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Morgan v. Bevin

United States District Court, E.D. Kentucky, Central Division, Frankfort

December 3, 2018

MATT G. BEVIN, in his official capacity as Governor of Kentucky, DEFENDANT.


          Edward B. Atkins United States Magistrate Judge


         This matter comes before the Court upon Plaintiffs Drew Morgan and Mary Hargis's (“Plaintiffs”) Motion to Compel Governor Matt G. Bevin (“Defendant”) to produce certain categories of documents, as well as a limited deposition of the Defendant [R. 41]. This matter is ready for ruling, following Plaintiffs' Reply [R. 46] to Defendant's Response in Opposition to Plaintiffs' Motion to Compel [R. 45]. All discovery disputes have been referred to the undersigned for a decision pursuant to 28 U.S.C. § 636(b)(1)(A). [R. 35 at 2-3 ¶ 3(c)]. Accordingly, having considered the matter fully, and being otherwise sufficiently advised, IT IS ORDERED that Plaintiffs' Motion to Compel [R. 41] be GRANTED IN PART AND DENIED IN PART. IT IS FURTHER ORDERED that Defendant's Motion for Oral Argument [R. 47] be DENIED.


         This action arises from Plaintiffs' allegations that their First Amendment rights under the freedom of speech clause were violated as a result of their social media accounts being blocked, or banned from accessing, Defendant's official Twitter and official Facebook pages. Plaintiffs allege that their postings were “non-threatening, non-obscene, and non-defamatory comments about matters of public concern, ” and thus, Defendant's basis for blocking Plaintiffs from his official accounts were “unrelated to the viewpoints they expressed in these public forums.” [R. 1 at 2]. Plaintiffs have pled two claims: (1) that the Governor's practice and/or policy of blocking users from his official Twitter and Facebook accounts is facially unconstitutional; and (2) an as-applied challenge resulting from the Plaintiffs being blocked. [Id. at 12-13].

         On July 12, 2018, Plaintiffs served their First Set of Discovery Requests [R. 41-1-]. On August 22, 2018, Defendant served his Responses to Plaintiffs' First Set of Discovery Requests [R. 41-2]. The next day, on August 23, 2018, Defendant supplemented his response to Interrogatory Number 2. [Id. at 20]. As a result of the Governor's objections and his refusal to produce any of the requested documents, Plaintiff alleges that the parties' “ultimately reached an impasse, ” and filed this underlying motion to resolve the ongoing dispute [R. 41 at 2].


         Fed. R. Civ. P. 26(b)(1) provides that - unless otherwise limited - “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” The information sought need not be admissible at trial so long as it appears reasonably calculated to lead to the discovery of admissible evidence. Id. This language is broadly construed to include “any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). The scope of discovery, however, is not without limitation. It is “well established that the scope of discovery is within the sound discretion of the trial court.” Chrysler Corp. v. Fedders Corp., 643 F.2d 1229, 1240 (6th Cir. 1981) (citing H. K. Porter Co., Inc. v. Goodyear Tire and Rubber Co., 536 F.2d 1115 (6th Cir. 1976)). As such, “[a] ruling by the trial court limiting or denying discovery will not be cause for reversal unless an abuse of discretion is shown.” Id. (citing Fed.R.Civ.P. 26(b); H. L. Moore Drug Exch., Inc. v. Smith, Kline and French Lab., 384 F.2d 97 (2d Cir. 1967)).

         Where a party refuses to provide information requested by any other party, which is thought by the requesting party to be within the scope of Fed.R.Civ.P. 26(b)(1), the requesting party may move the court in which the action is pending to compel disclosure of the requested information. Fed.R.Civ.P. 37(a)(3)(B). Such a motion to compel generally may be filed where a party has failed to provide mandatory disclosure; failed to answer or admit an interrogatory or request for admission; or failed to produce discoverable information, materials, or documents - electronic or otherwise. See generally Fed. R. Civ. P. 37. A failure to disclose, answer or admit, or produce includes disclosures, answers or admissions, or productions that are “evasive or incomplete.” Fed.R.Civ.P. 37(a)(4). Prior to so moving, however, a party seeking to compel disclosure or discovery must in good faith confer or attempt to confer with the opposing party “failing to make disclosure or discovery in an effort to obtain it without court action.” Fed.R.Civ.P. 37(a)(1). Should the court determine the matters sought to be compelled fall within the scope of Fed.R.Civ.P. 26, the motion shall be granted.


         A. Plaintiffs' Motion to Compel Production of Documents under Rule 26 The three sets of documents that Plaintiffs have requested Defendant to produce, and that are at issue here, fall into three categories: 1) screenshots of blocked individuals' accounts; 2) emails and text messages about Defendant's office policy and/or practice of blocking accounts from his official pages; and 3) a Facebook keyword filter list. Plaintiffs argue that production of these documents is critical because, “[a]t the heart of this case” is whether Defendant's official Facebook and Twitter accounts are either classified as designated public fora or limited public fora [R. 41 at 3].

         Plaintiffs argue that Defendant's social media accounts constitute designated public fora, and thus, must be scrutinized under a higher standard of review than under classification of limited public fora. Accordingly, if labeled content-based speech, Defendant's accounts and his policy of regulating speech by blocking individuals from his pages, “must be necessary to serve a compelling state interest and be narrowly drawn to achieve that interest.” [R. 41 at 3 ¶ 2 (citing Miller v. Cincinnati, 622 F.3d 524, 534 (6th Cir. 2010))]. In the alternative, if labeled content neutral, the restrictions “must serve a significant government interest, be narrowly tailored to achieve that interest, and leave open ample alternatives for communication.” [Id.]. On the other hand, Defendant argues that his social media pages serve as limited public fora; thus, a review of Defendant's restrictions of speech on his accounts are not subject to any type of strict scrutiny review. Instead, “such restrictions ‘must not discriminate on the basis of viewpoint, and [they] must be reasonable in light of the purpose served by the forum.' ” [Id. at 14 (quoting Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106-07 (2001))].

         The three categories of documents that Plaintiffs seek to compel, they argue, are directly relevant to its first claim, which is a facial challenge to Defendant's official policy and/or practice of regulating his social media accounts. [R. 41 at 3]. Additionally, Plaintiffs argue that these documents are also relevant for properly determining whether Defendant's official social Twitter and Facebook accounts should be reviewed under the analysis of either designated public fora or that of limited public fora [Id. at 4]. In turn, Defendants have argued that the three categories of documents ...

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