Howell v. The Buckeye Ranch Inc et al

Filing 32

ORDER inre: 23 MOTION to Compel Plaintiff's Responses to Defendants' Second Set of Interrogatories; Dft's free to serve interrogatories & document request that seek info from accounts that is relevant to the clams & defenses in this lawsuit; Plf counsel can then access the private sections of Howell's social media accounts & provide the info & doc responsive the the discovery request. Signed by Magistrate Judge Mark R. Abel on 10/1/12. (sh1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Jodi A. Howell,

:
Plaintiff

The Buckeye Ranch, Inc., et al.,
Defendants

Civil Action 2:11-cv-1014

:

v.

:

Judge Frost

:

Magistrate Judge Abel

:

Order
Plaintiff Jodi A. Howell brings this employment discrimination action alleging that
male supervisors, senior youth leaders, and coworkers sexually harassed her by
inappropriate touching in a sexual manner and making inappropriate sexual comments.
This matter is before the Magistrate Judge on defendants’ August 15, 2012 motion to
compel Howell to give them her user names and passwords for each of the social media
sites she uses. (Doc. 23.)
Defendants maintain that information on Howell’s social media sites may be
relevant to (1) whether the alleged sexual acts occurred and (2) her present emotional
state. Defendants state they have a good faith belief that Howell’s social media sites will
contain evidence supporting their position that she has maintained social contact with
some of them and that she is not currently impaired by serious emotional distress and is
enjoying life.
Plaintiff maintains that the discovery request is overbroad and unduly
burdensome. Defendants are merely speculating there might be relevant information in

the private sections of Howell’s social media sites, but they have offered no evidence or
other reason to back up that speculation.
Defendants respond that Howell testified that as a result of their actionable conduct
she has suffered serious mental anguish requiring medical care, has a decreased energy
level, cannot see her friends as often, and cannot regularly update her Facebook account.
Yet, defendants argue, her Facebook public pages contain evidence that Howell regularly
updates her account. Defendants argue that a court should not afford more protection to a
Facebook account than to a plaintiff’s medical, psychological and criminal records.
Decision. Relevant information in the private section of a social media account is
discoverable. Glazer v. Fireman’s Fund Insurance Company, 2012 WL 1197167, *3-*4 (S.D.N.Y.
April 5, 2012). It is not privileged nor protected from production by a common law right of
privacy. Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012). But
a litigant has no right to serve overbroad discovery requests that seek irrelevant
information. Glazer, above; Tompkins, 278 F.R.D. at 389.
Here defendants’ discovery request is overbroad. Howell’s username and password
would gain defendants access to all the information in the private sections of her social
media accounts–relevant and irrelevant alike. The fact that the information defendants
seek is in an electronic file as opposed to a file cabinet does not give them the right to
rummage through the entire file. The same rules that govern the discovery of information
in hard copy documents apply to electronic files. Defendants are free to serve
interrogatories and document requests that seek information from the accounts that is
relevant to the claims and defenses in this lawsuit. Plaintiff’s counsel can then access the
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private sections of Howell’s social media accounts and provide the information and
documents responsive to the discovery requests.
Plaintiff Howell has been on notice that defendants seek information in the private
sections of her social media accounts since being served with defendants’ second set of
interrogatories. She remains under an obligation to preserve all the information in those
accounts. If any information in the private sections of the accounts has been deleted since
plaintiff was served with the second set of interrogatories, plaintiff’s counsel should so
advise defendants’ counsel and attempt to recover the deleted data.
Under the provisions of 28 U.S.C. §636(b)(1)(A), Rule 72(a), Fed. R. Civ. P. and
Eastern Division Order No. 91-3, pt. F, 5, either party may, within fourteen (14) days after
this Order is filed, file and serve on the opposing party a motion for reconsideration by the
District Judge. The motion must specifically designate the order, or part thereof, in
question and the basis for any objection thereto. The District Judge, upon consideration of
the motion, shall set aside any part of this Order found to be clearly erroneous or contrary
to law.

s/Mark R. Abel
United States Magistrate Judge

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