Doe et al v. Rutherford County, Tennessee, Board of Education

Filing 116

ORDER granting in part and denying in part 59 Motion to Compel. Signed by Magistrate Judge John S. Bryant on 8/18/2014. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.) (ds)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JANE DOE, et al.,
Plaintiffs
v.
RUTHERFORD COUNTY, TENNESSEE,
BOARD OF EDUCATION,
Defendant

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No. 3:13-0328
Judge Trauger/Bryant
Jury Demand

MEMORANDUM AND ORDER
Pending in this case is Defendant’s Motion to Compel
Plaintiffs to Supplement Responses to Written Discovery and Motion
for Expenses (Docket Entry No. 59). Plaintiffs have filed a
response in opposition (Docket Entry No. 66), and Defendant has
filed a reply (Docket Entry No. 67).
For the reasons stated below, Defendant’s motion is
GRANTED in part and DENIED in part.
STATEMENT OF THE CASE
Plaintiffs

allege

that

the

three

minor

Plaintiffs

experienced sexual harassment and sexual discrimination while
enrolled as students at Siegel High School, operated by the
Defendant Board of Education, in violation of Title IX of the
Educational Amendments of 1972, 20 U.S.C. § 1681(a). Plaintiffs
also allege that Defendant, through its agents, retaliated against
them by dismissing the three minor Plaintiffs from the school’s
basketball

team

after

Plaintiffs

complained

of

the

sexual

harassment and the school’s response to it (Docket Entry No. 30).

Defendant has filed an answer denying liability and
asserting affirmative defenses (Docket Entry No. 31).
DEFENDANT’S MOTION TO COMPEL
Defendant Rutherford County Board of Education has filed
its

motion

seeking

supplemental

an

responses

order
to

compelling

Plaintiffs

interrogatories

and

to

requests

serve
for

production seeking information from Plaintiffs’ social networking
accounts. Specifically, Defendant has requested that each Plaintiff
be required to serve supplemental responses to Interrogatory No.
17, which seeks login information, user names, the Uniform Resource
Locator (URL), and password associated with each internet and/or
social networking site maintained by Plaintiffs. In addition,
Defendant

seeks

production

of

supplemental
documents

responses

served

upon

to
each

the

requests

Plaintiff

for

seeking

“diaries, journals, visual depictions, recordings, correspondence,
or physical evidence relevant to any party’s claim or defense,” and
prepared by a Plaintiff “before, during, or after the events
referred to in the most recently filed Complaint.” (Docket Entry
No. 59 at 2). In particular, Defendant’s motion seeks access to
Plaintiffs’ social networking sites including Facebook, Twitter and
Instagram. Defendant also seeks an award of attorney’s fees and
costs.
According to the motion papers, Plaintiffs apparently
have provided in discovery the user name for their Facebook,

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Instagram, and/or Twitter accounts, but decline to produce the
additional information requested. Plaintiffs objected to providing
the additional information on grounds of relevance.
In response, Plaintiffs make four arguments. First, they
assert that Defendant has failed to comply with Local Rule 37.01,
which requires the filing of a joint written statement of matters
in dispute and requires that each interrogatory or request for
production that is the subject of a motion be quoted verbatim.
Second, Plaintiffs argue that Defendant has failed to satisfy the
legal

threshold

necessary

to

justify

“rummaging”

through

Plaintiffs’ private portions of their social media sites. Third,
Plaintiffs argue that even if the legal threshold has been met with
respect to Plaintiff June Doe’s private Twitter account, the
threshold has not been met for all of Plaintiffs’ social media
sites. Finally, Plaintiffs maintain that an award of fees is not
justified in this instance.
ANALYSIS
Rule 26(b) of the Federal Rules of Civil Procedure states
the general rule that parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or
defense, and that relevant information need not be admissible at
the trial if the discovery appears reasonably calculated to lead to
the discovery of admissible evidence.
Local

Rule

37.01,

which

governs

discovery

motions,

requires that any discovery motion be accompanied by a joint
written statement of the matter at issue in the discovery dispute.
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This rule also requires that any discovery motion based upon an
interrogatory or a request for production quote such interrogatory
or request for production verbatim.
On February 27, 2014, the undersigned Magistrate Judge
conducted a telephone discovery conference with counsel regarding
the discovery dispute giving rise to Defendant’s motion to compel.
During

this

telephone

conference,

counsel

discussed

with

the

undersigned the nature of their dispute, and the Court directed the
parties to file and brief the present motion. Given this predicate,
the undersigned finds that the usual requirement of a joint written
statement of the dispute is neither necessary nor helpful to the
Court. In addition, it appears that Defendants have quoted both
Interrogatory No. 17 and the request for production apparently
served on each Plaintiff in its motion papers (Docket Entry No. 59
at

2).

