-VCF Thompson et al v Autoliv Safety Technology Inc et al, No. 2:2009cv01375 - Document 140 (D. Nev. 2012)
Court Description: ORDER Granting in Part and Denying in Part 124 Motion to Compel. Signed by Magistrate Judge Cam Ferenbach on 6/20/12. (Copies have been distributed pursuant to the NEF - ASB)
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-VCF Thompson et al v Autoliv Safety Technology Inc et al Doc. 140 1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 NICOLE THOMPSON, 5 Plaintiff, 6 v. 7 AUTOLIV ASP, INC., et al., 8 Defendants. 9 *** ) ) ) ) ) ) ) ) ) ) 2:09-cv-01375-PMP -VCF ORDER 10 Before the court are Defendant TRW Automotive U.S. LLC’s (“TRW”) Motion to Compel 11 (#124) and Memorandum of Points and Authorities in Support of Motion to Compel (#125). Plaintiff 12 Nicole Thompson (“Nicole”) filed an Opposition (#129) and Defendant filed a Reply (#133). 13 Background 14 On April 24, 2009, Nicole, Nicole’s mother Shirley Thompson (“Shirley”), and Nicole’s father 15 Dennis Thompson (“Dennis”), filed a Complaint against Defendants Autoliv Safety Technology Inc. 16 (“ASP”) and TRW, in the Eighth Judicial District Court, Clark County, Nevada. (#1, #1-2 Exhibit A). 17 On July 29, 2009, Defendant ASP removed this action to this Court with the consent of Defendant 18 TRW. (#1). This Court has jurisdiction pursuant to 28 U.S.C. §§ 1332, 1441, and 1446, because there 19 is complete diversity among the parties and because the amount in controversy exceeds $75,000. Id. 20 Plaintiffs filed an Amended Complaint on March 9, 2010. (#33). In response, Defendants 21 asserted fifteen affirmative defenses. (#34). Plaintiffs assert that on April 27, 2007, Plaintiff Nicole 22 suffered “massive, life-threatening, permanent, and irreversible injuries” resulting from a vehicular 23 collision. (#33). Plaintiffs allege that Defendant ASP was “engaged in the business of manufacturing, 24 developing, testing, inspecting, advertising, merchandising, selling and distributing seatbelt systems, 25 including the one that had been installed” in Nicole’s vehicle. Id. Plaintiffs also allege that the seatbelt 26 Dockets.Justia.com 1 system installed in Nicole’s vehicle was defective when it left Defendant ASP’s manufacturing facility.1 2 Id. Plaintiffs assert that because the seatbelt system in Nicole’s vehicle was defective, the seatbelt 3 spooled out during the crash, causing/contributing to Nicole’s injuries and Plaintiffs’ damages. Id. 4 Plaintiffs assert causes of action against Defendant ASP for negligence, gross negligence, negligence 5 per se, and product defect. Id. 6 Nicole’s vehicle was equipped with two front seat airbags. (#76). Defendant TRW designed 7 and manufactured the Airbag Electronic Control Module (“AECM”) that was installed in Nicole’s 8 vehicle. Id. Plaintiffs allege that following improper airbag deployments, TRW had modified the 9 “airbag deployment threshold parameters” to 10 mph “no deploy” and 16 mph “must deploy.” (#33). 10 Plaintiffs assert that, although Nicole’s impact speed at the time of the accident was 27 mph, the airbags 11 in Nicole’s vehicle did not deploy. Id. Plaintiffs assert that because the AECM did not function as it 12 was designed to, the AECM caused/contributed to Nicole’s injuries. Id. Plaintiffs assert causes of 13 action against Defendant TRW for negligence, gross negligence, negligence per se, and product defect. 14 Id. Plaintiffs seek to recover over $61,000,000 from TRW. (#125). 15 Plaintiffs allege that Nicole’s injuries include: (i) a massive stroke resulting in the paralysis of 16 the right side of her body, including her leg, arm, hand, and fingers; (ii) a wound to her left knee, which 17 later abscessed and had to be treated, resulting in limited movement, lack of feeling in that area of her 18 body, subsequent surgery and permanent scarring; (iii) emergency hospitalization; (iv) vascular surgery 19 in an attempt to repair the dissected carotid arteries in her neck, which resulted in the stroke; (v) 20 extensive physical rehabilitation in an attempt to regain partial use of the paralyzed areas of her body; 21 (vi) intensive speech therapy in an attempt to regain the ability to speak; (vii) medical treatment; (viii) 22 pain medication; (ix) injections; (x) anti-seizure medication; (xi) the need for psychological and 23 emotional counseling to help her adjust to her permanent injuries and paralysis; (xii) the likelihood of 24 1 25 26 Plaintiffs assert that Defendant was aware that the seatbelt would “spool out during a collision,” rather than lock in place, causing the occupant of a vehicle to move forward during a crash. 