A Plaintiff’s Guide To Fed.R.Civ.P. 26 Discovery Proportionality

 
 
Civil litigators often spend more time in discovery disputes than in trials. Few plaintiffs or defendants are keen on spending time in a deposition, collecting documents, or handing over to their opponent evidence that could be used against them later. Yet, as the Supreme Court said 70 years ago while interpreting the original Rules of Civil Procedure, “[m]utual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession.”[1]
 
 
 
In December 2015, the “proportionality” amendments to Rule 26 of the Federal Rules of Civil Procedure were amended. One clause was removed as not reflecting the law (the “reasonably calculated” clause), one clause was omitted as unnecessary (the clause about discovering the existence of documents and witnesses), a phrase was moved from one subsection to another (the phrase about proportionality), and a proportionality factor was added (about the parties’ “relative access to information”).
 
 
 
In the big picture, these changes were exceedingly modest. Nonetheless, as Judge Pitman of the Southern District of New York wrote just a few weeks after thereafter, “[g]iven the recent amendments to the Federal Rules of Civil Procedure that became effective December 1, 2015, proportionality “has become ‘the new black,’” in discovery litigation, with parties invoking the objection with increasing frequency.”[2] These days, defense lawyers for massive corporations talk about “proportionality” non-stop, objecting to every discovery request, no matter how inexpensive or important to the case, as “not proportionate.” Judge Pitman was unimpressed: “the 2015 Amendments constitute a reemphasis on the importance of proportionality in discovery but not a substantive change in the law.”[3]
 
 
 
There are thousands of blog posts written by defense lawyers about how the proportionality amendments changed everything, and I’ve grown tired of seeing these arguments pop up in Court. So, without further adieu, here’s a Plaintiff’s Guide Rule 26’s Discovery Proportionality Standard.
 
 
 
This post has a lot of citations in it, and those citations has a lot of quotes, so I’ve switched over to footnote citing. Many of these citations are drawn from Duke Law Center for Judicial Studies’ “Revised Guidelines and Practices for Implementing the 2015 Discovery Amendments to Achieve Proportionality,” annotated version (June 15, 2017). Duke updates the annotations monthly, so check for the most recent version.
 
 
 

The Actual Changes To The Text Of Rule 26(b)

 
Fed.R.Civ.P. 26(b)(1) now says,

Unless otherwise limited by court order, the scope of discovery is 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.

The 2015 Amendments changed the text of Rule 26(b) in three ways:

  • First, the language defining the scope of permissible discovery was changed to omit discovery “reasonably calculated to lead to the discovery of admissible evidence.”
  • Second, the language describing relevant evidence was changed to omit discovery of “the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter,” but only because, as the Advisory Committee Note states, “discovery of such matters is so deeply entrenched in practice that it is no longer necessary to clutter the long text of Rule 26 with these examples.”
  • Third, when it comes to “proportionality,” which was already part of Rule 26(b), “[t]he considerations that bear on proportionality are moved from present Rule 26(b)(2)(C)(iii), slightly rearranged and with one addition.” See Advisory Committee Notes.  That “one addition” was the explicit instruction that courts consider “the parties’ relative access to relevant information.”

 
 
 

The Scope Of Relevance Under The 2015 Proportionality Amendments

 
The 2015 Amendments changed the language defining the scope of relevance,[4] but, substantively, the scope of relevance remains the same as it has for nearly forty years: “any matter that bears on, or that reasonably could lead to other matter that could bear on any party’s claim or defense.”[5] Judge Campbell, who chaired the Advisory Committee responsible for the 2015 Amendments, re-affirmed that, even after the Amendments, “[c]ourts generally recognize that relevancy for purposes of discovery is broader than relevancy for purposes of trial.”[6]
 
 
 

The Requesting Party Bears The Burden Of Establishing Relevance, The Objecting Party Bears The Burden Of Establishing The Discovery Is Not Proportionate To The Needs Of The Case

 
The burdens of persuasion were unchanged, with the requesting party bearing the burden of establishing relevance and the objecting party bearing the burden of establishing the discovery is improper. [7] The requesting party need only show relevance; the requesting party does not bear any burden to show proportionality.[8] Boilerplate claims that discovery is not proportionate are insufficient.[9] Instead, the objecting party needs to specifically show how the proposed discovery is not proportionate.[10]
 
 
 

Proportionate Discovery Is About Knowing When Discovery Has Reached “Diminishing Returns” 

 
As Chief Justice Roberts wrote soon after the 2015 Amendments, “the pretrial process must provide parties with efficient access to what is needed to prove a claim or defense, but eliminate unnecessary or wasteful discovery.”[11] As several District Courts have held, proportionality is often a question of “whether discovery production has reached a point of diminishing returns,” and about the “marginal utility” of additional discovery once the core discovery in the case has been completed.[12] Stated another way, proportionality is a method to avoid going in circles or getting side-tracked, not an excuse for cutting corners.
 
