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THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA FREEDOM FROM RELIGION FOUNDATION, INC., DOE 1, by DOE 1s next friend and parent, MARIE SCHAUB, who also sues on her own behalf, DOE 2, by Doe 2s next friend and parent DOE 3, who also sues on Doe 3s own behalf. Plaintiffs, vs. NEW KENSINGTON-ARNOLD SCHOOL DISTRICT, Defendant. : : : : : : : : : : : : : : : Case 2:12-cv-01319-TFM

RESPONSE BRIEF IN OPPOSITION TO DEFENDANTS MOTION TO COMPEL DISCOVERY Plaintiffs Freedom From Religion Foundation, Inc. (FFRF), Marie Schaub, and Doe 1, by and through their attorneys, Marcus B. Schneider, Esquire and STEELE SCHNEIDER, file the following Response Brief in Opposition to Defendants Motion to Compel Discovery. INTRODUCTION This case arises out of Defendant New Kensington-Arnold School Districts display of a six-foot-tall stone Ten Commandments monument in front of the Valley High School. The factual focus of this case will be on the government conduct relating to the display of the Ten Commandments monument. The constitutionality of the display will likely be evaluated from the perspective of a reasonable observer, not that of the individual Plaintiffs. Seemingly without regard for the nature of the case and for an improper purpose, the District served written discovery upon the individual Plaintiffs seeking the production of most, if not all, of the personal content from the social media websites that they maintain. 1

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In their initial responses to these discovery requests for social media information and on numerous occasions thereafter, Plaintiffs made thorough objections based upon the notions of proportionality set forth in the Federal Rules of Civil Procedure. With the discovery period now closed and more than six months after Plaintiffs objections were originally made, the District has filed its motion to compel. This Honorable Court should deny Defendants motion because the discovery requests at issue are vexatious and disproportionate to the needs of the case. The discovery requests are disproportionate for three reasons. First, the information requested is not relevant because it relates to subjects that are immaterial to the ultimate outcome of the case. Second, the District had ample opportunity to file its Motion to Compel during the discovery period and explore the lines of inquiry at issue during Plaintiffs depositions. Third, the requests at issue impose a significant burden on Plaintiffs, with full compliance likely to require upwards of 50 hours of document review and preparation. After considering the proportionality of these requests, the Court will be compelled to conclude that the true nature of the discovery at issue is vexatious. Cutting through the litany of irrelevant and distinguishable case law cited by the District in support of its requests, it becomes apparent that the endgame of the Districts novel and extreme discovery tack will be a request that district courts become religious inquisitorsi.e., that courts make judicial determinations about the personal religious beliefs of plaintiffs in Establishment Clause cases. The absurdity of this proposition and the well-developed notions of proportionality set forth in the Rules support a swift denial of the Districts motion. LEGAL STANDARD FOR MOTION TO COMPEL Federal Rule of Civil Procedure 33(b)(4) requires that a party objecting to discovery state the grounds for its objection with specificity. Fed. R. Civ. P. 33(b)(4). See Momah v. Albert

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Einstein Medical Center, 164 F.R.D. 412, 417 (E.D. Pa. 1996). Where an objection has been made with the appropriate specificity, the party seeking discovery must show that a discovery request lies within the bounds of [Federal] Rule 26. Momah, 164 F.R.D. at 417. When this showing has been made, the party opposing discovery must convince the court why discovery should not be had. Id. DEFENDANTS REQUESTS AND PLAINTIFFS RESPONSES While Defendant has included the specific requests at issue in its Brief in Support, the characterizations of these requests in Defendants Brief are materially inaccurate. For this reason, Plaintiffs briefly review the requests below. Interrogatory No. 4 sought identification of all occasions on which the suit and/or the grounds of the suit were discussed by the Plaintiffs. Plaintiff Schaub was the only Plaintiff who discussed the lawsuit, and in response to this interrogatory, Plaintiff Schaub produced documents reflecting these discussions. With respect to discussions regarding the lawsuit that occurred on Facebook, Plaintiff Schaub produced over 300 pages of Facebook activity relating to the lawsuit, including all private messages where the case was discussed and the entire history of the Facebook group Remove the Ten Commandments at Valley High School, of which Plaintiff Schaub is a member. Consistent with Plaintiffs objections to Interrogatory Nos. 10-12, Plaintiff Schaub did not produce additional Facebook account documentation. Interrogatory No. 10 sought identification of all websites, blogs, instant messaging programs, and/or web service accounts for which Plaintiffs are registered. This interrogatory was all-inclusive and was not tailored in any way to collect information specifically related to this suit. In response, Plaintiffs objected to the breadth of the request and provided an identification

