Preview
JUSTIN JORDAN, IN THE DISTRICT COURT
VS. § OF HARRIS COUNTY, TEXAS
VOPAK TERMINAL DEER PARK INC.
AND VOPAK NORTH AMERICA INC.,
§ 129 JUDICIAL DISTRICT
DEFENDANTS’ MOTION TO COMPEL AND RESPONSE TO PLAINTIFF’S MOTION
FOR PROTECTION, TO QUASH, AND REQUEST FOR SANCTIONS
Defendants Vopak Terminal Deer Park Inc. and Vopak North America Inc. (collectively
“Vopak”) request that the Court deny Plaintiff Justin Jordan’s (“Plaintiff”) Motions for Protective
Order, to Quash Subpoenas, and for Discovery Sanctions (the “Motion”) and compel nonparties
Kolten Cox, Susanne Young, Monett Cox, Cecelia Jordan, Miranda Jordan, Brenda Prigmore,
Johnny Prigmore, Ginger Thomas, James Thomas, Dustin Boothe, Terry Ridder, Veronica Jordan,
Jamie Ray-Loftis, and Karri Vaughn (collectively the “Nonparties”) to produce documents
responsive to Vopak’s subpoenas duces tecum.
This is a personal-injury case in which Plaintiff Justin Jordan is seeking in excess of $30
million, comprised of $10 million dollars in future medical costs, over $1 million dollars in actual
damages, unspecified amounts for permanent bodily impairment, disfigurement, loss of earning
capacity, physical pain, and mental anguish sustained on November 17, 2016 while conducting
emissions monitoring services at Vopak’s facility. To support his outsized damage claim,
Plaintiff claims that he currently suffers from a plethora of physical and psychological aliments,
Pl’s Life Care Plan, attached as Ex. 1; Pl’s Org. Pet.
including chemical pneumonitis, peripheral neuropathy, post-traumatic stress disorder, hospital
acquired pneumonia, ICU delirium, hypernatremia, hypokalemia, acute renal injury, unspecified
contact dermatitis, shortness of breath, unspecified visual disturbance, unspecified hearing loss,
unspecified bone disorders, laryngopharyngeal reflux, vocal process granuloma, pulmonary
fibrosis, dysphonia, tonsil pain, depression, anxiety, left flank pain, and memory loss, among
Plaintiff contends that because of his alleged injuries he is required to be on supplemental
oxygen 24-hours a day, that he will require a single, and possibly a double, lung transplant, and
that he cannot perform simple tasks such as carrying groceries because he is a “pulmonary
cripple.”
However, post-injury images captured from various social media accounts and independent
surveillance show Plaintiff living a robust and active lifestyle and undermine the scope and
severity of his alleged injuries. Since his injury, Plaintiff (a 22-year old male) has been observed
and photographed riding jet skis, floating a river, socializing with friends, walking stairs, and
otherwise living a normal life, all without the supplemental oxygen he claims is required. He is
clearly not a “pulmonary cripple,” as he claims.
Since receiving discovery requests for photographs and videos of Plaintiff post-injury,
Plaintiff (and his friends and family) have shut down their social media accounts and/or have
refused to produce pictures and videos of the Plaintiff post-injury. These documents are highly
relevant to Plaintiff’s claims of being a “pulmonary cripple,” having shortness of breath, having
vision problems, havi s claims for over
$10 million in future medical damages and permanent disability. Courts across the country have
found that post-injury images, including images and content from social media accounts, are
Ex. 1.
Id.
relevant and must be produced in personal injury lawsuits alleging ongoing physical injuries. As
such, Vopak requests that the Nonparties be compelled to comply with Vopak’s subpoenas and
produce images, photos, and videos of Plaintiff, including images and content from their social
media profiles.
In addition, the Nonparties have refused to produce text messages and other
communications with or concerning Plaintiff. This information goes directly to the heart of
Plaintiff’s claims as it tends to evidence Plaintiff’s actual current physical condition and how
Plaintiff has represented his physical condition to others. This information should also be
ARGUMENT
Plaintiff argues that Vopak’s subpoenas to the Nonparties are invalid because Vopak failed
to wait 10 days after serving its notices before issuing its subpoenas as required by Rule 205.2 of
the Texas Rules of Civil Pro
Vopak filed its notices of intent to serve subpoena duces tecum on the Nonparties on
February 15, 2018, and 12 of the 14 Nonparties were served with the notice from February 16-21,
Service Chart, attached as Ex. 2; Notices, attached as Ex. 3; Notice Returns of Service,
As such, Vopak could not serve its subpoenas compelling compliance with its
documents requests until February 28 – March 4, 2018. Ex. 2. Attached as Exhibit A to the
notices was a copy of the subpoena that Vopak intended to serve on the Nonparties at the
Dustin Boothe and Jamie Ray-Lofits are the only Nonparties that were not served with Vopak’s notice.
