Response to Motion to Compel

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA, AT PITTSBURGH

In re Milo’s Dog Treats Consolidated Cases ) 2:12CV1011 CB MPK ) ) Consolidated with ) 2:13CV518 CB MPK ) 2:13CV519 CB MPK

LISA MAZUR’S RESPONSE IN OPPOSITION TO MOTION TO COMPEL

Plaintiff opposes the motion to compel (Doc. 178) on these grounds —

1. Defendants sought production of “the Facebook Data and Facebook Data File of

Lisa Mazur and/or Lisa Pierwsza Mazur.” (Doc. 178-1 at 9.) No limitation was placed on this

request, of any kind. (Id.) Plaintiff objected, as the request was overbroad and not calculated to

lead to the production of admissible information. (Doc. 178-1 at 12-13.) This was proper.

2. Production requests must be tailored in line with the Federal Rules of Civil

Procedure. Material sought must be relevant (Fed.R.Civ.P. 26(b)(1)), and impose reasonable

production burdens (Fed.R.Civ.P. 34(b)). Rule 34(b) requires a requesting party to describe

items to be produced with detail; “all-encompassing demands that do not allow a reasonable

person to ascertain which documents are required do not meet the particularity standard of Rule

34(b)(1)(A).” In re Asbestos Products Liability Litigation, 256 F.R.D. 151, 157 (E.D.Pa. 2009).

Accord, Mailhoit v. Home Depot USA Inc., 285 F.R.D. 566, 570 (C.D.Cal. 2012).

3. This is no less true for material found on social networking sites like Facebook,

Twitter, Instagram and others. A request for “the Facebook Data and Facebook Data File of Lisa

Mazur and/or Lisa Pierwsza Mazur,” without limitation, would require the production of material

well outside the bounds of relevance – including plaintiff’s personal conversations with other

Facebook users about every conceivable subject, as well as her favorite television shows,

movies, books, sports teams, and hobbies, from the present all the way back to when she

obtained her account. Objecting to this is understandable, and appropriate.

Case 2:12-cv-01011-CB-MPK Document 182 Filed 03/27/15 Page 1 of 9

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4. The overbreadth of defendants’ request was obvious to defendants. They failed to

reasonably limit it, either when the request was made or in response to plaintiff’s objections.

Their failure to do so dooms their motion.1

5. Mailhoit, 285 F.R.D. at 570-571 (emphasis added below), recognized the novel

issues raised by requests for production of social media postings, but held that they are still

subject to the same rules regarding relevance and burden that apply to all discovery requests:

The Court recognizes that social networking site [“SNS”] content may be subject to discovery under Rule 34. “Generally, SNS content is neither privileged nor protected by any right of privacy.” Davenport v. State Farm Mut. Auto. Ins. Co., 2012 WL 555759 at *1 (M.D.Fla. Feb. 21, 2012). However, “[d]iscovery of SNS requires the application of basic discovery principles in a novel context.” [EEOC v. Simply Storage Mgmt. LLC, 270 F.R.D. 430, 434 (S.D.Ind. 2010)]. In particular, several courts have found that even though certain SNS content may be available for public view, the Federal Rules do not grant a requesting party “a generalized right to rummage at will through information that [the responding party] has limited from public view” but instead require “a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence.” Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387, 388 (E.D.Mich. 2012); see also Davenport, 2012 WL 555759 at *1 (“A request for discovery [of SNS content] must still be tailored ... so that it ‘appears reasonably calculated to lead to the discovery of admissible evidence.’ ”) (quoting Fed.R.Civ.P. 26(b)(1)); Mackelprang v. Fidelity Nat'l Title Agency of Nevada, Inc., 2007 WL 119149 at *7 (D.Nev. Jan. 9, 2007) (“Ordering ... release of all of the private email messages on Plaintiff's Myspace.com internet account would allow Defendants to cast too wide a net for any information that might be relevant and discoverable.”).

Where discovery requests seek SNS communications in connection with claims involving the responding party's mental or emotional health, several courts have also found that “the simple fact that a claimant has had social communication is not necessarily probative of the particular mental and emotional health issues in the case. Rather, it must be the substance of the communication that determines relevance.” Simply Storage Mgmt., 270 F.R.D. at 435; Holter v. Wells Fargo and Co., 281 F.R.D. 340, 344 (D.Minn. 2011). As one court reasoned, “To be sure, anything that a person says or does might in some theoretical sense be reflective of her emotional state. But that is hardly justification

1 Defendants claim that “many of the pictures or “links” associated [with the Facebook file] have not been provided... yet were specifically requested in Defendant’s document request.” (Doc. 178 at 4.) No such “specific” request was made, as shown by the quotation of defendant’s request. (Doc. 178-1 at 8.) Furthermore, defendants state that “plaintiff did not respond until nearly two months later on November 11, 2014.” (Doc. 178 at 3.) It should be made clear that the production of the Facebook file was in line with extensions of courtesy sought by and given to counsel, in part because of the breadth of the request.