Sometimes, the best proportionality analysis is the most simple one: “the sheer number of attorneys who have made appearances in the case (24 by the Court’s count) is a persuasive demonstration of the importance of the issues at stake here, the value of the case, and that the parties have significant resources available to them.”[13] Nonetheless, let’s take a look at the case law on each proportionality factor mentioned by Rule 26(b).
 
 
 

The Importance Of Issues At Stake In The Action

 
The Advisory Committee Notes reiterated that “the monetary stakes are only one factor, to be balanced against other factors,” and reaffirmed the 1983 Amendments’ Note recognizing “the significance of the substantive issues, as measured in philosophic, social, or institutional terms.” Even a single severe injury from a common product can tip this factor in favor of a plaintiff.[14]
 
 
 

The Amount In Controversy

 
Few cases have interpreted this factor in depth. The cases that have done so have generally involved a single plaintiff, and the question was whether the cost of the proposed discovery would exceed the amount in controversy.[15] Moreover, courts have been quick to note that discovery in a low-damages case can still be proportionate if the litigation could vindicate other interests.[16]
 
 
 

The Parties’ Relative Access To Relevant Information

 
Access to information was one of the few explicit changes to the text of Rule 26(b). The Advisory Committee Notes address “information asymmetry,” where one “party may have vast amounts of information, including information that can be readily retrieved and information that is more difficult to retrieve. In practice these circumstances often mean that the burden of responding to discovery lies heavier on the party who has more information, and properly so.” Where relevant evidence is in the sole possession of the defendant, discovery is generally proportionate to the needs of the case,[17] particularly where the evidence is held by a multi-national corporation with sophisticated access to data that they do not permit outsiders to review.[18]
 
 
 

The Parties’ Resources

 
As the Advisory Committee Notes state, “consideration of the parties’ resources does not … justify unlimited discovery requests addressed to a wealthy party.” Nonetheless, the underlying purpose of this factor, must be remembered: “[t]he court must apply the standards in an even-handed manner that will prevent use of discovery to wage a war of attrition or as a device to coerce a party, whether financially weak or affluent.” Id., (emphasis added).
 
 
 

The Importance Of The Discovery In Resolving The Issues

 
To satisfy the “importance” factor, the discovery must only be “more than tangentially related to the issues that are actually at stake in the litigation.”[19] Even where the cost is considerable, the importance factor is satisfied where “the probative value of the sought after discovery is potentially substantial because it may be relevant to factual issues at the heart of [plaintiff’s claims].”[20]
 
 
 

Whether The Burden Or Expense Of The Proposed Discovery Outweighs Its Likely Benefit

 
Corporate defendants often refer to the “burden” of discovery as if it was the sole factor underlying proportionality, but “no single factor is designed to outweigh the other factors in determining whether the discovery sought is proportional.”[21] All discovery is inherently burdensome, and the question is whether that burden is undue in light of the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, and the importance of the discovery in resolving the issues.[22] For example, if a defendant has “far superior access to the information,” as in this litigation, such access “necessitates a stronger showing of burden and expense” before the discovery will be disallowed.[23] Further, even where there is a “considerable expense already incurred in defense of this case,” additional discovery can nonetheless be proportionate where a defendant has “chosen to rigorously defend th[e] action” and thereby place the plaintiff in the position of needing to do more to prevail in dispositive motion practice and at trial.[24]
 
Critically, claims of undue burden must be backed by evidence quantifying the difficulty or expense.[25] “Without offering evidence explaining the nature of the alleged burden it faces in producing the proposed discovery, [a party] has not met its burden of showing that the burden or expense … outweighs the likely benefit of such discovery.”[26] Further, a sophisticated party cannot rely on their own decisions that have made document production difficult or expensive.[27]
 
Finally, a party does not get credit for the “burden” of discovery productions made in other cases, and, in such a situation, the objecting party should come forward with “alternative methods of discovery enabling some lesser degree of production.”[28]
 
 
 

Citations:

 
[1] Hickman v. Taylor, 329 U.S. 495, 507, 67 S. Ct. 385, 392, 91 L. Ed. 451 (1947)

[2] Vaigasi v. Solow Mgmt. Corp., 2016 WL 616386, at *13 (S.D.N.Y. Feb. 16, 2016)(internal quotation omitted).

[3] Vaigasi v. Solow Mgmt. Corp., 2016 WL 616386, at *13 (S.D.N.Y. Feb. 16, 2016).

[4] The phrase “reasonably calculated to lead to the discovery of admissible evidence” was deleted.

[5] Henry v. Morgan’s Hotel Grp., Inc., 2016 WL 303114, at *3 (S.D.N.Y. Jan. 25, 2016)(citing State Farm Mut. Auto. Ins. Co. v. Fayda, 2015 WL 7871037, at *2 (S.D.N.Y. Dec. 3, 2015)(quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978))).

