United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
A. Elifert, United States Magistrate Judge
is Plaintiff's Motion to Reconsider this Court's July
18, 2017 Order. (ECF No. 45). In July, the undersigned issued
an order granting Defendant's motion to compel full and
complete answers to discovery requests when Plaintiff failed
to timely oppose the motion. Since then, Plaintiff has served
supplemental answers, but has withheld information responsive
to one interrogatory and one related request for the
production of documents. Plaintiff argues that she should not
have to answer the interrogatory and document request,
because they seek details and records regarding private
discussions Plaintiff had with non-party employees of
Defendant. The parties have fully briefed the issue, and the
Court finds that oral argument is not necessary to resolve
the motion. For the reasons that follow, the Court
GRANTS, in part, and
DENIES, in part, the motion to reconsider.
a prior Kitchen Manager at Chipotle restaurants in Huntington
and Barboursville, West Virginia, claims that Defendant
wrongfully terminated her employment. Plaintiff seeks damages
for lost wages and benefits, back pay, front pay, damages for
indignity, embarrassment, humiliation, annoyance,
inconvenience, and emotional 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 former
Chipotle employees since October 17, 2015.
Request for Documents No. 3: All documents (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 former employees,
agents, members, officers, directors, or representatives.
answered by explaining that she continues to be friends with
some of her former co-workers at Chipotle and has
communicated with them on Facebook messenger; although, most
of the communications do not involve Defendant,
Plaintiff's prior employment with Defendant, or
Plaintiff's termination from employment. (ECF No. 53-1 at
3). Plaintiff refused to produce copies of any of her
Facebook messenger conversations on the basis that they were
either irrelevant or were “privileged and not
discoverable and/or protected by the 4th Amendment of [sic]
the United States Constitution protecting an individual's
right to privacy.” (Id. at 7). The parties met
and conferred about Plaintiff's objection to divulging
the details of the conversations and producing copies of
them, but could not resolve their differences.
raises two procedural arguments in opposition to
Plaintiff's motion that can be disposed of quickly.
First, Defendant contends that Plaintiff's motion is
merely a second attempt to file a late response to
Defendant's original motion to compel and, therefore, is
improper. The undersigned disagrees with this
characterization, because Plaintiff is not attempting to
re-litigate the ruling on all of the discovery responses
considered inadequate by Defendant. Instead, Plaintiff claims
that the Facebook privacy issue affecting Interrogatory No. 9
and Request for Production No. 3 was not apparent at the time
Defendant's motion to compel was addressed. In any event,
the Court may in its discretion consider a motion to
reconsider a prior discovery ruling when there is new
information or evidence available that might call into
question the prior decision. See Sedgewick Hommes, LLC v.
Stillwater Homes, Inc., No. 5:16-CV-00049-RLV-DCK, 2017
WL 3725991, at * 1 (W.D. N.C. Aug. 29, 2017). The Court was
not aware of Facebook messenger communications at the time
the order compelling responses was issued.
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 may waive a ground of
objection not initially raised, Plaintiff claims 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 termination
and denied having any documents reflecting such
conversations. (ECF No. 53-5 at 3, 7).
the remaining arguments raised by Defendant, the key issue is
whether Plaintiff, or any individual, has a right of privacy
in communications conducted through Facebook messenger.
Plaintiff contends that such a privacy right exists, because
the conversations on Facebook messenger are not publicly
available. Defendant refutes this contention, pointing out
that Plaintiff has not cited a single case or statute that
protects similar communications from disclosure in discovery.
