Case 2:12-cv-01319-TFM Document 38 Filed 04/21/14 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA FREEDOM FROM RELIGION FOUNDATION, INC.; DOE 1, by Doe 1's next friend and parent MARIE SCHAUB, who also sues on her own behalf; DOE 2, by Doe 2's next friend and parent DOE 3, who also sues on Doe 3's own behalf, vs. Plaintiffs, : : : : : : : : : : : : : : Civil Action No. 12-1319 JURY TRIAL DEMANDED

NEW KENSINGTON-ARNOLD SCHOOL DISTRICT, Defendant.

BRIEF IN SUPPORT OF MOTION TO COMPEL AND FOR LEAVE TO CONDUCT ADDITIONAL DEPOSITIONS, PURSUANT TO F.R.C.P. 30 AND 34 The Defendant, New Kensington-Arnold School District, by and through its attorneys, Anthony G. Sanchez, Esquire, Amie A. Thompson, Esquire, and the law firm of Andrews & Price LLC, files the following Brief in Support of Motion to Compel and for Leave to Conduct Additional Depositions in accordance therewith. I. BACKGROUND

This action was commenced by the filing of a Complaint at the above number. On July 19, 2013, Defendant served Interrogatories and a Request for Production of Documents upon Plaintiffs. (A copy of the transmittal letter is attached as Exhibit A.) Plaintiffs responded to Defendant's discovery requests on September 13, 2013, objecting to 16 of the 22 Interrogatories (Nos. 5-8; 10; 11-13; 15-22) and providing partial answers thereto. (A copy of the transmittal letter is attached as Exhibit B.) On September 26, 2013, Defense counsel wrote to Plaintiffs counsel via E-mail concerning numerous deficiencies the responses. (Exhibit C.) Plaintiffs

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counsel responded to Defendants letter on October 9, 2013, indicating in part that Plaintiffs would supplement their responses to Defendants Interrogatories Number 16-17, 18, 19-20. (See Exhibit D.) Upon joint motions of the parties, discovery was extended on several occasions, and is currently scheduled to close on April 21, 2014. During the course of discovery, Defendant preserved, reviewed and produced a portion of over 120,138 electronic stored information files in response to Plaintiffs Interrogatories and Requests for Production of Documents. On April 2, 2014, in the course of attempting to schedule Plaintiffs depositions for the third time by Amended Notices of Deposition and accompanying subpoenas, Defense counsel again made inquiry of Plaintiffs counsel as to when the Defendant might expect supplemental responses to its outstanding discovery requests. (See Exhibit E.) On April 7, 2014, with all Plaintiffs still unable to provide mutually agreeable dates of availability for depositions, Plaintiffs counsel responded to Defendants repeated requests for both dates of availability and outstanding discovery requests. (See Exhibit F.) In sum, Plaintiffs counsel indicated that he would provide no further responses to the interrogatories, other than those contained in his Email. (See Exhibit F.) Defendants are entitled to complete responses to its Interrogatory and Requests for Production of Documents and Plaintiffs have improperly withheld such information. Depositions for Marie Schaub and Doe 1 were finally scheduled for April 18, 2014. However, there is currently no date scheduled for the depositions of Doe 2 and Doe 3. 1

Plaintiffs counsel has informally advised Defendants counsel that Doe 2 and Doe 3 wish to withdraw from the lawsuit. However, as of the date of this Motion, Plaintiffs counsel has not filed a notice to dismiss the lawsuit by Doe 2 and Doe 3 nor requested to amend the case caption. 2

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Plaintiffs failure to respond to Defendants discovery requests and failure to make available for depositions Plaintiffs Doe 2 and Doe 3 unfairly prejudices Defendants ability to defend and prepare for trial. Defendant needs Plaintiffs discovery responses to be able to prepare for depositions, which Defendant requests remain open should this Court compel Plaintiffs to produce documents that have been improperly withheld. Despite frequent discussions between counsel, the parties have failed to reach an agreement. II. A. ARGUMENTS

DEFENDANT IS ENTITLED TO COMPLETE RESPONSES TO INTERROGATORY NOS. 4 AND 10 THROUGH 12. PLAINTIFFS HAVE IMPROPERLY WITHHELD INFORMATION REGARDING THE PLAINTIFFS COMMUNICATIONS ON SOCIAL MEDIA WEBSITES.

