OFFENBACK v. L.M. BOWMAN, INC. et al

Filing 25

MEMORANDUM ORDER - Accordingly, IT IS HEREBY ORDERED THAT on or before Friday, July 8, 2011, Plaintiff shall produce the information identified above to Defendants in a format mutually agreeable to the parties. To the extent that the parties have continued disagreements regarding the scope or manner of this discovery, they are directed to contact the Courts deputy clerk. SEE ORDER FOR COMPLETE DETAILS. Signed by Magistrate Judge Martin C. Carlson on June 22, 2011. (kjn )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ROBERT OFFENBACK,
Plaintiff,
v.
L.M. BOWMAN, INC., and
ZACHARY S. REEDER,
Defendants.

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Civil Action No. 1:10-CV-1789
(Judge Conner)
(Magistrate Judge Carlson)

MEMORANDUM ORDER
The District Court has referred the above-captioned action to the undersigned
for the purposes of conducting an in camera review of Plaintiff’s Facebook and
MySpace accounts in order to determine whether certain information contained
within Plaintiff’s accounts is properly subject to discovery in this case. (Doc. 19.)
The Court subsequently held a telephonic case management conference with the
parties to address the discovery dispute, and directed Plaintiff to provide the Court
with the log-in information for his Facebook and MySpace accounts. Plaintiff
subsequently provided this information to the Court with respect to his Facebook
account, and represented that he could no longer locate information related to his
MySpace account, since he had neither activated nor used the account since
November 2008. Plaintiff conceded that limited public information contained within
his Facebook account was properly subject to discovery, provided that the

information could be considered relevant in accordance with Rule 26 of the Federal
Rules of Civil Procedure.
As the party requesting the discovery from Plaintiff’s social media accounts,
Defendants provided the Court with the following summary of the case and of the
issues they believed to be relevant to the Court’s review:

This action arises from a vehicular accident that occurred
on November 6, 2008. Plaintiff claims that he suffered
physical and psychological injuries as a result of that
accident.
His claimed physical injuries include claims of right
shoulder and lower back injuries. Accordingly, Plaintiff’s
physical capabilities and activities are relevant to the
review.
Plaintiff alleges that his claimed physical injuries limited
his ability to sit, walk, stand, ride in a vehicle, bend, stoop,
push, pull, and lift. He claimed that he could not drive for
any period of time and is physically limited as to riding his
bicycle or motorcycle.
Plaintiff also claims that he suffered psychological injuries
as a result of the accident. He claims that he suffers
anxiety, depression, and post-traumatic stress disorder as
a result.
Plaintiff alleges that the psychological conditions resulted
in decreased sociability and lack of intimacy. He alleges
that he is fearful and nervous in traffic and around other
vehicles.
Accordingly, Plaintiff’s social activities,

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transportation related activities, and expressions of
emotion are relevant to this review.
Plaintiff also contends that is [sic] cannot work as a result
of the physical and psychological injuries he claims from
this accident. It is noted that Plaintiff purchased a property
in Kentucky prior to the accident. He had planned to
relocate to his employer’s facility near the Kentucky
property, but this possibility evaporated [due] to his
employer’s economic situation. Thus, information as to
Plaintiff’s relocation and plans are relevant to his
motivation in this matter.
(Letter from Defendants’ counsel to the Court dated May 2, 2011.)
The Court has carefully reviewed the allegations set forth in Plaintiff’s
complaint, as well as other filings in this action, so as to ascertain the claims and
defenses at issue. In addition, the Court has considered the parties’ competing letters
in which they explain their respective positions regarding Defendants’ assertion that
Plaintiff’s Facebook account may contain discoverable information under Rule 26(b)
of the Federal Rules of Civil Procedure.1 Informed by this review of the pleadings
Rule 26(b)(1) of the Federal Rules of Civil Procedure supplies the scope
and limitations governing the use of discovery in a federal civil action:
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(1) Scope in General. Unless otherwise limited by court
order, 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 – including the
existence, description, nature, custody, condition, and
location of any documents or other tangible things and the
identity and location of persons who know of any
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and other information in the record, and assisted by the parties’ respective
submissions, the Court conducted a thorough in camera review of Plaintiff’s
Facebook account on June 20, 2011.
The Court’s review revealed that Plaintiff first activated his Facebook account
on or about February 1, 2009, and that the account has remained active through the
current date. Review of Plaintiff’s Facebook account, including a thorough review
of Plaintiff’s “Profile” postings, photographs, and other information, reveals that the
information and material contained within Plaintiff’s Facebook account are unrelated
in any way to the events that give rise to the cause of action in this case, and are
largely irrelevant, or not likely to lead to the discovery of evidence relevant to the
claims and defenses in this action. However, in consideration of the broad scope of

