response in opposition (ffrf v. new kensington-arnold school district)
TRANSCRIPT
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THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
FREEDOM FROM RELIGION
FOUNDATION, INC., DOE 1, by DOE
1’s next friend and parent, MARIE
SCHAUB, who also sues on her own
behalf, DOE 2, by Doe 2’s next friend
and parent DOE 3, who also sues on Doe
3’s own behalf.
Plaintiffs,
vs.
NEW KENSINGTON-ARNOLD
SCHOOL DISTRICT,
Defendant.
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Case 2:12-cv-01319-TFM
RESPONSE BRIEF IN OPPOSITION TO
DEFENDANT’S MOTION TO COMPEL DISCOVERY
Plaintiffs Freedom From Religion Foundation, Inc. (“FFRF”), Marie Schaub, and Doe 1,
by and through their attorneys, Marcus B. Schneider, Esquire and STEELE SCHNEIDER, file
the following Response Brief in Opposition to Defendant’s Motion to Compel Discovery.
INTRODUCTION
This case arises out of Defendant New Kensington-Arnold School District’s display of a
six-foot-tall stone Ten Commandments monument in front of the Valley High School. The
factual focus of this case will be on the government conduct relating to the display of the Ten
Commandments monument. The constitutionality of the display will likely be evaluated from the
perspective of a reasonable observer, not that of the individual Plaintiffs. Seemingly without
regard for the nature of the case and for an improper purpose, the District served written
discovery upon the individual Plaintiffs seeking the production of most, if not all, of the personal
content from the social media websites that they maintain.
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In their initial responses to these discovery requests for social media information and on
numerous occasions thereafter, Plaintiffs made thorough objections based upon the notions of
proportionality set forth in the Federal Rules of Civil Procedure. With the discovery period now
closed and more than six months after Plaintiffs’ objections were originally made, the District
has filed its motion to compel. This Honorable Court should deny Defendant’s motion because
the discovery requests at issue are vexatious and disproportionate to the needs of the case.
The discovery requests are disproportionate for three reasons. First, the information
requested is not relevant because it relates to subjects that are immaterial to the ultimate outcome
of the case. Second, the District had ample opportunity to file its Motion to Compel during the
discovery period and explore the lines of inquiry at issue during Plaintiffs’ depositions. Third,
the requests at issue impose a significant burden on Plaintiffs, with full compliance likely to
require upwards of 50 hours of document review and preparation.
After considering the proportionality of these requests, the Court will be compelled to
conclude that the true nature of the discovery at issue is vexatious. Cutting through the litany of
irrelevant and distinguishable case law cited by the District in support of its requests, it becomes
apparent that the endgame of the District’s novel and extreme discovery tack will be a request
that district courts become religious inquisitors—i.e., that courts make judicial determinations
about the personal religious beliefs of plaintiffs in Establishment Clause cases. The absurdity of
this proposition and the well-developed notions of proportionality set forth in the Rules support a
swift denial of the District’s motion.
LEGAL STANDARD FOR MOTION TO COMPEL
Federal Rule of Civil Procedure 33(b)(4) requires that a party objecting to discovery state
the grounds for its objection with specificity. Fed. R. Civ. P. 33(b)(4). See Momah v. Albert
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Einstein Medical Center, 164 F.R.D. 412, 417 (E.D. Pa. 1996). Where an objection has been
made with the appropriate specificity, the party seeking discovery must “show that a discovery
request lies within the bounds of [Federal] Rule 26. Momah, 164 F.R.D. at 417. “When this
showing has been made, the party opposing discovery must convince the court why discovery
should not be had.” Id.
DEFENDANT’S REQUESTS AND PLAINTIFF’S RESPONSES
While Defendant has included the specific requests at issue in its Brief in Support, the
characterizations of these requests in Defendant’s Brief are materially inaccurate. For this reason,
Plaintiffs briefly review the requests below.
Interrogatory No. 4 sought identification of all occasions on which the suit and/or the
grounds of the suit were discussed by the Plaintiffs. Plaintiff Schaub was the only Plaintiff who
discussed the lawsuit, and in response to this interrogatory, Plaintiff Schaub produced documents
reflecting these discussions. With respect to discussions regarding the lawsuit that occurred on
Facebook, Plaintiff Schaub produced over 300 pages of Facebook activity relating to the lawsuit,
including all private messages where the case was discussed and the entire history of the
Facebook group “Remove the Ten Commandments at Valley High School,” of which Plaintiff
Schaub is a member. Consistent with Plaintiff’s objections to Interrogatory Nos. 10-12, Plaintiff
Schaub did not produce additional Facebook account documentation.
