B.L. v. Lamas et al

Filing 144

MEMORANDUM OPINION AND ORDER granting in part and dendying in part 116 MOTION to Compel Discovery Motion to Compel Production By Defendant Zong filed by Brian Landau, 122 MOTION to Compel Discovery Motion to Compel Production by Defendants Bumbarger, Cienfuegos, and Rogers filed by Brian Landau. Tthe parties should then meet and conferon or before January 5, 2018, to set a schedule for the completion of alldepositions and the conclusion of discovery. Signed by Magistrate Judge Martin C. Carlson on December 15, 2017. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
BRIAN LANDAU,

Plaintiff
v.
MARIROSA LAMAS, et al.,
Defendants

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Civil No. 3:15-CV-1327
(Judge Mariani)
(Magistrate Judge Carlson)

MEMORANDUM OPINION AND ORDER
I.

Factual Background

This is a §1983 civil rights action brought by Brian Landau, a state inmate,
against some 20 correctional defendants, arising out of allegations by Landau that
he was sexually harassed and abused by a female correctional officer at SCI
Rockview, Defendant Rebecca Zong, in 2013 and 2014, and other correctional
staff failed to intervene and protect Landau from this conduct. The parties are
engaging in what has been a halting, and often contentious, course of discovery.
While we have commended to all parties the value of mutually cooperative
discovery we have also reiterated that we stand ready to assist the parties in
resolving their current discovery disputes, which include a series of motions to

compel filed by the plaintiff which seeks further supplementation of prior
discovery responses. (Docs. 116 , 122.)
These motions to compel focus on the plaintiff’s search for evidence to
support his allegations that numerous correctional officers at SCI Rockview were
aware of Zong’s sexual contact with Landau but failed to intervene and protect
Landau from this sexual harassment and abuse.

To support these allegations

Landau has sought information about the social media used by the defendants, and
seeks access to that social media. While Landau has been informed at various
times and with differing degrees of clarity that the information he seeks relating to
staff awareness of sexual contact between himself and defendant Zong does not
exist, Landau has persisted in efforts to search out information of this type, and the
current motions to compel focus on this aspect of the plaintiff’s claims.
Cast against this backdrop, there are two motions to compel pending for our
consideration. First, Landau has moved to compel further responses to
interrogatories and requests for production of documents served upon defendants
Bumbarger, Cienfuegos and Rogers, three correctional officers at SCI Rockview.
These three correctional defendants were deposed by plaintiff’s counsel on June 6,
2017. In the course of these depositions, the three defendants acknowledged some
social media access and use, but with a few exceptions that are not relevant to this
motion denied discussing matters relating to the claims in this lawsuit in any social
2

media. (Docs. 138-1 through 4.) These defendant-deponents also for the most part
denied the conduct, statements and activity attributed to them by Landau in his
complaint. (Id.)1 There is another aspect to these depositions which, in hindsight,
foreshadows the current dispute between these parties regarding the scope of what
is relevant in this litigation. On occasion, the questioning of these witnesses
forayed into personal matters which seemed unrelated to the issues of whether
these correctional officers knew that Landau was the victim of institutional sexual
assault by Zong, and failed to protect him from such assaults.2
In the wake of these depositions, Landau issued interrogatories and requests
for production of documents to Rogers, Cienfuegos and Bumbarger. These
discovery demands were cast broadly in some respects. The interrogatories and
requests for production sought an array of information concerning: cell phones,
computers and other internet accessible devices possessed by the defendants;
In their depositions, Cienfuegos and Rogers completely deny any prior knowledge
of, or acquiescence in, the acts allegedly committed by Zong against Landau. In
her deposition, Bumbarger also denies any prior knowledge or acquiescence in this
conduct, but states that she perceived Zong to be unprofessionally familiar with
inmates in the past, and confirms that Zong and Landau were together in the prison
chapel on one occasion, providing some corroboration for the largely undisputed
allegations that Zong and Landau met together in the prison chapel.
2 For example, Landau’s counsel questioned one witness regarding alleged family
suicides, a sibling’s criminal history, and whether the witness frequented
prostitutes, eliciting answers which denied any family history of suicide or use of
escort services but confirmed a sibling’s imprisonment. (Doc. 138-2.) It is difficult
to fathom how this information regarding the personal life of this correctional
officer, which counsel may feel ethically obliged to share with her client, advances
any reasoned understanding of the allegations in this lawsuit.
3
1