2 1 additional surgery in the future; (xiii) permanent scarring and disfigurement; and (xiv) future medical 2 care, therapy, and medication for the remainder of her life. (#33). 3 Plaintiffs also allege that “as a direct and proximate result” of Nicole’s injuries, Plaintiff Nicole 4 has (i) lost a scholarship; (ii) lost her ability to play the violin as part of an orchestra that she had played 5 with for a number of years; (iii) lost the quality and enjoyment of her life because she is restricted from 6 engaging in most physical activities, and requires the assistance of others; (iv) experienced an increase 7 in emotional distress due to feelings of helplessness and knowledge that her condition was negatively 8 impacting those around her; and (v) become depressed, emotionally volatile, and her memory has 9 become permanently and irreversibly affected. Id. 10 Plaintiffs Shirley and Dennis asserted a claim for Infliction of Emotional Distress against both 11 Defendants. (#31). Plaintiffs Shirley and Dennis argued that “as a direct and proximate result of the 12 acts and omissions” of the Defendants, Plaintiffs witnessed their daughter suffer a massive stroke, and 13 were traumatized. Id. Plaintiffs also argued that they had been emotionally and financially harmed 14 because of their daughter’s injuries. Id. On November 1, 2010, the Court found that Defendants TRW 15 and ASP were entitled to summary judgment on Plaintiff’s Shirley and Dennis’ claim for Infliction of 16 Emotional Distress. (#48). On January 20, 2011, Plaintiffs filed a Joint Appeal. (#58). On March 20, 17 2011, the Court of Appeals dismissed the appeal for lack of jurisdiction. (#89). 18 On April 19, 2011, Plaintiff filed a Motion to Preclude any Testimony, Evidence or Argument 19 Regarding Plaintiff’s Seatbelt Use. (#88). Plaintiff argued that Plaintiff Nicole’s seatbelt use at the time 20 of the collision is immaterial, and that any probative value would be outweighed by the prejudicial 21 impact to Plaintiff if the seatbelt issue was considered by a jury. Id. On September 23, 2011, the Court 22 denied Plaintiff’s Motion without prejudice. (#122). On March 30, 2012, Defendant TRW filed a 23 Motion to Compel Plaintiff to respond to “TRW’s Interrogatories and Requests for Production of 24 Documents.” (#122). On April 6, 2012, Defendant filed a Notice of Withdrawal of Defendant TRW 25 26 3 1 Automotive U.S. LLC’s Motion to Compel Without Prejudice. (#123). 2 Motion to Compel (#124) 3 4 5 6 A. Relevant Facts On May 8, 2012, Defendant TRW filed the instant Motion to Compel and a Memorandum of Points and Authorities in Support of Motion to Compel. (#124 and #125). On May 25, 2012, Plaintiff Nicole filed an Opposition. (#129). Defendant filed its Reply on June 4, 2012. (#133). 7 1. Defendant’s Motion 8 Defendant moves to compel Plaintiff Nicole “to produce complete and un-redacted copies of 9 Plaintiff’s Facebook and other social networking site accounts.” (#124). Defendant requests wall posts, 10 photographs, and messages from April 27, 2007, to the present. Id. Defendant asserts that Plaintiff 11 improperly objected to TRW’s Requests for Production of Documents. Id. Defendant also asserts that 12 “without claiming any privilege,” Plaintiff provided a redacted copy of her Facebook account history 13 and a limited number of photographs. Id. Defendant asserts that Plaintiff did not provide information 14 from her MySpace account. Id. 15 In response to TRW’s First Set of Interrogatories, Plaintiff described her alleged injuries as 16 including: (i) right upper extremity paralysis; (ii) right sided facial droop with leftward gaze; (iii) stents 17 placed in Plaintiff’s neck that are sensitive to stress and that have led to an increased level of anxiety2; 18 (iv) reduced visual and reaction time3; (v) Plaintiff has no useful independent movement with her right 19 hand and can no longer pick up objects with it; (vi) if/when Plaintiff has children, she will not be able 20 to lift them, nor will she be able to change their diapers, put them into their cribs, push them in their 21 22 2 23 24 Defendant asserts that Plaintiff alleges that as a result of the stents and the sensitivity of Plaintiff’s neck, Plaintiff “can no longer participate in certain activities, such as riding on a roller coaster, snow skiing, snowboarding, water skiing, or any other physical activity that could jar her neck.” (#125). 