APPLER v. MEAD JOHNSON & COMPANY, LLC
3:14-cv-00166
S.D. Ind.Oct 1, 2015Background
- Lori Appler sued Mead Johnson alleging ADA/ADAAA discrimination, retaliation, and intentional infliction of emotional distress after her termination; ERISA claim was dismissed.
- Defendant served interrogatories seeking Appler’s social media content; Appler moved for a protective order and the court partially granted and partially denied that motion.
- After that ruling, Appler served discovery requests seeking social media content from her supervisor Mary Engelland and HR representative Christopher Bernfeld, claiming their online posts could show bias or motive for termination.
- Mead Johnson moved for a protective order to block or limit production of Engelland and Bernfeld’s social media, arguing lack of relevance and privacy concerns; the parties disputed scope and meaning of requests.
- The magistrate judge found some of Engelland and Bernfeld’s SNS content (posts discussing Appler or persons with disabilities) could be relevant and discoverable, but overall the requests were attenuated and required narrowing and procedure to limit intrusion.
- Court granted the motion in part and denied it in part, and ordered a telephonic hearing to determine search procedures, limiting categories, mechanism, costs, who conducts the search, and cost allocation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of discoverable social media from non-party decisionmakers | Engelland/Bernfeld’s posts about Appler or people with disabilities are circumstantial evidence of motive and thus discoverable | Requests are overbroad, invade privacy, and depositions denying such posts should suffice | Some posts (discussions of Appler or persons with disabilities) are relevant and discoverable; broader requests require narrowing and procedural safeguards |
| Interpretation of requests seeking content "relating to mental state" | Seeks authors’ own expressed thoughts/opinions about Appler or disabilities | Misreads request as seeking inner mental states (not producible) | Requests interpreted to seek authors’ expressed mental state (their posts/opinions), not psychic access to others’ minds |
| Adequacy of sworn denials vs. need for social media review | Counsel should be allowed to review SNS content to test veracity and context of denials | Sworn testimony that no relevant posts exist should obviate need for intrusive production | Depositions alone insufficient; court permits review if properly limited and protected by confidentiality order |
| Procedure/cost of SNS search and production | Plaintiff may need broader review to identify relevant materials; wants production/downloads | Defendant raises burden, feasibility, and privacy; requests limitations and cost-sharing | Court orders hearing to set procedures: how to search/limit content, mechanism, cost, who performs search, and who bears cost |
Key Cases Cited
- Equal Emp’t Opportunity Comm’n v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind. 2010) (threshold relevance showing can justify compelled Facebook discovery)
- Tompkins v. Detroit Metro. Airport, 287 F.R.D. 387 (E.D. Mich. 2012) (SNS discovery requires application of traditional discovery principles)
- Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566 (C.D. Cal. 2012) (discovery requests must be reasonably particular and tailored when seeking social media)
- Loft, Inc. v. Corn Products Ref. Co., 103 F.2d 1 (7th Cir. 1939) (liberal discovery aids truth-finding and testing opponent’s claims)