SMITTY'S SUPPLY, INC. v. Lindsay Morgan HEGNA CIVIL ACTION NO. 16-13396 C/W 17-7191 United States District Court, E.D. Louisiana Signed March 02, 2018 Counsel David Robert Sherman, Matthew Arthur Sherman, Daniel Edwin Buras, Jr., Patrick R. Follette, Fred L. Herman, James McClendon Williams, Chehardy, Sherman, Williams, Murray, Recile, Stakelum & Hayes, LLC, Metairie, LA, for Smitty's Supply, Inc. Maureen Blackburn Jennings, Maureen Blackburn Jennings, Attorney at Law, Houston, TX, Shannon Ashley Lang, Shannon A. Lang, PLLC, Houston, TX, for Lindsay Morgan Hegna. Knowles III, Daniel E., United States Magistrate Judge ORDER SECTION “S” (3) *1 On January 24, 2018, four motions came on for oral hearing before the undersigned. Present were Matthew Sherman and Daniel Buras on behalf of plaintiff and Maureen Jennings on behalf of defendant. After the oral hearing, the Court resolved two motions and took two under advisement, namely, Plaintiff's Motion to Compel Response to Interrogatory [Doc. #63] and the Motion of Lyndsey Morgan Hegna to Compel Complete Responses to First Interrogatories and First Requests for Production [Doc. #70]. Plaintiff later filed a supplemental memorandum in support of her motion. [Doc. #90]. Having reviewed the pleadings and the case law, the Court rules as follows. I. Background The facts of this lawsuit are adequately outlined in the District Court's opinion denying several dispositive motions, Smitty's Supply, Inc. v. Hegna, Civ. A. No. 16-13396, 2017 WL 1837742 (E.D. La. May 5, 2017), and there is no need to repeat them here. II. Defendant's Motion to Compel In Interrogatory Number 12, Smitty's Supply, Inc. (“Smitty's Supply” or “plaintiff”) specifically requested that Hegna identify any social media accounts that Hegna uses or has used in the past five years and the usernames associated with those accounts. Hegna refused. Plaintiff has reason to believe that Hegna was a user on several social media outlets and that the information from these would be highly relevant to Hegna's sexual harassment claim. These social media accounts would likely shed light on Hegna's subjective mindset and participative behavior during the time of the alleged harassment, which is critical given a required element of a sexual harassment claim is that the alleged victim show the harassment was subjectively unwelcome and offensive. Plaintiff also has reason to believe that Hegna has deleted and/or altered her social media accounts and now refuses to identify any of them. Plaintiff contends that it is simply asking Hegna to identify any and all social media sites that Hegna has used in the past five years, and the usernames associated with those accounts. Citing Judge North's opinion in Farley v. Callais & Sons, L.L.C., Civ. A. No. 14-2550, 2015 WL 4730729 (E.D. La. Aug. 10, 2015), Smitty's Supply contends that with sexual harassment claims, courts take into account matters such as the “complainant's sexually provocative speech or dress,” which are “obviously relevant” in determining whether the conduct was unwelcomed. Plaintiff argues that Hegna has made her own subjective beliefs and behavior highly relevant to the Court since it is part of her prima facie case. As such, Hegna's social media accounts can be highly informative of her subjective mindset during her time of employment, with pictures and posts illustrating not only her mindset but also her pattern of conduct during her time of employment. Plaintiff maintains that it is highly convenient that Hegna had social media accounts for the very purpose of engaging with the public, but when litigation commenced, all of the accounts suddenly disappeared. *2 Hegna contends that plaintiff provides the Court with no facts or evidence that she has deleted or altered her accounts, and any such allegations are simply that – Allegations. She denies any such conduct. She notes that barring a court order, she is free to change or alter any of her social media accounts when she chooses. She asks the Court to order plaintiff to disclose any information that it has that she altered or deleted the accounts. She contends that plaintiff simply attempts to mount a spoliation claim against her and does not really seek to obtain any evidence against her claims. She notes this because plaintiff does not seek any social media posts from the accounts. She also argues that the timeframe is overbroad. Between June 2012 and July 2014, plaintiff did not even employ Hegna. Should the Court grant the motion, she asks that the discovery be limited to the time period from July 2014 through March 2016, when plaintiff terminated her. At the oral hearing, the Court asked defense counsel what use the websites would be without the passwords. Counsel admitted that he would seek the passwords at a later date. To pretermit the filing of unnecessary motions, the Court informed counsel that it would address that issue in this Order. This Court has developed a tried and true solution to resolve the problem of the discovery of social media information. That solution is outlined in Farley v. Callais & Sons, L.L.C., Civ. A. No. 14-2550, 2015 WL 4730729 (E.D. La. Aug. 10, 2015), which this Court has cited on numerous occasions. Having reviewed the numerous complaints and answers in this and the semi-consolidated lawsuit, the Court finds that Hegna's subjective behavior and beliefs are proportionate to the needs of this lawsuit. For the reasons outlined in Farley and those here, the Court finds the following categories of information