As such, they are excluded from the scope of Vopak’s motion to compel.
All fourteen Notices of Intent to Serve Subpoena Duces Tecum are identical and are filed of record,
Vopak has attached only one to avoid confusion.
All twelve Returns of Service for Vopak’s Notices of Intent to Serve Subpoena Duces Tecum are identical
and are filed of record, Vopak has attached only one to avoid confusion.
expiration of the applicable 10-day period, not the actual subpoena. Ex. 3 (“Please take notice
that [Vopak] will serve … the subpoena duces tecum and Request for Production of Documents
attached hereto collectively as Exhibit “A” ten (10) days from this date…”). Thus, at the time
The applicable 10-day period ran with respect to 12 of the 14 Nonparties on February 26-
27 and March 1-4, 2018. Ex. 2. Vopak filed has served its subpoenas on those 12 indiv
see also Subpoenas, attached as Ex. 5; Subpoena Returns of Service, attached as Ex. 6.
As such, with respect to the subpoenas Vopak has issued, Vopak has complied with Rule 205.2
and those subpoenas are valid. With respect to the subpoenas Vopak has not yet issued, Plaintiff’s
Motion is premature and that issu . However, because the majority of
the Nonparties have already served objections to Vopak’s document requests, Vopak can compel
compliance with its subpoenas. T
The Nonparties Should Be Compe
The Texas Rules of Civil Procedure allow a party to obtain discovery regarding any matter
P. 192.3(a); In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003). A court may compel
a nonparty to respond to requests for production. T P. 176.6(d). Here, the Nonparties
should be ordered to comply with Vopak’s subpoenas and produce the requested images and
communications because they are relevant to the existence of and the scope and severity of
All twelve Subpoena Duces Tecums are identical and are filed of record, Vopak has attached only one to
avoid confusion.
All twelve Returns of Service for Vopak’s Subpoena Duces Tecum are identical and are filed of record,
Vopak has attached only one to avoid confusion.
With the exception of Dustin Boothe, Jamie Ray-Lofits, and Terry Ridder, all of the Nonparties have filed
objections.
Moreover, Plaintiff’s request for a protective order should be denied because the benefit of
Vopak’s subpoenas far outweighs any burden because the information sought is highly relevant to
the scope and severity of Plaintiff’s alleged injuries and the majority of the information sought was
Request Nos. 1 and 3-6 seek post-injury pictures, images, and videos of Plaintiff, including
images and content from and the Nonparties’ social media profiles. Ex. 5 at Ex. A. Request
No. 2 seeks post-injury cell phone and text message records with, relating to, or mentioning
Plaintiff Justin Jordan, the Lawsuit, or his alleged injuries. The Nonparties each asserted,
verbatim, the same objections in response to Vopak’s requests for production, claiming they are
“overly broad, unduly burdensome, harassing, designed for the purpose of annoyance, irrelevant,
and an invasion of [their] personal constitutional rights.” See
(i)
One of the key issues in this case is whether Plaintiff is actually injured and the extent of
those injuries. Here, post-injury images captured from the public portions of the Nonparties’ social
media accounts show Plaintiff living a robust and active lifestyle. These images directly contradict
and undermine the scope and severity of Plaintiff’s alleged injuries. These post-injury images are
highly relevant to Plaintiff’s claims of being a “pulmonary cripple” and his claims for over $10
million in future medical damages and permanent disability.
Images captured from the Nonparties’ public social media profiles contradict Plaintiff’s
claims of ongoing physical injuries. For example, if Plaintiff’s allegation that he is required to be
supplemental oxygen 24-hours a day is
picture. If Plaintiff’s allegation that he is a “respiratory cripple” is true, then there should be no
images of Plaintiff engaging in any physical activity. On the contrary, the following images and
content post-date Plaintiff’s alleged November 17, 2016 injury and undermine Plaintiff’s claims
of physical impairment:
Although no Texas court has addressed the issue, courts that have addressed the issue have
determined that post-injury photos, including social media posts, content, and images, are relevant
in personal injuries lawsuits. See e.g., Thompson v. Autoliv ASP, Inc., 2012 WL 234928, at *1 (D.