Plaintiffs have improperly withheld information regarding the Plaintiffs communications on social media websites. Defendant requested information pertaining to discussions regarding this lawsuit and/or the grounds of the suit; whether Plaintiffs maintain social media accounts; and more particularly, whether Plaintiffs communicated about the lawsuit and related matters on such social media accounts. Specifically, Interrogatory Nos. 4, 10 through 12 and Plaintiffs responses provide as follows: INTERROGATORY No. 4 If you have at any time discussed this lawsuit and/or the grounds for your suit against the Defendant with any individual other than your attorney: (a) Identify each person with whom you have had such communication(s) or discussion(s); (b) State the date(s) of the communication(s) or discussion(s); (c) Identify and describe in detail each such oral and/or written communication(s) or discussion(s); and (d) Identify all documents that constitute or refer or relate to the communication(s). ANSWER:

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Plaintiff Schaub has offered public comment on this lawsuit on numerous occasions. See Documents P198-P210. On December 15, 2012 Plaintiff Schaub made comments on an FFRF radio show. See Documents P211-P230. The conversation can be heard at the following website: http://ffrf.orq/news/radio /shows/ (Dec. 15, 2012). Plaintiff Schaub also had other limited correspondence with FFRF Co-President Annie Laurie Gaylor. See Documents P231-P232. Plaintiff Schaub has also communicated regarding this lawsuit on Facebook. See Documents P233-P547 (Schaub Facebook). By way of further response, see Plaintiff Schaub's responses to Interrogatory Nos. 10, 11, and 12. Plaintiff Doe 1 has not had any conversations regarding this lawsuit with anyone other than the Plaintiffs and immediate family members. Plaintiff Doe 2 has not had any conversations regarding this lawsuit with anyone other than the Plaintiffs and immediate family members. Plaintiff Doe 3 has not had any conversations regarding this lawsuit with anyone other than the Plaintiffs and immediate family members. Plaintiff Freedom From Religion Foundation has discussed this litigation in numerous press releases/action alerts. See Documents P548-P572. Plaintiff Freedom From Religion Foundation has also received and sent email correspondence regarding this case. See Documents P573-P688. INTERROGATORY No. 10 Please identify any websites, blogs, instant messaging programs, and/or web service accounts for which you maintain (or maintained), and/or for which you are (or were) registered and/or for which you are (or were) a member and/or for which you post (or have posted) an online profile or online content under your own name or a pseudonym. This request includes, but is not limited to, MySpace, Facebook, LinkedIn, Blogger, Twitter, Twitpic, Flickr, YouTube, Yahoo, Foursquare, ImageShack, LiveJournal, Photobucket, Picasa, WordPress, AOL Instant Messenger, and/or Windows Messenger accounts. ANSWER: Plaintiffs object to this Interrogatory because it is overly broad, unduly burdensome, and disproportionate to the factual and legal issues relevant to this case because the Interrogatory does not limit itself in any way and, as a result, seeks information which bears no reasonable relationship to any claim or defense in this matter. The Interrogatory is akin to requesting that all diaries that a plaintiff writes in relating to any subject whatsoever be identified by a plaintiff. Without waiver of and subject to the foregoing objections, Plaintiffs are registered or are members or have posted on the following websites, blogs, instant

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messaging programs, and/or web service accounts which have been used to communicate about (a) the allegations set forth in the complaint; (b) any facts or defenses raised in the answer, or (c) whatever other topics the Plaintiffs believe are relevant to the litigation: Plaintiff Schaub: Facebook Plaintiff Doe 1: N/A Plaintiff Doe 2: N/A Plaintiff Doe 3: N/A Plaintiff FFRF: N/A INTERROGATORY No. 11 Please identify any websites, blogs, instant messaging programs, and/or web service accounts for which you maintain (or maintained), and/or for which you are (or were) registered and/or for which you are (or were) a member and/or for which you post (or have posted) an online profile or online content under your own name or a pseudonym, on which you have communicate about any facts or information relating to: (a) the allegations set forth in the complaint; (b) any facts or defenses raised in the answer; or (C) whatever other topics you believe is relevant to the litigation. Categories of information that could fall into the last category include your claim for damages, your emotional or mental state, and your religious and/or non-religious beliefs. ANSWER: See Plaintiffs response to Interrogatory No. 10. INTERROGATORY No. 12 Please identify the username, registration information, account detail, login information, or any other identifying information for any of the above-referenced websites, blogs, instant messaging programs, and/or web service accounts for which you maintain (or maintained), and/or for which you are (or were) registered and/or for which you are (or were) a member and/or for which you post (or have posted) an online profile or online content under your own name or a pseudonym. Please set forth the Uniform Resource Locator ("URL") for your homepage(s), and identify if your homepage(s) are restricted in any way, e.g. limited to viewing by "friends only." If your websites, blogs, instant messaging programs, and/or web service accounts are password protected or otherwise limited to viewing, please provide printed hard copy versions of each page, including first level links, URLs, and any other relevant electronic data. For each Facebook account maintained by you, please download and print your activity log, as well as your archived and expanded archived data by logging into your Facebook account, selecting "Account Settings" under the "Account" tab on