Interrogatory No. 10 sought identification of all websites, blogs, instant messaging
programs, and/or web service accounts for which Plaintiffs are registered. This interrogatory was
all-inclusive and was not tailored in any way to collect information specifically related to this
suit. In response, Plaintiffs objected to the breadth of the request and provided an identification
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of all websites for which Plaintiffs were registered where the suit or other relevant information
was discussed. The only site meeting these criteria was Plaintiff Schaub’s Facebook account.1
Interrogatory No. 11 was the more appropriate version of Interrogatory No. 10 because it
specifically requested an identification of those sites with which Plaintiffs were registered which
were used to discuss the suit. Because Plaintiffs’ response to Interrogatory No. 10 had already
effectively responded to Interrogatory No. 11, Plaintiffs referred Defendant to that responsein
response to Interrogatory No. 11.
Defendant’s Interrogatory No. 12 can fairly be characterized as the interrogatory that is at
the heart of the Defendant’s motion to compel. Through Interrogatory No. 12, Defendant sought
all account registration information and content for all of the “above-referenced websites, blogs,
instant messaging programs, and/or web service accounts.” While Defendant suggests that
Interrogatory No. 12 is narrowly tailored because this reference to “above-referenced websites”
refers to the websites identified in response to Interrogatory No. 11 (those websites used to
discuss the suit or other relevant information) as opposed to Interrogatory No. 10 (all websites to
which Plaintiffs subscribe), the language of the request itself does not differentiate between the
two preceding interrogatories. Though Plaintiffs were reasonably unclear as to which
interrogatory was referred to, they nevertheless responded to the interrogatory assuming that it
was referring to the websites identified by Plaintiff’s response to Interrogatory No. 11.
Accepting that Defendant was referring to those websites identified in response to
Interrogatory No. 11 (Defendant’s Brief, p. 8), the District undeniably seeks all content for those
1 Although Plaintiff Schaub maintains two Facebook accounts, only her primary account (under
the name Marie Schaub) was used to discuss the suit or other relevant information. Consistent
with Plaintiffs’ objection—that they should not be required to identify every website they have
ever registered with regardless of whether the site had any connection to this lawsuit—Plaintiff
Schaub only identified her primary Facebook account.
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websites. See Defendant’s Brief, pp. 5-6 (Interrogatory No. 12) (requesting without limitation
“for each . . . account . . . download and print your activity log . . [and] a copy of your Facebook
data”). Thus, given Plaintiff Schaub’s identification of her personal Facebook account in
response to Interrogatory No. 11, Defendant’s Interrogatory No. 12 seeks all content on Plaintiff
Schaub’s personal Facebook account, without any limitations whatsoever. Any attempt by the
District to characterize Interrogatory No. 12 as being a narrowly tailored request is clearly
disingenuous.
Despite the overly broad request for Plaintiff Schaub’s entire Facebook account activity
and without waiving her objections to the request, Plaintiff Schaub produced more than 300
pages of her Facebook account in response to the request. The produced documents are made up
of two categories of documents. First, Plaintiff Schaub produced the private messages sent by her
through Facebook that dealt with the litigation. Second, Plaintiff Schaub produced the entire
history of the private Facebook group “Remove the Ten Commandments at Valley High
School,” of which she is a member.
Plaintiff Schaub was able to provide these documents in response to Interrogatory No. 12
without undertaking significant time and effort. With respect to the private messages, Facebook
provides users with a history of private messages in a format that makes them easily searchable.
In part because Plaintiff’s counsel could utilize this feature, Plaintiff Schaub was able to provide
her Facebook messages related to the case. With respect to the activity on the private Facebook
group, Plaintiff Schaub was able to access the page because she was a member of the private
group, and in order to avoid having to undertake any substantial review of the content, Plaintiff
Schaub simply provided the entire history of the page.