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of all websites for which Plaintiffs were registered where the suit or other relevant information was discussed. The only site meeting these criteria was Plaintiff Schaubs Facebook account.1 Interrogatory No. 11 was the more appropriate version of Interrogatory No. 10 because it specifically requested an identification of those sites with which Plaintiffs were registered which were used to discuss the suit. Because Plaintiffs response to Interrogatory No. 10 had already effectively responded to Interrogatory No. 11, Plaintiffs referred Defendant to that responsein response to Interrogatory No. 11. Defendants Interrogatory No. 12 can fairly be characterized as the interrogatory that is at the heart of the Defendants motion to compel. Through Interrogatory No. 12, Defendant sought all account registration information and content for all of the above-referenced websites, blogs, instant messaging programs, and/or web service accounts. While Defendant suggests that Interrogatory No. 12 is narrowly tailored because this reference to above-referenced websites refers to the websites identified in response to Interrogatory No. 11 (those websites used to discuss the suit or other relevant information) as opposed to Interrogatory No. 10 (all websites to which Plaintiffs subscribe), the language of the request itself does not differentiate between the two preceding interrogatories. Though Plaintiffs were reasonably unclear as to which interrogatory was referred to, they nevertheless responded to the interrogatory assuming that it was referring to the websites identified by Plaintiffs response to Interrogatory No. 11. Accepting that Defendant was referring to those websites identified in response to Interrogatory No. 11 (Defendants Brief, p. 8), the District undeniably seeks all content for those

Although Plaintiff Schaub maintains two Facebook accounts, only her primary account (under the name Marie Schaub) was used to discuss the suit or other relevant information. Consistent with Plaintiffs objectionthat they should not be required to identify every website they have ever registered with regardless of whether the site had any connection to this lawsuitPlaintiff Schaub only identified her primary Facebook account. 4

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websites. See Defendants Brief, pp. 5-6 (Interrogatory No. 12) (requesting without limitation for each . . . account . . . download and print your activity log . . [and] a copy of your Facebook data). Thus, given Plaintiff Schaubs identification of her personal Facebook account in response to Interrogatory No. 11, Defendants Interrogatory No. 12 seeks all content on Plaintiff Schaubs personal Facebook account, without any limitations whatsoever. Any attempt by the District to characterize Interrogatory No. 12 as being a narrowly tailored request is clearly disingenuous. Despite the overly broad request for Plaintiff Schaubs entire Facebook account activity and without waiving her objections to the request, Plaintiff Schaub produced more than 300 pages of her Facebook account in response to the request. The produced documents are made up of two categories of documents. First, Plaintiff Schaub produced the private messages sent by her through Facebook that dealt with the litigation. Second, Plaintiff Schaub produced the entire history of the private Facebook group Remove the Ten Commandments at Valley High School, of which she is a member. Plaintiff Schaub was able to provide these documents in response to Interrogatory No. 12 without undertaking significant time and effort. With respect to the private messages, Facebook provides users with a history of private messages in a format that makes them easily searchable. In part because Plaintiffs counsel could utilize this feature, Plaintiff Schaub was able to provide her Facebook messages related to the case. With respect to the activity on the private Facebook group, Plaintiff Schaub was able to access the page because she was a member of the private group, and in order to avoid having to undertake any substantial review of the content, Plaintiff Schaub simply provided the entire history of the page.

