Davis v. Disability Rights New Jersey

William M. Janssen*

Why It Made the List

In the late 1950s and early 1960s, comedian Art Linkletter hosted a segment on his television program where he asked children questions about themselves, their families, and other life topics. The segment, entitled “Kids Say the Darnedest Things,” was often hilarious, occasionally touching, and almost always innocently insightful.

As most practicing litigators can attest, judges can “say the darnedest” things, too. Consider one example. Chief Judge Joseph F. Anderson, Jr. of the federal district court in South Carolina published an opinion some years back summarizing several demoralizing, personal observations from umpiring civil discovery disputes over his long service on the bench. After recounting overreaching requests, stonewalling responses, hardball tactics, and towering costs, the Judge quoted approvingly from the exasperated sentiments of one of his fellow jurists: “If there is a hell to which disputatious, uncivil, vituperative lawyers go, let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes.”[1] Few would disagree with the Judge that pitched discovery disputes are among the most unwelcome events in most civil litigators’ existences.[2]

It may be surprising, then, to learn that a discovery fight—especially one having nothing to do with food and drug law—was chosen as among the top food and drug cases of 2023. But there’s a good reason why. The New Jersey Superior Court in Davis v. Disability Rights New Jersey[3] examined a question of first impression to that State which is of recurring importance for at least every tort lawyer, if not for all lawyers in most litigations in all jurisdictions: the discoverability of someone’s social media activity. With the ubiquity of social media platforms, the regularity of social media posting, and the familiarity of these platforms to most factfinders, social media represents a great reservoir of potentially discoverable, admissible information. And, given the unchastened manner of how social media posts are made, the bounty of remarkably candid and pulverizingly relevant (perhaps even case-dispositive) information that can be mined there is daunting. The New Jersey Superior Court navigated these issues well in Davis, setting out an analytical approach for social media discoverability that could well become the model for the nation.


Norma Davis had been employed as a senior staff attorney for Disability Rights New Jersey (DRNJ), an agency of the State of New Jersey charged “to protect and advocate for the human, civil, and legal rights of people with disabilities.”[4] Davis alleged that she was wrongfully terminated from her employment due to her own medical conditions (lupus and cancer) which necessitated, she asserted, disability accommodations.[5] She filed suit in State court, seeking redress under the New Jersey Law Against Discrimination.[6] More specifically, she sought recompense for an array of injuries she contended DRNJ and her immediate supervisors had caused her: “personal hardships, including economic loss, physical and emotional distress, anxiety, pain and suffering, humiliation, [and] career, family, and social disruption.”[7] Davis asserted that her emotional distress remained “ongoing,” producing “physical manifestations” such as “terrible migraines, insomnia, worsening of her diabetes, [and] worsening blood pressure.”[8]

Discovery of Social Media and Cell Phone Use

In discovery, the defendants (DRNJ and her supervisors) sought copies of Davis’s social media posts and her cell phone records. When Davis refused to make the requested productions, defendants sought the trial court to compel discovery of all of Davis’s social media content that concerned “any emotion, sentiment or feeling of [p]laintiff, as well as events that could reasonably be expected to evoke an emotion, sentiment, or feeling.” Defendants also sought the court to compel discovery of Davis’s cell phone records over a twenty-five-month span for the purpose of evidencing “her work performance” during that period.[9] Davis resisted both requests on several grounds: her privacy interests in both her social media activities and her cell phone use; the vague and overly broad sweep of the requests; the defendants’ lack of a compelling need for the discovery; and the adequacy of her medical records and deposition testimony to validate her emotional distress.[10]

The trial court granted defendants’ motion, with some narrowing. Davis was ordered to produce her social media “posts, profiles, or comments” regarding:

  • her former employer;
  • her lawsuit’s allegations;
  • her expressions of an emotion (“such as ‘I am happy that . . . ’, ‘It makes me angry when . . . ’, or ‘I am worried about . . . ’”, though “happy birthday” and political opinion posts were exempted);
  • all mentions of “vacations, trips, parties, or celebrations”;
  • any discussions or mentions of “illness or worry about illness”;
  • mentions of work;
  • pictures of herself (but exempting pictures of “trees, sunsets, landscapes, or pets” and pictures of other people).