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Apart from these productions, Plaintiff Schaub objected to producing the entire remaining
history and content from her Facebook page. Plaintiff Schaub further explained in her response
to Interrogatory No. 12 that a production of some subset of her Facebook activity culled from the
entire history and content would require a significant undertaking, likely requiring more than 50
hours. Because of the marginal relevance of the information likely to be produced at the
conclusion of such an undertaking, Plaintiff objected to any such production pursuant to the rules
of proportionality set forth in Federal Rule of Civil Procedure 26(b)(2)(C).
ARGUMENT
As envisioned by Rule 26(b)(2)(C), Plaintiffs’ objections under the rules of
proportionality arise out of a balancing of the potential relevance and materiality of the requested
information and the burden imposed on Plaintiffs to produce such information. The component
issues under a proportionality analysis, such as relevancy or burdensomeness, do not necessarily
provide independent bases for objecting to requests. Instead, it is the combination and balance of
these issues that supports proportionality objections. Despite this, for the most part, Defendant’s
Motion largely treats these component issues on a piecemeal basis. The limited portion of
Defendant’s Brief that claims to address proportionality amounts to nothing more than a review
of the purported relevancy of the information requested. See Defendant’s Brief, pp. 10-12.
Because the ultimate essence of Plaintiffs’ objections to the interrogatories at issue (and
most specifically with respect to Interrogatory No. 12) is in the nature of a proportionality
objection, Plaintiffs do not argue for denial of the motion to compel on the basis of any one of
the component objections that make up the overall proportionality analysis. After briefly
reviewing the rules of proportionality, Plaintiffs present and discuss each component objection,
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which when taken on balance pursuant to Rule 26(b)(2)(C), support a denial of Defendant’s
Motion to Compel.
I. Proportionality under the Federal Rules of Civil Procedure
The Court of Appeals for the Third Circuit has observed that “while ‘the scope of
discovery under the Federal Rules is unquestionably broad, this right is not unlimited and may be
circumscribed.’” Bowers v. National Collegiate Athletic Ass’n, 2008 WL 1757929, at *4 (D.N.J.
Feb. 27, 2008) (citing Bayer AG v. Betachem, Inc., 173 F.3d 188, 191 (3d Cir. 1999)).
Specifically, district courts have “‘broad discretion to tailor discovery narrowly’ to meet the
needs of each particular case.” Id. (citing Crawford-El v. Britton, 523 U.S. 574, 498 (1998)).
This proportionality requirement is set forth in Rule 26(b)(2)(C). Fed. R. Civ. P. 26(b)(2)(C); see
also U.S. v. Education Management LLC, 2013 WL 3863963, at *3 (W.D. Pa. July 23, 2013).
Rule 26(b)(2)(C) provides that courts should “limit the frequency or extent of discovery”
where, among other things, “the party seeking discovery has had ample opportunity to obtain the
information by discovery in the action” and where “the burden . . . of the proposed discovery
outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(2)(C)(ii)-(iii). In determining whether the
burden of proposed discovery outweighs its likely benefit, courts must consider “the needs of the
case, the amount in controversy, the parties’ resources, the importance of the issues at stake in
the action, and the importance of the discovery in resolving the issues.” Id.; see also Bowers,
2008 WL 1757929, at *5-6 (denying plaintiff’s motion to compel because the proposed
discovery sought information that was “at best only marginally relevant” to the claims in the
case). In determining whether a party has had ample opportunity to obtain information at the
time of a request, courts have considered whether the requested information could have been
obtained during depositions that occurred in the case. Bowers, 2008 WL 1757929, at *5 (denying
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motion to compel in part because moving party had opportunity to explore topics at issue in the
motion during depositions that occurred in the case). Courts have also considered whether the
ultimate application to the court was made in a timely manner. Gucci America, Inc. v. Guess?,
Inc., 790 F.Supp.2d 136, 142 (S.D.N.Y. 2011) (holding that application for certain information
should be denied where the application occurred after the close of discovery and could have been
raised at earlier point during discovery period).
The Advisory Committee Note in the 1983 amendment to Rule 26 (the year in which the
rule of proportionality was originally added to the rules) identifies the purpose of the rule as
being to “guard against redundant or disproportionate discovery by giving the court authority to
reduce the amount of discovery that may be directed to matters that are otherwise proper subjects
of inquiry.” Id. advisory committee note (1983). The note goes on to establish that “[t]he rule
contemplates greater judicial involvement in the discovery process and thus acknowledges the
reality that it cannot always operate on a self-regulating basis. Id. Courts have heeded these
words, and a number of district courts have limited discovery based upon Rule 26(b)(2)(C).