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Apart from these productions, Plaintiff Schaub objected to producing the entire remaining history and content from her Facebook page. Plaintiff Schaub further explained in her response to Interrogatory No. 12 that a production of some subset of her Facebook activity culled from the entire history and content would require a significant undertaking, likely requiring more than 50 hours. Because of the marginal relevance of the information likely to be produced at the conclusion of such an undertaking, Plaintiff objected to any such production pursuant to the rules of proportionality set forth in Federal Rule of Civil Procedure 26(b)(2)(C). ARGUMENT As envisioned by Rule 26(b)(2)(C), Plaintiffs objections under the rules of proportionality arise out of a balancing of the potential relevance and materiality of the requested information and the burden imposed on Plaintiffs to produce such information. The component issues under a proportionality analysis, such as relevancy or burdensomeness, do not necessarily provide independent bases for objecting to requests. Instead, it is the combination and balance of these issues that supports proportionality objections. Despite this, for the most part, Defendants Motion largely treats these component issues on a piecemeal basis. The limited portion of Defendants Brief that claims to address proportionality amounts to nothing more than a review of the purported relevancy of the information requested. See Defendants Brief, pp. 10-12. Because the ultimate essence of Plaintiffs objections to the interrogatories at issue (and most specifically with respect to Interrogatory No. 12) is in the nature of a proportionality objection, Plaintiffs do not argue for denial of the motion to compel on the basis of any one of the component objections that make up the overall proportionality analysis. After briefly reviewing the rules of proportionality, Plaintiffs present and discuss each component objection,

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which when taken on balance pursuant to Rule 26(b)(2)(C), support a denial of Defendants Motion to Compel. I. Proportionality under the Federal Rules of Civil Procedure

The Court of Appeals for the Third Circuit has observed that while the scope of discovery under the Federal Rules is unquestionably broad, this right is not unlimited and may be circumscribed. Bowers v. National Collegiate Athletic Assn, 2008 WL 1757929, at *4 (D.N.J. Feb. 27, 2008) (citing Bayer AG v. Betachem, Inc., 173 F.3d 188, 191 (3d Cir. 1999)). Specifically, district courts have broad discretion to tailor discovery narrowly to meet the needs of each particular case. Id. (citing Crawford-El v. Britton, 523 U.S. 574, 498 (1998)). This proportionality requirement is set forth in Rule 26(b)(2)(C). Fed. R. Civ. P. 26(b)(2)(C); see also U.S. v. Education Management LLC, 2013 WL 3863963, at *3 (W.D. Pa. July 23, 2013). Rule 26(b)(2)(C) provides that courts should limit the frequency or extent of discovery where, among other things, the party seeking discovery has had ample opportunity to obtain the information by discovery in the action and where the burden . . . of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(2)(C)(ii)-(iii). In determining whether the burden of proposed discovery outweighs its likely benefit, courts must consider the needs of the case, the amount in controversy, the parties resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. Id.; see also Bowers, 2008 WL 1757929, at *5-6 (denying plaintiffs motion to compel because the proposed discovery sought information that was at best only marginally relevant to the claims in the case). In determining whether a party has had ample opportunity to obtain information at the time of a request, courts have considered whether the requested information could have been obtained during depositions that occurred in the case. Bowers, 2008 WL 1757929, at *5 (denying

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motion to compel in part because moving party had opportunity to explore topics at issue in the motion during depositions that occurred in the case). Courts have also considered whether the ultimate application to the court was made in a timely manner. Gucci America, Inc. v. Guess?, Inc., 790 F.Supp.2d 136, 142 (S.D.N.Y. 2011) (holding that application for certain information should be denied where the application occurred after the close of discovery and could have been raised at earlier point during discovery period). The Advisory Committee Note in the 1983 amendment to Rule 26 (the year in which the rule of proportionality was originally added to the rules) identifies the purpose of the rule as being to guard against redundant or disproportionate discovery by giving the court authority to reduce the amount of discovery that may be directed to matters that are otherwise proper subjects of inquiry. Id. advisory committee note (1983). The note goes on to establish that [t]he rule contemplates greater judicial involvement in the discovery process and thus acknowledges the reality that it cannot always operate on a self-regulating basis. Id. Courts have heeded these words, and a number of district courts have limited discovery based upon Rule 26(b)(2)(C). II. The information requested by Defendant is not relevant.