discoverable from Hegna's social media accounts, from July 2014 through the present: 1) postings by Hegna that refer or relate to the underlying facts of this dispute or the lawsuit; 2) postings that refer or relate to emotional distress that Hegna alleges that she suffered as a result of the alleged sexual harassment and any treatment that she received therefor; and 3) postings or photographs that refer or relate to alternative potential emotional stressors or that are inconsistent with the claims that she alleges here. See id. at *4. The Court declines to require Hegna to share her log-in or password information with Smitty's Supply or to require her to sign any type of authorization to allow plaintiff to seek this information directly from Hegna's social media accounts. Adopting the approach outlined in Farley and the case law cited therein, the Court directs that Hegna's postings be made immediately available to her counsel and that they be reviewed by her counsel – not Hegna herself – to determine whether they fit into one or more of the categories set forth above. Production of these documents is to take place within fifteen (15) days of this Order. In addition, and as part of the production ordered above, Hegna is to execute and provide to Smitty's Supply a declaration, signed under penalty of perjury, affirming that she has provided to her counsel all social media information (or access to it) requested by Smitty's Supply. Finally, Hegna's counsel is to ensure preservation of all social media information requested by Smitty's Supply, regardless of the extent of any actual production from that information, in the event a dispute later arises over the appropriateness or scope of Hegna's eventual production. Failure by Hegna and/or counsel to comply with any of these directives may result in appropriate sanctions being levied under Rule 37. Whether Hegna deleted her accounts and when is of no moment to this Court: If the accounts existed during the time frame outlined above, Hegna shall comply with this Order notwithstanding if the accounts no longer exist. III. Hegna's Motion to Compel *3 In this motion, Hegna objects to the sufficiency of Smitty's Supply's responses to almost all of her discovery requests. Smitty's Supply has opposed numerous arguments raised by Hegna in her motion, which the Court will address in turn. With regard to Interrogatory (“Int.”) No. 13 and Request for Production (“RFP”) Nos. 38, 49, and 50, Smitty's Supply objected to responding to the requests because it never executed, adopted, or implemented any proposed stock plans. However, this is a frivolous objection given that the District Court denied Smitty's Supply's motion for summary judgment on the ground that there exists an actual controversy as to whether any of the stock plans exist. [Doc. #30]. Thus, whether or not Smitty's Supply avers that no stock plan ever existed is of no moment. That issue is as of yet undetermined, and discovery on any stock plan's existence goes to the heart of this lawsuit. The motion is granted as to these discovery requests. However, the Court limits RFP No. 38 – which seeks the compensation packages of all executives – to only those documents that would reflect the existence of or income from the alleged stock plans. With regard to RFP Nos. 17, 18, 19-22, and 25-26 – which seek the personnel files of non-parties to this lawsuit, the Court grants the motion in part. Discovery of the personnel files of non-party individual employees presents special concerns about the privacy rights of the individuals involved. Balancing the interests of the parties in obtaining relevant discovery against the privacy interests of individual non-parties can best be accomplished by in camera review of the requested files. Atkinson v. Denton Publishing Co., 84 F.3d 144, 148 (5th Cir. 1996). Accordingly, Smitty's Supply shall produce the relevant documents to this Court no later than seven (7) days from the date of this Order. After review, the Court shall issue a short, supplemental order as to their production. With regard to RFP Nos. 44, 45, 47, and 48, the Court grants the motion. Given that Smitty's Supply has asserted a potential affirmative offense based on the letter of intent and any related documents, it can not now complain that it must produce documents related to that defense. These requests are proportionate to the needs of the case; they are not overbroad or unduly burdensome for Smitty's Supply to produce. With regard to RFP Nos. 52-53, the Court denies the motion. Hegna has as much ability as Smitty's Supply to obtain the requested documents from other public sources. With regard to all other discovery requests, the motion is granted. Smitty's Supply has advanced no opposition in its memorandum as to why it should not respond to these requests, and it is not this Court's duty to divine any reason to support Smitty Supply's general objections. IV. Conclusion For the foregoing reasons, IT IS ORDERED that Plaintiff's Motion to Compel Response to Interrogatory [Doc. #63] and the Motion of Lyndsey Morgan Hegna to Compel Complete Responses to First Interrogatories and First Requests for Production [Doc. #70] are GRANTED IN PART and DENIED IN PART as outlined above. Unless ordered otherwise, the parties shall comply with this Order no later than ten (10) days from the below date. One final caveat: This Order does not preclude any party from producing an appropriate privilege log with its production, should circumstances so warrant.