II. The information requested by Defendant is not relevant.
Establishment Clause cases are concerned with government action. County of Allegheny
v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 593-94 (1989) (holding that the primary
question in Establishment Clause cases is whether the government has taken action in support of
religion “[w]hether the key word is endorsement, favoritism, or promotion, the essential
principal remains the same”) (citations omitted). Even the judicial tests that consider the impact
of the government action on observers of the display consider the impact from the perspective of
a reasonable observer—not an individual plaintiff. See, e.g. Doe v. Indian River School Dist.,
653 F.3d 256, 284 (3d Cir. 2011) (noting that under the endorsement test and the primary effect
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prong of the Lemon test, the relevant inquiry involves how a “reasonable observer” would
perceive a display) (citations omitted). With this in mind, the personal information of the
Plaintiffs will have little to no bearing on the ultimate outcome of the case.
As the Northern District Court of Georgia astutely observed in an Establishment Clause
case:
This is not a case that will be determined by plaintiff's credibility or recitation of
facts. Rather, as long as plaintiff has standing to sue, this case will depend on the
resolution of a legal question: Does the display of the Ten Commandments in the
county courthouse violate the Constitution? The relevant facts, including who placed
the display, what is included in the display, how long it has been presented, etc., will
likely come from witnesses other than the plaintiff. The legal issues, while possibly the
subject of expert testimony, will be determined by the arguments of counsel. At the end
of the day, plaintiff plays a relatively minor role in this litigation.
Doe v. Barrow Cnty., 219 F.R.D. 189, 194 (N.D. Ga. 2003) (emphasis added). Faced with the
same issue in this case—whether the display of a Ten Commandments monument violates the
constitution—the Court should reach the same key conclusions regarding what issues will be
material to the outcome of the case.
The District presents a number of misguided arguments to support the broad nature of its
discovery requests. Notably, the District has failed to point the Court to a single Establishment
Clause case from anywhere in the United States where social media or the diary of a plaintiff
have been found to be of any relevance whatsoever let alone where such evidence proved to be
material to the outcome of a case. Instead, the cases relied upon by the District are easily
distinguishable from this case and Establishment Clause cases generally.
That the District was not able to point to any similar, controlling case law is unsurprising
when the overall aim of Defendant’s discovery tack is considered. Distilling Defendant’s Motion
down to its essence, the District looks to obtain all social media activity of Plaintiff Schaub in
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order to attempt to prove through circumstantial evidence that Plaintiff Schaub is not agnostic or
nonreligious, as she alleges in the original Complaint.2
While any attempt by the District to impeach Plaintiff Schaub regarding her personal
religious/nonreligious beliefs is obviously irrelevant to this case, the true absurdity of the
District’s argument is revealed by the District’s discussion of the type of evidence that it hopes to
acquire through the discovery requests at issue. As one example, the District seems to argue that
a singular comment made by Plaintiff Schaub on Facebook wherein she stated “Merry Freakin’
Xmas to ME” demonstrates that Plaintiff Schaub “celebrates Christmas.” Defendant’s Brief, p.
14. The District goes on to call the Court’s attention to Plaintiff Schaub’s use of the word
“blessed” in a comment on Facebook, reference to “holiday parties” in the month of December
on Facebook, and evidence suggesting the celebration of Halloween on Facebook. Id.
Taken together, the District seems to argue that these isolated instances of behavior
somehow reflect upon the core personal beliefs of Plaintiff and establish that Plaintiff Schaub is
not agnostic, nonreligious, or atheistic. The District’s argument rests upon the faulty assumption
that there exists a single, cookie-cutter definition for what it means to be an agnostic or an
atheist. Without providing an explanation for what these stereotypes might be, the District
conjectures that a few isolated instances of behavior on the part of Plaintiff Schaub are
inconsistent with her agnostic or atheistic beliefs. Apart from belittling Christianity by
apparently suggesting that one need only reference “Xmas” on a social media site on one
occasion or celebrate Halloween to be considered a Christian, this argument is nugatory. An
2 Plaintiff Schaub testified in her deposition that since the filing of the Complaint her personal
views have moved more towards atheism than agnosticism. As this testimony shows, the
personal religious or non-religious beliefs of individuals are hardly susceptible to the type of
black-and-white analysis proposed in the Defendant’s Brief. The transcript of Ms. Schaub’s
deposition, which was taken on April 18, 2014, is not yet available.