Establishment Clause cases are concerned with government action. County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 593-94 (1989) (holding that the primary question in Establishment Clause cases is whether the government has taken action in support of religion [w]hether the key word is endorsement, favoritism, or promotion, the essential principal remains the same) (citations omitted). Even the judicial tests that consider the impact of the government action on observers of the display consider the impact from the perspective of a reasonable observernot an individual plaintiff. See, e.g. Doe v. Indian River School Dist., 653 F.3d 256, 284 (3d Cir. 2011) (noting that under the endorsement test and the primary effect

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prong of the Lemon test, the relevant inquiry involves how a reasonable observer would perceive a display) (citations omitted). With this in mind, the personal information of the Plaintiffs will have little to no bearing on the ultimate outcome of the case. As the Northern District Court of Georgia astutely observed in an Establishment Clause case: This is not a case that will be determined by plaintiff's credibility or recitation of facts. Rather, as long as plaintiff has standing to sue, this case will depend on the resolution of a legal question: Does the display of the Ten Commandments in the county courthouse violate the Constitution? The relevant facts, including who placed the display, what is included in the display, how long it has been presented, etc., will likely come from witnesses other than the plaintiff. The legal issues, while possibly the subject of expert testimony, will be determined by the arguments of counsel. At the end of the day, plaintiff plays a relatively minor role in this litigation. Doe v. Barrow Cnty., 219 F.R.D. 189, 194 (N.D. Ga. 2003) (emphasis added). Faced with the same issue in this casewhether the display of a Ten Commandments monument violates the constitutionthe Court should reach the same key conclusions regarding what issues will be material to the outcome of the case. The District presents a number of misguided arguments to support the broad nature of its discovery requests. Notably, the District has failed to point the Court to a single Establishment Clause case from anywhere in the United States where social media or the diary of a plaintiff have been found to be of any relevance whatsoever let alone where such evidence proved to be material to the outcome of a case. Instead, the cases relied upon by the District are easily distinguishable from this case and Establishment Clause cases generally. That the District was not able to point to any similar, controlling case law is unsurprising when the overall aim of Defendants discovery tack is considered. Distilling Defendants Motion down to its essence, the District looks to obtain all social media activity of Plaintiff Schaub in

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order to attempt to prove through circumstantial evidence that Plaintiff Schaub is not agnostic or nonreligious, as she alleges in the original Complaint.2 While any attempt by the District to impeach Plaintiff Schaub regarding her personal religious/nonreligious beliefs is obviously irrelevant to this case, the true absurdity of the Districts argument is revealed by the Districts discussion of the type of evidence that it hopes to acquire through the discovery requests at issue. As one example, the District seems to argue that a singular comment made by Plaintiff Schaub on Facebook wherein she stated Merry Freakin Xmas to ME demonstrates that Plaintiff Schaub celebrates Christmas. Defendants Brief, p. 14. The District goes on to call the Courts attention to Plaintiff Schaubs use of the word blessed in a comment on Facebook, reference to holiday parties in the month of December on Facebook, and evidence suggesting the celebration of Halloween on Facebook. Id. Taken together, the District seems to argue that these isolated instances of behavior somehow reflect upon the core personal beliefs of Plaintiff and establish that Plaintiff Schaub is not agnostic, nonreligious, or atheistic. The Districts argument rests upon the faulty assumption that there exists a single, cookie-cutter definition for what it means to be an agnostic or an atheist. Without providing an explanation for what these stereotypes might be, the District conjectures that a few isolated instances of behavior on the part of Plaintiff Schaub are inconsistent with her agnostic or atheistic beliefs. Apart from belittling Christianity by apparently suggesting that one need only reference Xmas on a social media site on one occasion or celebrate Halloween to be considered a Christian, this argument is nugatory. An

Plaintiff Schaub testified in her deposition that since the filing of the Complaint her personal views have moved more towards atheism than agnosticism. As this testimony shows, the personal religious or non-religious beliefs of individuals are hardly susceptible to the type of black-and-white analysis proposed in the Defendants Brief. The transcript of Ms. Schaubs deposition, which was taken on April 18, 2014, is not yet available. 10