The trial judge directed Davis to make this production within three weeks and, thereafter, to appear for deposition on topics that “reasonably flow from” this discovery.[11]

Davis was also ordered to produce to defendants her cell phone records, though she was permitted to redact entries that related to “non-work purposes” or that occurred “outside of normal business hours.” However, an unredacted copy of those same records had to be delivered to the court, accompanied by a descriptive index and privilege log of redacted entries.[12]

Davis persisted in her objection to this discovery, seeking immediate appellate review of the discovery orders, which the New Jersey intermediate appellate court allowed. The appeals court consolidated the two challenges, using the opportunity to resolve this question of first impression for the State, noting “there is no New Jersey case law detailing the scope of discovery regarding a litigant’s private social media posts.”[13] Coming a bit late to the social media discovery party, the New Jersey appellate judges had the benefit of earlier rulings from other courts to help inform their decision.

Social Media Privacy Exists, But Tolerates Discovery

As a threshold matter, the appellate court agreed (and defendants had not contested[14]) that Davis enjoyed a legally protected privacy interest in her social media activities, an interest that emanated from several sources, including the federal Stored Communications Act[15] and New Jersey’s Social Media Privacy Law.[16] But finding a valid privacy interest to exist, ruled the court, was not dispositive of the question of discoverability: “there is no merit to plaintiff’s assertion that her private social media posts are off limits from defendants’ discovery requests based upon her [State law] emotional distress claims.”[17]

The court ruled that none of the sources on which Davis based her privacy arguments afforded her an express or implied blanket discovery shield.[18] Nor did New Jersey’s law of “privileges” extend to supply an immunity to social media posts marked private by the user.[19] A finding otherwise, the court posited, would undermine the liberal breadth of civil discovery, where “many types of privacy interests . . . must yield to discovery if the information sought is relevant”—citing personal financial information and medical records as examples of private data that may be discoverable.[20]

Rejecting Davis’s pitch for a categorical denial of all social media discovery, however, did not mean that the appeals court was prepared to license an untargeted foraging through an adversary’s social media activity. The court quoted approvingly from earlier federal rulings that “privacy concerns may be germane to the question of whether requested discovery is burdensome or oppressive and whether it has been sought for a proper purpose in the litigation.”[21] Accordingly, the court embarked on a more nuanced assessment.

Discovery of Social Media-Posted “Emotions”

Like most courts, New Jersey construes its civil discovery rules “liberally in favor of broad pretrial discovery” so as to endeavor “to ensure that the ultimate outcome of litigation will depend on the merits in light of the available facts.”[22] What is discoverable in New Jersey courts (also as in most courts) is unprivileged, relevant information—that is, information that possesses “a tendency in reason to prove or disprove any fact of consequence to the determination of the action.”[23]

So, what meets this standard when a litigant is seeking damages for emotional distress and other psychic injuries? Are social media posts that exhibit emotions discoverable? In this important case of first impression, the unanimous three-judge panel of the Superior Court of New Jersey ruled “yes.” The court’s analysis in this case was thoughtful, comprehensive, and instructive.

First, the court determined that Davis’s private social media posts met the low relevance threshold for discoverability. While the defendants would not be granted “unabated access to [Davis’s] private social networking history simply because she pursues a claim for emotional distress damages,” the court determined that posts that involved “comments or images depicting [her] emotions, celebrations, vacations, employment, and health” were properly discoverable as they were “relevant to whether defendants’ conduct caused her severe emotional distress.”[24] Quoting from an earlier federal trial case, the court explained why:

It is reasonable to expect severe emotional or mental injury to manifest itself in some [social media] content, and an examination of that content might reveal whether onset occurred, when, and the degree of distress. Further, information that evidences other stressors that could have produced the alleged emotional distress is also relevant.[25]

Second, the court was unpersuaded by the argument from Davis and her amici that whatever relevance social media activity might be thought to have should be discounted because some experts in this field believe such posts do not offer accurate, reliable, realistic insights into the poster’s true life.[26] Such a contention, reasoned the court, might influence whether (or which) social media posts ought to be admissible before the factfinder, but it would not impact pretrial discoverability.[27] Perhaps, mused the court, at time of trial, the judge might allow the factfinder to consider such views via testifying experts (whose opinions could be tested on cross-examination), or perhaps such views might never be offered into evidence at all since they could tend to undermine the very reliability of a plaintiff’s own testimony on the witness stand.[28] In any event, characterizing a social media user’s posts as potentially “unrealistic portrayals” did not defeat discoverability.