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individual’s personal core beliefs are not reasonably susceptible to this type of generic,
circumstantial, and superficial challenge.
Additional startling implications arise upon further consideration. First, it is clear that the
District intends to use the requested information to make out a circumstantial case that Plaintiff
Schaub has lied under oath on two occasions (in the original Complaint and in Plaintiff’s
deposition) regarding her personal religious/nonreligious beliefs. Second, and more alarmingly,
the District would apparently seek to transform this Honorable Court into a religious inquisitor
that would make the ultimate judicial determination as to whether the Plaintiff is really an
agnostic or atheist. Discovery requests that necessarily advocate for such a perversion of the
judicial system cannot be countenanced.
Because there are no cases that would support such an attack on plaintiffs in
Establishment Clause cases, the District is forced to support its arguments with case law that is
easily distinguishable from the issues present in this case. For example, one of the arguments
advanced in support of the relevance of the requested information rests upon the District’s
contention that the requested social media information may demonstrate whether Plaintiff
Schaub has experienced stress, anxiety, or loss of sleep as a result of the presence of the Ten
Commandments monument. While the Complaint does contain averments that Plaintiff Schaub
did endure these consequences as a result of the religious display, whether Plaintiff Schaub did in
fact experience stress, anxiety, or loss of sleep is ultimately immaterial to the ultimate outcome
of the case. This is especially true because Plaintiff Schaub has made clear on numerous
occasions that she is only seeking nominal damages in this action. See Exhibit “1” (Plaintiffs’
Responses to Interrogatories), p. 8 (stating that Plaintiffs “are not claiming or seeking damages
for physical harm or mental/emotional distress”), Plaintiff’s Memorandum of Law in Support of
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Motion for Protective Order [Document No. 25], p. 12 (stating that “Plaintiffs here have not
sought compensatory damages”).3 Unsurprisingly, the case law referred to by the District in
support of this argument involve situations that fall outside of the Establishment Clause arena
where damages for emotional distress were sought by the plaintiffs. See Defendant’s Brief, p. 11
n. 2 (explanatory parentheticals of Defendant); Defendant’s Brief, p. 7 (citing, among other
cases, Merrill v. Waffle House, Inc., 227 F.R.D. 467 (N.D. Tex. 2005) (involving a case where
production of diaries and journals were compelled where plaintiff sought an award of damages
solely for emotional distress and where plaintiff failed to establish a basis for their objection to
the requests)).
Similarly, the District relies upon a string of civil rights cases for the proposition that
disclosures of personal diaries are routinely compelled in such cases. Defendant’s Brief, p. 7.
These cases are also distinguishable. As one example, in Quiroz v. Hartgrove Hosp., a district
court case from Illinois cited by Defendant, the court ordered a production of limited portions of
a diary of the plaintiff after undertaking an in camera review to determine which portions of the
diary were relevant and where the plaintiff had already disclosed portions of the diary
specifically mentioning the defendant.4 1998 WL 341812 *1-3 (N.D. Ill. June 12, 1998). None of
the cases cited by the District involve claims brought under the Establishment Clause.
The District’s remaining argument in support of the relevancy of the discovery requests
at issue incants the issue of standing. Given the fact that standing is the one area where plaintiffs
in religious display cases must present a modicum of factual support, it is unsurprising that the
3 Plaintiff Schaub reaffirmed that she is not seeking damages in this lawsuit during her
deposition on April 18, 2014. 4 Notably, the Plaintiff in this case also made a specific claim for damages based upon mental
anguish.
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District would attempt to argue that its inquiries are necessary for it to challenge Plaintiffs’
standing to file suit. These standing arguments, however, are equally unavailing.