3 25 26 Defendant asserts that Plaintiff alleges that as a result of slower reaction time, caused by her stroke, Plaintiff is not always able to catch herself and ends up falling, generally to her right side. Id. 4 1 strollers, or care for them without assistance; (vii) Plaintiff has experienced financial damages due to 2 her inability to work in the same capacity as she had done before the accident; and (viii) Plaintiff will 3 need people to assist her in verifying and filling prescriptions because of substantial amounts of pain 4 medication, injections, and anti-seizure medication she has had to take since accident. Id. 5 Defendant TRW asserts that prior to seeking social networking documents through formal 6 discovery requests, TRW obtained wall posts and photographs from Plaintiff’s public Facebook profile 7 that “provide evidence of Plaintiff’s post-accident social activities, mental state, relationship history, 8 living arrangements, and rehabilitative progress - all of which are relevant to the claims and defenses 9 in this lawsuit.” Id. Defendant alleges that it obtained wall posts and photographs depicting: (i) 10 Plaintiff’s ability to swing on a swing set, dance, and engage in water sports; (ii) Plaintiff’s ability to 11 care for children and pets; (iii) Plaintiff’s social activities, including consumption of alcohol, bowling 12 with friends, and late night partying; (iv) Plaintiff’s sleeping habits; (v) Plaintiff’s personal 13 relationships; (vi) Plaintiff’s post accident physical recovery; (vii) Plaintiff’s employment; (viii) the 14 effect of Plaintiff’s medications on her emotional, physical and sexual habits; (ix) offers by Plaintiff to 15 share medications with others; and (x) Plaintiff’s enrollment in institutions of higher education. Id. 16 Defendant asserts that shortly after February 8, 2011, Plaintiff changed her Facebook privacy 17 settings, thus blocking the public from viewing Plaintiff’s Facebook wall posts and photographs. Id. 18 On February 23, 2012, Defendant requested the production of documents and communications related 19 to Plaintiff’s Facebook and other social networking site accounts in TRW’s Second Request for 20 Production. Id. Plaintiff objected to Defendant’s request, responding with “[fifty-one] heavily redacted 21 pages” from her Facebook wall, and eight photographs. Id. Defendant asserts that contrary to 22 applicable discovery rules, Plaintiff limited production to information and materials that support her 23 allegations. (#133). 24 Defendant requests that the Court require Plaintiff “to produce for in camera inspection i) an 25 26 5 1 un-redacted copy of Plaintiff’s entire Facebook account from April 27, 2007 to the present, including 2 wall posts and photographs, and ii) an un-redacted copy of Plaintiff’s entire MySpace account.” (#125). 3 Defendant argues that this is the only method through which the Court can determine whether Plaintiff 4 has complied with her Rule 26(b)(1) production obligations. Id. Defendant also requests an oral 5 argument. (#133). 6 2. Plaintiff’s Opposition 7 Plaintiff asserts that Defendant’s request for a complete copy of her social networking site 8 accounts “amounts to nothing more than an overly broad fishing expedition.” (#129). Plaintiff also 9 asserts that the “limits of civil discovery mandate that [Defendant] not be provided with unfettered 10 access to Plaintiff’s [social networking site] account data.” Id. Plaintiff argues that Defendant has not 11 made a sufficient showing that the material is reasonably calculated to lead to the discovery of 12 admissible evidence, and that the information sought is irrelevant. Id. 13 Plaintiff asserts that Plaintiff has produced “extensive” social networking site communications 14 in a good faith response to Defendant’s discovery requests. Id. Plaintiff also asserts that much of the 15 information requested by Defendant is duplicative of other information that Plaintiff has already 16 produced, and is inadmissible. Id. Plaintiff argues that Defendant seeks shared information that is not 17 under Plaintiff’s control.4 Id. Plaintiff also argues that Plaintiff provided all material that is relevant 18 to Plaintiff’s claims. Id. 19 Plaintiff argues that there is “no legitimate basis” for Defendant’s request, and as such, that an 20 in camera review of her social networking site accounts is not mandated. Id. Plaintiff also argues that 21 in camera reviews are generally limited to the determination of privilege, not relevance, and relevance 22 is the basis of Plaintiff’s objections. Id. Plaintiff requests that Defendant’s Motion be denied. Id. 23 24 25 26 4 Facebook allows users to “tag” friends in photographs and in wall posts, even where the individual does not request to be “tagged.” When an individual has been “tagged” in a photograph or wall post, the photograph (usually of the tagged individual) appears on their Facebook wall and becomes associated with the tagged individual’s account. 