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Robert Offenback v. L.M. Bowman

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


June 22, 2011

ROBERT OFFENBACK, PLAINTIFF,
v.
L.M. BOWMAN, INC., AND ZACHARY S. REEDER, DEFENDANTS.

The opinion of the court was delivered by: (Judge Conner)

(Magistrate Judge Carlson)

MEMORANDUM ORDER

The District Court has referred the above-captioned action to the undersigned for the purposes of conducting an in camera review of Plaintiff's Facebook and MySpace accounts in order to determine whether certain information contained within Plaintiff's accounts is properly subject to discovery in this case. (Doc. 19.)

The Court subsequently held a telephonic case management conference with the parties to address the discovery dispute, and directed Plaintiff to provide the Court with the log-in information for his Facebook and MySpace accounts. Plaintiff subsequently provided this information to the Court with respect to his Facebook account, and represented that he could no longer locate information related to his MySpace account, since he had neither activated nor used the account since November 2008. Plaintiff conceded that limited public information contained within his Facebook account was properly subject to discovery, provided that the information could be considered relevant in accordance with Rule 26 of the Federal Rules of Civil Procedure.

As the party requesting the discovery from Plaintiff's social media accounts, Defendants provided the Court with the following summary of the case and of the issues they believed to be relevant to the Court's review:

This action arises from a vehicular accident that occurred on November 6, 2008. Plaintiff claims that he suffered physical and psychological injuries as a result of that accident.

His claimed physical injuries include claims of right shoulder and lower back injuries. Accordingly, Plaintiff's physical capabilities and activities are relevant to the review.

Plaintiff alleges that his claimed physical injuries limited his ability to sit, walk, stand, ride in a vehicle, bend, stoop, push, pull, and lift. He claimed that he could not drive for any period of time and is physically limited as to riding his bicycle or motorcycle.

Plaintiff also claims that he suffered psychological injuries as a result of the accident. He claims that he suffers anxiety, depression, and post-traumatic stress disorder as a result.

Plaintiff alleges that the psychological conditions resulted in decreased sociability and lack of intimacy. He alleges that he is fearful and nervous in traffic and around other vehicles. Accordingly, Plaintiff's social activities, transportation related activities, and expressions of emotion are relevant to this review.

Plaintiff also contends that is [sic] cannot work as a result of the physical and psychological injuries he claims from this accident. It is noted that Plaintiff purchased a property in Kentucky prior to the accident. He had planned to relocate to his employer's facility near the Kentucky property, but this possibility evaporated [due] to his employer's economic situation. Thus, information as to Plaintiff's relocation and plans are relevant to his motivation in this matter.

(Letter from Defendants' counsel to the Court dated May 2, 2011.)

The Court has carefully reviewed the allegations set forth in Plaintiff's complaint, as well as other filings in this action, so as to ascertain the claims and defenses at issue. In addition, the Court has considered the parties' competing letters in which they explain their respective positions regarding Defendants' assertion that Plaintiff's Facebook account may contain discoverable information under Rule 26(b) of the Federal Rules of Civil Procedure.*fn1 Informed by this review of the pleadings and other information in the record, and assisted by the parties' respective submissions, the Court conducted a thorough in camera review of Plaintiff's Facebook account on June 20, 2011.

The Court's review revealed that Plaintiff first activated his Facebook account on or about February 1, 2009, and that the account has remained active through the current date. Review of Plaintiff's Facebook account, including a thorough review of Plaintiff's "Profile" postings, photographs, and other information, reveals that the information and material contained within Plaintiff's Facebook account are unrelated in any way to the events that give rise to the cause of action in this case, and are largely irrelevant, or not likely to lead to the discovery of evidence relevant to the claims and defenses in this action. However, in consideration of the broad scope of relevance that Defendants' have argued in favor of above, and in consideration of Plaintiff's acknowledgment that "limited [relevant] 'public' information is clearly discoverable under recent caselaw," (Letter from Plaintiff to Court dated April 27, 2011), the Court finds that some small segment of the public information contained in Plaintiff's account is properly subject to limited discovery in this case.

Specifically, our review of Plaintiff's Facebook account reveals the following potentially relevant information that should be produced to Defendants:

* Plaintiff has posted a number of photographs or updates that reflect he continues to ride motorcycles and may have on more than one occasion traveled via motorcycle between his home in Kentucky and Pennsylvania. In particular, our review found a photograph posted on March 14, 2011, which appears to show Plaintiff with a Harley Davidson motorcycle that other posts suggest that he purchased in or around July 2010.

* On or about October 1, 2010, Plaintiff posted information to his account that suggests he may have traveled to West Virginia via motorcycle.

* On July 22, 2010, a post on Plaintiff's "Profile" page suggests that he had taken, or was planning to take, a trip to Pennsylvania on his motorcycle.

* On October 29, 2010, a photograph was posted to his account that may show Plaintiff hunting and in possession of a 10-point buck that he or another hunter had shot and killed.*fn2

* On August 29, 2010, Plaintiff's "Profile" contains an update in which he posts photographs and comments suggesting that he may have recently ridden a mule.

* On July 7, 2010, Plaintiff posted pictures of a Harley Davidson motorcycle that it appears he may have purchased shortly before the pictures were posted.

* On July 1, 2010, Plaintiff included "motorcycles" among his interests that he posted to his Facebook profile.

* Between March 16, 2010, and March 18, 2010, friends or relatives of Plaintiff posted comments to his profile that suggest Plaintiff had traveled from Kentucky to Pennsylvania, either by motorcycle or automobile.

With the exception of the foregoing, the remainder of Plaintiff's Facebook account reveals little beyond routine communications with family and friends, an interest in bluegrass and country music, a photography hobby, sporadic observations about current events, and a passion for the Philadelphia Phillies that was not dampened after he moved to Kentucky from Pennsylvania. Other than the information described in the bulleted paragraphs above, we have identified no information from Plaintiff's Facebook account that must be produced to Defendants.*fn3

Accordingly, IT IS HEREBY ORDERED THAT on or before Friday, July 8, 2011, Plaintiff shall produce the information identified above to Defendants in a format mutually agreeable to the parties. To the extent that the parties have continued disagreements regarding the scope or manner of this discovery, they are directed to contact the Court's deputy clerk, Kevin Neary, to arrange for a telephone conference with the Court. Mr. Neary can be reached at 717-221-3924.

Martin C. Carlson United States Magistrate Judge


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