phone and internet services providers used by the defendants; as well as social
media utilized by the defendants. These discovery demands also sought to have the
defendants identify any social media postings or communications referenced in
their depositions and communications made during the time period encompassed
by the complaint, December 2013 through June 2014, as well as demanding that
the witnesses identify and disclose all messages stored on electronic media “that
mentions any of the other defendants for the time period from December 1, 2013 to
the present.” (Doc. 122-3,5,7,9,11 and 13.)
The defendants, in turn, responded to these interrogatories and requests for
production of documents in a fashion which was consistent with their deposition
testimony, identifying their internet and telephone service providers, describing the
internet accessible devices they possessed; and detailing the forms of social media
they used. The defendants also for the most part either denied having any social
media communications in their possession from other defendants during the
relevant time period or indicated that they did not currently possess and
communications

relating

to

the

claims

in

this

lawsuit.3

(Docs.

122-

2,4,6,8,10,12,14.)

As we read these responses Cienfuegos and Rogers appear to deny possessing any
communications, Bumbarger denies possessing any communications relevant to
the claims in the lawsuit.
4

3

While these responses seemed largely congruent with the defendants’
deposition testimony, Landau has filed a motion to compel further responses from
the defendants. Although the precise tenor of the relief sought in this motion is not
entirely clear, it appears that Landau is seeking an order which, inter alia, would
compel the production of additional service provider data, something which the
defendants do not appear to find objectionable. Landau also seems to be suggesting
that he is entitled to wholesale disclosure of social media content by, between and
among the defendants for at least a seven-month period from December 2013 to
July 2014 and perhaps for as long as four years, from December 2013 to the
present.
The second motion to compel focuses upon defendant Zong. While the
discovery requests at issue in this motion are directed at Zong, Landau’s counsel
makes it unmistakably clear that the entire thrust of this discovery request is to
develop information in support of the failure-to-protect claim Landau has lodged
against other correctional staff. As Landau has put it: “No further discovery is
needed to confirm the criminal misconduct imputed to Ms. Zong in the Amended
Complaint. Am. Compl. ¶¶ 27-78, 272. The focus of the current discovery effort is
to confirm that Ms. Zong’s co-workers knew about that misconduct, condoned or
enabled it, and derived amusement from it, as alleged.” (Doc. 117, p. 3.) Landau’s
requests for production of documents have, therefore, requested copies of all
5

social media content by Zong during the relevant time period, December 2013
through June 2014, which related to the allegations in this case, or were sent or
received by any other defendant in this lawsuit. (Doc. 116-5.) In addition, Landau
has sought information from Zong which would enable plaintiff’s counsel to
subpoena phone and internet usage information for the relevant time period from
Zong’s internet and telephone service providers.
While there have been some delays in providing certain service provider
information, Zong has not opposed Landau’s efforts to secure this service provider
information. Instead, Zong’s counsel has lodged objections to requests for
production which call for the wholesale disclosure of months of social media
communications by Zong or untrammeled access to her cell phones. However,
even as counsel has lodged these objections, Zong’s attorney has endeavored to
make disclosures and develop cooperative social media review procedures in this
case. Thus, Zong has notified Landau’s counsel that the only defendants she was in
communication with during this relevant time period were Brandon Snyder and
Matt Foster. Zong has agreed to cooperate in the release of service provider
information from her telephone service provider so historic service records may be
subpoenaed.. Moreover, through her counsel Zong has stated that: “as a reasonable
accommodation, I am willing to provide my counsel with my password
information and allow for you to read and print any pages that you deem pertinent
6