[6] In re Bard, 317 F.R.D. at 566. Accord In re: Am. Med. Sys., Inc., MDL No. 2325, 2016 WL 3077904, at *4 (S.D.W. Va. May 31, 2016)(“it remains true that relevancy in discovery is broader than relevancy for purposes of admissibility at trial,” and, “notwithstanding Rule 26(b)(1)’s recent amendment placing an emphasis on the proportionality of discovery, the discovery rules, including Rule 26, are still to be accorded broad and liberal construction.”)

[7] Cont’l W. Insur. Co. v. Opechee Constr. Corp., 2016 WL 865232, at *1 (D.N.H. Mar. 2, 2016) (“Once a showing of relevance has been made, the objecting party bears the burden of showing that discovery request is improper.”); Carter v. H2R Rest. Holdings, LLC, 2017 WL 2439439, at *4 (N.D. Tex. June 6, 2017) (amendments “do not alter the basic allocation of the burden on the party resisting discovery”); William Powell Co. v. Nat. Indemnity Co., 2017 WL 1326504, at *5 (S.D. Ohio Apr. 11, 2017)(“the amended rule did not shift the burden of proving proportionality to the party seeking discovery”); United States ex rel. Shamesh v. CA., Inc., 2016 WL 74394, at *8 (D.D.C. Jan. 6, 2016) (“Once the relevancy of the materials being sought has been established, the objecting party then bears the burden of ‘showing why discovery should not be permitted.’”).

[8] In re: Bard IVC Filters Prod. Liab. Litig., 2016 WL 4943393, at *2 (D. Ariz. Sept. 16, 2016) (“[A]mendment does not place the burden of proving proportionality on the party seeking discovery.”); State Farm Mut. Auto. Ins. v. Fayda, 2015 WL 7871037, at *2 (S.D.N.Y. Dec. 3, 2015)(“The burden of demonstrating relevance remains on the party seeking discovery, but the newly-revised rule does not place on that party the burden of addressing all proportionality considerations.” Quotation omitted). Accord Nerium Skincare, Inc. v. Olson, No. 3:16-CV-1217-B, 2017 WL 277634, at *3 (N.D. Tex. Jan. 20, 2017)(“a party seeking to resist discovery on these grounds still bears the burden of making a specific objection and showing that the discovery fails the proportionality calculation mandated by [Rule 26] by coming forward with specific information to address [the proportionality factors]…”

[9] Ramos v. Town of E. Hartford, 2016 WL 7340282, at *2 (D. Conn. Dec. 19, 2016) (“[t]he 2015 revision of the Federal Rules precludes the use of the type of boilerplate objections on which Defendants rely.”); Leibovitz v. The City of New York, 2017 WL 462515, at *2 (S.D.N.Y. Feb. 3, 2017) (Court overruled defendant’s “general, boilerplate objections to each of plaintiff’s requests for production” because “such objections violate Fed.R.Civ.P. 34(b)(2)(B).”).

[10] Fischer v. Forrest, 2017 WL 773694 (S.D.N.Y. Feb. 27, 2017)(“It is time, once again, to issue a discovery wake-up call to the Bar in this District” to state grounds for objecting to discovery request with specificity under Rule 34); Raab v. Smith & Nephew, Inc., 2016 WL 2587188, at *4 (S.D. W. Va. May 4, 2016) (defendant failed to provide specific objection to discovery requests); Allen-Pieroni v. Sw. Corr., LLC, 2016 WL 1750325, at *4 (N.D. Tex. May 2, 2016) (“Party seeking to resist discovery on these grounds still bears the burden of making a specific objection and showing that the discovery fail[ed] the proportionality calculation mandated by Rule 26(b) by coming forward with specific information to address.”).

[11] 2015 Year-End Report on the Federal Judiciary, p. 7 (emphases added).

[12] Abbott v. Wyoming Cty. Sheriff’s Office, No. 15-CV-531W, 2017 WL 2115381, at *2 (W.D.N.Y. May 16, 2017)( Considerations of proportionality can include reviewing whether discovery production has reached a point of diminishing returns. See Alaska Elec. Pension Fund v. Bank of Am. Corp., No. 14-CV-7126 (JMF), 2016 WL 6779901, at *3 (S.D.N.Y. Nov. 16, 2016) (“Rule 26(b)(1)’s proportionality requirement means [that a document’s] ‘marginal utility’ must also be considered.”) (citations omitted); Updike v. Clackamas County, No. 3:15-CV-00723-SI, 2016 WL 111424, at *1 (D. Or. Jan. 11, 2016) (“There is a tension, however, among the objectives of Rule 1. As more discovery is obtained, more is learned. But at some point, discovery yields only diminishing returns and increasing expenses. In addition, as more discovery is taken, the greater the delay in resolving the dispute. Finding a just and appropriate balance is the goal, and it is one of the key responsibilities of the court in managing a case before trial to assist the parties in achieving that balance.”)

