King v. Chipotle Services, LLC, No. 3:2017cv00804 - Document 56 (S.D.W. Va. 2017)
Court Description: MEMORANDUM OPINION and ORDER granting in part and denying in part Plaintiff's 45 MOTION to Reconsider this Court's 34 Order Granting Motion to Compel; directing Plaintiff to provide the requested information to Defendant within seven da ys of the date of this Order, but only to the extent that the information is relevant to the claims and defenses in this civil action, as more fully set forth herein; denying Defendant's request for sanctions and fees. Signed by Magistrate Judge Cheryl A. Eifert on 10/11/2017. (cc: counsel of record) (jsa)
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King v. Chipotle Services, LLC Doc. 56 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E SOU TH ERN D ISTRICT OF W EST VIRGIN IA H U N TIN GTON D IVISION KAITLYN KIN G, Plain tiff, v. Cas e N o .: 3 :17-cv-0 0 8 0 4 CH IPOTLE SERVICES, LLC, D e fe n d an t. MEMORAN D U M OPIN ION an d ORD ER Pending is Plaintiff’s Motion to Reconsider this Court’s J uly 18, 20 17 Order. (ECF No. 45). In J uly, the undersigned issued an order granting Defendant’s m otion to com pel full and com plete answers to discovery requests when Plaintiff failed to tim ely oppose the m otion. Since then, Plaintiff has served supplem ental answers, but has withheld inform ation responsive to one interrogatory and one related request for the production of docum ents. Plaintiff argues that she should not have to answer the interrogatory and docum ent request, because they seek details and records regarding private discussions Plaintiff had with non-party em ployees of Defendant. The parties have fully briefed the issue, and the Court finds that oral argum ent is not necessary to resolve the m otion. For the reasons that follow, the Court GRAN TS, in part, and D EN IES, in part, the m otion to reconsider. Plaintiff, a prior Kitchen Manager at Chipotle restaurants in Huntington and Barboursville, West Virginia, claim s that Defendant wrongfully term inated her em ploym ent. Plaintiff seeks dam ages for lost wages and benefits, back pay, front pay, 1 Dockets.Justia.com dam ages for indignity, em barrassm ent, hum iliation, annoyance, inconvenience, and em otional distress. (ECF No. 1-5). Defendant served discovery requests on Plaintiff that included the following: Interrogatory No. 9: Identify and describe all conversations you, or your agents, have had with all current and form er Chipotle em ployees since October 17, 20 15. Request for Docum ents No. 3: All docum ents (reduced to writing or otherwise) that contain, reflect or refer to any conversation between Plaintiff (or any agent of Plaintiff) and any of Defendant’s current or form er em ployees, agents, m em bers, officers, directors, or representatives. Plaintiff answered by explaining that she continues to be friends with som e of her form er co-workers at Chipotle and has com m unicated with them on Facebook m essenger; although, m ost of the com m unications do not involve Defendant, Plaintiff’s prior em ploym ent with Defendant, or Plaintiff’s term ination from em ploym ent. (ECF No. 53-1 at 3). Plaintiff refused to produce copies of any of her Facebook m essenger conversations on the basis that they were either irrelevant or were “privileged and not discoverable and/ or protected by the 4th Am endm ent of [sic] the United States Constitution protecting an individual’s right to privacy.” (Id. at 7). The parties m et and conferred about Plaintiff’s objection to divulging the details of the conversations and producing copies of them , but could not resolve their differences. Defendant raises two procedural argum ents in opposition to Plaintiff’s m otion that can be disposed of quickly. First, Defendant contends that Plaintiff’s m otion is m erely a second attem pt to file a late response to Defendant’s original m otion to com pel and, therefore, is im proper. The undersigned disagrees with this characterization, because Plaintiff is not attem pting to re-litigate the ruling on all of the discovery responses considered inadequate by Defendant. Instead, Plaintiff claim s that the Facebook privacy 2 issue affecting Interrogatory No. 9 and Request for Production No. 3 was not apparent at the tim e Defendant’s m otion to com pel was addressed. In any event, the Court m ay in its discretion consider a m otion to reconsider a prior discovery ruling when there is new inform ation or evidence available that m ight call into question the prior decision. See Sedgew ick