from my Facebook site so long as my attorney is present at a mutually convenient
meeting that physically occurs at 919 University Drive – Suite 3 in State College,
Pennsylvania.” (Doc. 124, p. 3.)
Landau’s counsel deems these measures inadequate, and now seeks an order
compelling Zong to surrender her cell phones for forensic examination by the
plaintiff’s expert. Yet, even as Landau advances this claim, Landau supports the
claim with a proffer of relevance which is astonishingly speculative, sweepingly
expansive in its scope, and largely divorced from the actual claims in this lawsuit
regarding whether other staff knew of Zong’s sexual activity with Landau and
failed to protect Landau. Indeed, Landau’s proffer of relevance seems to
specifically deny that he is now seeking information directly relating to whether
Zong’s cell phone would reveal third-party knowledge of this sexual contact with
inmate Landau. Instead, as plaintiff’s counsel now speculates that:
In plaintiff’s view, Zong likely transmitted images and messages that
were intended to ingratiate herself with superiors, senior corrections
officers, and the union representative at the prison. In this way, she
sought to shield herself from the consequences of her sexual predation
upon the plaintiff and other prisoners, if and when it came to light.
The messages would function to normalize Zong’s criminal conduct
by positioning her as a source of sexual entertainment and amusement
for her older colleagues and supervisors. The digital content that
plaintiff expects to discover would be nothing like a to-do list for
harassing the plaintiff or a chronicle of such events, as Zong’s counsel
implies. Rather, it would be more in the nature of self-portraiture: the
artful invention of an attractive “brand” of tolerable sexual antics.
(Doc. 139, p.7.)
7

Thus, the proffer of relevance in this case offered by Landau has transmogrified
from a legitimate pursuit of evidence supporting a claim that other staff knew of
illicit sexual contact between Correctional Officer Zong and Landau into some sort
of wide-ranging inquiry into issues of sexual “self portraiture: the artful invention
of an attractive ‘brand’ of tolerable sexual antics.”
With this understanding of what Landau now hopes to obtain through this
extremely intrusive inquiry into social media, we will grant Landau’s unopposed
request for information that would allow him to subpoena basic service provider
information, deny these motions to compel to the extent that they seek wholesale
access to electronic social media, but prescribe a process for appropriately tailoring
discovery in this field.
II.

Discussion
A.

Social Media Discovery—Guiding Principles

The general scope of discovery is defined by Federal Rule of Civil
Procedure 26(b)(1) in the following terms:
Parties may obtain discovery regarding any nonprivileged matter
that is relevant to any party's claim or defense and proportional to
the needs of the case, considering the importance of the issues at
stake in the action, the amount in controversy, the parties' relative
access to relevant information, the parties' resources, the
importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery need not be
admissible in evidence to be discoverable.
8

Fed. R. Civ. P. 26(b)(1).
Issues relating to the scope of discovery permitted under Rule 26 rest in the
sound discretion of the court. Wisniewski v. Johns–Manville Corp., 812 F.2d 81,
90 (3d Cir. 1987). Thus, a court's decisions regarding the conduct of discovery, and
whether to compel disclosure of certain information, will be disturbed only upon a
showing of an abuse of discretion. Marroquin–Manriquez v. I.N.S., 699 F.2d 129,
134 (3d Cir. 1983). See Wertz v. GEA Heat Exchangers Inc., No. 1:14-CV-1991,
2015 WL 8959408, at *1 (M.D. Pa. Dec. 16, 2015). This broad discretion extends
to discovery rulings by magistrate judges. In this regard:
District courts provide magistrate judges with particularly broad
discretion in resolving discovery disputes. See Farmers & Merchs.
Nat'l Bank v. San Clemente Fin. Group Sec., Inc., 174 F.R.D. 572,
585 (D.N.J.1997). When a magistrate judge's decision involves a
discretionary [discovery] matter . . . , “courts in this district have
determined that the clearly erroneous standard implicitly becomes an
abuse of discretion standard.” Saldi v. Paul Revere Life Ins. Co., 224
F.R.D. 169, 174 (E.D.Pa.2004) (citing Scott Paper Co. v. United
States, 943 F.Supp. 501, 502 (E.D.Pa.1996)). Under that standard, a
magistrate judge's discovery ruling “is entitled to great deference and
is reversible only for abuse of discretion.” Kresefky v. Panasonic
Commc'ns and Sys. Co., 169 F.R.D. 54, 64 (D.N.J.1996); see also
Hasbrouck v. BankAmerica Hous. Servs., 190 F.R.D. 42, 44-45
(N.D.N.Y.1999) (holding that discovery rulings are reviewed under
abuse of discretion standard rather than de novo standard); EEOC v.
Mr. Gold, Inc., 223 F.R.D. 100, 102 (E.D.N.Y.2004) (holding that a
magistrate judge's resolution of discovery disputes deserves
9

