Bordeaux v. Halstead Property Development Marketing LLC

Background

Halstead moved under Federal Rule of Civil Procedure 37, which allows a party to ask the court to enforce discovery obligations, for an order requiring Amy Bordeaux to produce two categories of materials. Bordeaux is a former administrative employee claiming mental disability discrimination.

Halstead’s Document Request No. 35 sought Bordeaux’s diaries, journals, and other writings about her emotional state from September 2018 onward. Bordeaux had produced 14 pages of her journal. She said she had produced all responsive pages that existed when she first responded to the request. Halstead pointed to deposition testimony indicating that the journal contained additional pages about Bordeaux’s mental state, moods, reactions, and thoughts.

Halstead’s Document Request No. 32 sought Bordeaux’s social-media postings from September 2018 onward that could reflect her emotional or mental state, physical or mental condition, activity level, employment, the litigation, or claimed injuries and damages. Bordeaux had produced some video clips and said she had produced social-media content concerning her emotional distress, employment with Halstead, and a trip to France. She relied on an approach from another case that focused on postings specifically referring to emotional distress, treatment, or alternative stressors.

Court’s Analysis

The court stated that Bordeaux had not objected to either discovery request or sought a protective order. Because she did not timely object, she waived objections that might otherwise have been available.

The court explained that the wording of the journal request imposed a continuing duty to produce responsive writings created or obtained up to the date of Bordeaux’s first response, including materials discovered or coming into her possession after that response. It did not require production of writings created after the date of her first response. The parties disputed whether Bordeaux had complied with the request to that extent.

The court treated the social-media request similarly. Because Bordeaux had not objected when responding to the request, the court did not apply the narrower approach she later proposed.

Order

The court ordered Bordeaux to produce all pages of her diary and other writings concerning her emotional state from September 2018 through the date of her first response to the document request. The production had to include pages describing her mental state on the days at issue, as well as her moods, reactions to life events, and thoughts about life.

The court also ordered Bordeaux to produce social-media postings from September 2018 through the date of her first response that referred to her emotional or mental state, physical or mental condition, employment, the litigation, or the injuries and damages she claimed. Postings responsive only because they referred or related to Bordeaux’s activity level did not have to be produced.

The court allowed the parties to seek a protective order if the required materials implicated Bordeaux’s privacy interests. Bordeaux was required to comply by March 12, 2021. The court denied both parties’ requests for reasonable expenses because each party had substantial justification for its position. The order was entered by Judge Lewis J. Liman on March 4, 2021.