Hom m es, LLC v. Stillw ater Hom es, Inc., No. 5:16-CV-0 0 0 49-RLV-DCK, 20 17 WL 3725991, at * 1 (W.D.N.C. Aug. 29, 20 17). The Court was not aware of Facebook m essenger com m unications at the tim e the order com pelling responses was issued. Second, Defendant asserts that Plaintiff waived her right to raise a privacy concern, because she did not raise the issue of privacy in her initial responses. While Defendant is generally correct that a party m ay waive a ground of objection not initially raised, Plaintiff claim s that she did not appreciate the issue until after she filed her responses. A review of Plaintiff’s original answers supports her claim . In the original answers, Plaintiff did not recall participating in any conversations related to her term ination and denied having any docum ents reflecting such conversations. (ECF No. 53-5 at 3, 7). As to the rem aining argum ents raised by Defendant, the key issue is whether Plaintiff, or any individual, has a right of privacy in com m unications conducted through Facebook m essenger. Plaintiff contends that such a privacy right exists, because the conversations on Facebook m essenger are not publicly available. Defendant refutes this contention, pointing out that Plaintiff has not cited a single case or statute that protects sim ilar com m unications from disclosure in discovery. Having considered the m atter, the Court agrees with Defendant. Fed. R. Civ. P. 26 (b) sets the scope of discovery, stating: Unless otherwise lim ited by court order, the scope of discovery is as follows: Parties m ay obtain discovery regarding any nonprivileged m atter that is relevant to any party’s claim or defense and proportional to the needs of the 3 case, considering the im portance of the issues at stake in the action, the am ount in controversy, the parties’ relative access to relevant inform ation, the parties’ resources, the im portance of discovery in resolving the issue, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Inform ation within this scope of discovery need not be adm issible in evidence to be discoverable. Plaintiff does not allege that any of the comm unications are privileged, and she does not raise a proportionality objection. Instead, she seeks protection of the inform ation on the basis that her form er co-workers did not anticipate that the contents of their private discussions with Plaintiff would be disclosed. Assum ing, arguendo, that Plaintiff has standing to raise the privacy concerns of third parties, her argum ent fails, because “social m edia content is neither privileged nor protected by a right of privacy.” Brow n v. City of Ferguson, No. 4:15CV0 0 0 831 ERW, 20 17 WL 386544, at *1 (E.D. Mo. J an 27, 20 17) (citing Mailhoit v. Hom e Depot U.S.A., Inc., 285 F.R.D. 566, 570 (C.D. Cal. 20 12)). As the Court in Brow n explained, “a person’s expectation and intent [that] her com m unications be m aintained as private is not a legitim ate basis for shielding those com m unications from discovery.” Id. (quoting E.E.O.C. v. Sim ply Storage Mgm t., LLC, 270 F.R.D. 430 , 434 (S.D. Ind. 20 10 )). Neither Plaintiff, nor her form er co-workers, had any “justifiable expectation” that their m essages would be kept private. Reid v. Ingerm an Sm ith LLP, No. CV 20 12-0 30 7 (ILG)(MDG), 20 12 WL 6720 752, at *2 (E.D.N.Y. Dec. 27, 20 12). The reason for this conclusion is sim ple. Even before electronic m ail and social m edia, relevant com m unications with third parties were not protected from discovery unless a privilege existed between the participants to the com m unication, or som e other recognized right of protection prevented disclosure. See Brow n, 20 17 WL 386544, at *1 (‘The Court’s analysis of discovery does not change sim ply because the request involves social m edia content … The Court treats a discovery request for social m edia content as it 4 would a request for em ails, text m essages, letters, or other docum ents containing personal com m unication.”) (internal citations om itted).1 Inform ation considered to be private and personal at the tim e of its creation—for exam ple, personal diaries, letters to fam ily m em bers and friends, and m edical inform ation—are often produced in discovery when the inform ation is relevant, proportional to the needs of the case, and not otherwise subject to a lim iting order. Id. (citing Reid, 20 12 WL 6720 752, at *2). While som e courts recognize a “personal interest” in em ails and social m essaging, that interest does not act as a blanket shield from disclosure