substantial deference and should be reversed only if there is an abuse
of discretion).
Halsey v. Pfeiffer, No. 09-1138, 2010 WL 3735702, *1 (D.N.J. Sept. 17, 2010).
This discretion is guided, however, by certain basic principles. Thus, when
assessing discovery disputes we are enjoined that:
Discovery need not be perfect, but discovery must be fair.”
Boeynaems v. LA Fitness Int'l, LLC, 285 F.R.D. 331, 333 (E.D. Pa.
2012) (Baylson, J.). “The responses sought must comport with the
traditional notions of relevancy and must not impose an undue burden
on the responding party.” Hicks v. Arthur, 159 F.R.D. 468, 470 (E.D.
Pa. 1995). “[T]he scope of [ ] discovery is not without limits.”
Kresefky v. Panasonic Commc'ns & Sys. Co., 169 F.R.D. 54, 64
(D.N.J. 1996). As such, “[d]iscovery should be tailored to the issues
involved in the particular case.” Id.
Fassett v. Sears Holdings Corp., 319 F.R.D. 143, 149 (M.D. Pa.
2017).
Further, in making these judgments:
To determine the scope of discoverable information under Rule
26(b)(1), the Court looks initially to the pleadings.” Trask v. Olin
Corp., 298 F.R.D. 244, 263 (W.D. Pa. 2014) (Fischer, J.). In
ascertaining which materials are discoverable and which are not, a
district court must further distinguish between requests that “appear[ ]
reasonably calculated to lead to the discovery of admissible
evidence,” Bell v. Lockheed Martin Corp., 270 F.R.D. 186, 191
(D.N.J. 2010), and demands that are “overly broad and unduly
burdensome.” Miller v. Hygrade Food Products Corp., 89 F.Supp.2d
643, 657 (E.D. Pa. 2000).
Id.
A party moving to compel discovery bears the initial burden of proving the
relevance of the requested information. Morrison v. Philadelphia Housing Auth.,
10

203 F.R.D. 195, 196 (E.D.Pa. 2001). Once that initial burden is met, “the party
resisting the discovery has the burden to establish the lack of relevance by
demonstrating that the requested discovery (1) does not come within the broad
scope of relevance as defined under Fed.R.Civ.P. 26(b)(1), or (2) is of such
marginal relevance that the potential harm occasioned by discovery would
outweigh the ordinary presumption in favor of broad disclosure.” In re Urethane
Antitrust Litigation, 261 F.R.D. 570, 573 (D.Kan. 2009).
Another immutable rule defines the court’s discretion when ruling on
motions to compel discovery. It is clear that the court cannot compel the
production of things that do not exist. Nor can the court compel the creation of
evidence by parties who attest that they do not possess the materials sought by an
adversary in litigation. See, e.g., AFSCME District Council 47 Health and Welfare
Fund v. Ortho-McNeil-Janssen Pharmaceuticals, Inc., No. 08-5904, 2010 WL
5186088 (E.D.Pa. Dec. 21, 2010); Knauss v. Shannon, No. 08-1698, 2009 WL
975251 (M.D.Pa. April 9, 2009).
Discovery in federal court undeniably extends in appropriate cases to
discovery of relevant social media content. However, such social media is not
automatically subject to wide-ranging or wholesale discovery. Rather we have long
recognized “that the scope of discovery into social media sites ‘requires the
application of basic discovery principles in a novel context,’ and that the challenge
11