Third, though the court agreed that privacy interests could tilt the discoverability balance, it found that social media posts were categorically unlike personal financial records in their privacy nature. Access to financial records is aggressively protected under the law; by contrast, nothing “prevent[s] an approved private recipient from sharing another’s private [social media] posts, either verbally or by sending a screenshot to a non-private member.”[29] Thus, the court decided, “[p]ersons who choose to post social media messages and photos necessarily assume the risk that intended recipients will share the information with others.”[30] The illusion of privacy created by clicking the “private” button on a social media platform thus did not transform the vulnerability of posts made there.

Fourth, the court rejected Davis’s assertion that the social media discovery was so overbroad and burdensome as to warrant exclusion. Davis had “the right to seek damages to her emotional well-being” alleged to have been caused by what she claimed to be her wrongful termination, just as defendants had “the right to pursue rational discovery . . . to oppose plaintiff’s allegations.”[31] The discovery the court permitted was not overbroad, ruled the appeals panel, because it was limited to a three-year period, restricted to emotion-laded posts, and subject to Davis’s right to withhold posts she deemed to be nonresponsive (provided she provided a proper withholding log and understood the court’s right to in camera confirmation).[32] Nor was the discovery unduly burdensome, in light of the frequency with which Davis posted on her social media accounts. Davis’s “avid” social media use, concluded the court, “should not be a bar to defendants’ legitimate discovery request given that her posts may be a window into her emotional state, which is in dispute.”[33]

Discoverability of Cell Phone Records

Davis’s cell phone records were sought because the defense contended that she was terminated for failing to complete her work assignments, which included communicating with clients. Evidently, Davis could not answer defendants’ inquiries about her client contacts during those times when she was being paid to work from her home; she had responded to such inquiries by asserting that she could not remember that information. This prompted defendants to press that Davis’s lack of recollection supplied them with “a particularized need” for the cell phone records.[34] The court agreed. Because the discovery request excluded cell phone use both outside of work hours and concerning non-work-related calls, the court found the discovery order reasonably tailored to the needs of the litigation, especially since—like the companion social media discovery order—Davis was permitted to withhold nonresponsive cell phone use data, subject to the same restrictions (the submission of a withholding list and the trial court’s right to in camera review).[35]


Lawyers and their clients have been bemoaning about pretrial discovery in civil litigation for nearly two centuries (at least).

In the mid-19th Century, when frustration with “trial by ambush” prompted reformers such as David Dudley Field to pitch a tepid liberalization of pretrial information sharing (New York’s “Field Code”), that innovation was met with both cheers and jeers.[36] A similar reception followed the unveiling of the new “Federal Rules of Civil Procedure” in 1938, where Charles E. Clark and Edson R. Sunderland championed an easily accessed, robust system of civil discovery.[37] Discovery innovation had its champions to be sure, but its critics were earnest and vocal.

Nonetheless, “American-style” discovery soon became the order of the realm, both in federal and State courts. Indeed, within a decade after the Federal Civil Rules took effect, the U.S. Supreme Court was extoling the new breadth of federal discovery: “No longer can the time-honored cry of ‘fishing expedition’ serve to preclude a party from inquiring into the facts underlying his opponent’s case”; rather, “either party may compel the other to disgorge whatever facts he has in his possession” since “[m]utual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.”[38] There was visceral and practical appeal to this embrace of liberal discovery: there is much to be praised in a system of information exchange that allows litigants to arrive on the day of trial prepared for the battles about to ensue.[39] In the decades since they first arrived, the federal discovery rules have been amended many times, acquiring today an even further reach than they had originally.