The injury that gives standing to plaintiffs in the Establishment Clause context is that
caused by unwelcome contact with a state-sponsored religious display. See, e.g., Vasquez v. Los
Angeles, 487 F.3d 1246, 1250 (9th Cir. 2007); see also, Suhre v. Haywood Cnty., 131 F.3d 1083,
1087 (4th Cir. 1997). The majority of federal circuits have held that contact with an offensive
religious symbol provides a sound basis for Article III standing. Vasquez, 487 F.3d at 1253; see
also Baker v. Adams Cnty./Ohio Valley Sch. Bd., 86 F. App’x 104, 109 (6th Cir. 2004) (finding
that allegation of unwelcome personal contact with Ten Commandments monument display on
public school property was sufficient for standing purposes). While not directly addressing
questions of standing, the Third Circuit Court of Appeals has generally acknowledged facts
demonstrating “unwelcome contact” in an Establishment Clause display case. Modrovich v.
Allegheny Cnty., Pa., 385 F.3d 397, 399 (3d Cir. 2004) (holding that “Modrovich and Moore
alleged that they have had regular, direct and unwelcome contact with the Plaque while entering
the courthouse on errands and walking past it on their way to and from work”).
Here, the District does not suggest that its discovery will establish that the Plaintiffs did
not have actual contact with the Ten Commandments monument. Instead, the District is
seemingly requests social media information to attempt to impeach Plaintiffs and call Plaintiffs’
stated religious beliefs into question as a way of challenging whether Plaintiffs’ contact with the
Ten Commandments monument at the Valley High School was actually unwelcome. None of the
cases addressing standing in this or any other Circuit Court of Appeals support this novel
argument.
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Again, even assuming that such a dispute was material—it is not—and that there was
factual support for such a dispute—there is not—the necessary implication of allowing such an
argument is that the Court must ultimately make a judicial determination in the case regarding
Plaintiff’s personal religious/nonreligious beliefs. In such a scenario, the Court would not be able
to resolve the case at the summary judgment stage, and since Plaintiffs are not entitled to a jury
trial, the Court would ultimately be required to decide at trial whether Plaintiffs are truly agnostic
or atheist as they have contended throughout this litigation. Just as much as courts cannot
reasonably be expected to make such a determination, Establishment Clause plaintiffs cannot
reasonably be expected to produce every personal comment that they have ever made for
potential use by opposing counsel to cross-examine their stated religious beliefs. Creating such a
threshold issue and requiring this type of disclosure by all Establishment Clause plaintiffs would
have an unnecessary chilling effect on potential plaintiffs.
III. Defendant has had ample prior opportunities to obtain the requested
information.
In two important ways, the District’s Motion to Compel comes before the Court only
after the District passed on earlier opportunities to obtain the requested information. First, the
District was dilatory in filing its Motion to Compel based upon its failure to seek assistance from
the Court at any one of a number of earlier opportunities. This dilatoriness provides additional
support for a denial of the District’s Motion under considerations set forth by Rule 26(b)(2)(C).
Second, the District failed to explore the areas of inquiry implicated by the discovery requests
during Plaintiffs’ depositions. This failure also supports a denial of the motion under Rule
26(b)(2)(C) because it places the Court in the untenable position of having to decide this Motion
without the benefit of any number of foundational questions that could have been asked during
Plaintiffs’ depositions.
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The District was in possession of Plaintiffs’ Responses to the District’s First Set of
Interrogatories and Requests for Production of Documents as of September 13, 2013. See Exhibit
B to Defendant’s Brief. These Responses set forth thorough objections to the discovery requests
at issue, which have been reiterated by Plaintiffs at every opportunity, including in this Response
Brief. See Exhibit 1. The District’s counsel initially sent Plaintiffs’ counsel an email regarding
purported deficiencies in the responses, and Plaintiffs’ counsel promptly responded by reiterating
the same objections to the interrogatories at issue. Exhibit C and Exhibit D to Defendant’s Brief.
Although by October 9, 2013 the District was in possession of Plaintiffs’ Responses,
which contained thorough objections to the interrogatories at issue, and Plaintiffs’ counsel’s
letter that restated those same objections, the District waited for a period of more than six months
to file its Motion to Compel. Significantly, the District failed to move this Court for an order
compelling responses to the interrogatories at issue before taking the depositions of the Plaintiffs.
By waiting until after the depositions, the District must now request as part of its Motion to
Compel that the depositions of the Plaintiffs be reconvened.