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your homepage (may be a star-like symbol in the upper right hand corner), then under "General Account Settings" clicking on the "Download a copy of your Facebook data" link, and following the directions on the "Download Your Information" page. ANSWER: Plaintiffs object to this Interrogatory first because it is vague and does not define with reasonable particularity the meaning Defendant ascribes to the phrase above-referenced websites. To the extent that Defendant is requesting the requested information for all of the websites, blogs, instant messaging programs, and/or web service accounts that Defendant requested be identified in Interrogatory No. 10, Plaintiffs assert the same objection that this request is overly broad, unduly burdensome, and disproportionate to the factual and legal issues relevant to this case because the Interrogatory seeks information which bears no reasonable relationship to any claim or defense in this matter. To the extent that Defendant is requesting the requested information for all of the websites, blogs, instant messaging programs, and/or web service accounts that Defendant requested be identified in Interrogatory No. 11 (i.e., any such items that have been used by Plaintiffs to communicate regarding the case), Plaintiffs object to the Interrogatory because it is overly broad, unduly burdensome, and disproportionate to the factual and legal issues relevant to this case because the Interrogatory seeks unfettered access to all content from the services identified in Interrogatory No. 11 and not just that content relating to Plaintiffs' communications regarding this case. Again, Defendant's request is akin to seeking to read the entire content of a diary where only one page relates to pending litigation. Generally speaking, a requesting party must identify specifically designated documents or categories of documents (See Fed. R. Civ. P. 34(a)), and a responding party is afforded the opportunity to review his/her own records in order to locate and produce responsive, relevant documents. See In re Ford Motor Co., 345 F.3d 1315, 1317 (11th Cir. 2003) (holding that "like the other discovery rules, Fed. R. Civ. P. 34(a) allows the responding party to search his records to produce the required, relevant data. Fed. R. Civ. P. 34(a) does not give the requesting party the right to conduct the actual search. While at times-perhaps due to improper conduct on the part of the responding party-the requesting party itself may need to check the data compilation, the district court must 'protect respondent with respect to preservation of his records, confidentiality of nondiscoverable matters, and costs.'" (citing Fed. R. Civ. P. 34(a) advisory committee's notes (1970 amend.)). Without waiver of and subject to the foregoing objections, Plaintiffs produce the following online activities and/or communications relating to this case: Plaintiff Schaub: See Documents P233-P547. These documents represent the communications that Plaintiff Schaub has had regarding the case via private messages and the statements or comments made in the private Facebook group