But the fervor over striking the right balance between, on the one hand, facilitating fair pretrial preparation and, on the other hand, unfair intrusion, cost, and extortionate-like disruption has never really quieted.[40] If anything, the fervor has become only more shrill. The discovery fights during the first fifty years of liberal civil discovery often centered on exasperation with the chores of gathering, reviewing, producing, and inspecting boxes (or truckloads, or warehouses) filled with paper discovery. Today, the fights often center on electronically stored information. In retrospect, it might have seemed uncontroversial, in the dawning days of the computer age, to blithely conclude that discovery requests “aimed at the production of records retained in some electronic form [are] no different, in principle, from a request for documents contained in an office file cabinet.”[41] The reality of present-day discovery has revealed a more numbing reality: the almost unfathomable task posed by monster volumes of electronically stored data, sometimes numbering in gigabytes or terabytes.[42] Appeals to trial judges to rein in the sprawl of electronically stored information discovery through better managerial oversight has proved to be no panacea. In 2007, even the U.S. Supreme Court had to acknowledge that “the success of judicial supervision in checking discovery abuse has been on the modest side,” with the specter of untenable discovery costs “push[ing] cost-conscious defendants to settle even anemic cases.”[43]

From the beginning, and through the tornado of withering criticisms leveled against broad civil discovery, one irresistible retort has persisted: the information exchange model in our approach to civil discovery is an entitlement that runs in both directions. Indeed, this very attribute was cited by the Supreme Court (albeit in a footnote) back in 1947 as it praised the benefits of robust discovery and tried to defang critics: “One of the chief arguments against the ‘fishing expedition’ objection is the idea that discovery is mutual—that while a party may have to disclose his case, he can at the same time tie his opponent down to a definite position.”[44]

Yet there is no denying: civil discovery is intrusive. Defendants frequently complain about the burdens imposed by sweeping, invasive discovery requests,[45] but this refrain is heard often from plaintiffs as well.[46] Such is the nature of fishing expeditions: “It is part and parcel of the discovery process for parties to make discovery requests without knowing what they will get, or indeed, whether they will get anything at all.”[47]

This is not to suggest that judges are weaponless in controlling the discovery sprawl, or that discovery procedures impose no meaningful constraints. In federal court, for example, most motions to compel discovery may only be filed after the parties first attempt to negotiate their discovery disagreements with a good-faith conferral,[48] and the motion-losers stand exposed to having to reimburse their opponents for reasonable motion costs.[49] The discoverability relevance standard is concededly quite broad, but it, too, is not unconstrained: judges are still required to assess “how big a pond” the discovery seeker is “allowed to fish in” and what “the requesting party [may] fish for.”[50] And it remains improper, in the memorable phrasing of one judge, to “drain the pond and collect the fish from the bottom,” rather than “using rod and reel, or even a reasonably sized net.”[51]

The decision in Davis v. Disability Rights New Jersey is a reminder that the benefits of a system of robust pretrial civil discovery comes with costs. As technology evolves and society confronts new types of discovery challenges, the same debate renews. How committed are we and our profession to the vision of broad information exchanges? Has the time come to reassess the value of that breadth, or recalibrate the balance it strikes? Liberal discovery in civil litigation was once defended on its mutuality: that it posed similar opportunities and detriments to all litigants. Has that remained true in our increasingly digital age, with nearly inconceivable volumes of information multiplying exponentially?

The New Jersey Superior Court in Davis stayed the course. Social media posting—an activity unknown until just before the turn of the 21st century—today presents a content-rich environment for discovery “fishing” that intrudes into highly private and personal electronic sharing. The court in Davis understood all that, and, for the first time in the State of New Jersey, set out a template for resolving future social media discovery challenges in a manner that honored the broad scope of “American-style” discoverability “relevance” while still endeavoring to safeguard social media posters against unreasonable rummaging through their private spaces. The unanimous appellate court’s considered approach merits emulation.

[*] William M. Janssen is a professor of law at the Charleston School of Law in Charleston, South Carolina, where he teaches products liability, mass torts, civil procedure, and constitutional law.

[1]   Network Computing Servs. Corp. v. Cisco Sys., Inc., 223 F.R.D. 392, 395 (D.S.C. 2004) (quoting Oklahoma federal judge Wayne Alley, citation omitted).

[2]   See generally Sidney Schenkier, Discovery Mud Fights: Why They Happen and How to Avoid Them, ABA Groups—Solo, Small Firm, and General Practice Division (Dec. 16, 2021), https://www.americanbar.org/groups/gpsolo/publications/gpsolo_ereport/2021/december-2021/discovery-mud-fights-why-they-happen-how-avoid-them/ (“Who among us went to law school with the idea that, wow, am I ever looking forward to spending untold hours duking it out with my opponents in nasty, name-calling, down-and-dirty discovery battles?”).

[3]   291 A.3d 812, 816 (N.J. Super. Ct. App. Div. 2023), appeal denied, 254 N.J. 180 (N.J. 2023).