The District’s decision to wait until after the depositions of the Plaintiffs to file its
Motion to Compel occurred in spite of urging by Plaintiffs’ counsel that the parties resolve
outstanding discovery issues before the depositions of the Plaintiffs. See Exhibit “2” (December
3, 2013 email from Plaintiff’s counsel to Defense Counsel offering to reschedule Plaintiffs’
depositions so that outstanding discovery disputes could be resolved), Exhibit “3” (April 8, 2014
email from Plaintiff’s counsel to Defense Counsel requesting that the depositions of Plaintiffs be
delayed until after the resolution of outstanding discovery disputes).
Furthermore, the District has clearly had an interest in obtaining additional information in
response to the discovery requests at issue prior to Plaintiffs’ depositions. With each of the
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Notices of Depositions of the Plaintiffs, the District included subpoenas requesting the
information that had already been requested by these interrogatories. Exhibit “4” (Notices of
Deposition and Subpoenas). Plaintiffs have consistently expressed their objections to these
requests as well. Most recently, in response to the receipt of the Third Amended Notice of
Deposition and accompanying Subpoena requesting the same information as is requested by the
interrogatories at issue in the District’s Motion to Compel, Plaintiffs’ counsel advised
Defendant’s counsel that, consistent with the stated objections to the written discovery, Plaintiffs
did not intend to comply with the Subpoenas. Exhibit 4.
Despite the foregoing, Defendant’s counsel went forward with the depositions of the
Plaintiffs on April 18, 2014 and even asked during the deposition whether Plaintiffs had brought
the documents requested by the subpoenas. Given the fact that the District filed its Motion to
Compel (which was alluded to by Defendant’s counsel during the deposition of Plaintiff Schaub)
on the first business day following these depositions, it seems likely that the District would have
been in possession of all of the purported “public portions” of Plaintiff Schaub’s social media
accounts that are appended to the District’s Motion as exhibits. Nonetheless, Defendant’s
counsel did not question Plaintiff Schaub about this social media activity which purportedly
contradicts her stated personal religious/nonreligious beliefs.
One must wonder why Defendant’s counsel would choose to not question Plaintiff
Schaub regarding these issues that the District now contends are so critical to its case. If
Defendant’s counsel had questioned Plaintiff Schaub regarding the social media content it
possesses (which it contends exemplifies the type of information that would be obtained through
more complete responses to the requests at issue), the Court would be much better positioned to
assess the District’s arguments in its Motion to Compel. In all likelihood, Defendant’s counsel
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opted not to question Plainiff Schaub on these issues out of concern that Plaintiff Schaub’s
responses to such inquiries would have further weakened the District’s already weak argument
for additional responses to its written discovery.
IV. Compliance with the discovery requests at issue would impose a significant
burden on Plaintiffs.
A significant burden would be imposed upon Plaintiff in order to more fully comply with
Interrogatory No. 12. In light of the considerations outlined by Rule 26(b)(2)(C), the extent of
this burden provides further support for a denial of the District’s Motion to Compel. Plaintiffs
have conservatively estimated that providing a more complete response to the overly broad
request made by Interrogatory No. 12 would require upwards of 50 hours of time. Defendant
concedes that this is a reasonable estimate. Defendant’s Brief, p. 10.
Interrogatory No. 12 sought the entirety of Plaintiff Schaub’s Facebook account, to which
Plaintiffs objected. Nonetheless, Plaintiff Schaub produced over 300 pages of Facebook activity
in response to the request. Plaintiff Schaub’s production represented a portion of Plaintiff
Schaub’s Facebook activity that referenced or dealt with this case. Specifically, Plaintiff Schaub
produced all activity from a private Facebook group dedicated to the removal of the Ten
Commandments monument and Plaintiff Schaub’s private messages that referenced or dealt with
this case. Based upon how Facebook stores this information, Plaintiff Schaub was able to
produce this information with a reasonable amount of effort. Plaintiff Schaub’s estimate of 50
hours for further document production represents a conservative estimate of the time that she
expects would be required to review her entire Facebook activity log to compile all other activity
relating to the litigation, her religious beliefs, and her mental state. See Defendant’s Brief, p. 10.
The review process would be so difficult because of the way that Facebook displays a
user’s activity log. The Facebook activity log essentially lists all activity engaged in by the user,
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in chronological order. For example a Facebook user may “like” photographs posted on
Facebook, or the user may like “statuses” (written comments by Facebook users) posted on
Facebook (to “like” something on Facebook essentially amounts to acknowledging or
acknowledging with approval a particular photograph/status on Facebook). Additionally, a
Facebook user may “comment” on photographs or statuses (to “comment” on a photograph or a
status is to make a written comment on Facebook, which is visible by other users).