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for requiring the production of every thought she may have reduced to writing, or, indeed, the deposition of everyone she may have talked to.” Rozell v. Ross–Holst, 2006 WL 163143 at *3-4 (S.D.N.Y. Jan. 20, 2006). Thus, while a party may conduct discovery concerning another party's emotional state, the discovery itself must still comply with the general principles underlying the Federal Rules of Civil Procedure that govern discovery.

“A court can limit discovery if it determines, among other things, that the discovery is: (1) unreasonably cumulative or duplicative; (2) obtainable from another source that is more convenient, less burdensome, or less expensive; or (3) the burden or expense of the proposed discovery outweighs its likely benefit.” Favale v. Roman Catholic Diocese of Bridgeport, 235 F.R.D. 553, 558 (D.Conn. 2006) (internal citations and quotation marks omitted). “The district court enjoys broad discretion when resolving discovery disputes, which should be exercised by determining the relevance of discovery requests, assessing oppressiveness, and weighing these factors in deciding whether discovery should be compelled.” Id. (internal citations and quotation marks omitted).

6. Even though Mailhoit recognized that there may not be a guarantee or expectation

of privacy of Facebook posts (or social networking site posts generally), a litigant may properly

object to production on relevance grounds. Absent a showing that the production is relevant, a

litigant cannot be compelled to produce it. Defendants have made no such showing, and do not

try to; indeed, they have not made “a threshold showing that the requested information is

reasonably calculated to lead to the discovery of admissible evidence,” per Tompkins, supra, 287

F.3d at 388, contrary to the claim that they did. (Doc. 178 at 9.)

7. Mailhoit, 285 F.R.D. at 571-573, considered requests that were more tailored that

the request at issue, and still found them overbroad. For example, a request for “profiles,

postings or messages (including status updates, wall comments, causes joined, groups joined,

activity streams, blog entries)... that reveal, refer, or relate to any emotion, feeling, or mental

state of plaintiff, as well as communications by or from plaintiff that reveal, refer, or relate to

events that could reasonably be expected to produce a significant emotion, feeling, or mental

state” was held to be overbroad. As the Court found, such a request would include posts along

the line of “I hate it when my cable goes out.” Id. Further “watching a football game or a movie

on television is an ‘event’ that may produce some sort of ‘significant emotion.’” Id. Defendants

do not bother to limit their request for information even to the extent rejected by Mailhoit.


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8. By contrast, Mailhoit approved of (and ordered) the production of material in

response to a request for communications between her “and any current or former... employees

[of the defendant in that case, Home Depot], or which in any way refer ... to her employment at

Home Depot or this lawsuit.” Id. at 572-573. Such materials have been produced here.

9. One case cited by defendants – Kear v. Kohl’s Department Stores Inc., No.

6:12CV1235, 2013 WL 3088922 , *6 (D.Kan. June 18, 2013) – actually supports plaintiff. Kear,

id., held that the propounding litigant “sufficiently limited the scope of this request by seeking

limited access during the relevant time frame rather than seeking unfettered or unlimited access

to plaintiff's social media accounts.” Defendants did not do that here. (See Doc. 178 at 8.)

10. Notwithstanding the request’s unlimited scope, in an effort to produce

information that relates to this case – and without waiving her objections – plaintiff produced

redacted versions of her Facebook data file. In particular, defendants produce what purports to

be a screenshot of Ms. Mazur’s Facebook page of one such post, from April 16, 2012, regarding

Nestle Purina Petcare Company and Waggin’ Train pet treats. (Doc. 178 at 3-4.) Ms. Mazur’s

production of her Facebook file included that post, unredacted; however, the image and the link

were not within her Facebook file as downloaded by her. All of this shows that (A) her

redactions were made in good faith, (B) defendants had some public access to Facebook

materials (making the burden of producing it unnecessary), and (C) defendants may examine

plaintiff at her deposition, on this issue, without need for further production.

11. Defendants have offered no accommodation. They instead complain that her

“unilateral selection of what is ‘material’ and what is ‘immaterial’ is improper.” (Doc. 178 at 2.)