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individuals personal core beliefs are not reasonably susceptible to this type of generic, circumstantial, and superficial challenge. Additional startling implications arise upon further consideration. First, it is clear that the District intends to use the requested information to make out a circumstantial case that Plaintiff Schaub has lied under oath on two occasions (in the original Complaint and in Plaintiffs deposition) regarding her personal religious/nonreligious beliefs. Second, and more alarmingly, the District would apparently seek to transform this Honorable Court into a religious inquisitor that would make the ultimate judicial determination as to whether the Plaintiff is really an agnostic or atheist. Discovery requests that necessarily advocate for such a perversion of the judicial system cannot be countenanced. Because there are no cases that would support such an attack on plaintiffs in Establishment Clause cases, the District is forced to support its arguments with case law that is easily distinguishable from the issues present in this case. For example, one of the arguments advanced in support of the relevance of the requested information rests upon the Districts contention that the requested social media information may demonstrate whether Plaintiff Schaub has experienced stress, anxiety, or loss of sleep as a result of the presence of the Ten Commandments monument. While the Complaint does contain averments that Plaintiff Schaub did endure these consequences as a result of the religious display, whether Plaintiff Schaub did in fact experience stress, anxiety, or loss of sleep is ultimately immaterial to the ultimate outcome of the case. This is especially true because Plaintiff Schaub has made clear on numerous occasions that she is only seeking nominal damages in this action. See Exhibit 1 (Plaintiffs Responses to Interrogatories), p. 8 (stating that Plaintiffs are not claiming or seeking damages for physical harm or mental/emotional distress), Plaintiffs Memorandum of Law in Support of

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Motion for Protective Order [Document No. 25], p. 12 (stating that Plaintiffs here have not sought compensatory damages).3 Unsurprisingly, the case law referred to by the District in support of this argument involve situations that fall outside of the Establishment Clause arena where damages for emotional distress were sought by the plaintiffs. See Defendants Brief, p. 11 n. 2 (explanatory parentheticals of Defendant); Defendants Brief, p. 7 (citing, among other cases, Merrill v. Waffle House, Inc., 227 F.R.D. 467 (N.D. Tex. 2005) (involving a case where production of diaries and journals were compelled where plaintiff sought an award of damages solely for emotional distress and where plaintiff failed to establish a basis for their objection to the requests)). Similarly, the District relies upon a string of civil rights cases for the proposition that disclosures of personal diaries are routinely compelled in such cases. Defendants Brief, p. 7. These cases are also distinguishable. As one example, in Quiroz v. Hartgrove Hosp., a district court case from Illinois cited by Defendant, the court ordered a production of limited portions of a diary of the plaintiff after undertaking an in camera review to determine which portions of the diary were relevant and where the plaintiff had already disclosed portions of the diary specifically mentioning the defendant.4 1998 WL 341812 *1-3 (N.D. Ill. June 12, 1998). None of the cases cited by the District involve claims brought under the Establishment Clause. The Districts remaining argument in support of the relevancy of the discovery requests at issue incants the issue of standing. Given the fact that standing is the one area where plaintiffs in religious display cases must present a modicum of factual support, it is unsurprising that the

Plaintiff Schaub reaffirmed that she is not seeking damages in this lawsuit during her deposition on April 18, 2014. 4 Notably, the Plaintiff in this case also made a specific claim for damages based upon mental anguish. 12

