United States District Court, N.D. Indiana, Hammond Division
D.O.H., a minor, by OSAMA HADDAD and HIND HADDAD, individually, and as his parents and natural guardians, Plaintiffs,
LAKE CENTRAL SCHOOL CORPORATION, et al., Defendants.
OPINION AND ORDER
ANDREW P. RODOVICH, Magistrate Judge.
This matter is before the court on the Motion for Sanctions [DE 39] filed by the defendants on August 8, 2014, and the Motion for Leave to File Instanter Plaintiff's Surreply to Defendants' Motion for Sanctions [DE 78] filed by the plaintiff, David Osama Haddad, on January 12, 2015. For the following reasons, the Motion for Sanctions [DE 39] is GRANTED in part and DENIED in part, and the Motion for Leave to File Instanter Plaintiff's Surreply to Defendants' Motion for Sanctions [DE 78] is DENIED.
The plaintiff, David Osama Haddad, initiated this lawsuit on November 16, 2011. Haddad, a former Lake Central High School student, alleged that other students bullied and harassed him, which led to physical and emotional damages. On July 31, 2012, the defendants served Haddad with Interrogatories, Requests for Production, and Requests for Admission. Haddad's responses were due on August 31, 2012, but he responded on November 13, 2012.
Requests for Production 5, 6, and 7 requested the production of Haddad's social media profiles and information and music Haddad created in audio or video format. Haddad objected to the above requests, and the parties engaged in multiple telephonic conferences and exchanged letters in an attempt to resolve the issue. When the parties could not reach an agreement, the defendants filed a Motion to Compel the requested information on September 13, 2013. This court granted in part and denied in part the Motion to Compel on January 15, 2014.
The January 15, 2014 opinion ordered Haddad to produce: (1) "any profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) and SNS applications for the relevant time period that reveal, refer, or relate to any emotion, feeling, or mental state, as well as communications that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state;'" (2) the music video called Y.G.R.N. and "all of [Haddad's] other music and music videos in audio and/or video format and a listing of all the songs and videos produced;" and (3) "a privilege log for any records not produced." On February 6, 2014, Haddad produced a portion of his Facebook account, the Y.R.G.N. video, and a list identifying his music in audio and video format. The defendants objected to the social media production because it failed to include wall comments, causes joined, groups joined, activity streams, messages, photographs, postings, and SNS applications and because Haddad failed to produce a privilege log.
On February 19, 2014, Haddad supplemented his discovery response by producing approximately eighty-five pages of redacted material that did not include all categories of information that Facebook permits its users to download. Haddad had given his Facebook username and password to his initial attorney when litigation began. He claimed that his prior attorney decided what portions of his Facebook account to produce and that his prior attorney had full access to his account.
On May 8, 2014, the defendants deposed Haddad and asked questions regarding his social media accounts. Haddad stated that he maintained a Facebook account in high school and that he was active through the date of the assault. Following the assault, he alleged that one of the assailants posted a vulgar comment on his profile, which Haddad promptly deleted. Haddad further indicated that he had not used his Facebook account since the date of the assault and that he understood that a court order barred him from deleting any information from his social media accounts.
During the deposition, the defendants presented an October 31, 2011 Facebook post that appeared to originate from Haddad's account and asked Haddad why the post was not included within his tendered Facebook production. Haddad answered that he did not recall whether he had deleted the post and admitted he may have deleted the post prior to the court order. Haddad answered each question regarding his social networking accounts and provided multiple websites and account names for his social media profiles.
After the deposition, defense counsel indicated their frustration and dissatisfaction regarding new information about Haddad's social media accounts and the amount of information produced from his Facebook profile. Shortly thereafter, Haddad's counsel withdrew, and the defendants contacted Haddad directly to request that he produce additional portions of his Facebook account. Haddad indicated that he had provided all the evidence in his possession to the defendants and that he assumed his prior counsel had produced all the relevant and responsive information. However, the defendants then filed their Motion for Sanctions on August 8, 2014.
On August 29, 2014, Haddad retained his present counsel, who conferred with the defendants in an attempt to resolve this matter. Specifically, she produced 1, 415 pages of Haddad's Facebook profile, responsive documents from his Twitter account, and confirmed that Haddad did not possess any additional music videos. On October 27, 2014, Haddad produced the above documents to the defendants. The defendants then requested a privilege log for the redacted social media documents, and Haddad responded that no information had been redacted for privilege but was redacted for relevance.
The defendants alleged that Haddad's Facebook production was deficient because the 1, 415 page production was over seventy-five percent redacted and included approximately 1, 000 fully redacted pages. Additionally, the defendants claimed that the October 27, 2014 discovery supplement failed to include all relevant information from Haddad's social networking accounts and to include deleted portions of his social networking accounts.
On January 12, 2015, Haddad filed a motion requesting leave to file a surreply. He claimed that the defendants' January 6, 2015 reply brief raised allegations regarding Haddad's Twitter account that had not previously been raised. Additionally, he alleged that the defendants filed a fifty-six page exhibit that they had possessed since November 15, 2011 but never was produced during discovery. Therefore, Haddad requested to file a surreply to address the alleged new argument and to address any "mis-impressions" from the defendants' reply brief. The defendants indicated that their initial Memorandum referenced Haddad's Twitter account on pages ten and eleven and that their reply brief referenced his Twitter account on pages eight and nine. Additionally, they stated that Haddad did not present a valid reason to file a surreply.
Local Rule 7.1(a) permits parties to file an initiating brief, a response, and a reply, but it does not contemplate the filing of a surreply or response to the reply brief. The court generally does not permit litigants to file a surreply brief. Hall v. Forest River, Inc., 2008 WL 1774216, at *n.3 (N.D. Ind. Apr. 15, 2009); Runkle v. United States, 1995 WL 452975, at *1 (N.D. Ind. May 9, 1995). However, "[a] surreply brief is occasionally allowed when it raises or responds to some new issue or development in the law." Merril Lynch Life Ins. Co. v. Lincoln Nat. Life Ins. Co., 2009 WL 3762974, at *1 (N.D. Ind. Nov. 9, 2009) (citing Hall, 2008 WL 1774216 at * n.3); see Meraz-Camacho v. United States, 417 Fed.App'x 558, 559 (7th Cir. 2011) ("The decision to permit the filing of a surreply is purely discretionary and should generally be allowed only for valid reasons, such as when the movant raises new arguments in a reply brief."). The court's decision to permit or deny a surreply brief is reviewed under an abuse of discretion standard. Cleveland v. Porca Co., 38 F.3d 289, 297 (7th Cir. 1994).
Haddad alleged that the defendants raised allegations regarding his Twitter account for the first time in their reply brief. Additionally, he indicated a need to file a surreply to correct any "mis-impressions" from the defendants' reply brief. The defendants correctly indicated that they raised Haddad's failure to produce his Twitter account in their initial brief. On pages ten and eleven, the defendants argued that Haddad had not complied with this court's January 15, 2014 order that required him to produce information from any social networking profiles. Specifically, the defendants quoted their request that asked Haddad to produce his "complete profile on Facebook, Twitter and MySpace...'" and to produce every video or photograph in his possession or control posted on "YouTube, Facebook, Twitter, MySpace, or any other social media site..." Moreover, the defendants alleged that Haddad had not produced any social ...