As just shown, this is wrong.

12. In a further attempt to address defendants’ objections to these redactions,

plaintiff’s counsel gave this explanation of redactions from her production on March 9, 2015:

our client has a family member who is attending The Citadel. A good deal of the file had to do with conversations between our client and fellow Citadel parents, and the stresses and concerns that come alongside. Your client has no need for that information. Nor would your client need Christmas greetings, or personal messages received by our client,


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or the identity of our client’s favorite movies, or (as is often the case with Facebook) pages upon pages of spam and unsolicited promotions. [Doc. 178-1 at 27.]

In response, defendants filed their motion to compel three days later, in which no attempt to

show their “need for that information” was made. 2

13. Plaintiff attempted to accommodate defendants’ disputes further, by removing

some redactions as to one conversation in particular between plaintiff and a friend of hers, in

order to demonstrate the general irrelevance of much of the information on her Facebook page:

I believe your principal concern was with the messages between our client and Kristyn Corcoran. Many of the redactions were of the sort I just mentioned – personal posts that have nothing to do with this case. As shown by the attached file, I have removed the redactions from most of this material, as to the conversations between our client and Ms. Corcoran (which as shown by the time stamp actually took place over many months).

This accommodation is made because much of the discussion between Ms. Corcoran and our client were given that the illness of her pet, and of Kristyn’s pet, was discussed, in an effort to be as transparent as possible. (As you can see, Ms. Corcoran discussed not only their pets, but also things like football and hockey games, and other matters that are simply not relevant to the case.)

However, some personal information remains redacted. Some of the posts are of such a sensitive nature that I would not disclose them, notwithstanding any protective order. I can assure you that this material has nothing to do with the claims made in this case. [Doc. 178-1 at 27.] 14. In case that was not enough, counsel for plaintiff said that, “if you require further

material from our clients’ Facebook file, please write to me and let me know what you have in

mind.” (Doc. 178-1 at 28.) The response, both in a final meet-and-confer call on March 12,

2015 and in the motion to compel, was a demand for everything in her Facebook file. This is

unjustifiable.

15. Defendants go so far as to demand her login name and password. That is overly

invasive, and not supported by the Pennsylvania trial court cases defendants cite. (Doc. 178 at

7-8, 11-12.)

2 Any suggestion that Plaintiff’s counsel “improperly redact[ed] all of the pages” (Doc. 178 at 7) is without merit, and deserves no further comment.


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16. First, Zimmerman v. Weis Markets Inc., No. CV 09 1535, 2011 WL 2065410

(Northumberland Co. (Pa.). Ct. Comm. Pleas May 19, 2011), held that the litigant “placed his

physical condition in issue, and Weis Markets is entitled to discovery thereon.” Specifically, he

sought injuries for a workplace accident, including a “permanent diminution in the ability to

enjoy life and life’s pleasures.” His Facebook page, however, stated that his interests included

“ridin’ and bike stunts.” Id. (quotation marks omitted). Further, “his MySpace page contains

more recent photographs depicting Zimmerman with a black eye and his motorcycle before and

after an accident.” Id. This brought his claim of the “permanent diminution in [his] ability to

enjoy life” into question. There, a more probative look at his social media postings may have

been warranted, whereas it is not in this case.

17. Largent v. Reed¸ No. 2009-1823, 2011 WL 5632688 (Franklin Co. (Pa.) Ct.

Comm. Pleas Nov. 8, 2011), similarly dealt with an accident (specifically, a car wreck) that

allegedly impaired the victim’s enjoyment of life. Yet there was a claim that the victim was

“enjoying life with her family and [posted] a status update about going to the gym.” Id. The

alleged victim of a tort in McMillen v. Hummingbird Speedway Inc., No. 113-2010 CD, 2010

WL 4403285 (Jefferson Co. (Pa.) Ct. Comm. Pleas Sept. 9, 2010) made a similar claim about his

ability to enjoy life, after being rear-ended during a stock car race. It was claimed, however, that

his Facebook page showed him on a fishing trip and attending the Daytona 500. Id. These cases

are distinguishable from Mazur’s claim, and cannot support forcing her to turn over her

username and password.

18. Plaintiff’s counsel, in an effort to comply with defendants’ overbroad request,

made a production that withheld information which defendants need not know. By pursuing this

motion, they show an intent to harass plaintiff and make this litigation more onerous and

invasive than necessary. This conduct should not be rewarded by compelling plaintiff to turn

over any more information than she already has – or indeed her username or password.