Having considered the matter, the Court agrees with
Civ. P. 26 (b) sets the scope of discovery, stating:
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 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 discovery in resolving the
issue, 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
does not allege that any of the communications are
privileged, and she does not raise a proportionality
objection. Instead, she seeks protection of the information
on the basis that her former co-workers did not anticipate
that the contents of their private discussions with Plaintiff
would be disclosed. Assuming, arguendo, that
Plaintiff has standing to raise the privacy concerns of third
parties, her argument fails, because “social media
content is neither privileged nor protected by a right of
privacy.” Brown v. City of Ferguson,
No. 4:15CV000831 ERW, 2017 WL 386544, at *1 (E.D. Mo. Jan 27,
2017) (citing Mailhoit v. Home Depot U.S.A., Inc.,
285 F.R.D. 566, 570 (C.D. Cal. 2012)). As the Court in
Brown explained, “a person's expectation
and intent [that] her communications be maintained as private
is not a legitimate basis for shielding those communications
from discovery.” Id. (quoting E.E.O.C. v.
Simply Storage Mgmt., LLC, 270 F.R.D. 430, 434 (S.D.
Ind. 2010)). Neither Plaintiff, nor her former co-workers,
had any “justifiable expectation” that their
messages would be kept private. Reid v. Ingerman Smith
LLP, No. CV 2012-0307 (ILG) (MDG), 2012 WL 6720752, at
*2 (E.D.N.Y. Dec. 27, 2012).
reason for this conclusion is simple. Even before electronic
mail and social media, relevant communications with third
parties were not protected from discovery unless a
privilege existed between the participants to the
communication, or some other recognized right of protection
prevented disclosure. See Brown, 2017 WL 386544, at
*1 (‘The Court's analysis of discovery does not
change simply because the request involves social media
content … The Court treats a discovery request for
social media content as it would a request for emails, text
messages, letters, or other documents containing personal
communication.”) (internal citations
omitted). Information considered to be private and
personal at the time of its creation-for example, personal
diaries, letters to family members and friends, and medical
information-are often produced in discovery when the
information is relevant, proportional to the needs of the
case, and not otherwise subject to a limiting order.
Id. (citing Reid, 2012 WL 6720752, at *2).
While some courts recognize a “personal interest”
in emails and social messaging, that interest does not act as
a blanket shield from disclosure in discovery; particularly,
where, as here, the communications are relevant to the claims
and alleged damages. See, e.g., Hawkins v. Coll. Of
Charleston, No. CV 2:12-384-DCN-BHH, 2013 WL 12145958,
at *3 (D.S.C. Sept 17, 2013) (holding that social media
content was relevant to a claim of emotional distress);
Jacquelyn v. Macy's Retail Holdings, Inc., No.
CV416-052, 2016 WL 6246798, at *7 (S.D. Ga. Oct. 24, 2016)
(acknowledging that “[p]ostings on Facebook and other
social media present a unique challenge for courts, due to
their relative novelty and their ability to be shared by or
with someone 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., 2013 WL 336278 at *2 (S.D. Ind. July 5,
Plaintiff's conversations with her former co-workers are
not protected from discovery, Defendant “does not have
a generalized right to rummage at will through information
that Plaintiff has limited from public view.” Palma
v. Metro PCS Wireless, Inc., 18 F.Supp.3d 1346, 1347
(M.D. Fla. 2014) (quoting Davenport v. State Farm Mut.
Auto. Ins. Co., No.3:11-cv-632-J-JBT, 2012 WL 555759, at
*2 (M.D. Fla. Feb. 21, 2012)). Interrogatory No. 9 and
Request for Production No. 3 ask for (1) details regarding
all conversations with co-workers and (2) for all documents
pertaining to all such conversations, regardless of their
relevancy and despite Plaintiff's representation that the
vast majority of the communications have nothing to do with
the claims and defenses in this case. Clearly, these requests
are overly broad, seeking information well beyond the scope
of discovery set forth in Rule 26 (b). See, e.g., Tingle
v. Herbert, No. 15-626-JWD-EWD, 2017 Wl 2536584, at *4-5
(M.D. La. Jun. 9, 2017); Smith v. Hillshire Brands,
No. 13-2605-CM, 2014 WL 2804188, at *4-5 (D. Kan. June 20,
2014) (holding that plaintiff need not ...