[13] Wal-Mart Stores, Inc. v. Texas Alcoholic Beverage Comm’n, No. A-15-CV-134-RP, 2016 WL 5922315, at *2 (W.D. Tex. Oct. 11, 2016).

[14] Fassett v. Sears Holdings Corp., 319 F.R.D. 143, 150 (M.D. Pa. 2017)(“Although this is not a case involving, for instance, constitutional rights or matters of national significance, to these particular litigants, it is a matter of grave import. Further, its outcome may impact the marketability of a widely sold piece of home machinery or some of its components.”)

[15] Bell v. Reading Hosp., No. CV 13-5927, 2016 WL 162991, at *3 (E.D. Pa. Jan. 14, 2016)(“It appears that the discovery conducted to date, as well as the discovery requests currently at issue, would certainly not exceed the amount of controversy in this matter.”).

[16] Schultz v. Sentinel Ins. Co., Ltd, 2016 WL 3149686, at *7 (D.S.D. June 3, 2016)(“The court applies the proportionality requirement built into Rule 26, but rejects Sentinel’s characterization of the value of Ms. Schultz’s case as a $17,000 case that benefits her alone. … If punitive damages are awarded, Ms. Schultz has the potential to affect Sentinel’s alleged business practices and to remedy the situation for many insureds, not just herself.”)

[17] Albritton v. CVS Caremark Corp., 2016 WL 3580790, at *4 (W.D. Ky. June 28, 2016)(“Here, proportionality favors the Plaintiff. … It is highly unlikely that Plaintiff could discover similar information from another source or in another manner. Defendants are in the best position to produce these documents.”); Schultz v. Sentinel Ins. Co., Ltd, 2016 WL 3149686, at *6 (D.S.D. June 3, 2016)(“The amended rule also specifies one additional factor to be considered in determining proportionality: the parties’ access to relevant information. This factor definitely favors Sentinel, who ‘holds all the cards’ on the discovery sought by Ms. Schultz.”)

[18] Labrier v. State Farm Fire & Cas. Co., 314 F.R.D. 637, 643 (W.D. Mo. 2016)(“LaBrier does not have access to the information she seeks, other than through the discovery, as it is in State Farm’s own database and the database of its vendor, Xactware. In terms of resources, LaBrier is an individual, while State Farm is a corporation with a national presence, with sophisticated access to data. As discussed in the preceding section, the burden or expense of the discovery outweighs its likely benefit, particularly in light of State Farm’s refusal to permit an outsider to access its computer system or even provide complete lists of its data fields.”)

[19] Flynn v. Square One Distribution, Inc., No. 6:16-MC-25-ORL-37TBS, 2016 WL 2997673, at *4 (M.D. Fla. May 25, 2016)

[20] In re Suboxone (Buprenorphine Hydrochloride & Naloxone) Antitrust Litig., No. 13-MD-2445, 2016 WL 3519618, at *7 (E.D. Pa. June 28, 2016)(emphases added).

[21] Capetillo v. Primecare Med., Inc., 2016 WL 3551625, at *2 (E.D. Pa. June 29, 2016).

[22] Black v. Buffalo Meat Serv., Inc., No. 2016 WL 4363506, at *6 (W.D.N.Y. Aug. 16, 2016)(“In effect, the concept of undue burden that has been in Rule 26 for the last thirty plus years has been replaced by proportionality, with the burden as one factor to determine whether the discovery demand is proportionate to the case.”)

[23] Doe v. Trustees of Boston Coll., 2015 WL 9048225 (D. Mass. Dec. 16, 2015).

[24] Vay v. Huston, 2016 WL 1408116, at *6 (W.D. Pa. Apr. 11, 2016).

[25] Zoobuh, Inc. v. Better Broadcasting, LLC, 2017 WL 1476135, at *4–*5 (D. Utah Apr. 24, 2017) (defendant failed to provide “some quantification . . . of the material in its possession that [was] responsive” and thus failed to establish undue burden); Fish v. Kobach, 2016 WL 893787, at *1 (D. Kan. Mar. 8, 2016) (“Objections based on undue burden must be clearly supported by an affidavit or other evidentiary proof of the time or expense involved in responding to the discovery request.”); Scott Hutchison Enter., Inc. v. Cranberry Pipeline Corp., 2016 WL 5219633, at *3 (S.D. W. Va. Sept. 20, 2016) (collection of cases that require specific proof); McKinney/Pearl Rest. Partners, L.P. v. Metro. Life Ins. Co., 2016 WL 98603, at *3 (N.D. Tex. Jan. 8, 2016) (party resisting discovery must show that “requested discovery was overbroad, burdensome, or oppressive by submitting affidavits or offering evidence revealing the nature of the burden.”).