is to ‘define appropriately broad limits ... on the discovery ability of social
communications.’ EEOC v. Simply Storage Mgmt., No.1:09–cv–1223, 270 F.R.D.
430, 2010 WL 3446105, *3 (S.D.Ind. May 11, 2010). “ Offenback v. L.M.
Bowman, Inc., No. 1:10-CV-1789, 2011 WL 2491371, at *3 (M.D. Pa. June 22,
2011). In framing the approach to social media discovery we must be mindful of
the fact that social media is at once both ubiquitous and often intensely personal,
with persons sharing through social media the most intimate of personal details on
a host of matters, many of which may be entirely unrelated to issues in specific
litigation.
Thus, as the plaintiff aptly notes, courts considering such social media
discovery requests often impose an array of carefully tailored limitations on this
discovery. Indeed:
Numerous courts have also recognized this need to “guard against
undue intrusiveness” and to be “cautious in requiring” the forensic
inspection of electronic devices, in order to protect privacy interests.
See John B. v. Goetz, 531 F.3d 448, 459-60 (6th Cir. 2008) (citing
cases and concluding that the “compelled forensic imaging orders
here fail[ed] to account properly for ... significant privacy and
confidentiality concerns”). “Mere suspicion” or speculation that an
opposing party may be withholding discoverable information is
insufficient to support an “intrusive examination” of the opposing
party's electronic devices or information systems. Scotts Co. LLC v.
Liberty Mut. Ins. Co., No. 2:06-CV-899, 2007 WL 1723509, at *2
(S.D. Ohio June 12, 2007). In particular, a court must be cautious
“where the request is overly broad in nature and where the connection
between the party's claims and the [electronic device] is unproven.”
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A.M. Castle & Co. v. Byrne, 123 F. Supp. 3d 895, 900-01 (S.D. Tex.
2015) (collecting cases); see also Kickapoo Tribe of Indians of
Kickapoo Reservation in Kan. v. Nemaha Brown Watershed Joint
Dist. No. 7, 294 F.R.D. 610, 619 (D. Kan. 2013) (denying a request to
inspect personally-owned devices of defendant's employees in part
because “the Court [had] significant concerns regarding the
intrusiveness of the request and the privacy rights of the individuals to
be affected”). However, when the requesting party is able to
demonstrate that “the responding party has failed in its obligation to
search its records and produce the requested information,” Midwest
Feeders, Inc. v. Bank of Franklin, No. 5:14CV78, 2016 WL 3945676,
at *2 (S.D. Miss. July 19, 2016), an inspection of the responding
party's electronic devices may be appropriate. See, e.g., Kilpatrick v.
Breg, Inc., No. 08-10052-CIV, 2009 WL 1764829, at *3 (S.D. Fla.
June 22, 2009); Jacobson v. Starbucks Coffee Co., No. 05-1338, 2006
WL 3146349, at *6-7 (D. Kan. Oct. 31, 2006). Further, courts may be
somewhat less wary of requests to inspect electronic devices when
there is a substantiated connection between the device the requesting
party seeks to inspect and the claims in the case, or, as one court put
it, where the “contents of the [device] go to the heart of the case.”
Hedenburg v. Aramark Am. Food Servs., No. C06-5267, 2007 WL
162716, at *2 (W.D. Wash. Jan. 17, 2007); see Wynmoor Cmty.
Council, Inc. v. QBE Ins. Corp., 280 F.R.D. 681, 686 (S.D. Fla. 2012)
(forensic search of responding party's information systems might
reveal maintenance records and work orders that responding party
appeared to have attempted to hide by shredding hard-copy records,
and that might reveal critical facts concerning when the claimed
damage to the responding party's property occurred); Townsend v.
Ohio Dep't of Transp., 2012-Ohio-2945, ¶¶ 24-25, 2012 WL 2467047,
at *7-8 (Ohio Ct. App. 10th Dist. June 28, 2012) (court permitted
plaintiff to search defendant's email system for emails that two
witnesses recalled exchanging but could not produce and that, if
found, would prove notice to defendant of clogged drain that caused
the flooding that resulted in plaintiff's injury); cf. Kickapoo Tribe, 294
F.R.D. at 618-19 (citing and distinguishing cases).
Hespe v. City of Chicago, No. 13 C 7998, 2016 WL 7240754, at *4
(N.D. Ill. Dec. 15, 2016).
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These principles apply with particular force to wide-ranging inmate requests
for social media information relating to correctional staff. Such requests must be
approached with great caution, both to protect legitimate privacy interests and to
avoid threats to institutional order, safety and security. See Moore v. Mann, No.
3:13-CV-2771, 2017 WL 1386215, at *1 (M.D. Pa. Apr. 18, 2017).
Guided by these principles we turn to a consideration of the social media
discovery requests made in this case.
B.

Resolution of the Motions to Compel.