in discovery; particularly, where, as here, the com m unications are relevant to the claim s and alleged dam ages. See, e.g., Haw kins v. Coll. Of Charleston, No. CV 2:12-384-DCN-BHH, 20 13 WL 12145958, at *3 (D.S.C. Sept 17, 20 13) (holding that social m edia content was relevant to a claim of em otional distress); Jacquely n v. Macy 's Retail Holdings, Inc., No. CV416-0 52, 20 16 WL 6246798, at *7 (S.D. Ga. Oct. 24, 20 16) (acknowledging that “[p]ostings on Facebook and other social m edia present a unique challenge for courts, due to their relative novelty and their ability to be shared by or with som eone besides the original poster,” but finding that even private postings are not shielded from discovery when they are relevant.) (quoting Higgins v. Koch Dev't Corp., 20 13 WL 336278 at *2 (S.D. Ind. J uly 5, 20 13). Although Plaintiff’s conversations with her form er co-workers are not protected from discovery, Defendant “does not have a generalized right to rum m age at will through 1 As Plaintiff em phasizes, som e courts have required a threshold showing that a party’s public postings on social m edia undermine the party’s claim s or defenses before the party’s private social m edia m essaging can be discovered. See, e.g., Keller v. Nat'l Farm ers Union Prop. & Cas. Co., No. CV 12-72-M-DLC-J CL, 20 13 WL 27731, at *4 (D. Mont. J an. 2, 20 13). This has generally been the case when the disputed discovery request is broad, asking for all posts on all social media sites used by the party. However, as there is no distinction made in the federal discovery rules between social media and old-fashioned correspondence and em ails, the undersigned disagrees that such a showing is m andatory in every instance. Instead, while such a showing m ay be part of a proportionality analysis, the rules do not direct that approach in all cases. 5 inform ation that Plaintiff has lim ited from public view.” Palm a v. Metro PCS W ireless, Inc., 18 F. Supp. 3d 1346, 1347 (M.D. Fla. 20 14) (quoting Davenport v. State Farm Mut. Auto. Ins. Co., No.3:11– cv– 632– J – J BT, 20 12 WL 555759, at *2 (M.D. Fla. Feb. 21, 20 12)). Interrogatory No. 9 and Request for Production No. 3 ask for (1) details regarding all conversations with co-workers and (2) for all docum ents pertaining to all such conversations, regardless of their relevancy and despite Plaintiff’s representation that the vast m ajority of the com m unications have nothing to do with the claim s and defenses in this case. Clearly, these requests are overly broad, seeking inform ation well beyond the scope of discovery set forth in Rule 26 (b). See, e.g., Tingle v. Herbert, No. 15-626-J WDEWD, 20 17 Wl 2536584, at *4-5 (M.D. La. J un. 9, 20 17); Sm ith v. Hillshire Brands, No. 13-260 5-CM, 20 14 WL 280 4188, at *4-5 (D. Kan. J une 20 , 20 14) (holding that plaintiff need not produce inform ation from social networking accounts that is irrelevant, as “Defendant is no m ore entitled to such unfettered access to plaintiff's personal em ail and social networking com m unications than it is to rum m age through the desk drawers and closets in plaintiff's hom e.”). Therefore, Plaintiff is ORD ERED to provide the requested inform ation to Defendant within s e ve n d ays of the date of this Order, but only to the extent that the inform ation is relevant to the claim s and defenses in this civil action. Plaintiff is not required to provide inform ation and docum ents concerning all conversations she had with co-workers and agents of Defendant. In keeping with the suggestion of defense counsel, the inform ation and docum ents shall be disclosed pursuant to the protective order, (ECF No. 26), and the nam es of the non-party participants to the com m unications m ay be redacted. 6 Defendant also requests an award of sanctions and attorney’s fees for Plaintiff’s failure to com ply with the Court’s Order compelling discovery. Although Plaintiff’s Fourth Am endm ent argum ent was not on point, Plaintiff raised a legitim ate and good faith concern related to the discovery requests and her potential liability for freely disclosing conversations intended to be private. Considering that the law regarding the protection of private m essaging is still developing, Plaintiff’s m otion for reconsideration was not entirely without m erit. Accordingly, Defendant’s request for sanctions and fees is D EN IED . The Clerk is instructed to provide a copy of this Order to counsel of record. EN TERED : October 11, 20 17 . 7
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