6 1 Plaintiff submits that if the Court conducts an in camera review, Plaintiff will provide “an index of 2 redacted [social networking site] communications to assist the court in the process of any such review 3 of the materials, along with the basis for the objections and redactions made by Plaintiff.” Id. 4 B. Discussion 5 The court has broad discretion in controlling discovery. Little v. City of Seattle, 863 F.2d 681, 6 685 (9th Cir. 1988). Under Federal Rule of Civil Procedure 26(b)(1), “[f]or good cause, the court may 7 order discovery of any matter relevant to the subject matter involved in the action.” Fed. R. Civ. P. 8 26(b)(1). Id. Relevance within the meaning of Rule 26(b)(1) is considerably broader than relevance 9 for trial purposes. See Oppenheimer Fund v. Sanders, 437 U.S. 340, 351 (1978) (citation omitted). For 10 discovery purposes, relevance means only that the materials sought are reasonably calculated to lead 11 to the discovery of admissible evidence. Id. 12 Because Plaintiff has not claimed that the requested information is privileged or protected, the 13 Court finds an in camera review of Plaintiff’s social networking site accounts unnecessary. Plaintiff 14 opposes Defendant’s Motion to Compel on the basis of relevance. Because the alleged consequences 15 of Plaintiff’s injuries include severe physical injuries, emotional distress, and impaired quality of life, 16 evidence relating to Plaintiff’s physical capabilities and social activities is relevant to Plaintiff’s claims 17 in this action. See Fed. R. Civ. P. 26(b)(1). The material obtained by Defendant’s from Plaintiff’s 18 public Facebook account negates Plaintiff’s allegations that material on her social networking site 19 accounts is irrelevant to any party’s claims and defenses. Under Rule 26(b)(1), this material is 20 discoverable. Fed. R. Civ. P. 26(b)(1). 21 22 The Court recognizes that litigation does not permit a complete and open public display of 23 Plaintiff’s life. In permitting Defendant access to material from Plaintiff’s social networking site 24 accounts, the Court must balance Plaintiff’s personal interests. See Fed. R. Civ. P. 26(c)(1) (stating that 25 discovery must be conducted so as to protect parties from “annoyance, embarrassment, oppression, or 26 7 1 undue burden”). The parties shall proceed as follows: 2 (1) Plaintiff shall upload onto an electronic storage device, all information from her Facebook 3 and MySpace accounts, from April 27, 2007, to the present. Within ten (10) days from the entry of this 4 order, Plaintiff shall provide Defendant’s counsel with the electronic storage device, and an index of 5 redacted social networking site communications. 6 (2) Defense counsel is not permitted to disclose this material to anyone, with the exception of 7 counsel’s support staff as necessary. Defense counsel may review downloaded material and identify 8 material that defense counsel believes is discoverable, but was withheld from Plaintiff’s production. 9 Defense counsel must provide a list of material, identified as discoverable, to Plaintiff’s counsel within 10 seven (7) days from receipt of the storage device. 11 (3) If Plaintiff’s counsel has a good faith basis for asserting that the listed material is not 12 discoverable, the parties shall file a Joint Report, including (i) a copy of the material, and (ii) each 13 party’s position on the discoverability of the material, for the Court’s review. 14 15 (4) Within ten (10) days after material has been reviewed, and the undersigned Magistrate has 16 issued a ruling, or in the alternative, the parties have resolved the dispute without the Court’s 17 intervention, Plaintiff’s counsel must provide Defendant’s counsel with formal discovery responses, and 18 the storage device must be returned to Plaintiff’s counsel. Defense counsel may not make a copy of the 19 material on the storage device. 20 Accordingly and for good cause shown, 21 IT IS ORDERED that Defendant TRW's Motion to Compel (#124) is GRANTED in part and 22 DENIED in part, as discussed above. 23 ... 24 25 26 8 1 2 IT IS FURTHER ORDERED that the parties shall proceed as outlined above. DATED this 20th day of June, 2012. 3 4 5 CAM FERENBACH UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 9
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