In considering these motions to compel, we begin with an examination of the
well-pleaded claims asserted by Landau, the proponent of this discovery. See
Fassett v. Sears Holdings Corp., 319 F.R.D. 143, 149 (M.D. Pa. 2017). Here,
Landau has clearly stated that his motion to compel seeks evidence “to confirm
that Ms. Zong’s co-workers knew about [her sexual] misconduct, condoned or
enabled it, and derived amusement from it, as alleged.” (Doc. 117, p. 3.) Thus, the
legal claim which we use as the principal yardstick for any relevance determination
is an Eighth Amendment failure-to-protect claim. Proof of a culpable subjective
intent is a critical component of an Eighth Amendment failure-to-protect claim.
The leading case in the Third Circuit addressing deliberate indifference in this
prison context is found in Beers-Capitol v. Whetzel, 256 F.3d 120 (3d Cir. 2001).
14

In Beers-Capitol, the Third Circuit explained the basic requirements of a claim
brought against a prison official under the Eighth Amendment as follows:
An Eighth Amendment claim against a prison official must meet two
requirements: (1) “the deprivation alleged must be, objectively,
sufficiently serious;” and (2) the “prison official must have a
sufficiently culpable state of mind.”
Id. at 125 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Furthermore, in
cases involving prison safety or prison conditions, the relevant state of mind “is
one of ‘deliberate indifference’ to inmate health or safety.” Id.
This deliberate indifference standard “is a subjective standard under Farmer
– the prison official-defendant must actually have known or been aware of the
excessive risk to inmate safety.” Id. Thus, “ ‘[d]eliberate indifference can be
shown when a prison official knows of and disregards an excessive risk to inmate
health or safety’ Hamilton v. Leavy, 117 F.3d 742, 747 (3d Cir. 1997) (quotation
marks omitted)(emphasis added). Accordingly, “to survive summary judgment on
an Eighth Amendment claim asserted under 42 U.S.C. § 1983, a plaintiff is
required to produce sufficient evidence of (1) a substantial risk of serious harm; (2)
the defendants' deliberate indifference to that risk; and (3) causation.” Davis v.
Williams, 354 F. App’x 603, 605-606 (3d Cir. 2009).
As explained in Beers-Capitol, in Eighth Amendment cases based on
allegations of deliberate indifference on the part of prison officials or other
15

supervisory defendants, the Supreme Court has “rejected an objective test for
deliberate indifference; instead it looked to what the prison official actually knew
rather than what a reasonable official in his position would have known.” Id. at
131. Specifically, the Supreme Court “held that ‘a prison official cannot be found
liable under the Eighth Amendment for denying an inmate humane conditions of
confinement unless the official knows of and disregards an excessive risk to inmate
health or safety.’” Id. (quoting Farmer, 511 U.S. at 837). This requirement of
actual knowledge on the part of supervisory officials “means that ‘the official must
both be aware of facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference.’” Id. (quoting
Farmer, 511 U.S. at 837).
At the same time, this subjective standard does not insulate officials from
liability where such officials choose to remain deliberately indifferent to an
excessive or substantial or serious risk of harm to inmates. The Supreme Court
explained:
We are no more persuaded by petitioner’s argument that, without an
objective test for deliberate indifference, prison officials will be free to
ignore obvious dangers to inmates. Under the test we adopt today, an
Eighth Amendment claimant need not show that a prison official acted
or failed to act believing that harm would actually befall an inmate; it is
enough that the official acted or failed to act despite his knowledge of a
substantial risk of serious harm.

16

Farmer, 511 U.S. at 842.

The Supreme Court also noted that a supervisory

defendant’s knowledge of a risk may be proved through circumstantial evidence,
so that “a fact finder may conclude that a prison official knew of a substantial risk
from the very fact that the risk was obvious.” Id. However, mere generalized
knowledge that prisons are dangerous places does not give rise to an Eighth
Amendment claim. See, e.g, Jones v. Beard, 145 F. App’x 743 (3d Cir. 2005).
Instead, as the Supreme Court has observed in this context: “If an Eighth
Amendment plaintiff presents evidence showing that a substantial risk of inmate
attacks was longstanding, pervasive, well-documented, or expressly noted by
prison officials in the past, and the circumstances suggest that the defendantofficial being sued had been exposed to information concerning the risk and thus
must have known about it, then such evidence would permit a trier of fact to find
that the defendant-official had actual knowledge of the risk.” Farmer, 511 U.S. at
842-43 (emphasis added.)
Given these settled elements of an Eighth Amendment failure to protect
claim, we find that the plaintiff’s request for discovery into internet and telephone
service provider information, which is unopposed, would facilitate some basic
understanding of the degree of contact between the defendants on social media
since it would permit the parties to subpoena historical telephone and internet
usage records. This information, in turn, could be used to set a reasonable
17

