Ogden v. All-State Career School

299 F.R.D. 446, 88 Fed. R. Serv. 3d 690, 2014 WL 1646934, 2014 U.S. Dist. LEXIS 56212, 122 Fair Empl. Prac. Cas. (BNA) 976
CourtDistrict Court, W.D. Pennsylvania
DecidedApril 23, 2014
DocketNo. 2:13cv406
StatusPublished
Cited by5 cases

This text of 299 F.R.D. 446 (Ogden v. All-State Career School) is published on Counsel Stack Legal Research, covering District Court, W.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ogden v. All-State Career School, 299 F.R.D. 446, 88 Fed. R. Serv. 3d 690, 2014 WL 1646934, 2014 U.S. Dist. LEXIS 56212, 122 Fair Empl. Prac. Cas. (BNA) 976 (W.D. Pa. 2014).

Opinion

MEMORANDUM ORDER

DAVID STEWART CERCONE, District Judge.

AND NOW this 23rd day of April, 2014, upon due consideration of the matters raised in defendant’s motion to compel and plaintiffs opposition thereto, IT IS ORDERED that [27] defendant’s motion be, and the same hereby is, granted in part and denied in part. The motion is granted to the extent it seeks full and complete discovery responses to Requests for Production No.s 1, 10, 17, 26-30.1 Plaintiff is ordered to serve full and complete responses to these requests within twenty-one (21) days of the date of this Order. The motion is granted as to Requests for Production No.s 38 and 39 as follows: subject to the hmitations set forth in Rule 26, shall (a) review all electronic communications made or affirmatively acknowledged by him on any social networking website during the period of alleged harassment/diserimination/retaliation (including all status updates, messages sent and received, wall comments, causes joined, groups joined, activity streams, blog entries, details, blurbs, comments and applications) and (b) produce to defendant a copy of all electronic communications belonging or attributable to him as a result of his affirmative actions which (1) discuss or relate to the underlying workplace conduct and/or (2) his emotional state of mind during and after the time of employment and any eause(s) attributable to that emotional state of mind. In the alternative, plaintiff may elect to provide defendant with access to the social networking site(s) along with a summary of the information which he believes is within the scope of this authorized discovery. Plaintiff shall produce this authorized discovery on or before May 23, 2014. The motion is denied in all other aspects. This ruling is without prejudice to defendant’s right to pursue further discovery of social networking communications and documents in accordance with the boundaries of relevancy as authorized by Rule 26.

Defendant’s Requests for Production No.s 38 and 39 seek to compel electronic communications and records far beyond the scope of discovery authorized by Rule 26. Through these requests defendant seeks “[c]opies of all photographs or videos posted by Plaintiff, or anyone on his behalf, or any photographs in which Plaintiff has been ‘tagged’ on any ‘social networking’ website including but not limited to ‘Twitter,’ ‘Facebook,’ and/or ‘MySpace’ from August 3, 2011, through the time of trial” and “[e]opies of Plaintiff’s complete profile on any ‘social networking’ website including but not limited to ‘Twitter,’ ‘Face-book,’ and/or ‘MySpace’ (including all updates, changes or modifications to Plaintiff’s profile) and all status updates, messages, both sent and received, wall comments, causes joined, groups joined, activity streams, blog entries, details, blurbs, comments and applications for the period from August 3, 2011 through the time of trial.”

Plaintiffs complaint sets forth claims for hostile work environment and disparate treatment based on reverse gender discrimination as well as retaliation, all in violation of [448]*448Title VII. Defendant contends that (1) a plaintiffs Facebook records are discoverable when they are likely to contain information that could lead to the discovery of admissible evidence; (2) the terminology used by plaintiff when speaking and interacting with others on social media is evidence that may defeat his sexual harassment claim by proving that he was not subjectively offended by the words and statements used by his female coworkers; and (3) plaintiffs Facebook records contain conversations and messages that plaintiff had with his former coworkers whom he now alleges subjected him to sexual harassment in the workplace. Plaintiff has objected to these requests on the grounds that they are irrelevant and overly-burdensome.

Defendant correctly points out that courts have permitted discovery of Facebook records when it is reasonably calculated to lead to the discovery of admissible evidence. As an example defendant references Thompson v. Autoliv ASP, Inc., et al, 2:09-CV-01375-PMP, 2012 WL 2342928 (D.Nev. June 20, 2012). There, the plaintiff sought over $61,000,000 from the manufacturer of her vehicle’s seatbelt system after suffering injuries resulting from a vehicular collision. The consequences of plaintiffs injuries were alleged to be pervasive and included severe physical injuries, emotional distress and impaired quality of life. The plaintiff was compelled to produce complete and un-redacted copies of her Facebook and other social networking accounts. The court reasoned that because these accounts were illustrative of plaintiffs social activities, mental state, relationships, living arrangements and rehabilitative progress, they were relevant for discovery purposes.

But it is the nature of the claims and defenses and not merely the form of medium that define the bounds of relevancy and courts have declined to permit far-roving discovery into social media accounts where the inquest does not meet the basic tenants of Rule 26. For example, in Mackelprang v. Fid. Nat. Title Agency of Nevada, Inc., et al., 2:06-CV-00788-JCM, 2007 WL 119149 (D.Nev. Jan. 9, 2007), a case involving claims for sexual harassment based on gender in violation of Title VII and pendant state law claims, the defendant’s motion to compel all records from the plaintiffs two MySpace accounts was denied and the plaintiff was compelled to produce only those communications which contained statements made by the plaintiff and witnesses relating to the subject matter of the case.

The defendant’s motion raised a number of issues regarding the type of information that might be contained in the MySpace accounts. First, the defendant argued that the accounts contained evidence that the plaintiff was using the private messaging function to facilitate the same types of electronic and physical relationships she had characterized as sexual harassment in her complaint. The defendant contended that (1) this evidence was probative of whether the plaintiff was a willing participant who condoned and actively encouraged the alleged sexual communications with the alleged harassers and (2) none of the identified conduct actually offended the plaintiff.

The court swiftly rejected the defendant’s contentions pursuant to the principles set forth in Federal Rule of Evidence 412, which generally provides that evidence offered to prove that any alleged victim engaged in other sexual behavior or to prove the alleged victim’s sexual predisposition is inadmissible in any civil proceeding involving alleged sexual misconduct. Id. at *6 (“The courts applying Rule 412 have declined to recognize a sufficiently relevant connection between a plaintiffs non-work related sexual activity and the allegation that he or she was subjected to unwelcome and offensive sexual advancements in the workplace.”).

On the issue of whether the requested discovery was relevant to disprove that the conduct underlying the complaint actually offended plaintiff, the court reasoned that

[ejvidenee that Plaintiff has subsequently engaged in sexually related email communications with other persons may arguably be more relevant to whether Plaintiff suffered emotional distress damages than would evidence of Plaintiffs sexual behavior before the alleged harassment. Notwithstanding this distinction, the Court finds that the probative value of such evidence does not substantially outweigh its unfair prejudicial effect to Plaintiff. [449]

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Bluebook (online)
299 F.R.D. 446, 88 Fed. R. Serv. 3d 690, 2014 WL 1646934, 2014 U.S. Dist. LEXIS 56212, 122 Fair Empl. Prac. Cas. (BNA) 976, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ogden-v-all-state-career-school-pawd-2014.