Given the way that the Facebook activity log is presented to a user, the process required
for evaluating the responsiveness of a particular instance of Facebook activity (liking or
commenting) is rather involved. The person reviewing the activity log may be required to click
on a hyperlink that redirects the user away from the activity log to the specific URL where the
specific activity can be viewed more fully. For example, if Plaintiff Schaub commented on
another Facebook user’s status, the activity log would only show the comment that was made by
Plaintiff Schaub. In some situations, the comment itself would resolve whether the activity is
somehow responsive to a request. However, if the comment needs to be read in the context of
other comments or the status itself, the person reviewing the activity log would be required to
click on a hyperlink that would redirect the user to the exact URL location for the original status
and any comments to the status. As an example, if Plaintiff Schaub’s activity log indicates that
she commented, “I agree,” to a particular status, anyone reviewing this activity log for
responsive activity would have to click on a link to read the status and the other comments in
order to determine the context of Plaintiff Schaub’s comment.
Plaintiff Schaub uses Facebook frequently. As a result of her frequent use and in light of
the review process outlined above, any review of Plaintiff Schaub’s Facebook activity log is
likely to take an exorbitant amount of time. This review would be made even more difficult
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because of the vagueness and breadth of the categories of activity in which the District claims to
be interested. With interest in activity relating to religious views or emotional state, it would be
reasonable to expect that Plaintiff or her representatives may need to review most of her entire
activity log in some level of detail in order to determine the responsiveness of each instance of
activity. The circumstances of this case do not support imposing such a burden on Plaintiffs.5
CONCLUSION
Rule 26(b)(2)(C) calls for review of each of the factors discussed above. Not only are the
discovery requests at issue exceedingly burdensome, the potential information to be gained
through more complete responses is irrelevant and wholly immaterial to the ultimate outcome of
this case. Such irrelevant requests should reasonably be interpreted by the Court as an attempt by
the District to intimidate the Plaintiffs, especially in light of the dilatoriness of the District in
seeking to resolve its disputes. Unquestionably, the actions of future potential plaintiffs in
Establishment Clause cases will be chilled if these types of discovery requests are countenanced.
Furthermore, district courts will necessarily be placed in the position of being required to make
judicial determinations about the religious beliefs of such plaintiffs. In light of all of these
factors, Defendant’s Motion to Compel must be denied because the requests at issue in the
motion are disproportionate to the needs of this case.
Based upon these same considerations, even if the Court is inclined to compel Plaintiffs
to provide additional information in response to the discovery requests at issue, the Court should
decline to compel Plaintiffs to attend a second deposition. Granting the District such relief would
5 To the extent that the District argues that its purportedly substantial discovery efforts with
regard to its review of its own documents somehow justifies imposing a significant burden on
Plaintiff (see Defendant’s Brief, p. 2), this argument is misplaced. One should expect that the
government party in an Establishment Clause case would have a greater burden in discovery
because of the fact that it is the government’s conduct that is ultimately at issue in such cases.
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be especially inappropriate given the fact that Defendant’s counsel made the choice to not
question Plaintiffs regarding these issues during their depositions.
WHEREFORE, Plaintiffs respectfully request that this Honorable Court deny
Defendant’s Motion to Compel in its entirety.
Respectfully submitted,
/s/ Marcus B. Schneider
Marcus B. Schneider, Esquire
PA I.D. No.208421
STEELE SCHNEIDER
428 Forbes Avenue, Suite 900
Pittsburgh, PA 15219
(412) 235-7682
(412) 235-7693/facsimile
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CERTIFICATE OF SERVICE
I hereby certify that on April 29, 2014, the foregoing PLAINTIFFS’ RESPONSE
BRIEF IN OPPOSITION TO DEFENDANT’S MOTION TO COMPEL DISCOVERY was
filed electronically. Notice of this filing will be sent to all parties by operation of the Court’s
electronic case filing system and constitutes service of this filing under Rule 5(b)(2)(E) of the
Federal Rules of Civil Procedure. Parties may access this filing through the Court’s ECF system.
/s/ Marcus B. Schneider, Esquire
Marcus B. Schneider, Esquire
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