framework for more narrowed and focused discovery, if necessary. Furthermore,
since this initial disclosure would not reveal the content of communications it
would be narrow, proportional, and not unduly invasive of personal privacy.
Therefore, we will direct that the parties complete the cooperative process of
making these disclosures on or before January 5, 2018.
However, to the extent that Landau now seeks wholesale disclosure of social
media content, or demands that defendant Zong be compelled to surrender her
cellphones for inspection by the plaintiff’s expert, we will deny this request at the
present time given the proffer of relevance made by Landau’s counsel, which
indicates that the plaintiff wishes to rummage through these social media for
evidence of sexual “self portraiture: the artful invention of an attractive ‘brand’ of
tolerable sexual antics.” In our view, these more broadly cast discovery demands
fail for at least four reasons.
First, these requests are far too speculative. Indeed, Landau’s entire proffer
of relevance is premised upon layers of sexual speculation regarding the activities
and motives of correctional officials. Thus, Landau speculates that Zong has sent
sexual content to numerous other prison staff; speculates that this conduct was
done to ingratiate, distract and amuse co-workers; speculates that this activity was
also designed to normalize sexual behavior; speculates that this conduct was part
of a grand design to mask and conceal sexual abuse of the plaintiff ; and speculates
18

that this behavior will show some form of “self portraiture: the artful invention of
an attractive ‘brand’ of tolerable sexual antics.” Thus, the proffer of relevance
made here piles speculation upon speculation in order to show the relevance of this
discovery. Mindful that “ ‘[m]ere suspicion’ or speculation that an opposing party
may be withholding discoverable information is insufficient to support an
‘intrusive examination’ of the opposing party's electronic devices or information
systems[] Scotts Co. LLC v. Liberty Mut. Ins. Co., No. 2:06-CV-899, 2007 WL
1723509, at *2 (S.D. Ohio June 12, 2007),” Hespe v. City of Chicago, No. 13 C
7998, 2016 WL 7240754, at *4 (N.D. Ill. Dec. 15, 2016), we find the wholly
speculative nature of this proffer insufficient to justify this particularly intrusive
social media search at this time.
Second, we conclude that a sweeping scope of the discovery demand
tailored by the plaintiff’s proffer, which seeks to ferret out evidence of what
Landau’s counsel call sexual self-portraiture, is divorced from and not relevant to
the claims set forth in this lawsuit. Whatever sexual self-portraiture may be, it
often entails things that are far afield from the question of whether other
correctional staff were aware of a threat to Landau’s safety that was “longstanding,
pervasive, well-documented, or expressly noted by prison officials in the past, and
the circumstances suggest that the defendant-official being sued had been exposed
to information concerning the risk and thus must have known about it, then such
19

evidence would permit a trier of fact to find that the defendant-official had actual
knowledge of the risk.” Farmer, 511 U.S. at 842-43 (emphasis added.) Since
Landau’s demand, as justified by his proffer, is not reasonably calculated to lead to
relevant evidence concerning the claims and defenses in this lawsuit, or the legal
issues raised by those claims, these requests will be denied.
Third, the current scope of Landau’s request, which would allow the plaintiff
to indulge in some search of social media over a span of many months for evidence
of sexual self-portraiture, would be overly broad, disproportionate, and particularly
intrusive of personal privacy. As we have observed, numerous courts have also
recognized this need to guard against undue intrusiveness and to be cautious in
requiring the forensic inspection of electronic devices, or wholesale disclosure of
social media, in order to protect privacy interests. See John B. v. Goetz, 531 F.3d
448, 459-60 (6th Cir. 2008) (citing cases and concluding that the “compelled
forensic imaging orders here fail[ed] to account properly for ... significant privacy
and confidentiality concerns”). Hespe v. City of Chicago, No. 13 C 7998, 2016
WL 7240754, at *4 (N.D. Ill. Dec. 15, 2016). Therefore, these privacy concerns,
coupled with the overbreadth of the disclosure and the lack of proportionality in
this discovery demand, are all considerations which all caution against granting
this request.