discoverable matter. For good cause, the court may order
discovery of any matter relevant to the subject matter
involved in the action. Relevant information need not be
admissible at trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence.
All discovery is subject to the limitations imposed by Rule
26(b)(2)(C).
Fed. R. Civ. P. 26(b)(1). Issues relating to the scope of discovery permitted under
the Rules are to be resolved, almost exclusively, at the discretion of the Court.
Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 90 (3d Cir. 1987). A court’s
decisions regarding the conduct of discovery will be disturbed only upon a
showing of an abuse of discretion. Marroquin-Manrizuez v. I.N.S., 699 F.2d 129,
134 (3d Cir. 1983).
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relevance that Defendants’ have argued in favor of above, and in consideration of
Plaintiff’s acknowledgment that “limited [relevant] ‘public’ information is clearly
discoverable under recent caselaw,” (Letter from Plaintiff to Court dated April 27,
2011), the Court finds that some small segment of the public information contained
in Plaintiff’s account is properly subject to limited discovery in this case.
Specifically, our review of Plaintiff’s Facebook account reveals the following
potentially relevant information that should be produced to Defendants:
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Plaintiff has posted a number of photographs or updates that reflect he
continues to ride motorcycles and may have on more than one occasion
traveled via motorcycle between his home in Kentucky and
Pennsylvania. In particular, our review found a photograph posted on
March 14, 2011, which appears to show Plaintiff with a Harley
Davidson motorcycle that other posts suggest that he purchased in or
around July 2010.

•

On or about October 1, 2010, Plaintiff posted information to his account
that suggests he may have traveled to West Virginia via motorcycle.

•

On July 22, 2010, a post on Plaintiff’s “Profile” page suggests that he
had taken, or was planning to take, a trip to Pennsylvania on his
motorcycle.

•

On October 29, 2010, a photograph was posted to his account that may
show Plaintiff hunting and in possession of a 10-point buck that he or
another hunter had shot and killed.2

It is not possible for the Court to determine whether or not the man in the
photograph posted on October 29, 2010, is Plaintiff or another man, or when the
picture was taken. To the extent Plaintiff determines that he is the individual
pictured, and that the picture was taken after the accident that gave rise to the
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•

On August 29, 2010, Plaintiff’s “Profile” contains an update in which
he posts photographs and comments suggesting that he may have
recently ridden a mule.

•

On July 7, 2010, Plaintiff posted pictures of a Harley Davidson
motorcycle that it appears he may have purchased shortly before the
pictures were posted.

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On July 1, 2010, Plaintiff included “motorcycles” among his interests
that he posted to his Facebook profile.

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Between March 16, 2010, and March 18, 2010, friends or relatives of
Plaintiff posted comments to his profile that suggest Plaintiff had
traveled from Kentucky to Pennsylvania, either by motorcycle or
automobile.

With the exception of the foregoing, the remainder of Plaintiff’s Facebook
account reveals little beyond routine communications with family and friends, an
interest in bluegrass and country music, a photography hobby, sporadic observations
about current events, and a passion for the Philadelphia Phillies that was not
dampened after he moved to Kentucky from Pennsylvania.

Other than the

information described in the bulleted paragraphs above, we have identified no
information from Plaintiff’s Facebook account that must be produced to Defendants.3

claims in this case, Plaintiff will be required to produce this Facebook posting to
Defendants.
In closing, we express some confusion about why the parties required the
Court’s assistance in deciding what information within Plaintiff’s Facebook
account is responsive to Defendants’ discovery requests and therefore properly
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Accordingly, IT IS HEREBY ORDERED THAT on or before Friday, July 8,
2011, Plaintiff shall produce the information identified above to Defendants in a
format mutually agreeable to the parties. To the extent that the parties have continued
disagreements regarding the scope or manner of this discovery, they are directed to

discoverable. Although Defendants have taken a broad view of the potential
relevance of Plaintiff’s Facebook account, Plaintiffs do not appear to have argued
that the information in the bulleted paragraphs above should be protected from
disclosure in this lawsuit. It is thus unclear why the Court was called upon to
conduct an initial review of Plaintiff’s entire Facebook account to determine
whether it contained potentially responsive, non-privileged information that
should be produced as part of discovery in this case. Given that the Plaintiff is the
party with the greatest familiarity with his own Facebook account, we submit that
it would have been appropriate and substantially more efficient for Plaintiff to
have conducted this initial review and then, if he deemed it warranted, to object to
disclosure of some or all of the potentially responsive information included in his
account. The Court recognizes that the scope of discovery into social media sites
“requires the application of basic discovery principles in a novel context,” and that
the challenge is to “define appropriately broad limits . . . on the discovery ability
of social communications.” EEOC v. Simply Storage Mgmt., No.1:09-cv-1223,
2010 WL 3446105, *3 (S.D. Ind. May 11, 2010). However, in this case it appears
that Defendants backed away from their initial position that they should be entitled
to a general release of all information and data from Plaintiff’s social networking
sites, and that instead of engaging in a broad fishing expedition, were attempting
to discover potentially relevant information such as that described in their May 2,
2011, letter to the Court. If Defendants had, in fact, narrowed their discovery
requests in this fashion, we believe it would have been both possible and proper
for Plaintiff to have undertaken the initial review of his Facebook account to
determine whether it contained potentially relevant and responsive information,
and thereafter to solicit the Court’s assistance if a dispute remained as to whether
he should be required to produce the information identified.
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contact the Court’s deputy clerk, Kevin Neary, to arrange for a telephone conference
with the Court. Mr. Neary can be reached at 717-221-3924.
/s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
Dated:

June 22, 2011

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