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District would attempt to argue that its inquiries are necessary for it to challenge Plaintiffs standing to file suit. These standing arguments, however, are equally unavailing. The injury that gives standing to plaintiffs in the Establishment Clause context is that caused by unwelcome contact with a state-sponsored religious display. See, e.g., Vasquez v. Los Angeles, 487 F.3d 1246, 1250 (9th Cir. 2007); see also, Suhre v. Haywood Cnty., 131 F.3d 1083, 1087 (4th Cir. 1997). The majority of federal circuits have held that contact with an offensive religious symbol provides a sound basis for Article III standing. Vasquez, 487 F.3d at 1253; see also Baker v. Adams Cnty./Ohio Valley Sch. Bd., 86 F. Appx 104, 109 (6th Cir. 2004) (finding that allegation of unwelcome personal contact with Ten Commandments monument display on public school property was sufficient for standing purposes). While not directly addressing questions of standing, the Third Circuit Court of Appeals has generally acknowledged facts demonstrating unwelcome contact in an Establishment Clause display case. Modrovich v. Allegheny Cnty., Pa., 385 F.3d 397, 399 (3d Cir. 2004) (holding that Modrovich and Moore alleged that they have had regular, direct and unwelcome contact with the Plaque while entering the courthouse on errands and walking past it on their way to and from work). Here, the District does not suggest that its discovery will establish that the Plaintiffs did not have actual contact with the Ten Commandments monument. Instead, the District is seemingly requests social media information to attempt to impeach Plaintiffs and call Plaintiffs stated religious beliefs into question as a way of challenging whether Plaintiffs contact with the Ten Commandments monument at the Valley High School was actually unwelcome. None of the cases addressing standing in this or any other Circuit Court of Appeals support this novel argument.

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Again, even assuming that such a dispute was materialit is notand that there was factual support for such a disputethere is notthe necessary implication of allowing such an argument is that the Court must ultimately make a judicial determination in the case regarding Plaintiffs personal religious/nonreligious beliefs. In such a scenario, the Court would not be able to resolve the case at the summary judgment stage, and since Plaintiffs are not entitled to a jury trial, the Court would ultimately be required to decide at trial whether Plaintiffs are truly agnostic or atheist as they have contended throughout this litigation. Just as much as courts cannot reasonably be expected to make such a determination, Establishment Clause plaintiffs cannot reasonably be expected to produce every personal comment that they have ever made for potential use by opposing counsel to cross-examine their stated religious beliefs. Creating such a threshold issue and requiring this type of disclosure by all Establishment Clause plaintiffs would have an unnecessary chilling effect on potential plaintiffs. III. Defendant has had ample prior opportunities to obtain the requested information.

In two important ways, the Districts Motion to Compel comes before the Court only after the District passed on earlier opportunities to obtain the requested information. First, the District was dilatory in filing its Motion to Compel based upon its failure to seek assistance from the Court at any one of a number of earlier opportunities. This dilatoriness provides additional support for a denial of the Districts Motion under considerations set forth by Rule 26(b)(2)(C). Second, the District failed to explore the areas of inquiry implicated by the discovery requests during Plaintiffs depositions. This failure also supports a denial of the motion under Rule 26(b)(2)(C) because it places the Court in the untenable position of having to decide this Motion without the benefit of any number of foundational questions that could have been asked during Plaintiffs depositions. 14

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The District was in possession of Plaintiffs Responses to the Districts First Set of Interrogatories and Requests for Production of Documents as of September 13, 2013. See Exhibit B to Defendants Brief. These Responses set forth thorough objections to the discovery requests at issue, which have been reiterated by Plaintiffs at every opportunity, including in this Response Brief. See Exhibit 1. The Districts counsel initially sent Plaintiffs counsel an email regarding purported deficiencies in the responses, and Plaintiffs counsel promptly responded by reiterating the same objections to the interrogatories at issue. Exhibit C and Exhibit D to Defendants Brief. Although by October 9, 2013 the District was in possession of Plaintiffs Responses, which contained thorough objections to the interrogatories at issue, and Plaintiffs counsels letter that restated those same objections, the District waited for a period of more than six months to file its Motion to Compel. Significantly, the District failed to move this Court for an order compelling responses to the interrogatories at issue before taking the depositions of the Plaintiffs. By waiting until after the depositions, the District must now request as part of its Motion to Compel that the depositions of the Plaintiffs be reconvened. The Districts decision to wait until after the depositions of the Plaintiffs to file its Motion to Compel occurred in spite of urging by Plaintiffs counsel that the parties resolve outstanding discovery issues before the depositions of the Plaintiffs. See Exhibit 2 (December 3, 2013 email from Plaintiffs counsel to Defense Counsel offering to reschedule Plaintiffs depositions so that outstanding discovery disputes could be resolved), Exhibit 3 (April 8, 2014 email from Plaintiffs counsel to Defense Counsel requesting that the depositions of Plaintiffs be delayed until after the resolution of outstanding discovery disputes). Furthermore, the District has clearly had an interest in obtaining additional information in response to the discovery requests at issue prior to Plaintiffs depositions. With each of the

