ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO COMPEL FURTHER RESPONSES TO DEFENDANT’S REQUEST FOR PRODUCTION REGARDING SOCIAL NETWORKING SITE MATERIAL (SET ONE)
I.
INTRODUCTION
On August 7, 2012, Defendant filed a Motion to Compel Further Responses to Defen
II.
THE PARTIES’ CONTENTIONS
Defendant requests an Order compelling Plaintiff to produce documents responsive to Requests for Production Nos. 46-49, which collectively seek:
(1) Any profiles, postings or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) from social networking sites from October 2005 (the approximate date Plaintiff claims she first was discriminated against by Home Depot), through the present, 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;
(2) Third-party communications to Plaintiff that place her own communications in context;
(3) All social networking communications between Plaintiff and any current or former Home Depot employees, or which in any way refer [or] pertain to her employment at Home Depot or this lawsuit; or
(4) Any pictures of Plaintiff taken during the relevant time period and posted on Plaintiffs profile or tagged1 or otherwise linked to her profile.
(Jt. Stip. at 2).
Defendant argues that it is entitled to Plaintiffs communications posted on social networking sites (“SNS”) such as Facebook and Linkedln to test Plaintiffs claims about her mental and emotional state. (Id. at 1). According to Defendant, Plaintiff testified at her deposition that she suffers from post traumatic stress disorder, depression and isolation, and has cut herself off from communication with friends because of Defendant’s alleged wrongdoing. (Id.). Defendant argues that SNS communications are particularly likely to contain relevant information because “in this day and age, many communications between friends and/or about an individual’s emotional state are communicated via social media.” (Id.). Defendant states that it has evidence suggesting that Plaintiff maintains Facebook and Linkedln accounts and that publicly available information from those sites undermines Plaintiffs claims of isolation and loss of friendship. (Id. at 8).
Plaintiff acknowledges that “social media is discoverable to the extent it is adequately tailored to satisfy the relevance standard,” but argues that Plaintiffs requests are im-permissibly overbroad. (Id. at 11). According to Plaintiff, rather than tailor its requests, Defendant seeks “to rummage through the entirety of [Plaintiffs] social media profiles and communications in the hope of concocting some inference about her state of mind.” (Id. at 3). Plaintiff further argues that the requested discovery is unduly burdensome because she has already testified
III.
DISCUSSION
A. Discovery Requests For Social Networking Site Content Must Be Reasonably Calculated To Lead To The Discovery Of Admissible Evidence And Describe The Information To Be Produced With “Reasonable Particularity”
A party may “obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense — including the existence, description, nature, custody, condition, and location of any documents or other tangible things.” Fed. R.Civ.P. 26(b)(1). Relevancy is construed broadly to encompass “any matter that bears on, or that reasonably could lead to other matter[s] that could bear on any issue that is or may be in the case.” Chavez v. Daimler-Chrysler Corp.,
Pursuant to Federal Rule of Civil Procedure 34(a), a party may request documents “in the responding party’s possession, custody, or control.” 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. Fed.R.Civ.P. 34(b)(l — 2). “The test for reasonable particularity is whether the request places a party upon ‘reasonable notice of what is called for and what is not.’” Bruggeman ex rel. Bruggeman v. Blagojevich,
The Court recognizes that social networking site 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.,
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.,
“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,
B. The Majority Of Defendant’s Social Media Requests Fail Rule 34(b)(l)(A)’s Reasonable Particularity Requirement And Therefore Are Not Reasonably Calculated To Lead To The Discovery Of Admissible Evidence
The Court finds that three of the four categories of SNS communications sought by Defendant fail Rule 34(b)(l)(A)’s “reasonable particularity” requirement, and, as such, are not reasonably calculated to lead to the discovery of admissible evidence. Consequently, the Court DENIES Defendant’s Motion with respect to Categories 1, 2 and 4 of the revised requests. (See Jt. Stip. at 2).
Category 1 seeks any “profiles, postings or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries)” from any social networking site from October 2005 through the present “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.” (Jt. Stip. at 2). Plaintiff has placed her emotional state at issue in this action and it is conceivable that some SNS communications may support or undermine her claims of emotional distress. Nonetheless, the extremely broad description of the material sought by this category fails to put a “reasonable person of ordinary intelligence” on notice of which specific documents or information would be responsive to the request, and therefore fails to satisfy Rule 34(b)(l)(A)’s requirement that production requests be stated with reasonable particularity.
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 iden
Category 2, which requests “third-party communications to Plaintiff that place her own communications in context,” also fails. To the extent that the reference to Plaintiffs “own communications” means communications regarding “emotions” produced in response to Category 1, Category 2 is entirely predicated on Category 1 and fails for the same vagueness concerns discussed above. Apart from these deficiencies, even if the universe of documents referred to as Plaintiffs “own communications” could be reasonably circumscribed and understood, the phrase “in context” is vague and also fails to provide notice to Plaintiff of which specific third party communications are and are not called for by the request.
Finally, Category 4, which requests “any pictures of Plaintiff taken during the relevant time period and posted on Plaintiffs profile or tagged or otherwise linked to her profile,” is impermissibly overbroad. Defendant fails to make the threshold showing that every picture of Plaintiff taken over a seven-year period and posted on her profile by her or tagged to her profile by other people would be considered relevant under Rule 26(b)(1) or would lead to admissible evidence. See Simply Storage Mgmt.,
In contrast, Category 3, which requests all SNS communications “between Plaintiff and any current or former Home Depot employees, or which in any way refer ... to her employment at Home Depot or this lawsuit,” adequately places Plaintiff on notice of the materials to be produced and is reasonably calculated to lead to the discovery of admissible evidence. Plaintiff notes that she has already responded to requests for communications between Plaintiff and sixteen different current or former Home Depot employees, which “would presumably include communications via social media.” (Jt. Stip. at 36). Plaintiffs responses to those requests indicate that a search for the communications described in Category 3 is both technically feasible and not overly burdensome. (See, e.g., Helmer Deck, Exh. A at 8-
IV.
CONCLUSION
For the foregoing reasons, Defendant’s Motion to Compel Further Responses to Defendant’s Request for Production of Documents (Set One) is GRANTED IN PART and DENIED IN PART. Defendant’s Motion is DENIED with respect to Categories 1, 2 and 4. Defendant’s Motion is GRANTED with respect to Category 3. Plaintiff is ORDERED to serve a written response and to produce documents responsive to Category 3, if any exist, within fourteen (14) days of the date of this Order.
IT IS SO ORDERED.
Notes
. " 'Tagging' is the process by which a third party posts a picture and links people in the picture to their profiles so that the picture will appear in the profiles of the person who 'tagged' the people in the picture, as well as on the profiles of the people who were identified in the picture.” EEOC v. Simply Storage Mgmt., LLC,
. As written, Requests for Production Nos. 46-49 seem to require production of the entire contents of Plaintiff's SNS accounts and are overbroad, as Defendant appears to have recognized. (See Jt. Stip. at 4, 15-16, 26 & 37). The instant Motion is limited to a request for an Order compelling production of only the four categories of documents described above, which arguably overlap several different requests for production as originally written. (See Jt. Stip. at 2, 9). The Court will therefore address these four categories instead of the four original production requests that they supersede.
. The Court acknowledges that Categories 1, 2 and 4 are closely modeled after three categories of SNS communications that the court in Simply Storage Mgmt. ordered produced. See Simply Storage Mgmt.,