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Remove the Ten Commandments at Valley High School. The entire history of this private Facebook group has been provided. While, since the initiation of this litigation, Plaintiff Schaub has made other comments regarding the case specifically and her religious views generally on Facebook, Plaintiff objects to any further production because this request on the basis that it is overly broad, unduly burdensome, and disproportionate to the factual and legal issues relevant to this case. Plaintiff Schaub frequently uses Facebook, and a review of Plaintiff Schaub's entire Facebook activity since the initiation of this litigation for those comments relating to the Ten Commandments or Plaintiff Schaub's religious views would likely take in excess of 50 hours. Given the irrelevant nature of the information requested, the request is disproportionate to the issues in this case. Courts routinely order the production of personal diaries in response to requests for production of documents in civil rights actions. See Merrill v. Waffle House, Inc., 227 F.R.D. 467, 471-472 (N.D. Tex. 2005) (citing Gill v. Beaver, CIV. A. 98-3569, 1999 WL 461821, at *1 (E.D. La. July 2, 1999); Quiroz v. Hartgrove Hosp., 1998 WL 341812 (N.D. Ill. June 12, 1998); Rexford v. Olczak, 176 F.R.D. 90 (W.D.N.Y. 1997), Topol v. Trustees of Univ. of Pennsylvania, 160 F.R.D. 476 (E.D. Pa. 1995); Ayala v. Tapia, 1991 WL 241873 (D.D.C. Nov. 1, 1991)). As the Federal District Court for the Eastern District of Pennsylvnaia explained: Federal Rule of Civil Procedure 26(b)(1) defines the scope of discovery as any matter, not privileged, which is relevant to the subject matter involved in the pending action. Fed.R.Civ.P. 26(b)(1). The Rules relevancy requirement is to be construed broadly, and material is relevant if it bears on, or reasonably could bear on, an issue that is or may be involved the litigation. Topol, 160 F.R.D. at 477 (citation omitted). Today, many, if not most, people blog or maintain a diary on a social networking site rather than maintain a handwritten diary. The idea of online social networking is that members will use their online profiles to become part of an online community of people with common interests. Doe v. MySpace, Inc., 474 F. Supp. 2d 843, 846 (W.D. Tex. 2007), affd, 528 F.3d 413, (5th Cir. Tex. 2008). A blog (a contraction of the term web log) is a type of website, usually maintained by an individual with regular entries or commentary, descriptions of events,

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or other material such as graphics or video . . . . Blog can also be used as a verb, meaning to maintain or add content to a blog. Layshock ex rel. Layshock v. Hermitage Sch. Dist., 593 F.3d 249, 262 n 18 (3d Cir. 2010) (3d Cir. 2010), rehearing en banc, 650 F.3d 205, (3rd Cir. 2011), cert denied, 132 S.Ct. 1097 (2012) (citations omitted). DEFENDANTS REQUESTS ARE NOT OVERLY BROAD Plaintiffs counsel first objection is that the requests are overly broad. (See Responses to Interrogatory Nos. 4, 10, 11, and 12.) However, Defendant specifically request social media communications about facts or information relating to the allegations set forth in the Complaint, any facts or defenses raised in the answer, or other topics believed relevant to this litigation, including emotional or mental state and religious or non-religious beliefs. (See Interrogatory No. 11.) Therefore, Defendant did not seek unfettered access to all content or the entire content of a diary from Plaintiffs social media accounts. (See Response to Interrogatory No. 12.) Defendant defined the material matters desired and designated by reference to Plaintiffs response to Interrogatory No. 11, the location of the electronically stored information in compliance with Fed. R. Civ. P. 34(a). Plaintiffs counsel plays coy with the term above referenced websites as indicated in Interrogatory 12. (See Response to Interrogatory No. 12.) However, it is clear that Defendant is referring to those websites in which Plaintiffs maintained an account and communications about facts or information relating to the allegations set forth in the Complaint, any facts or defenses raised in the answer, or other topics believed relevant to this litigation, including emotional or mental state and religious or non-religious beliefs. (See Interrogatory No. 11.) This request is limited and restricted to matters, which are reasonably calculated to lead to the discovery of admissible evidence. Fed. R. Civ. P. 26(b)(1).

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DEFENDANTS REQUESTS ARE NOT UNDULY BURDENSOME Plaintiffs counsel second objection is that the requests are unduly burdensome. (See Responses to Interrogatory Nos. 4, 10, 11, and 12.) Plaintiffs counsel alludes to the confidentiality of such records. (See Response to Interrogatory 12.) However, Pennsylvnaia Courts have persuasively held that there is no privilege for communications on social media websites. In McMillen v. Hummingbird Speedway, Inc., the court held that there was no privilege for postings on Facebook and other social media websites, explaining that the Facebook and MySpace terms of service which make it clear to users that there should be no expectation of confidentiality in anything that is posted to (or sent through) Facebook or MySpace, explaining that: Facebook, MySpace, and their ilk are social network computer sites people utilize to connect with friends and meet new people. That is, in fact, their purpose, and they do not bill themselves as anything else. Thus, while it is conceivable that a person could use them as forums to divulge and seek advice on personal and private matters, it would be unrealistic to expect that such disclosures would be considered confidential. McMillen, No. 113-2010 at 3. (Jefferson Co. Com. Pl., Sept. 9, 2010), at See

http://www.padisciplinaryboard.org/documents/McMillen-v-Hummingbird-Speedway.pdf.