[26] William Powell Co. v. Nat’l Indem. Co., 2017 WL 1326504, at *12 (S.D. Ohio Apr. 11, 2017)

[27] Wagoner v. Lewis Gale Med. Ctr., LLC, 2016 WL 3893135, at *3 (W.D. Va. July 14, 2016)(rejecting claim of undue burden where defendant “did not preserve e-mails in an readily searchable format, making it costly to produce relevant e-mails when faced with a lawsuit.”)

[28] Siriano v. Goodman Mfg. Co., L.P., 2015 WL 8259548, at *6 (S.D. Ohio Dec. 9, 2015)(“[T]o date, Defendants have expended relatively little in complying with discovery in this matter. Defendants’ production thus far consists of the electronic disclosure of documents previously collected and reviewed pursuant to discovery in other, related cases. … Defendants have not proposed alternative methods of discovery enabling some lesser degree of production, such as limiting the search to certain offices or files.”)

A Plaintiff’s Guide To Fed.R.Civ.P. 26 Discovery Proportionality syndicated from https://fergusonlawatty.wordpress.com

Daubert In Product Liability Cases: Mid-2017 Update

 
I’ve written about the Supreme Court’s Daubert opinion many times before, tagging it with the label “junk science.” The phrase “junk science” never actually appeared in Daubert, but rooting it out has been the animating concern behind the application of Daubert. See, e.g., Amorgianos v. National RR Passenger Corp., 303 F. 3d 256, 267 (2nd Cir., 2002)(“The flexible Daubert inquiry gives the district court the discretion needed to ensure that the courtroom door remains closed to junk science while admitting reliable expert testimony that will assist the trier of fact.”)
 
 
 
In federal courts today, Daubert has become a magical incantation for defense lawyers in product liability lawsuits. Drug companies gleefully get drugs approved by the FDA with the thinnest of scientific evidence—often relying on “surrogate markers” or underpowered clinical trials—and then claim that plaintiffs injured by their drugs cannot present their case to a jury until they have produced vastly more scientific evidence than the company or the FDA would use. Car manufacturers regularly demand plaintiffs conduct testing that the companies themselves never did.
 
 
 
Today we’re going to review the state of the art, as it were, of Daubert in product liability cases by examining the four most recent published Court of Appeals opinions. Those opinions are:

  • Adams v. Toyota Motor Corp., No. 15-2507, 2017 WL 2485204 (8th Cir. June 9, 2017)
  • In re Zoloft (Sertraline Hydrochloride) Prod. Liab. Litig., 16-2247, 2017 WL 2385279 (3d Cir. June 2, 2017)
  • Wendell v. GlaxoSmithKline LLC, No. 14-16321, 2017 WL 2381122 (9th Cir. June 2, 2017)
  • Nease v. Ford Motor Co., 848 F.3d 219 (4th Cir. 2017)

Plaintiffs lost Zoloft and Nease, and won Adams and Wendell. But it would be foolish to look at these cases simply as a scorecard: the real issue here for future cases is how the courts decided the cases.
 
 
 
All of these cases have one thing in common: the defendants framed Daubert as a matter of pseudoscientific absolutes, and the Courts of Appeals rejected the defendants at every turn. In the cases that follow, defendants argued that any difference between a test and an accident renders the test unreliable, that plaintiffs cannot go to a jury without statistically significant evidence, that opinions developed in litigation are inherently unreliable, that a doctor’s differential diagnosis is an unacceptable scientific methodology, that plaintiffs’ experts must completely eliminate all potential alternative causes, and that case studies are scientifically irrelevant—and the appellate courts rejected each and every one of those arguments. Continue reading

Free Speech And Trump Tweets: When Twitter Is A Limited Public Forum

 
 
 
While in the White House, Donald Trump’s personal twitter timeline, @realDonaldTrump, remains a key method by which he communicates with the public. He uses it to conduct foreign policy, to urge specific action by Congress, to promote certain media articles, and, of course, to persuade the public on key issues, including with implied references to classified government information. And, critically for our purposes here, he allows the public, the media, and other elected representatives to post tens of thousands of comments in response to each tweet:
 
 
 
trumptweetcomments
 
 
 
As Danny Sullivan pointed out, President Trump has recently become more aggressive in blocking people on Twitter, and so Sullivan has created a list of blocked users. Sullivan wonders if this creates a First Amendment issue, noting,

When Trump blocks, he doesn’t just impact himself. He blocks some Americans from speaking in arguably the most important forum, his tweets.

For our purposes here, I’ll refer to @realDonaldTrump’s tweets as “tweets,” and the responses to them as “replies,” so we don’t get confused. When @realDonaldTrump “blocks” someone on Twitter, they can no longer read his tweets or reply to them. That is in contrast to “muting,” which removes the person’s replies from @realDonaldTrump’s view but leaves them up for other users.
 
 
 
So, are President Trump’s tweets a public forum? If so, does that place limits on when President Trump can block users from replying?
 
