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Court Grants Defendant’s Motion to Compel Various Records from Plaintiff in “Slip and Fall” Case: eDiscovery Case Law

In Hinostroza v. Denny’s Inc., No.: 2:17–cv–02561–RFB–NJK (D. Nev. June 29, 2018), Nevada Magistrate Judge Nancy J. Koppe granted the defendant’s motion to compel discovery various sources of ESI related to the plaintiff’s claim of injuries resulting from a “slip and fall” accident at one of the defendant’s restaurants.

Case Background

In March 2018, the defendant requested various releases from Plaintiff to obtain documents regarding her employment, a prior car accident in 2015, and records from medical providers and the plaintiff provided some of the requested releases in the same month.  In April 2018, the parties met and conferred three times regarding the outstanding releases, as well as the plaintiff’s responses to the defendant’s amended second set of requests for production of documents. When the parties were unable to resolve their discovery disputes, the defendant filed the instant motion to compel the outstanding releases and responses to its requests.

Judge’s Ruling

Noting that the “burden is on the party resisting discovery to show why a discovery request should be denied by specifying in detail, as opposed to general and boilerplate objections, why ‘each request is irrelevant’”, Judge Koppe ruled on each of the following sources of ESI requested by the defendant:

  • Copies of any and all documents related to the 2015 car accident the plaintiff identified in your response to Defendant’s Interrogatory No. 18, as well as information regarding two slip and fall accidents in 2012 where the plaintiff was treated by an orthopedist and a neurologist: Judge Koppe said that “Medical records of injuries prior to an alleged accident are relevant to the issue of whether the injuries existed at the time of the accident and whether the accident caused or aggravated the injuries” and also noted that “police reports and insurance records are relevant because they likely contain statements, photographs, or other information ‘to confirm or refute [a plaintiff’s] allegation [he or she] was not injured’ in an accident”. Because “Courts within the Ninth Circuit have found that medical records and reports dating between three years to ten years prior to an alleged accident are discoverable”, Judge Koppe granted the defendant’s request for this information.
  • Copies of any text messages, emails, or other written communications between either the plaintiff or her counsel and several witnesses and a copy of all text messages or emails the plaintiff sent in the 48 hours after the Subject Accident: Noting that “Phone records are discoverable if the request is narrowly tailored in date and time and relates to a key issue in the case”, Judge Koppe granted in part this request.
  • Copies of any [of] the data of any type of FitBit, or other activity tracker device from five (5) years prior to the Subject Accident through the present: Noting that the plaintiff had waived objections that the request was overbroad and unduly burdensome because she did not raise these objections in her initial response to Defendant’s amended second set of requests for production, Judge Koppe ordered the plaintiff to “supplement her response to Defendant’s request for production number 30 to fully describe the search she conducted for responsive documents, by July 20, 2018.”
  • Copies or allow for inspection, any social media account the plaintiff had from five (5) years prior to the Subject Accident through the present: Noting that “information from social media is relevant to claims of emotional distress because social media activity, to an extent, is reflective of an individual’s contemporaneous emotions and mental state”, Judge Koppe found “that social media information and communications are relevant and, thus, discoverable under Fed.R.Civ.P. 26(b)” and granted the defendant’s request for that information.
  • Authorization for the release of the plaintiff’s employment records: Despite the fact that the plaintiff claimed she was no longer pursuing a lost wage claim, Judge Koppe noted that “an amended complaint reflecting Plaintiff’s new claims has not been filed” and also observed that “it appears that Plaintiff’s claims of “limited occupational … activities … [and] loss of earning capacity” remain in her complaint”, so she granted that defendant’s request as well.

So, what do you think?  Did the judge fail to take into account privacy concerns of the plaintiff or should relevancy override privacy concerns in this case?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

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