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Notices of Depositions of the Plaintiffs, the District included subpoenas requesting the information that had already been requested by these interrogatories. Exhibit 4 (Notices of Deposition and Subpoenas). Plaintiffs have consistently expressed their objections to these requests as well. Most recently, in response to the receipt of the Third Amended Notice of Deposition and accompanying Subpoena requesting the same information as is requested by the interrogatories at issue in the Districts Motion to Compel, Plaintiffs counsel advised Defendants counsel that, consistent with the stated objections to the written discovery, Plaintiffs did not intend to comply with the Subpoenas. Exhibit 4. Despite the foregoing, Defendants counsel went forward with the depositions of the Plaintiffs on April 18, 2014 and even asked during the deposition whether Plaintiffs had brought the documents requested by the subpoenas. Given the fact that the District filed its Motion to Compel (which was alluded to by Defendants counsel during the deposition of Plaintiff Schaub) on the first business day following these depositions, it seems likely that the District would have been in possession of all of the purported public portions of Plaintiff Schaubs social media accounts that are appended to the Districts Motion as exhibits. Nonetheless, Defendants counsel did not question Plaintiff Schaub about this social media activity which purportedly contradicts her stated personal religious/nonreligious beliefs. One must wonder why Defendants counsel would choose to not question Plaintiff Schaub regarding these issues that the District now contends are so critical to its case. If Defendants counsel had questioned Plaintiff Schaub regarding the social media content it possesses (which it contends exemplifies the type of information that would be obtained through more complete responses to the requests at issue), the Court would be much better positioned to assess the Districts arguments in its Motion to Compel. In all likelihood, Defendants counsel

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opted not to question Plainiff Schaub on these issues out of concern that Plaintiff Schaubs responses to such inquiries would have further weakened the Districts already weak argument for additional responses to its written discovery. IV. Compliance with the discovery requests at issue would impose a significant burden on Plaintiffs.

A significant burden would be imposed upon Plaintiff in order to more fully comply with Interrogatory No. 12. In light of the considerations outlined by Rule 26(b)(2)(C), the extent of this burden provides further support for a denial of the Districts Motion to Compel. Plaintiffs have conservatively estimated that providing a more complete response to the overly broad request made by Interrogatory No. 12 would require upwards of 50 hours of time. Defendant concedes that this is a reasonable estimate. Defendants Brief, p. 10. Interrogatory No. 12 sought the entirety of Plaintiff Schaubs Facebook account, to which Plaintiffs objected. Nonetheless, Plaintiff Schaub produced over 300 pages of Facebook activity in response to the request. Plaintiff Schaubs production represented a portion of Plaintiff Schaubs Facebook activity that referenced or dealt with this case. Specifically, Plaintiff Schaub produced all activity from a private Facebook group dedicated to the removal of the Ten Commandments monument and Plaintiff Schaubs private messages that referenced or dealt with this case. Based upon how Facebook stores this information, Plaintiff Schaub was able to produce this information with a reasonable amount of effort. Plaintiff Schaubs estimate of 50 hours for further document production represents a conservative estimate of the time that she expects would be required to review her entire Facebook activity log to compile all other activity relating to the litigation, her religious beliefs, and her mental state. See Defendants Brief, p. 10. The review process would be so difficult because of the way that Facebook displays a users activity log. The Facebook activity log essentially lists all activity engaged in by the user, 17