[4]   Our Story, Disability Rights New Jersey, https://disabilityrightsnj.org/our-story/ (last visited Mar. 25, 2024). See also Davis, 291 A.3d at 816.

[5]   See id.

[6]   See id. at 815 (invoking N.J. Stat. Ann. §§ 10:5-1 to -50).

[7]   See id. at 816.

[8]   See id.

[9]   See id. at 816–17.

[10]  See id. at 821 (“According to plaintiff, defendants’ discovery should be limited to her medical records and deposition testimony.”).

[11]  See id. at 817.

[12]  See id. at 817–18. The court ordered the production of a “Vaughn index,” which it described as “a privilege log ‘containing a ‘relatively detailed’ justification for the claim of privilege being asserted for each document,” which, then, the presiding judge reviews “‘to determine, on a document-by-document basis, whether each such claim of privilege should be accepted or rejected.’” Paff v. Div. of Law, 988 A.2d 1239, 1251 n.9 (N.J. Super. Ct. App. Div. 2010) (citing Vaughn v. Rosen, 484 F.2d 820, 826–28 (D.C. Cir.1973)).

[13]  See Davis, 291 A.3d at 824.

[14]  See id. at 819.

[15]  See 18 U.S.C. § 2701 (establishing punishment for anyone who “intentionally accesses without authorization a facility through which an electronic communication service is provided” or, without authorization, “obtains . . . access to a wire or electronic communication while it is in electronic storage in such system”).

[16]  See N.J. Stat. Ann. § 34:6B-6 (forbidding employers to “require or request a current or prospective employee to provide or disclose any user name or password, or in any way provide the employer access to, a personal account through an electronic communications device”).

[17]  See Davis, 291 A.3d at 819.

[18]  See id. at 819–20.

[19]  See id. at 820 (quoting Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012) (ruling that private social media post is “generally not privileged, nor is it protected by common law or civil law notions of privacy”)).

[20]  See id. at 820.

[21]  See id. at 820 (quoting E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 434 (S.D. Ind. 2010). See also Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012) (opponent does not “have a generalized right to rummage at will through information that [the user] has limited from public view,” but must make “threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence”; “Otherwise, the Defendant would be allowed to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff’s Facebook account.”).

[22]  See Davis, 291 A.3d at 823 (citations omitted).

[23]  See id.

[24]  See id. at 824.

[25]  See Davis, 291 A.3d at 824 (quoting E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 435 (S.D. Ind. 2010).

[26]  See id. at 820–21 & n.4 (quoting law journal scholar who commented: “Because social networking websites enable users to craft a desired image to display to others, social scientists have posited that outside observers can misinterpret that impression,” Kathryn R. Brown, The Risks of Taking Facebook at Face Value: Why the Psychology of Social Networking Should Influence the Evidentiary Relevance of Facebook Photographs, 14 Vand. J. Ent. & Tech. L. 357, 365 (2012)).

[27]  See id. at 825.

[28]  See id. (noting that “defendants could plausibly use the posts to attack plaintiff’s credibility by arguing if private posts are not a true reflection of her thoughts, then why should a factfinder determine that her discovery responses and trial testimony are true”).

[29]  See id. The court emphasized this distinction: “A member of a private social media group may have a moral obligation not to share posted content, but the content does not have the contractual and lawful protections afforded to personal financial and tax records.” Id.

[30]  See id.

[31]  See id. at 825.

[32]  See id. at 825–26.

[33]  See id.

[34]  See id. at 827.

[35]  See id. at 826–27.

[36]  See generally Stephen N. Subrin, David Dudley Field and the Field Code: A Historical Analysis of an Earlier Procedural Vision, 6 Law & Hist. Rev. 311, 312 (1988) (noting that Field Code “met resistance”); Stephen N. Subrin, How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective, 135 U. Pa. L. Rev. 909, 963–64 (1987) (discussing Charles Clark’s critiques of Field Code).

[37]  See generally Charles Alan Wright, The Law of Federal Courts § 81, at 540 (4th ed. 1983) (noting that “[t]he ‘sporting theory of justice’ was rejected,” “surprise, dearly cherished by an earlier generation of trial lawyers, would be minimized or ended altogether,” and victory would now “go to the party entitled to it, on all the facts, rather than to the side that best uses it wits”). But see Stephen N. Subrin, Fishing Expeditions Allowed: The Historical Background of the 1938 Federal Discovery Rules, 39 B.C. L. Rev. 691, 727–34 (1998) (discussing critiques of new federal rules and their approach to civil discovery).