 
 
I believe the answers are “yes” and “yes.” Because President Trump uses @realDonaldTrump for official business, and because President Trump allows (arguably, invites) replies on his tweets, he has made his Twitter timeline into a limited public forum. As such, the First Amendment applies. He can potentially impose content restrictions, but he can’t impose viewpoint restrictions.
 
 
 
Here’s why.

 
 
 
For years, legal scholars have wondered about how the First Amendment applies to government-sponsored social media accounts. For example, see this 2011 article on “Government Sponsored Social Media and Public Forum Doctrine Under the First Amendment: Perils and Pitfalls.”
 
 
 
The basic concepts of a “limited public forum” are well-settled in the Supreme Court:

It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys. Other principles follow from this precept. In the realm of private speech or expression, government regulation may not favor one speaker over another. Discrimination against speech because of its message is presumed to be unconstitutional. These rules informed our determination that the government offends the First Amendment when it imposes financial burdens on certain speakers based on the content of their expression. When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.

These principles provide the framework forbidding the State to exercise viewpoint discrimination, even when the limited public forum is one of its own creation. In a case involving a school district’s provision of school facilities for private uses, we declared that there is no question that the District, like the private owner of property, may legally preserve the property under its control for the use to which it is dedicated. The necessities of confining a forum to the limited and legitimate purposes for which it was created may justify the State in reserving it for certain groups or for the discussion of certain topics. Once it has opened a limited forum, however, the State must respect the lawful boundaries it has itself set. The State may not exclude speech where its distinction is not reasonable in light of the purpose served by the forum, nor may it discriminate against speech on the basis of its viewpoint. Thus, in determining whether the State is acting to preserve the limits of the forum it has created so that the exclusion of a class of speech is legitimate, we have observed a distinction between, on the one hand, content discrimination, which may be permissible if it preserves the purposes of that limited forum, and, on the other hand, viewpoint discrimination, which is presumed impermissible when directed against speech otherwise within the forum’s limitations.

Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 828–30, 115 S. Ct. 2510, 2516–17, 132 L. Ed. 2d 700 (1995)(emphasis added, citations and quotations omitted). Rosenberger involved the use of student activities funds at state universities. As the Supreme Court recognized, “The [fund] is a forum more in a metaphysical than in a spatial or geographic sense, but the same principles are applicable.” Id. at 830.
 
 
 
So, what about the “metaphysical” forum of social media?
 
 
 
For starters, the Supreme Court has been quite clear that online speech is worthy of the same level of protection as other speech. See Reno v. ACLU, 521 U.S. 844, 870, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997); see also Ashcroft v. ACLU, 542 U.S. 656, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004). The federal appellate courts, too, have recognized that the use of social media can constitute expressive speech. Below is a passage from the Fourth Circuit; it might seem tiresome to read a lengthy discussion of the “like” button on Facebook, but that detailed analysis is critical to understanding how even minimal use of social media can be the exercise of free speech.

Here, Carter visited the Jim Adams’s campaign Facebook page (the “Campaign Page”), which was named “Jim Adams for Hampton Sheriff,” and he clicked the “like” button on the Campaign Page. When he did so, the Campaign Page’s name and a photo of Adams—which an Adams campaign representative had selected as the Page’s icon—were added to Carter’s profile, which all Facebook users could view. On Carter’s profile, the Campaign Page name served as a link to the Campaign Page. Carter’s clicking on the “like” button also caused an announcement that Carter liked the Campaign Page to appear in the news feeds of Carter’s friends. And it caused Carter’s name and his profile photo to be added to the Campaign Page’s “People [Who] Like This” list.
 
 
 
Once one understands the nature of what Carter did by liking the Campaign Page, it becomes apparent that his conduct qualifies as speech. On the most basic level, clicking on the “like” button literally causes to be published the statement that the User “likes” something, which is itself a substantive statement. In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.
 
 
 
Aside from the fact that liking the Campaign Page constituted pure speech, it also was symbolic expression. The distribution of the universally understood “thumbs up” symbol in association with Adams’s campaign page, like the actual text that liking the page produced, conveyed that Carter supported Adams’s candidacy. See Spence v. Washington, 418 U.S. 405, 410–11, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (per curiam) (holding that person engaged in expressive conduct when there was “[a]n intent to convey a particularized message …, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it”); see also Tobey v. Jones, 706 F.3d 379, 388 n. 3 (4th Cir.2013).
 
 
 
In sum, liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating the user with it. In this way, it is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech. See City of Ladue v. Gilleo, 512 U.S. 43, 54–56, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994).

Bland v. Roberts, 730 F.3d 368, 385–86 (4th Cir. 2013), as amended (Sept. 23, 2013).
 
 
 
Indeed, the federal court for the Eastern District of Virginia recently considered the exact issue we’re discussing regarding President Trump’s tweets: whether the government can properly “block” a user from commenting on a social media page used by a government officials to facilitate a discussion with the public.
 
