Court Finds Broad Requests for Social Media Content Fail to Uphold Rule 34(b)(1)(A)’s “Reasonable Particularity” Requirement, Denies Motion to Compel (in part)

Mailhoit v. Home Depot U.S.A., Inc., —F.R.D.—, 2012 WL 3939063 (C.D. Cal. Sept. 7, 2012)

In this case the court addressed Defendant’s request for broad discovery of the content of Plaintiff’s social networking sites for the purpose of “test[ing] Plaintiff’s claims about her emotional and mental state.”  Because three of the four categories of information sought by Defendant failed Rule 34(b)(1)(A)’s “reasonable particularity” requirement, the court largely denied Defendant’s motion to compel.

In this employment discrimination case, Plaintiff claimed that she suffered mental and emotional distress as a result of Defendant’s alleged wrongdoing.  Accordingly, Defendant sought broad discovery of the content of Plaintiff’s social networking sites, arguing that such content was likely relevant because, “in this day and age, many communications between friends and/or about an individual’s emotional state are communicated via social media.”  Defendant also argued that publicly available information undermined some of Plaintiff’s claims.  The requested discovery closely resembled the discovery requested in EEOC v. Simply Storage Mgmt. (S.D. Ind.).  In that case, broad discovery was granted.

Here, the court acknowledged that the content of social networking sites may be subject to Rule 34 (and thus discoverable), but noted that several courts have found that “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’” and further concluded that “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.”  Specifically, Rule 34(b) “requires the requesting party to describe the items to be produced with ‘reasonable particularity’ and specify a reasonable time, place and manner for the inspection.  ‘The test for reasonable particularity is whether the request places a party upon ‘reasonable notice of what is called for and what is not.’ ’” (Citations omitted.)

Ultimately, the court found that “three of the four categories of [social networking site] communications sought by Defendant fail[ed] Rule 34(b)(1)(A)’s ‘reasonable particularity’ requirement, and as such [were] not reasonably calculated to lead to the discovery of admissible evidence.”

For example, discussing Defendant’s request for “communications relating to ‘any emotion’” and “relating to ‘events’ that could ‘reasonably be expected to produce a significant emotion,’” the court reasoned:

Even if the first part of this category, which seeks communications relating to “any emotion,” could be understood to encompass only communications containing specific emotive words (which the request does not identify), the category would still arguably require the production of many materials of doubtful relevance, such as a posting with the statement “I hate it when my cable goes out.”  The second part of the category, which seeks communications relating to “events” that could “reasonably be expected to produce a significant emotion,” is similarly vague and overbroad. Arguably, watching a football game or a movie on television is an “event” that may produce some sort of “significant emotion,” but it is unclear whether Plaintiff would be required to produce messages relating to such activities.  Without more specific guidance, Category 1 is not “reasonably particular.”  The language of the request does not provide sufficient notice to the responding party of what should be considered responsive material.  Defendant fails to make the “threshold showing” that the request at issue is reasonably calculated to lead to the discovery of admissible evidence.

Per the court, Defendant’s request for “third-party communications to Plaintiff that place her own communications in context,” failed “for the same vagueness concerns” discussed above to the extent “that the reference to Plaintiff’s ‘own communications’ mean[t] communications regarding ‘emotions’ produced in response to Category 1. . . .”  The court further concluded that the phrase “in context” was “vague and also fail[ed]to provide notice to Plaintiff of which specific third party communications [were] and [were] not called for by the request.”  The court also found that the request for any pictures posted on Plaintiff’s profile “or tagged or otherwise linked to her profile” during the relevant time period were impermissibly overbroad.

Notably, in footnote, the court acknowledged that the requests in this case were “closely modeled after three categories” of information that the court in Simply Storage Mgmt. ordered produced and found that those requests were overly broad and vague and failed to provide enough direction sufficient to comply with Rule 34(b)(1)(A).

The court did, however, granted Defendant’s request for social media communications between Plaintiff and current or former Home Depot employees and communications which referred to her employment at Home Depot or this lawsuit.