Therefore,

the

undersigned

finds

that

Defendant

has

substantially complied with the requirements of Local Rule 37.01.
This Court has previously considered the discoverability
of nonpublic portions of social media sites. In the case of Potts
v. Dollar Tree Stores, Inc., 2003 WL 1176504 (M.D. Tenn. March 20,
2013), this Court stated as follows:
[M]aterial posted on a private Facebook page, that is
acceptable to a selected group of recipients but not
available for viewing by the general public, is generally
not privileged, nor is it protected by common law or
civil law notions of privacy. Nevertheless, the Defendant
does not have a generalized right to rummage at will
through information that Plaintiff has limited from
public view. Rather, consistent with Rule 26(b) . . .
[and decisional law] . . . there must be a threshold
showing that the requested information is reasonably
calculated to lead to the discovery of admissible
evidence. Otherwise, the Defendant would be allowed to
engage in the proverbial fishing expedition, in the hope
that there might be something of relevance in Plaintiff’s
Facebook account.
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Potts, 2013 WL 1176504 at *3 (quoting Thompkins v. Detroit Metro.
Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012)).
Similarly, in the case of Holder v. AT&T Services, Inc.,
2013 WL 5817575 (M.D. Tenn. Oct. 29, 2013), this Court followed the
rule announced in Potts and held that discovery of nonpublic social
media data may be obtained only upon an evidentiary showing that
such

private

information

social

that

will

medial

material

reasonably

is

lead

likely

to

the

to

contain

discovery

of

admissible evidence. Holder, 2013 WL 5817575 at *3.
In

the

present

case,

Defendant

argues

that

it

has

satisfied the evidentiary threshold to discover nonpublic portions
of Plaintiffs’ social medial sites. Specifically, Defendant argues
that information produced by Plaintiffs from Plaintiff June Doe’s
public Twitter profile includes information reasonably calculated
to lead to the discovery of admissible evidence (Docket Entry No.
64-2). In addition, Defendant argues that certain information
relevant to this action that once appeared on the public portion of
Plaintiff June Doe’s Twitter account has since been deleted (Docket
Entry No. 64-3). Plaintiffs argue that such deletion raises at
least the possibility that Plaintiffs have attempted to hide,
delete, or destroy relevant evidence contained on their social
medial profile (Docket Entry No. 59 at 7).
From the foregoing, the undersigned Magistrate Judge
finds

that

Defendant

has

satisfied

the

evidentiary

threshold

required by Potts and Holder to be permitted to obtain discovery of
private portions of Plaintiff June Doe’s social media account. The
undersigned therefore GRANTS IN PART Defendant’s motion and ORDERS
that

Plaintiffs’

counsel

personally

review

the

restricted,

nonpublic portions of Plaintiff June Doe’s social media account,
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including any deleted items that may be reasonably accessible, and
produce any information from those accounts that is relevant to any
party’s claim or defense in this action. Such review and additional
production shall be accomplished no later than August 29, 2014.
With respect to the other Plaintiffs, the undersigned
finds that Defendant has failed to satisfy the required evidentiary
threshold for discovery of the nonpublic portions of those parties’
social media sites. Therefore, to the extent that Defendant’s
motion

to

compel

seeks

supplemental

production

from

these

Plaintiffs, the motions is DENIED.
Finally, because Defendant by its motion has been deemed
entitled only to partial relief, and further because the rules
governing discovery of social media are not yet fully developed in
the law, the undersigned finds that an award of expenses and
attorneys’ fees in this instance is not warranted. Therefore, to
the extent that Defendant seeks in its motion an award of expenses
and attorneys’ fees, such motion is DENIED.
It is so ORDERED.
/s/ John S. Bryant
JOHN S. BRYANT
United States Magistrate Judge

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