 
 
In Davison v. Loudoun Cty. Bd. of Supervisors, No. 1:16CV932 (JCC/IDD), 2017 WL 58294 (E.D. Va. Jan. 4, 2017), a resident of Loudoun County, Virginia, filed suit after he was blocked from commenting on a Facebook Page operated by the Chair of the Loudoun County Board of Supervisors. The defendant claimed the Facebook Page was her personal page, not the Board’s official page, but the Court found the distinction was immaterial because of the way her page was used:

The page in question is titled “Chair Phyllis J. Randall, Government Official.” The “About” section of the page reads “Chair of the Loudoun County Board of Supervisors” and includes a link to Defendant Randall’s profile on Loudoun County’s website. It does not include any information of a personal nature. The top of the page features an image of a plaque reading “Phyllis J. Randall Chair–At–Large,” as well as an image of what the Court presumes to be Defendant Randall sitting behind the same plaque in front of a United States flag.

The image appended to Plaintiff’s Complaint includes four posts by Defendant Randall. The two most recent are specifically addressed to “Loudoun,” Plaintiff’s constituency. All pertain to matters of public, rather than personal, significance. Besides one warning of poor weather conditions in Loudoun County, all posts visible in the image involve Defendant’s duties as Chair of the Loudoun County Board of Supervisors. They note recent events in the local government and solicit attendees for local government meetings.

In short, the image of Defendant’s Facebook page substantiates Plaintiff’s claim that Defendant Randall uses the “Chair Phyllis J. Randall, Government Official” Facebook page in connection with her official duties. Drawing “all reasonable inferences” in Plaintiff’s favor, E.I. du Pont de Nemours & Co., 637 F.3d at 440 (4th Cir. 2011), Plaintiff has adequately plead that Defendant Randall’s Facebook page is a “Loudoun County social media site[ ],” governed by the County’s Social Media Comments Policy.

Davison v. Loudoun Cty. Bd. of Supervisors, No. 1:16CV932 (JCC/IDD), 2017 WL 58294, at *4 (E.D. Va. Jan. 4, 2017)(citations to the record omitted).
 
 
 
It’s easy to apply this analysis to the @realDonaldTrump account. As noted above, President Trump regularly uses it for official business – indeed, it’s hard to find any personal tweets at all these days. Moreover, his bio says he is “45th President of the United States of America,” and, at the moment, his cover photo is a picture of him sitting at the Resolute desk in the Oval Office while conducting official business. (This isn’t the first time the White House has made this mistake. President Trump’s social media director(!) previously got in hot water for making his personal account appear like an official account and then advocating voters choose a particular candidate.)
 
 
 
Back to Davison, once the Court found the defendant’s Facebook Page was officially sponsored, the next question was whether the First Amendment applied to the defendant blocking the plaintiff from commenting:

The Court is not required to determine whether any use of social media by an elected official creates a limited public forum, although the answer to that question is undoubtedly “no.” Rather, the issue before the Court is whether a specific government policy, applied to a specific government website, can create a “metaphysical” limited public forum for First Amendment purposes. See Rosenberger v. Rector, 515 U.S. at 830, 115 S.Ct. 2510. That answer to that narrower question is undoubtedly “yes.”

“Limited public forums are characterized by ‘purposeful government action’ intended to make the forum ‘generally available’ ” for certain kinds of speech. Child Evangelism Fellowship of S.C. v. Anderson Sch. Dist. Five, 470 F.3d 1062, 1067 (4th Cir. 2006) (quoting Goulart v. Meadows, 345 F.3d 239, 250 (4th Cir. 2003)). At the time of the events giving rise to this suit, the County maintained a Policy stating that “the purpose of Loudoun County social media sites is to present matters of public interest in Loudoun County.” Compl. Exh. 11 [Dkt. 1–11]. The Policy provided that visitors were “encourage[d] to submit questions, comments and concerns,” but that “the county reserve[d] the right to delete submissions” that violated enumerated rules, such as comments that include “vulgar language” or “spam.” Id. Such a policy evinces the County’s purposeful choice to open its social media websites to those wishing to post “questions, comments and concerns” within certain limits.

…  A “metaphysical” forum created by a government policy like the County’s social media policy, see Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 830, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995), is subject to the same First Amendment analysis regardless of whether that policy is applied to online speech. See Liverman, 844 F.3d at 407 (“What matters to the First Amendment analysis is not only the medium of the speech, but the scope and content of the restriction.”).

Davison v. Loudoun Cty. Bd. of Supervisors, No. 1:16CV932 (JCC/IDD), 2017 WL 58294, at *5 (E.D. Va. Jan. 4, 2017)(emphases added).
 
 
 
Careful readers may have noticed the Davison opinion hinged on the County’s “social media policy,” which expressly encouraged visitors to “submit questions, comments and concerns,” and limited the circumstances under which comments would be deleted to a few obvious categories, like spam.
 
