Haulmark v. Wichita
| Decision Date | 06 May 2022 |
| Docket Number | 21-cv-1182-EFM-TJJ |
| Parties | CHRIS HAULMARK, Plaintiff, v. WICHITA, CITY OF and BRANDON WHIPPLE, Defendants. |
| Court | U.S. District Court — District of Kansas |
Pro se Plaintiff Chris Haulmark brings this action against Defendants City of Wichita and Brandon Whipple in his official capacity as Mayor of the City of Wichita, under Title II of the Americans with Disabilities Act (ADA). This case is before the Court on Plaintiff's Motion to Compel Discovery from Defendant Whipple (ECF No. 28). Twelve Requests for Production are at issue, but Whipple's objection is the same for each: Discovery relating to his private campaign Facebook page is irrelevant because the ADA does not apply to the page. For the reasons discussed below the Court denies Plaintiff's motion.
Federal Rule of Civil Procedure 26(b)(1) sets out the general scope of discovery. As amended, it provides as follows:
Parties 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, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.[1]
Considerations of both relevance and proportionality now govern the scope of discovery.[2]Relevance is still to be “construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on” any party's claim or defense.[3]Information still “need not be admissible in evidence to be discoverable.”[4] The amendment deleted the “reasonably calculated to lead to the discovery of admissible evidence” phrase, however, because it was often misused to define the scope of discovery and had the potential to “swallow any other limitation.”[5]
The consideration of proportionality is not new, as it has been part of the federal rules since 1983.[6] Moving the proportionality provisions to Rule 26 does not place on the party seeking discovery the burden of addressing all proportionality considerations. If a discovery dispute arises that requires court intervention, the parties' responsibilities remain the same as under the pre-amendment Rule.[7] In other words, when the discovery sought appears relevant, the party resisting discovery has the burden to establish the lack of relevancy by demonstrating that the requested discovery (1) does not come within the scope of relevancy as defined under Fed.R.Civ.P. 26(b)(1), or (2) is of such marginal relevancy that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure.[8] Conversely, when the relevancy of the discovery request is not readily apparent on its face, the party seeking the discovery has the burden to show the relevancy of the request.[9] Relevancy determinations are generally made on a case-by-case basis.[10]
The discovery dispute here is limited: Is discovery related to Whipple's private campaign Facebook page relevant to Plaintiff's ADA claims? Although the scope of relevancy is broad, if Title II of the ADA does not apply to the private campaign Facebook page of the Mayor, a public figure, then Plaintiff cannot show relevance. To state a claim under Title II, Plaintiff must allege (among other things) that he was “excluded from participation in or denied the benefits of a public entity's services, programs, or activities.”[11] If the information/livestream videos posted on Whipple's private campaign Facebook page do not constitute a public entity's services, programs, or activities, then content and other information about the page is not relevant.
According to Plaintiff's motion, “Defendant Whipple's private Facebook page is, inter alia, a communication barrier established by Defendant City of Wichita to separate the public forum and interactive space, containing government activities and speech, from the protections of Title II, so that while conducting his official duties there, the mayor is attempting to avoid meeting with the requirements of Title II of the ADA.”[12] In his Complaint, Plaintiff alleges that “Defendants” control Whipple's private campaign Facebook page (and the Court, construing Plaintiff's allegations liberally, presumes Plaintiff is claiming Defendants jointly control the page).[13] He also claims that Whipple's Facebook page “is an official source of information to promote official government business.”[14] In his reply brief, Plaintiff argues that he has never asserted Whipple's personal Facebook page itself is a “public entity's service, program, or activity.”[15] Instead, Plaintiff argues, “Whipple's Facebook page is a location where some of the City of Wichita's services, programs, and activities are offered to the public, ” without specifically identifying any such services, programs or activities.[16]
As a matter of policy, Plaintiff's argument is untenable. Plaintiff seeks injunctive relief relating to the Mayor's personal campaign Facebook account. Taken to its reasonable limit, a ruling in favor of Plaintiff could ultimately deny public officials the right or ability to have “private” social media accounts, unless they incur potentially substantial costs and bear the burden of complying with Title II. Under Plaintiff's theory, a public official's private social media accounts would be subject to Title II requirements, if they merely mention a public service, program or activity and even if they do so as part of their campaign for public office. Yet, there is nothing in the cases Plaintiff has cited, discussed infra, that indicates Title II was intended to have the broad implications Plaintiff seeks. In addition, opening Whipple's private campaign social media account-which clearly contains many personal and campaign postings that are totally irrelevant to the issues in this case-up to discovery is simply not proportional to the needs of this case. There is an official City of Wichita account, about which Plaintiff may more properly seek discovery. With these general policy considerations in mind, the Court turns to the parties' arguments.
The Court finds that, on their face, Plaintiff's discovery requests relating to Whipple's Facebook page do not seek relevant information. The private campaign page, on its face, is not a public entity's “service, program or activity” (here, what Plaintiff alleges to be the Mayor's Facebook Live videos) within the meaning of Title II. Instead, the campaign Facebook page is personal to Plaintiff. That it is his campaign page, controlled by Whipple for Mayor, Chelsea Whipple, Treasurer, further highlights the fact that the site is for Whipple's personal purposes, not those of the public entity, the City of Wichita. This places the burden on Plaintiff to demonstrate relevance. Plaintiff argues (1) discovery relating to Whipple's private campaign Facebook page is relevant because it relates to Defendants' defenses[17]; (2) Whipple is prematurely arguing the merits of Plaintiff's ADA claim to impede Plaintiff's right to discovery[18]; (3) Whipple has abandoned his objections by failing to re-raise specific objections in his response brief[19]; and (4) Plaintiff's requests are relevant under the second clause of Title II, which prevents a public entity from making it disproportionately more difficult for Plaintiff to participate, unfairly disadvantaging Plaintiff and discriminating against him.[20]
Each of these arguments lacks merit. First, Plaintiff cannot “backdoor” into a relevance finding by arguing that the discovery is relevant precisely because Whipple says it is not relevant, as Title II doesn't apply. Whether discovery about Whipple's private campaign Facebook page is relevant depends squarely on whether the page and its content are subject to Title II. But it does not become relevant solely because Whipple argues the page is not subject to Title II. The Court rejects Plaintiff's first argument.
Second, it is true that, to some degree, the substantive merit of Plaintiff's Title II claim based on Whipple's Facebook page is entangled with whether discovery about that page is relevant. This case presents the somewhat unusual occasion in which they overlap. The overlap does not mean, however, that the Court must ignore the issue until later. To the contrary, even though the instant motion is not a dispositive motion, if Plaintiff cannot base a Title II claim on Whipple's personal campaign Facebook page, then the information about that page is not relevant or discoverable.
Third, Plaintiff correctly cites the law in the District of Kansas on waiving or abandoning objections.[21] Plaintiff argues because Whipple didn't address his objections individually in his response brief, he abandoned them all. But Whipple's objections are all the same: lack of relevance. In this situation, there was no need to repeat the same argument twelve times. Whipple's objections are not deemed abandoned.
Fourth, whether Plaintiff relies on the first clause of Title II (relating to services, programs, and activities) or the second clause of Title II (), Plaintiff has still failed to show the relevance of Whipple's personal campaign Facebook page. The same concerns, discussed above, apply relative to both clauses of Title II.
Before Plaintiff filed his motion, the Court...
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