[38]  Hickman v. Taylor, 329 U.S. 495, 507 (1947).

[39]  See Shelak v. White Motor Co., 581 F.2d 1155, 1159 (5th Cir. 1978) (commenting how federal discovery rules were designed to prevent “trial by ambush”).

[40]  Internationally, “American-style” discovery leaves the United States as an outlier in our judicial approach to civil discovery. The rest of the world does not seem to share our appetite for broad, far-reaching pretrial information exchanges. See, e.g., Heraeus Kulzer, GmbH v. Biomet, Inc., 633 F.3d 591, 596 (7th Cir. 2011) (“[T]he German legal system . . . does not authorize discovery in the sense of Rule 26 of the Federal Rules of Civil Procedure. A party to a German lawsuit cannot demand categories of documents from his opponent. All he can demand are documents that he is able to identify specifically—individually, not by category.”); Ela Barda & Thomas Rouhette, The French Blocking Statute and Cross-Border Discovery, 84 Def. Coun. J. 1 (2017) (describing the operation of France’s discovery-blocking statute); David J. Karl, Islamic Law in Saudi Arabia: What Foreign Attorneys Should Know, 25 Geo. Wash. J. Int’l L. & Econ. 131 (1991) (“Saudi law does not have any procedures for pretrial discovery.”).

[41]  Linnen v. A.H. Robins Co., 1999 WL 462015, at *6 (Mass. Super. Ct. June 16, 1999). Equally casual was the judicial empathy for the types of challenges electronic-stored information discovery would pose: “While the reality of the situation [created by electronically stored information] may require a different approach and more sophisticated equipment than a photocopier, there is nothing about the technological aspects involved which renders documents stored in an electronic media ‘undiscoverable.’” Id.

[42]  See generally Bernard Marr, How Much Data Do We Create Every Day? The Mind-Blowing Stats Everyone Should Read, Forbes (May 21, 2018),  https://www.forbes.com/sites/bernardmarr/2018/05/‌21/how-much-data-do-we-create-every-day-the-mind-blowing-stats-everyone-should-read/?sh=5f02f3966‌0ba.

[43]  Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559 (2007).

[44]  Hickman v. Taylor, 329 U.S. 495, 507 n.8 (1947) (quoting James A. Pike & John W. Willis, Federal Discovery in Operation, 7 U. Chicago L. Rev. 297, 303 (1940)).

[45]  See, e.g., Linnen, 1999 WL 462015, at *4 (estimating costs to comply with discovery requests to be between $1.1 million and $1.75 million).

[46]  See, e.g., Allen v. G.D. Searle & Co., 122 F.R.D. 580, 581–82 (D. Or. 1988) (ordering Dalkon Shield plaintiffs to provide discovery on their “number of sexual partners, frequency of sexual activity, and age of first sexual activity,” notwithstanding plaintiffs’ contention that their personal lives did not expose them to such alternative injury-causation risks: “Searle [defendant] is not required to rely on the plaintiffs’ assurances that there are no potential causes of the plaintiffs’ [injuries] other than Searle’s [Dalkon Shield] product, but is entitled to discovery sufficient to form its own opinion”).

[47]  See Whiteamire Clinic, P.A., Inc. v. Quill Corp., 2013 WL 5348377, at *6 (N.D.Ill. Sept. 24, 2013) (Schenkier, M.J.).

[48]  See Fed. R. Civ. P. 37(a)(1).

[49]  See Fed. R. Civ. P. 37(a)(5).

[50]  See Whiteamire Clinic, P.A., Inc.,, 2013 WL 5348377, at *6 (Schenkier, M.J.). See also Myers v. Prudential Ins. Co. of Am., 581 F. Supp. 2d 904, 913 (E.D. Tenn. 2008) (Carter, M.J.) (“the Federal Rules of Civil Procedure allow the Courts to determine the pond, the type of lure, and how long the parties can leave their lines in the water”).

[51]  See In re IBM Peripheral EDP Devices Antitrust Litig., 77 F.R.D. 39, 42 (N.D. Cal. 1977) (Conti, J.).