 
 
At this point I’d say we should look at the White House’s own social media policy… but I can’t find one. There’s a White House Privacy Policy, but it doesn’t specifically reference @realDonaldTrump, and it doesn’t say anything about the deletion of comments. The Privacy Policy does, however, say that the White House might use “comments” collected through social media to advocate policy positions:

WE MAY ALSO USE MESSAGES OR COMMENTS COLLECTED THROUGH WHITEHOUSE.GOV OR OFFICIAL SOCIAL MEDIA PAGES FOR OUR OWN PURPOSES, SUCH AS TO INFORM POLICY DECISIONS OR IN PUBLIC ADVOCACY.

INFORMATION YOU CHOOSE TO SHARE WITH THE WHITE HOUSE (DIRECTLY AND VIA THIRD PARTY SITES) MAY BE TREATED AS PUBLIC INFORMATION. WE MAY, FOR EXAMPLE, PUBLISH COMPILATIONS OF MESSAGES OR COMMENTS COLLECTED THROUGH WHITEHOUSE.GOV OR OFFICIAL SOCIAL MEDIA PAGES AND PROVIDE THEM TO NATIONAL LEADERS, MEMBERS OF THE PRESS, OR OTHER INDIVIDUALS OUTSIDE OF THE FEDERAL GOVERNMENT.

That suggests the White House invites the public to comment on social media which, in turn, bolsters the argument that @realDonaldTrump’s account is a limited public forum when it comes to the public replying to his tweets. Similarly, President Trump’s use of @realDonaldTrump suggests that the public is invited to reply to his tweets.
 
 
 
So, what then? “In a limited public forum, restrictions that are viewpoint neutral and reasonable in light of the purpose served by the forum are permissible.” DiLoreto v. Downy Unif. Sch. Dist. Bd. of Ed., 196 F.3d 958, 965 (9th Cir. 1999) (citing Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995)). Here’s a recent succinct summary of how it works:

First, the government may permissibly restrict content by prohibiting any speech on a given topic or subject matter. Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001). The State may be justified in reserving its forum for certain groups or for the discussion of certain topics. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). The state may properly exclude an entire subject. Choose Life Ill., Inc. v. White, 547 F.3d 853, 865 (7th Cir. 2008). Second, however, once the government permits some comment on a particular subject matter or topic, it may not regulate speech in ways that favor some viewpoints or ideas at the expense of others. Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 394, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993). Accordingly, while a speaker may be excluded from a nonpublic forum if he wishes to address a topic not encompassed within the purpose of the forum, the government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject. Cornelius, 473 U.S. at 806, 105 S.Ct. 3439 (1985).

Sprague v. Spokane Valley Fire Dep’t, 196 Wash. App. 21, 54, 381 P.3d 1259, 1275 (2016).
 
 
 
In other words, once @realDonaldTrump allows replies to a tweet, he’s obliged to permit all views encompassed within the subject of that tweet, and he cannot do so in a manner that favors certain viewpoints or ideas at the expense of others. That permits President Trump a fair amount of leeway by the trolling standards of the Internet — if he wanted to get rid of harassing or vulgar replies that had nothing to do with the tweet, he theoretically could — but, when it comes to the subject matter of the tweet, the commentators have a broad free speech rights to address the topic at hand.
 
 
 
So that’s the law. A couple practical thoughts:
 
 
 
First, the White House needs a social media policy. Maybe they have one that I can’t find. Either way, it’d be helpful to everyone if they had a specific description of what they intend to do with comments on social media, and it’d be even better if they followed it.
 
 
 
Second, it is worth noting that @realDonaldTrump receives an immense number of critical comments to each tweet and yet, so far, only a handful of Twitter users have been blocked. That suggests there isn’t a systematic effort to block people, and that it’s instead an ad hoc decision. On the one hand it’s nice to see there’s not a concerted effort to suppress critical viewpoints; on the other hand, an “ad hoc” governmental policy rarely survives any degree of court scrutiny. Moreover, the absence of a concerted effort doesn’t change the free speech analysis for each blocked person.
 
 
 
Third, assuming @realDonaldTrump creates and enforces a social media policy that said, for example, that replies had to be related to the subject matter of his tweet, the technical limitations of Twitter would present a problem. As far as I can tell, Twitter doesn’t have an option for removing particular replies to a tweet. A user can block other users, mute other users, or mute a particular conversation. It would be difficult for @realDonaldTrump to truly enforce a social media policy that actually removed certain replies. As a practical matter, the only way he could remove particular replies is by using Twitter’s own system for reporting tweets that violated Twitter’s Terms of Service, i.e., by being abusive or spammy.
 
 
 
When all is said and done, @realDonaldTrump is likely better off unblocking everyone and just muting whoever is bothering him. If he keeps blocking users, he’ll eventually see himself the defendant in yet another lawsuit.

Free Speech And Trump Tweets: When Twitter Is A Limited Public Forum syndicated from https://fergusonlawatty.wordpress.com