DAVID ISRAEL, Plaintiff, v. MICHAEL BUCON; JAMES ADAMS; and XTREME PROTECTION SERVICES, LLC, Defendants. DAVID ISRAEL, Plaintiff, v. DIANE ISRAEL, Defendant No. 17 C 6452 | consolidated with No. 17 C 6643 United States District Court, N.D. Illinois, Eastern Division Filed: September 25, 2018 Valdez, Maria, United States Magistrate Judge ORDER *1 This matter is before the Court on defendant Diane Israel's (“Diane”) Motion to Compel Plaintiff's Response to Diane Israel's Second Set of Discovery Requests to Plaintiff [Doc. No. 376]. For the reasons that follow, Diane's motion is granted. DISCUSSION Federal Rule of Civil Procedure (“Rule”) 26 provides 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 stake 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.” Fed. R. Civ. P. 26(b)(1). As the objecting party, Plaintiff has the burden to demonstrate that Diane's discovery request is improper. See, e.g., Mann v. City of Chi., No. 15 C 9197, 2017 WL 3970592, at *2 (N.D. Ill. Sept. 8, 2017) (citing Rubin v. Islamic Republic of Iran, 349 F. Supp. 2d 1108, 1111 (N.D. Ill. 2004)). On May 4, 2018, Diane served on Plaintiff the following discovery requests: Interrogatory No. 10: Identify each and every social networking site or application you have used during the period of July 2014 through July 2016. For each such site or application, identify the name and address of the service provider, your user name or avatar, the URL where the account was/is available, and the dates during which you used the account. Request for Production No. 20: For each social network account identified in Interrogatory No. 10 above, produce a copy of each post and photograph posted to such account for the period of July 2014 through July 2016. (Pl.’s Mot., Ex. 2.) Diane argues that the social networking information is relevant to determine whether Plaintiff's lifestyle has been adversely affected, as he alleges in the complaint. Diane has obtained certain photographs of Plaintiff in social situations through other sources and wishes to further explore similar evidence on social media. Plaintiff objects to the requests on the basis that they seek his personal information, and Diane's invasion of his privacy is what the entire case is based upon; and the requests are too broad in both temporal scope and with respect to the types of information requested. As Plaintiff admits, he was late in answering the requests. They were served on May 4, 2018, and he did not respond with his objections until August 6, 2018, over two months after a response was due under Rule 34(b)(2)(A). “A party's failure to timely object to discovery requests without demonstrating good cause for the delay may result in a waiver of all objections that could otherwise have been asserted.” Martinez v. Cook County, No. 11 C 1794, 2012 WL 6186601, at *3 & n.4 (N.D. Ill. Dec. 12, 2012) (noting that although Rule 34 does not expressly provide for waiver, “courts have generally recognized that Rule 33's automatic waiver provision applies to Rule 34 as well”); see Autotech Techs. Ltd P'ship v. Automationdirect.com, Inc., 236 F.R.D. 306, 398 (N.D. Il. 2006); Woods v. Cook County, Illinois, No. 13 C 2607, 2014 WL 7261277, at *2 (Dec. 19, 2014). *2 Plaintiff, however, urges the Court not to find waiver because he would be unduly prejudiced if his privacy objections are not sustained. He also advises that he tendered his objections “[w]hen Diane's counsel indicated that discovery-responses were past due” and before Diane filed her motion to compel. (Pl.’s Resp. at 4.) Plaintiff has not given the Court any reason at all for his delayed responses, let alone demonstrated good cause. The validity of his objections or the alleged prejudice he would suffer by a waiver is not relevant to the inquiry; good cause for raising an objection has nothing to do with good cause for delay. By Plaintiff's logic, objections could never be waived because by definition, waivers tend to prejudice the responding party. Plaintiff's objections were not timely raised, he has given no good cause for the delay, and therefore any objections are necessarily waived. The Court will nevertheless briefly address Plaintiff's objections, which would not have been sustained even if not waived. First, Plaintiff complains that the requests infringe his privacy rights, calling them “audacious” in their efforts to obtain the same type of personal information Diane sought by hiring Adams and Bucon. As explained in an earlier order, however, Plaintiff's claim for damages directly puts at issue his alleged lifestyle changes after the events related in the complaint. It is not audacious for Diane to seek discovery related to Plaintiff's damages, and it is not outrageous for her to conclude that such evidence may be posted on his social media accounts, given that she has seen some examples through other sources. Plaintiff cites two cases for the proposition that a litigant has a privacy interest in his or her social media activity. See Appler v. Mead Johnson & Co., LLC, No. 3:14-CV-166, 2015 WL 5615038 (S.D. Ind. Sept. 24, 2015); In re Cook Med., Inc., IVC Filters Mktg., Sales Practices & Prods. Liab. Litig., No. 1:14-ml-2570, 2017 WL 4099209 (S.D. Ind. Sept. 15, 2017). It is not disputed that a party generally has such privacy rights, as parties often do with respect to any discovery sought in litigation. The issue is whether the information is nevertheless discoverable because it is relevant to a party's claim or defense and is proportional to the needs of the case. See Fed. R. Civ. P. 26(b)(1). As the Appler court stated in the sentence immediately following the text Plaintiff quotes in his brief: “Nonetheless, a court may compel production of a party's Facebook information if the party seeking disclosure makes a threshold relevance showing.” Appler, 2015 WL 5615038, at *2. Diane has made such a threshold showing here. Plaintiff next objects to the temporal scope of the requests, which seek copies of posts from July 2014 to July 2016, arguing that the eavesdropping at issue in the complaint took place for only five months, from May to September 2015.[1] The Court concludes that the scope is relevant and proportional. Because Plaintiff alleges a significant change in his lifestyle after the events in question, the year before the eavesdropping took place could be relevant to show a type of baseline measure. It is also not overbroad to seek evidence for ten months after the eavesdropping ceased, particularly since the complaint implies the lifestyle changes continued through the filing of the complaint in 2017. *3 Plaintiff's other objections as to the scope of the requests are also unpersuasive. He seeks to limit the requests to Facebook; only photographs, i.e., no written posts; and no photographs that were taken or posted by others, are not recent, or are not available to the general public. But Plaintiff's argument against the production actually explains why the requests are relevant: “She should not get access now merely because David filed this lawsuit. She has stated no reason as to why she wants any pictures or posts besides that David's presence at social gatherings aids in her defense.” (Pl.’s Resp. at 4.) The lawsuit is indeed why Diane can gain access to the materials, and the fact that they aid in her defense is sufficient reason, by itself, to demonstrate relevance. Moreover, they may be relevant no matter who took them, whether they are photographs or written posts, or not available to the general public. If the posts or photographs were not taken in the relevant time period, that is an issue to be raised at summary judgment or trial, not at the discovery stage. CONCLUSION For the foregoing reasons, Diane Israel's Motion to Compel Plaintiff's Response to Diane Israel's Second Set of Discovery Requests to Plaintiff [Doc. No. 376] is granted. Diane is awarded her costs in bringing the motion pursuant to Rule 37(a)(5)(A). SO ORDERED. ENTERED: Footnotes [1] Plaintiff's response states that the events took place “from May to September 2005,” (Pl.’s Resp. at 2), but that is apparently a typographical error.