United States District Court, D. Kansas
UNITED STATES EX REL MARCUS FEASTER, and MARCUS FEASTER, Individually, Plaintiffs,
DOPPS CHIROPRACTIC CLINIC, LLC and JOHN DOPPS, Defendants,
ORDER ON DEFENDANT'S MOTION TO COMPEL
KENNETH G. GALE United States Magistrate Judge
before the Court is the Motion to Compel filed by Defendant
Dopps Chiropractic Clinic, LLC (“Defendant”).
(Doc. 96.) For the reasons set forth below, Plaintiff's
motion is GRANTED in part and DENIED in part.
lawsuit contains causes of action for employment
discrimination and violations of the Federal False Claims
Act. (See generally Doc. 32.) Plaintiff Feaster
alleges that Defendants committed Medicare fraud. He also
contends that Defendants constructively discharged him from
his employment in violation of federal law. The present
motion relates to Plaintiffs' objections to
Defendant's discovery request regarding Plaintiff's
deleted social media postings.
26(b) states that
[p]arties 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 state in the action, the amount
in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
the discovery in resolving the issues, 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 be discoverable.
such, the requested information must be both nonprivileged
and relevant to be discoverable. Within this framework, the
Court will review the contested discovery response.
Interrogatory No. 10 asks Plaintiffs to “identify and
describe each . . . social media post . . . you have deleted,
altered, or removed, or caused to be deleted, altered or
removed since July 8, 2013.” (Doc. 96, at 4.)
Plaintiffs object that the request is vague, overly broad,
violates Plaintiff Feaster's privacy interests, and is
not reasonably calculated to lead to the discovery of
admissible evidence. (Id.) Plaintiff also objects that
request is not proportional to the needs of the case.
(Id., at 5.)
contends that the request has been reasonably limited
temporally as it “seeks only information and documents
from July 8, 2013 (the day Feaster resigned from John Dopps
Chiropractor, P.A.) to the present.” (Id.)
Defendant further contends the request is limited in scope as
it asks only for social media posts Feaster “deleted,
altered, or removed since that date.” (Id.)
responds that he has already produced every post and message
referencing his work” with Defendant “as well as
his entire professional Facebook page.” (Doc. 100, at
5.) According to Plaintiff, the documents requested are not
relevant and Defendant is requesting a “general
rummaging” through his deleted postings. (Id.)
Plaintiff continues that “[d]iscovery of social media
must be limited to discrete issues related to suit.”
v. Hillshire Brands is a recent decision from this
District discussing limitations on the discovery of social
media. No. 13-2605-CM, 2014 WL 2804188, at *4-5 (D. Kan. June
20, 2014). The Smith court noted that while
“[i]nformation on social networking sites is not
entitled to special protection, ” discovery requests
seeking this information should be tailored so as not to
constitute “the proverbial fishing expedition in the
hope that there might be something of relevance” in the
respondent's social media presence. Id.
Smith court relied on the out-of-district decision
of Ogden v. All-Star Career School, which held that
“Defendant is no more entitled to such unfettered
access to plaintiff's . . . social networking
communications than it is to rummage through the desk drawers
and closets in plaintiff's home.” Id.
(citing Ogden, No. 13-406 2014 WL 1646934, at *4
(W.D. Pa. April 23, 2014)). Similarly, allowing Defendant in
the present case to have unfettered access to all of
Plaintiff's deleted and altered social networking
postings would be akin to allowing Defendant unfettered
access to rummage through Plaintiff's garbage.
not to say, however, that all discarded social media postings
are undiscoverable. To the extent Plaintiff mentioned
Defendants or his employment with them in any such discarded
or altered social media postings, the same are both relevant
and discoverable. Given the severity of the allegations
contained in Plaintiff's Second Amended Complaint, this
information is also proportional to the needs of this case.
Plaintiff is, therefore, instructed to review any and all
deleted, altered, or removed social ...