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Landau v. Lamas

United States District Court, M.D. Pennsylvania

December 15, 2017

BRIAN LANDAU, Plaintiff
v.
MARIROSA LAMAS, et al., Defendants

          Mariani Judge.

          MEMORANDUM OPINION AND ORDER

          Martin C. Carlson United States Magistrate Judge.

         I. Factual Background

         This is a §1983 civil rights action brought by Brian Landau, a state inmate, against some 20 correctional defendants, arising out of allegations by Landau that he was sexually harassed and abused by a female correctional officer at SCI Rockview, Defendant Rebecca Zong, in 2013 and 2014, and other correctional staff failed to intervene and protect Landau from this conduct. The parties are engaging in what has been a halting, and often contentious, course of discovery. While we have commended to all parties the value of mutually cooperative discovery we have also reiterated that we stand ready to assist the parties in resolving their current discovery disputes, which include a series of motions to compel filed by the plaintiff which seeks further supplementation of prior discovery responses. (Docs. 116, 122.)

         These motions to compel focus on the plaintiff's search for evidence to support his allegations that numerous correctional officers at SCI Rockview were aware of Zong's sexual contact with Landau but failed to intervene and protect Landau from this sexual harassment and abuse. To support these allegations Landau has sought information about the social media used by the defendants, and seeks access to that social media. While Landau has been informed at various times and with differing degrees of clarity that the information he seeks relating to staff awareness of sexual contact between himself and defendant Zong does not exist, Landau has persisted in efforts to search out information of this type, and the current motions to compel focus on this aspect of the plaintiff's claims.

         Cast against this backdrop, there are two motions to compel pending for our consideration. First, Landau has moved to compel further responses to interrogatories and requests for production of documents served upon defendants Bumbarger, Cienfuegos and Rogers, three correctional officers at SCI Rockview. These three correctional defendants were deposed by plaintiff's counsel on June 6, 2017. In the course of these depositions, the three defendants acknowledged some social media access and use, but with a few exceptions that are not relevant to this motion denied discussing matters relating to the claims in this lawsuit in any social media. (Docs. 138-1 through 4.) These defendant-deponents also for the most part denied the conduct, statements and activity attributed to them by Landau in his complaint. (Id.)[1] There is another aspect to these depositions which, in hindsight, foreshadows the current dispute between these parties regarding the scope of what is relevant in this litigation. On occasion, the questioning of these witnesses forayed into personal matters which seemed unrelated to the issues of whether these correctional officers knew that Landau was the victim of institutional sexual assault by Zong, and failed to protect him from such assaults.[2]

         In the wake of these depositions, Landau issued interrogatories and requests for production of documents to Rogers, Cienfuegos and Bumbarger. These discovery demands were cast broadly in some respects. The interrogatories and requests for production sought an array of information concerning: cell phones, computers and other internet accessible devices possessed by the defendants; phone and internet services providers used by the defendants; as well as social media utilized by the defendants. These discovery demands also sought to have the defendants identify any social media postings or communications referenced in their depositions and communications made during the time period encompassed by the complaint, December 2013 through June 2014, as well as demanding that the witnesses identify and disclose all messages stored on electronic media “that mentions any of the other defendants for the time period from December 1, 2013 to the present.” (Doc. 122-3, 5, 7, 9, 11 and 13.)

         The defendants, in turn, responded to these interrogatories and requests for production of documents in a fashion which was consistent with their deposition testimony, identifying their internet and telephone service providers, describing the internet accessible devices they possessed; and detailing the forms of social media they used. The defendants also for the most part either denied having any social media communications in their possession from other defendants during the relevant time period or indicated that they did not currently possess and communications relating to the claims in this lawsuit.[3] (Docs. 122-2, 4, 6, 8, 10, 12, 14.)

         While these responses seemed largely congruent with the defendants' deposition testimony, Landau has filed a motion to compel further responses from the defendants. Although the precise tenor of the relief sought in this motion is not entirely clear, it appears that Landau is seeking an order which, inter alia, would compel the production of additional service provider data, something which the defendants do not appear to find objectionable. Landau also seems to be suggesting that he is entitled to wholesale disclosure of social media content by, between and among the defendants for at least a seven-month period from December 2013 to July 2014 and perhaps for as long as four years, from December 2013 to the present.