also Zimmerman v. Weis Markets, Inc., 2011 WL 2065410 (Pa. Com. Pl. May 19, 2011) (adopting the holding of McMillen and ordering plaintiff to turn over Facebook and MySpace passwords in personal injury case). Plaintiffs counsel also alleges that it may take in excess of 50 hours to produce Plaintiff Schaubs communications related to this case, her religious views, or other topics related to this litigation. (See Response to Interrogatory No. 12.) With the ease of downloading, for instance, any individuals Facebook account and independently searching such account using the keyboard

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buttons labeled Ctrl and F, which when used together will bring up a search-this-page feature, it is arguable that a production of the requested documents would take 50 hours. Nevertheless, even if such search would take 50 hours, this is hardly unduly burdensome. This is especially so, in light of the fact that Defendant hired a Digital Forensic Examiner, and preserved, reviewed, and produced a portion of over 120,138 electronic stored information files in response to Plaintiffs Interrogatories and Requests for Production of Documents. Therefore, the Defendants narrow and tailored requests for those websites in which Plaintiffs maintained an account and communicated about facts or information relating to the allegations set forth in the Complaint, any facts or defenses raised in the answer, or other topics believed relevant to this litigation, including Plaintiffs emotional or mental state and religious or non-religious beliefs, (see Interrogatory No. 11), is not unduly burdensome. This request is limited and restricted to matters, which are reasonably calculated to lead to the discovery of admissible evidence. Fed. R. Civ. P. 26(b)(1). DEFENDANTS REQUESTS ARE NOT DISPROPORTIONATE TO THE FACTUAL AND LEGAL ISSUES RELEVANT TO THIS CASE Plaintiffs counsel argues that Defendants request is disproportionate to the factual and legal issues relevant to this case, because the Interrogatory seeks information which bears no reasonable relationship to any claim or defense in this matter. (See Responses to Interrogatory Nos. 4, 10, 11, and 12.) However, Plaintiff Marie Schaubs social media diaries are clearly relevant to the present litigation. The Complaint alleges that Plaintiff Schaub, the mother of Plaintiff Doe 1, has viewed the Ten Commandments monument while visiting Valley High School to engage in necessary business at the school. (Complaint at 32.) The Complaint further alleges that Plaintiff Schaub identifies as agnostic and views the Ten Commandments monument as commanding that students and visitors worship thy God. (Complaint at 33.) She alleges

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that the monument excludes her and that she feels like an outsider in the community. Id. Plaintiff Schaub also alleges that she has been stressed, lost sleep, and felt anxiety over the monument. (Complaint at 34-35.) 2 Thus, to the extent Plaintiff maintained online diaries via social media during the times relevant to these allegations, and her diary pertains to her religious/non-religious beliefs, the monument, her connections with Valley High School and the community, as well as this lawsuit, the same is discoverable. Defendants request is limited and restricted to matters, which are reasonably calculated to lead to the discovery of admissible evidence. Fed. R. Civ. P. 26(b)(1). One relevant issue is standing. Standing requires Plaintiffs to show that they have suffered a concrete injury that caused the challenged action and can be remedied through the relief they seek. Defendant acknowledges that [t]he concept of a concrete injury is particularly elusive in the Establishment Clause context ... because [that clause] is primarily aimed at protecting non-economic interests of a spiritual, as opposed to a physical or pecuniary, nature. Vasquez v. Los Angeles (LA) Cnty., 487 F.3d 1246, 1250 (9th Cir. 2007). The Supreme Court has held in a long string of decisions that a plaintiff has standing to sue for an establishment clause violation if she is subjected to unwelcome religious exercises. Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 487 n. 22 (1982).
2

See Holter v. Wells Fargo & Co., 281 F.R.D. 340 (D. Minn. 2011) (finding that the defendant was entitled to information from the plaintiff's social media Web sites, as they could shed light on her claims of emotional distress); E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 434-37 (S.D. Ind. 2010) (holding, in a suit where two female employees claimed that they suffered emotional distress and anxiety and suffered post-traumatic stress disorder, that the defendant was entitled to discover any postings, messages, photographs, and videos that the individuals posted on their Facebook and MySpace pages that revealed their emotions, feelings, or mental states); Mackelprang v. Fid. Nat. Title Agency of Nevada, Inc., 2007 WL 119149, at *8 (D. Nev. Jan. 9, 2007) (holding that an employer was permitted to seek production of MySpace pages regarding plaintiff's alleged emotional distress). 11