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Finally, allowing an inmate access to data concerning the sexual selfportraiture of prison staff, while speculative, irrelevant, overly broad and invasive
of personal privacy, is also fraught with dangers for intuitional safety and security.
This is yet another factor which compels denial of these motions at this time. See
Moore v. Mann, No. 3:13-CV-2771, 2017 WL 1386215, at *1 (M.D. Pa. Apr. 18,
2017).
Yet, while we will deny these broadly framed requests at this time, we deny
these motions without prejudice to renewal of more narrowly tailored and specific
requests in the future. We also will direct that counsel for the plaintiff and
defendant Zong conduct the limited, structured Facebook review which defendant
Zong’s counsel has agreed to undertake.

We adopt this course because we

recognize that Landau has made allegations of extraordinary gravity, and
substantial evidence supports his assertions of improper sexual contact by
defendant Zong. Given the gravity of these assertions, Landau should have a
reasonable opportunity to determine the extent to which other correctional staff
may have failed to protect him from this illicit contact. We also recognize that
many of Landau’s latest discovery demands have been inspired, in part, by a
perceived ambiguity in some of the defendants’ responses to prior discovery
requests. Accordingly, in addition to directing that the parties complete the process
of cooperative disclosure of information that will allow for discovery of internet
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and telephone service provider information by January 5, 2018, we will instruct the
defendants to engage in a three-step effort aimed at appropriate social and
electronic media discovery by January 5, 2018 through a course of preservation,
production and explanation.
First, with respect to preservation, the defendants should immediately take
steps to preserve in a readable format all social media content by, between and
among the defendants for the relevant time period, December 2013 through June
2014. In addition, the defendants must preserve any social media content that
relates to the issues, claims defenses, and factual allegations made in this case
regardless of when that social media content was created.
Second, counsel should review this existing preserved social media content
and produce all relevant content that exists, or affirm that individual defendants
have no such content, by January 5, 2018. If social media content exists but is
withheld for any reason that fact should also be disclosed to the plaintiff’s counsel.
Third, in overseeing this social media content preservation and production,
defense counsel should also determine whether any media content has been deleted
and ascertain the circumstances surrounding the deletion of this content, including
dates of deletion if known, so that the plaintiff may obtain that information in
discovery. Counsel and defendants should then be prepared to fully explain the

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circumstances surrounding the deletion of any social media content in the course of
depositions or other discovery.
Armed with this information the parties could then set a schedule for the
completion of all depositions and the conclusion of discovery, a course of action in
accord with the animating principles governing federal discovery rules which is
that these rules “should be construed, administered, and employed by the court and
the parties to secure the just, speedy, and inexpensive determination of every
action and proceeding.” Fed. R. Civ. P. 1.
An appropriate order follows.
III.

Order

AND NOW, this 15th day of December, 2017, in accordance with the
accompanying memorandum opinion, IT IS ORDERED that the plaintiff’s motions
to compel, (Docs. 116 and 122) are GRANTED in part and DENIED in part as
follows:
1.

The unopposed discovery request for internet and telephone service

provider information of the defendants, is GRANTED and we direct that the
parties complete the cooperative process of making these disclosures on or before
January 5, 2018.
2.

To the extent that Landau now seeks wholesale disclosure of social

media content, or demands that defendant Zong be compelled to surrender her
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cellphones for inspection by the plaintiff’s expert, this request is DENIED at the
present time.
3.

Counsel for the plaintiff and defendant Zong are ORDERED to

conduct the Facebook review which defendant Zong’s counsel has agreed to
undertake on or before January 5, 2018.
4.

The defendants should immediately take steps to preserve in a

readable format and social media content by, between and among themselves for
the relevant time period, December 2013 through June 2014. In addition, the
defendants must preserve any social media content that relates to the issues, claims
defenses, and factual allegations made in this case regardless of when that social
media content was created.
5.

Defense counsel should review this existing preserved social media

content and produce all relevant content that exists, or affirm that individual
defendants have no such content, by January 5, 2018. If social media content
exists but is withheld for any reason that fact should also be disclosed to the
plaintiff’s counsel.
6.

In overseeing this social media content preservation and production,

defense counsel should determine whether any media content has been deleted and
ascertain the circumstances surrounding the deletion of this content, including

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dates of deletion is known, so that the plaintiff may obtain that information in
discovery .
7.

Armed with this information the parties should then meet and confer

on or before January 5, 2018, to set a schedule for the completion of all
depositions and the conclusion of discovery.

S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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