         The second motion to compel focuses upon defendant Zong. While the discovery requests at issue in this motion are directed at Zong, Landau's counsel makes it unmistakably clear that the entire thrust of this discovery request is to develop information in support of the failure-to-protect claim Landau has lodged against other correctional staff. As Landau has put it: “No further discovery is needed to confirm the criminal misconduct imputed to Ms. Zong in the Amended Complaint. Am. Compl. ¶¶ 27-78, 272. The focus of the current discovery effort is to confirm that Ms. Zong's co-workers knew about that misconduct, condoned or enabled it, and derived amusement from it, as alleged.” (Doc. 117, p. 3.) Landau's requests for production of documents have, therefore, requested copies of all social media content by Zong during the relevant time period, December 2013 through June 2014, which related to the allegations in this case, or were sent or received by any other defendant in this lawsuit. (Doc. 116-5.) In addition, Landau has sought information from Zong which would enable plaintiff's counsel to subpoena phone and internet usage information for the relevant time period from Zong's internet and telephone service providers.

         While there have been some delays in providing certain service provider information, Zong has not opposed Landau's efforts to secure this service provider information. Instead, Zong's counsel has lodged objections to requests for production which call for the wholesale disclosure of months of social media communications by Zong or untrammeled access to her cell phones. However, even as counsel has lodged these objections, Zong's attorney has endeavored to make disclosures and develop cooperative social media review procedures in this case. Thus, Zong has notified Landau's counsel that the only defendants she was in communication with during this relevant time period were Brandon Snyder and Matt Foster. Zong has agreed to cooperate in the release of service provider information from her telephone service provider so historic service records may be subpoenaed.. Moreover, through her counsel Zong has stated that: “as a reasonable accommodation, I am willing to provide my counsel with my password information and allow for you to read and print any pages that you deem pertinent from my Facebook site so long as my attorney is present at a mutually convenient meeting that physically occurs at 919 University Drive - Suite 3 in State College, Pennsylvania.” (Doc. 124, p. 3.)

         Landau's counsel deems these measures inadequate, and now seeks an order compelling Zong to surrender her cell phones for forensic examination by the plaintiff's expert. Yet, even as Landau advances this claim, Landau supports the claim with a proffer of relevance which is astonishingly speculative, sweepingly expansive in its scope, and largely divorced from the actual claims in this lawsuit regarding whether other staff knew of Zong's sexual activity with Landau and failed to protect Landau. Indeed, Landau's proffer of relevance seems to specifically deny that he is now seeking information directly relating to whether Zong's cell phone would reveal third-party knowledge of this sexual contact with inmate Landau. Instead, as plaintiff's counsel now speculates that:

In plaintiff's view, Zong likely transmitted images and messages that were intended to ingratiate herself with superiors, senior corrections officers, and the union representative at the prison. In this way, she sought to shield herself from the consequences of her sexual predation upon the plaintiff and other prisoners, if and when it came to light. The messages would function to normalize Zong's criminal conduct by positioning her as a source of sexual entertainment and amusement for her older colleagues and supervisors. The digital content that plaintiff expects to discover would be nothing like a to-do list for harassing the plaintiff or a chronicle of such events, as Zong's counsel implies. Rather, it would be more in the nature of self-portraiture: the artful invention of an attractive “brand” of tolerable sexual antics.

(Doc. 139, p.7.)

         Thus, the proffer of relevance in this case offered by Landau has transmogrified from a legitimate pursuit of evidence supporting a claim that other staff knew of illicit sexual contact between Correctional Officer Zong and Landau into some sort of wide-ranging inquiry into issues of sexual “self portraiture: the artful invention of an attractive ‘brand' of tolerable sexual antics.”

         With this understanding of what Landau now hopes to obtain through this extremely intrusive inquiry into social media, we will grant Landau's unopposed request for information that would allow him to subpoena basic service provider information, deny these motions to compel to the extent that they seek wholesale access to electronic social media, but prescribe a process for appropriately tailoring discovery in this field.

         II. Discussion

         A. Social Media Discovery-Guiding Principles

         The general scope of discovery is defined by Federal Rule of Civil Procedure 26(b)(1) in the following terms:

Parties 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1).

         Issues relating to the scope of discovery permitted under Rule 26 rest in the sound discretion of the court. Wisniewski v. Johns-Manville Corp.,812 F.2d 81, 90 (3d Cir. 1987). Thus, a court's decisions regarding the conduct of discovery, and whether to compel disclosure of certain information, will be disturbed only upon a showing of an abuse of discretion. Marroquin-Manriquez v. I.N.S., 699 F.2d 129, 134 (3d Cir. 1983). See Wertz v. GEA Heat Exchangers Inc., No. 1:14-CV-1991, ...


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