Subpoenas for years of social media content quashed

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A federal court has upheld a ruling to quash an ex-Virginia Department of Transportation employee’s subpoenas of current and former VDOT employees’ information, including social media content and other evidence dating back almost a decade.

The plaintiff claimed he was terminated and subjected to a hostile work environment because of his race. He objected to a magistrate judge’s grant of a motion for a protective order after VDOT had filed a motion to quash.

The Western District of Virginia said the magistrate judge made the right call.

“The court construes the magistrate’s analysis as grounded in relevance,” U.S. District Judge Elizabeth K. Dillon wrote. “Put simply, as the magistrate judge explained, plaintiff has not connected the large amount of information requested in the subpoenas to the claims in this case.”

Dillon’s six-page memorandum opinion and order in Philpott v. Virginia Department of Transportation (VLW 022-3-356) was handed down Aug. 15.

Background

William S. Philpott had been a VDOT employee for more than 40 years. In the summer of 2019, he was being moved to the Southwest Area Headquarters from Hanging Rock.

Philpott claimed his termination was due to his race, theorizing that a group of VDOT employees “conspired to have him terminated” because they did not want to have a Black supervisor. He further alleged that he was subject to a hostile work environment.

Philpott issued subpoenas to four current and former VDOT employees, seeking seven categories of information. The court’s opinion specifically notes the request sought social media content dating back to Jan. 1, 2014, including requesting the employees “produce all photographs, videos, communications and other documents” depicting the rebel flag, the KKK, or any other racial hate group.

“The information requested in paragraphs 4 and 7 is subsumed by the information requested in paragraph 1. Even if the court were to strike paragraph 1, the subpoenas would still demand the production of large swaths of irrelevant information because they request productions starting on January 1, 2014, to the present, when the relevant events of the lawsuit occurred in 2019.”

– Judge Elizabeth K. Dillon

VDOT filed a motion to quash, which was heard by U.S. Magistrate Judge Robert S. Ballou. Ballou construed the motion as a motion for protective order and ordered the subpoenaed parties to preserve the information requested through the litigation process.

Ballou took the motion under advisement to allow Philpott “to establish that the discovery sought from each non-party recipient of the subpoena duces tecum at issue is relevant to Plaintiff’s claims of hostile work environment and race discrimination as set forth in the Complaint.”

On Feb. 2, 2022, Ballou ruled that Philpott “has not established a sufficient connection” between the subpoenaed individuals and the alleged adverse employment actions “to warrant broad production of the non-parties entire social media accounts, text messages, instant messages, letters, and phone records.”

Ballou granted VDOT’s motion for protective order.

Objection

For Philpott’s objection to be successful, Dillon said the court would have to find the magistrate judge’s prior ruling as “clearly erroneous” or “contrary to law.”

“A magistrate judge’s resolution of a discovery dispute is typically afforded substantial deference,” she explained. “The objecting party carries a heavy burden in persuading a district court to disturb a magistrate judge’s ruling in a discovery matter.”

Here, Philpott objected to the magistrate judge’s ruling, saying “the subpoenas are not as broad as the magistrate judge construed them to be.” He said the requests for posts and communications depicting the rebel flag, the KKK and other racial hate groups “is unquestionably not overbroad and will lead to the discovery of relevant evidence.”

Additional requested content included posts “made by the perpetrators about each other and plaintiff” from 2014 until the present, which Philpott argued “is narrowly tailored to only six persons and is unquestionably discoverable and relevant.” He noted “there is evidence that the document custodians were working together to bring about [his] termination.”

Dillon rejected these contentions, saying the magistrate judge’s prior analysis was “grounded in relevance.”

The district judge also knocked back Philpott’s claim that the subpoenas were narrowly tailored.

Philpott’s argument, she said, was “essentially meaningless when the court considers paragraph 1, which requests the production of ‘all posts and other communications posted or otherwise made by you on any Facebook, Twitter, Instagram, Snapchat, TikTok, or other social media account or page or made by any other party on any Facebook, Twitter, Instagram, Snapchat, or other social media account owned by you’” from Jan. 1, 2014 to the present.

“The information requested in paragraphs 4 and 7 is subsumed by the information requested in paragraph 1,” Dillon continued. “Even if the court were to strike paragraph 1, the subpoenas would still demand the production of large swaths of irrelevant information because they request productions starting on January 1, 2014, to the present, when the relevant events of the lawsuit occurred in 2019.”

As such, the magistrate judge’s earlier refusal to allow such a sweeping production is consistent with the court’s role in managing discovery “and is not clearly erroneous or contrary to law.”