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Here, the injury Plaintiffs allege is feelings of unwelcomeness and exclusion they experience as non-religious persons. Plaintiff Schaub also alleges stress, loss of sleep, and anxiety over the monument. (See Complaint at 34-35.) This has allegedly arisen from Plaintiffs compelled or forced physical or visual contact with an allegedly religious display, i.e., the Eagles Monument, on Defendants property. Therefore, Defendants narrow and tailored requests for those websites in which Plaintiffs maintained an account and communicated about facts or information relating to the allegations set forth in the Complaint, any facts or defenses raised in the answer, or other topics believed relevant to this litigation, including Plaintiffs emotional or mental state and religious or non-religious beliefs, (see Interrogatory No. 11), is reasonably calculated to lead to the discovery of admissible evidence regarding, at the very least, Plaintiff Schaubs standing to bring this lawsuit. Fed.R.Civ.P. 26(b)(1). CONTRADICTORY INFORMATION ON MARIE SCHAUBS PUBLIC PROFILES SUPPORT THE PRODUCTION OF PRIVACY-RESTRICTED ACCOUNT ACCESS Contradictory information on Public profiles support the production of privacyrestricted account access. For example, in Romano v. Steelcase Inc., 30 Misc. 3d 426, 907 N.Y.S.2d 650 (Sup. Ct. 2010), the defendant moved the court for an order granting current and historical social media account access, including all deleted pages and related information. Romano, 907 N.Y.S.2d at 652. This was based on the contention that plaintiff placed information of these cites that was inconsistent with her claims. The court deemed the information sought by the defendant both material and necessary to the defense of the action, because it could lead to admissible evidence. The court inferred: in light of the fact that the public portions of plaintiffs social networking sites contain material that is contrary to her claims and deposition testimony, there is a reasonable likelihood that the private portions of her sites may contain further evidence

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. . . which are material and relevant to the defense of this action. See Zimmerman v. Weis Markets, Inc., 2011 WL 2065410 (Pa. Com. Pl. May 19, 2011) (finding the analysis, rationale, and discussion in Romano instructive); see also Ledbetter v. Wal-Mart Stores, Inc., 2009 WL 1067018 (D. Colo. Apr. 21, 2009) (the content of social networking sites in the public areas contradicted the allegations as to the effect of the injuries on their daily lives). Here, like the defendant in Romano, Defendant has gained access to information from the public portions of Plaintiff Schaubs Facebook, Google +, and YouTube accounts. Defendant has also been provided limited private social media account information via Plaintiffs limited responses to Defendants Interrogatories and Requests for Production of Documents. This account information contains material that is contrary the claims alleged in the Complaint and/or the answers provided in Plaintiffs responses. For instance, Paragraph 27 of the Complaint alleges that Plaintiff Doe 1 attends Valley Middle School and has been exposed to the Ten Commandments monument at Valley High School when visiting the school on various occasions. However, Plaintiff Schaub posts in a message on Facebook: [My] kids are not in the high school yet and that is where the monument is. So far theyve been pretty sheltered from the issue. (Exhibit G, P536.) Plaintiff further acknowledges in a Facebook post that she asked Doe 2 and Doe 3 to join the lawsuit, because the case was not mature with her child being in the middle school. (Exhibit H, P471.) She further posts on Facebook that people may say her child isnt affected by merely having a relative who attends the high school. (Exhibit H, P471.) As argued supra, this information is contrary to the Plaintiffs allegations in the Complaint regarding unwelcomed contact with the Eagles Monument. These statements may particularly undermine Doe 1s standing to bring this lawsuit. Furthermore, this information

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could be considered contrary to the Complaints allegations related to Doe 2 and Doe 3, as their motivation for joining the lawsuit is now questionable. Paragraphs 33 and 40 of the Complaint allege, Plaintiff Schaub identifies as agnostic . . . To Plaintiff Schaub, the monument excludes her, Plaintiff Doe 1, and others, both members of the community and outsiders of the community who visit the district, who do not follow the particular religion or god that the monument endorses . . . . The display sends a message to the Plaintiff students and their parents that they are outsiders in the District and not fully a part of the school community.
However, public portions of Plaintiff Schaubs Facebook page evidence that she celebrates