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in chronological order. For example a Facebook user may like photographs posted on Facebook, or the user may like statuses (written comments by Facebook users) posted on Facebook (to like something on Facebook essentially amounts to acknowledging or acknowledging with approval a particular photograph/status on Facebook). Additionally, a Facebook user may comment on photographs or statuses (to comment on a photograph or a status is to make a written comment on Facebook, which is visible by other users). Given the way that the Facebook activity log is presented to a user, the process required for evaluating the responsiveness of a particular instance of Facebook activity (liking or commenting) is rather involved. The person reviewing the activity log may be required to click on a hyperlink that redirects the user away from the activity log to the specific URL where the specific activity can be viewed more fully. For example, if Plaintiff Schaub commented on another Facebook users status, the activity log would only show the comment that was made by Plaintiff Schaub. In some situations, the comment itself would resolve whether the activity is somehow responsive to a request. However, if the comment needs to be read in the context of other comments or the status itself, the person reviewing the activity log would be required to click on a hyperlink that would redirect the user to the exact URL location for the original status and any comments to the status. As an example, if Plaintiff Schaubs activity log indicates that she commented, I agree, to a particular status, anyone reviewing this activity log for responsive activity would have to click on a link to read the status and the other comments in order to determine the context of Plaintiff Schaubs comment. Plaintiff Schaub uses Facebook frequently. As a result of her frequent use and in light of the review process outlined above, any review of Plaintiff Schaubs Facebook activity log is likely to take an exorbitant amount of time. This review would be made even more difficult

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because of the vagueness and breadth of the categories of activity in which the District claims to be interested. With interest in activity relating to religious views or emotional state, it would be reasonable to expect that Plaintiff or her representatives may need to review most of her entire activity log in some level of detail in order to determine the responsiveness of each instance of activity. The circumstances of this case do not support imposing such a burden on Plaintiffs.5 CONCLUSION Rule 26(b)(2)(C) calls for review of each of the factors discussed above. Not only are the discovery requests at issue exceedingly burdensome, the potential information to be gained through more complete responses is irrelevant and wholly immaterial to the ultimate outcome of this case. Such irrelevant requests should reasonably be interpreted by the Court as an attempt by the District to intimidate the Plaintiffs, especially in light of the dilatoriness of the District in seeking to resolve its disputes. Unquestionably, the actions of future potential plaintiffs in Establishment Clause cases will be chilled if these types of discovery requests are countenanced. Furthermore, district courts will necessarily be placed in the position of being required to make judicial determinations about the religious beliefs of such plaintiffs. In light of all of these factors, Defendants Motion to Compel must be denied because the requests at issue in the motion are disproportionate to the needs of this case. Based upon these same considerations, even if the Court is inclined to compel Plaintiffs to provide additional information in response to the discovery requests at issue, the Court should decline to compel Plaintiffs to attend a second deposition. Granting the District such relief would

To the extent that the District argues that its purportedly substantial discovery efforts with regard to its review of its own documents somehow justifies imposing a significant burden on Plaintiff (see Defendants Brief, p. 2), this argument is misplaced. One should expect that the government party in an Establishment Clause case would have a greater burden in discovery because of the fact that it is the governments conduct that is ultimately at issue in such cases. 19

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be especially inappropriate given the fact that Defendants counsel made the choice to not question Plaintiffs regarding these issues during their depositions. WHEREFORE, Plaintiffs respectfully request that this Honorable Court deny Defendants Motion to Compel in its entirety.

Respectfully submitted, /s/ Marcus B. Schneider Marcus B. Schneider, Esquire PA I.D. No.208421 STEELE SCHNEIDER 428 Forbes Avenue, Suite 900 Pittsburgh, PA 15219 (412) 235-7682 (412) 235-7693/facsimile mschneider@steeleschneider.com

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Case 2:12-cv-01319-TFM Document 39 Filed 04/29/14 Page 21 of 21

CERTIFICATE OF SERVICE I hereby certify that on April 29, 2014, the foregoing PLAINTIFFS RESPONSE BRIEF IN OPPOSITION TO DEFENDANTS MOTION TO COMPEL DISCOVERY was filed electronically. Notice of this filing will be sent to all parties by operation of the Courts electronic case filing system and constitutes service of this filing under Rule 5(b)(2)(E) of the Federal Rules of Civil Procedure. Parties may access this filing through the Courts ECF system.

/s/ Marcus B. Schneider, Esquire Marcus B. Schneider, Esquire

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