were discussed. The court observed that as written, Defendant’s Request No.
21 requests only material posted since October 19, 2011. Defendant argued that Request No. 21
should be read in conjunction with Request No. 18, which requested the same types Facebook
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postings by without any time limitation. Plaintiffs responded that any production ordered should
be limited, as stated in Request No. 21, to postings since October 19, 2011. Defendants also argued
that defense counsel should be permitted to be present when the account is reactivated and to
examine the entire contents of the account to prevent spoliation of relevant evidence. Plaintiffs
responded that any production required should be limited to screen shots or a similar format of the
requested items. The substance of the court’s ruling, as made on the record during the hearing,
follows.
III.

CONCLUSION AND ORDER
Although the court is skeptical that Tracy Chapman’s Facebook account will contain any

relevant, noncumulative information, especially given the amount of discovery already completed
in this case, the court GRANTS IN PART the motion to compel (Docket No. 139) and ORDERS
as follows:
1.

Tracy Chapman and plaintiffs’ counsel shall make a reasonable, good faith attempt
to reactivate Tracy Chapman’s Facebook account. Plaintiffs do not have to permit
defense counsel to be present during the attempt to reactivate the account, and if the
account is reactivated, plaintiffs do not have to provide defense counsel the account
login and password or full access to the account.

2.

If Tracy Chapman’s Facebook account is reactivated, plaintiffs shall produce in the
form of a screen shot other similar format all information from the account
referencing:
a.

Lenny M. Chapman’s health or his relationship with Tracy Chapman
since October 19, 2008; and

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b.

Lenny Chapman’s activities, the “Incident” as defined defendant’s
requests for production, or this lawsuit since October 19, 2011.

3.

Plaintiffs shall accomplish items 1-2 above by no later than June 27, 2014.

4.

If plaintiffs want to court to consider whether the social media information of
employees of any of the Hiland entities must be produced, an appropriate motion
shall be filed.

IT IS SO ORDERED.
Dated this 29th day of May, 2014.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

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