Christmas. (See Exhibit I) (Merry Freakin Xmas to ME). She also uses the term blessed, which is defined as being made holy, or consecrated. (See Exhibits J and K.) On December 14, 2011, she invites clients to her place of business if they want to look their best for holiday parties coming up. (See Exhibit L.) Notably, holidays following that date were religious in nature, including December 21, which was the first day of Hanukkah and December 25, which was Christmas. Finally, Plaintiff Schaubs Facebook page evidences that she celebrates Halloween, also known as All Hallows Eve. (See Exhibits M and N.) The term All Hallows Eve refers to the evening before All Hallows, with All Hallows referring to All Saints, a Christian holiday. See, e.g., Justin Brookman, The Constitutionality of the Good Friday Holiday, 73 N.Y.U. L. Rev. 193, 224 n 65 (1998) (holidays such as Christmas, Thanksgiving, and Halloween all have a religious origin (celebrating the birth of Christ, giving thanks to God, acknowledging the resurrection of the dead on the eve of All Saints Day).) It is clear that this information is contrary to Plaintiff Schaubs allegations that she is agnostic or does not follow a particular religion. Furthermore, such information undermines

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Plaintiff Schaubs allegations that she is so offended by the allegedly religious connotations of the Eagles Monument, that she experiences stress, loss of sleep, and anxiety. (Complaint at 34-35.) Finally, to the extent Plaintiff Schaub joins her community to celebrate Halloween in October, and invites her community to her place of business if to look their best for holiday parties in December, such is certainly contrary to her allegations that the Eagles Monument, with its allegedly religious character, causes her to feel like an outsider in the same community. Finally, Plaintiff Schaub responded to Interrogatory numbers 4 and 10 through 12, indicating that she only had a Facebook page. The limited documents produced in accordance with such page were under the account of Marie Schaub. However, public portions of Plaintiff Schaubs Facebook account and the Facebook account of Star Dustenant evidence that Plaintiff possibly maintains a Facebook page under a pseudonym. (See Exhibits O.) Furthermore, public portions of Plaintiff Schaubs Google + account reveal that she maintains such an account in addition to Facebook. (See Exhibit P.) In fact, public portions of Plaintiff Schaubs Facebook Page display photographs of Plaintiff that are identical to those that appear on these social media accounts. (See Exhibits Q and R.) Finally, Plaintiffs public Google + profile revels that she maintains a YouTube page. (See Exhibit S.) Thus, Plaintiff Schaubs public account information is directly contrary to her responses to Interrogatory numbers 4 and 10 through 12. CONCLUSION It is clear that Plaintiff Schaubs account information contains material that is contrary the claims alleged in the Complaint and/or the answers provided in Plaintiff Schaubs Responses to Interrogatories and Requests for Production of Documents. Because there is a reasonable likelihood that additional evidence relating to plaintiff's claims is contained within such

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accounts, which are material and relevant to the defense of this action, the Defendant moves the court for an order compelling Plaintiffs current and historical social media account access, including all deleted pages and related information. Critical facts are likely bolstered or undercut by this information. Compliance with Interrogatories 4, 10 through 12 is particularly crucial to ensure fair discovery. There is no risk to Plaintiffs in producing all of the requested information and is in fact consistent with this Courts directives for electronic discovery in general. As this is discovery, any documents or information deemed irrelevant or inadmissible for any other reason may be the subject of a motion in limine in the event a trial is necessary. WHEREFORE, Defendants respectfully request that this Honorable Court grant their Motion to Compel requiring Plaintiffs to fully and completely respond to Defendants First Set of Interrogatories and Request for Production of Documents within five (5) days, and grant their motion for leave to conduct additional depositions in accordance therewith. Respectfully submitted, ANDREWS & PRICE LLC By: /s/ Anthony G. Sanchez, Esquire Anthony G. Sanchez, Esquire PA ID No. 55945 Amie A. Thompson, Esquire PA ID No. 309345 1500 Ardmore Boulevard, Suite 506 Pittsburgh, PA 15221 412-243-9700 Attorneys for Defendant

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