19. As to the issue of attorney-client privilege, the citation to In re Community Bank,

418 F.3d 277, 313 (3d Cir. 2005) is inapt. While courts “have recognized that class counsel do


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not possess a traditional attorney-client relationship with absent class members” (id.), a fiduciary

relationship does exist. See, e.g., In re Baby Products Antitrust Litig., 708 F.3d 163, 175 (3d Cir.

2013) (courts required to ensure that “class counsel are behaving as honest fiduciaries for the

class as a whole”). Furthermore, under Dempsey v. Bucknell University, 296 F.R.D. 323, 332

(M.D. Pa. 2013) (citing In re Bevill, Bresler & Schulman Asset Mgmt. Corp., 805 F.2d 120, 124

n. 1 (3d Cir.1986)), “the attorney-client privilege protects communications between prospective

clients and counsel as well as retained counsel.” This is a relationship which, plaintiff submits,

is parallel with the relationship between class counsel and putative class members. But see

Gates v. Rohm & Haas Co., No. 2:06CV1743, 2006 WL 3420591 (E.D.Pa. Nov. 22, 2006)

(collecting cases including In re Community Bank, and holding that “there is no bright line rule

as to whether putative class members are considered clients for the purposes of determining

whether a communication is privileged”).

20. A proposed class representative also has a fiduciary duty to class members. Clair

v. DeLuca, 232 F.R.D. 219, 226 (W.D. Pa. 2005) (class representatives duties include

“monitor[ing] the conduct of class counsel… decid[ing] whether and when the case should be

settled or taken to trial… [and] a fiduciary duty to identify and retain competent counsel and to

negotiate a reasonable attorney's fee for the class”). The representative and the class member

are, by definition, bound by a common claim, so that any order entered against plaintiff could

ultimately effect and bind the class member. See Keiser v. Matamoras Community Church, 262

F.Supp.2d 468, 473 (M.D.Pa. 2002) (regarding privity requirement of collateral estoppel),

21. A class representative stands in the place of the whole group she seeks to

represent. Communications between that representative and her counsel might be shared with

other class members to advise them on progress, as happened here per a privilege log given to

defendants. (Doc. 178 at 10; Doc. 178-1 at 27-28.) The extension of the privilege to permit

communications between a class representative and a class member serves the purpose of the


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privilege – to permit the free flow of communication and advice about a case been counsel and

the people counsel represent.3 This is protected by the “common interest doctrine.”

22. Under Katz v. AT&T Corp., 191 F.R.D. 433, 436-437 (E.D.Pa. 2000), “parties

with shared interest in actual or potential litigation against a common adversary may share

privileged information without waiving their right to assert the privilege.” Accord, Serrano v.

Chesapeake Appalachia LLC, 298 F.R.D. 271, 284 (W.D.Pa. 2014). The conversations between

a class representative and a class member have such a shared interest, and such a common

adversary. See, e.g., Xerox Corp. v. Google Inc., 801 F.Supp.2d 293, 303-304 (D.Del. 2011); In

re Pittsburgh Corning Corp., 308 B.R. 716, 728-729 (Bankr. W.D.Pa. 2004). As the class

representative and the class member are in such a position, they can withhold their discussions,

on account of privilege.

WHEREFORE, the motion to compel should be denied.

Respectfully submitted, /s/ Thomas E. Soule Thomas E. Soule

Clayton S. Morrow MORROW & ARTIM PC 304 Ross Street, 7th Floor Pittsburgh PA 15219 (412) 209-0656 [email protected] Thomas E. Soule EDELMAN COMBS LATTURNER & GOODWIN, LLC 20 South Clark Street, Suite 1500 Chicago IL 60603 (312) 739-4200 [email protected]

3 As to a claim that the privilege has been waived, defendants say only that “assuming, arguendo, that this Court accepts plaintiff’s argument that those communications are privileged, then privilege has been waived because plaintiff has already produced to defendants a number of the communications between plaintiff and the third-party in which this suit was discussed.” (Doc. 178 at 11 n.3.) If the privilege exists as plaintiff contends, defendants’ aside is not nearly enough to demonstrate that the privilege has been waived and (if it has, which plaintiff denies) to what extent.


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CERTIFICATE OF SERVICE

I certify that on March 27, 2015, the preceding brief was served on counsel for defendants named below, by operation of the Court’s electronic filing system. Brenden Coller [email protected] Richard Fama [email protected]

Respectfully submitted,

/s/ Thomas E. Soule Thomas E. Soule


Documents

Response to Motion to Compel