United States District Court, S.D. Mississippi, Southern Division
ORDER GRANTING IN PART MOTION FOR SANCTIONS
H. WALKER, UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Defendants' motion for
sanctions pursuant to Fed.R.Civ.P. 37, filed on April 26,
2019. Doc. . On March 22, 2019, the Court granted in
part Defendants' motion to compel, setting a deadline of
April 5, 2019 for supplemental production. Doc. .
Discovery ended on April 8, 2019. In the motion for
sanctions, Defendants assert that Plaintiffs failed to comply
with the discovery order of April 5, 2019. As relief,
Defendants request that Plaintiffs (1) produce a full digital
copy of the Keesler Home Improvement group Facebook page and
all associated data; (2) produce Heidi Cooksey's Facebook
messages, including those from her personal Facebook page
that have any relation to the claims, defenses, or damages in
this case; (3) identify all social media sites Plaintiffs
have had or currently have including whether Plaintiffs
posted any statements, comments, videos, photographs, or
messages that have any relation to the claims, defenses, or
damages in this case; (4) produce every text message dating
back to January 1, 2016, or to state under penalty that those
texts are no longer recoverable and the specific details as
to why not and how Plaintiffs determined that they are not
along with the production of all available devices for
forensic examination; (5) submit Jason and Heidi Cooksey for
re-deposition; and (6) pay Hunt Defendants reasonable
attorney fees and costs.
argue that Defendants' motion is untimely because it was
filed after the close of discovery. The Local Rules require
discovery motions to be filed “sufficiently in advance
of the discovery deadline to allow response to the motion,
ruling by the court and time to effectuate the court's
order before the discovery deadline.” Local Rule
7(b)(2)(C). In this case, Defendants filed the original
motion to compel on January 25, 2019, well in advance of the
discovery deadline of April 8, 2019. See Doc. .
The motion now before the Court regards Plaintiffs'
failure to comply fully with the order granting in part
Defendants' timely filed motion to compel. The Court
rejects Plaintiffs' procedural argument for denying the
motion for sanctions. See Gipson v. Mgmt. & Training
Co., No. 3:16-CV-624-DPJ-FKB, 2018 WL 736265, at *6
(S.D.Miss. Feb. 6, 2018); Select Comfort Corp. v.
Arrowood Indemnity Co., 2014 WL 12605456, at *4 (D.Minn.
Oct. 10, 2014) (“a motion for sanctions for not
complying with a court order is not a discovery
Home Improvement Facebook page
assert that Plaintiffs failed to produce a full digital copy
of the Keesler Home Improvement group Facebook page. In the
order of March 22, 2019, the Court directed the parties
“to discuss and agree to the best method for producing
to Defendants a complete digital copy of the group
page.” Doc.  at 2. Plaintiffs do not dispute that
they are obligated to produce a complete digital copy.
Rather, they contend that they have encountered various
technical difficulties. Plaintiffs remain under an obligation
to produce a complete digital copy of the group page with
associated data. Plaintiffs are directed to produce a
complete digital copy of the group page and all associated
data, either by permitting Defendants' IT representative
to access the group page directly or by hiring an agreed upon
third party to complete the endeavor, with the cost of a
third party to be split evenly between the parties.
Plaintiffs shall have 30 days from the entry of this Order to
provide the full digital copy, failing which the Court would
entertain a motion to dismiss as sanctions for failing to
comply with the Court's discovery order.
Cooksey's Facebook Messages
argue that Plaintiffs should be compelled to produce all of
Heidi Cooksey's Facebook messages, including those from
her personal Facebook account, that have any relation to the
claims, defenses, or damages in this case. In the March 22,
2019 order, the Court directed Plaintiffs “to provide
unredacted versions of the Facebook messages”. Doc.
 at 3. The Court also directed Ms. Cooksey to review her
Facebook posts and Facebook messages to identify and produce
responsive information. Id. at 4. She also was
instructed to outline the process and results of the search.
response, Plaintiffs point to documents produced as the
result of a search for additional responsive information.
Doc.  at 4. Counsel for Plaintiffs represents that
counsel and Ms. Cooksey have reviewed Facebook and Facebook
messenger for posts responsive to the Court's order and
used the search function to look for key words. Id.
Based on Plaintiffs' response, it appears they have
substantially complied with the Court's order. However,
Plaintiffs are directed to provide an unredacted version of
all messages, including the message cited by Defendants as
Exhibit D, Response 00698. See Doc. [374-4].
Plaintiffs also are directed to indicate which search terms
were used in reviewing Facebook and Facebook messenger.
Social Media Sites
order of March 22, 2019, the Court directed Ms. Cooksey to
review “any other social media accounts, including
Instagram, to identify and produce responsive
information.” Doc.  at 4. The Court further
directed Plaintiffs to outline “the process and results
of their search.” Id. Furthermore, Plaintiffs
were to “identify all social media platforms on which
they have posted commentary about Keesler housing, mold, or
other claims about this lawsuit.” Id. In their
response, Plaintiffs provided a one-page email from Ms.
Cooksey, in which she states “I do have an Instagram
account but I have not posted anything regarding mold, the
law suit or anything of that nature.” Doc. [308-7]. The
Court finds that Plaintiffs' response is incomplete. It
fails to address social media platforms other than Instagram.
Plaintiffs are directed to supplement their response to
identify other social media accounts and any responsive
information from those social media platforms. The response
should be limited to Heidi Cooksey's social media
accounts. Defendants have not pointed to any evidence
indicating that any of the other Cooksey Plaintiffs posted
relevant, discoverable information on social media accounts.
continue to seek text messages from Heidi Cooksey dating back
to January 1, 2016. In her affidavit, Ms. Cooksey states she
does not have access to her old text messages. Doc. [368-2].
She explains she has gone through five cell phones since the
initiation of litigation after encountering various problems
with the other phones: IPhone 6 dropped in a pond on August
25, 2017; IPhone 6 malfunctioned and replaced on September
26, 2017; IPhone 6 turned in with a cracked screen on June
18, 2018; IPhone 8 crashed in December 2018. She further
states she has checked her ICloud account and no past or
recent text messages have been backed up to the account. The
Court cannot compel what Plaintiffs contend they do not
possess. Thus, the Court denies Defendants' motion for
any further discovery regarding Ms. Cooksey's text
messages or her damaged cell phones. However, if Defendants
wish to pursue the matter further, they may file a motion
of Jason and Heidi Cooksey
Court denies Defendants' request to re-depose Plaintiffs
Jason and Heidi Cooksey. Without knowing what additional
information might be produced as a result of this order, the
Court does ...