Nev. June 20, 2012) (court ordered production of all the plaintiff’s social media accounts for a 5-
year period where public portions of social media profiles contradicted his alleged physical and
psychological injuries); Zimmerman v. Weis Markets, Inc., 2011 WL 2065410 (Pa. Ct. of Common
Pleas May 19, 2011) (same); Romano v. Steelcase, Inc., 907 N.Y.S.2d 650 (2010) (court ordered
production of material from plaintiff’s private social media pages after material on plaintiff’s
public social media pages showed her living an active lifestyle and traveling though she claimed
her injuries prevented such); McMillen v. Hummingbird Speedway, Inc., 2010 WL 4403285 (Pa.
Ct. of Common Pleas Sept. 9, 2010) (court ordered plaintiff to produce content from social media
profiles because public parts showed plaintiff enjoying fishing and the Daytona 500 in
contradiction to claimed injuries); Ledbetter v. Wal-Mart Stores, Inc., 2009 WL 1067018 (D. Colo.
Apr. 21, 2009) (court ordered plaintiff to produce contents of social media accounts because public
information on those accounts cont
Plaintiff admits that “courts considering the issue have held that requesting social media
data is appropriate upon a ‘threshold showing that publicly available information on those sites
undermines the plaintiff’s claims.’” Pl’s Mot. at 5 (citing Tucker v. Momentive Performance
Materials USA, Inc., 2:13-CV-044840, 2016 WL 8252929, at *7 (S.D. W. Va. Nov. 23,
As demonstrated by the images above, Vopak’s requests are undeniably relevant to Plaintiff’s
claims in this lawsuit and the publically available information on the Nonparties’ social media
profiles undermines Plaintiff’s claims. The benefit of this information far outweighs any burden,
and the Nonparties should be compelled to comply with Vopak’s s
Similarly, the communications sought by and between Plaintiff and the Nonparties are
undeniably relevant as they tend to show Plaintiff’s actual physical condition and how Plaintiff
has represented that physical condition to others. Indeed, Vopak seeks communications between
Plaintiff and some of the people he is pictured with above. This information goes directly to the
(ii) Vopak’s Requests Are Not Overly Broad, Unduly Burdensome or Harassing
The Objections should be overruled; Vopak’s requests are not overly broad, unduly
burdensome, or harassing. First, the requests are not overbroad because they are limited in both
subject matter (relating to or concerning the Plaintiff) and temporal scope (post-injury). Second,
the requests are not unduly burdensome because they are limited to photos, content, or text
messages with or concerning the Plaintiff about certain topics. Third, Vopak’s requests are not
harassing because all of the Nonparties were identified by Plaintiff as persons with knowledge of
relevant fact. Pl’s Resp. to Req. for Disclosure, attached as Ex. 8. Plus, prior to receiving
the Subpoenas, the Nonparties had voluntarily posted the requested information to their respective
social media accounts—it is not “harassing” to now ask that information be produced in a legal
forum.
(iii) Plaintiff’s Will Not Be Harmed by Vopak’s Subpoenas
Plaintiff argues that a protective order should be issued because service of the subpoenas
on the Nonparties will cause Plaintiff to suffer “additional psychological harm because he knows
that his friends and family cannot afford an attorney to defend against or comply with” Vopak’s
facts. Vopak is entitled to seek discovery from witnesses the Plaintiff has identified. Vopak’s
any ancillary impacts to Pl
In support of this position, Plaintiff submitted an affidavit and the affidavit of his treating
psychologist, Dr. James Foos. at Exs. C-D. However, courts that have addressed this issue
have found that conclusory or speculative statements such as the statements made by Plaintiff and
his treating physician about the harm which will be suffered without a protective order are simply
insufficient because they do not state with specificity how or why the alleged harm would happen.
See Campos v. Webb Cnty. Tex., 288 F.R.D. 134, 136 (S.D. Tex. 2012) (denying plaintiff’s motion
for protective order because the psychologist’s affidavit, which asserted that plaintiff would “very
likely decompensate into a full blown psychotic regression,” was conclusory in nature and did not
With the exception of Dustin Boothe, who is Plaintiff’s former partner and appears as a joint filer on
Plaintiff’s tax returns. 2015 Tax Return, attached as Ex. 9.
Plaintiff claims that Vopak’s requests are harassing because he has already produced the requested
information from his own social media account. Pl’s Mot. at 2. This is false.Vopak served almost identical
requests on Plaintiff. Pl’s Resp. to Vopak’s Second Req. for Production, attached as Ex. 10. Plaintiff made
essentially the same objections as the Nonparties and refuses to produce the requested information. Id.
state with specificity how or why this would happen); Jennings v. Family Mgmt., 201 F.R.D. 272,
275 (D.D.C. 2001) (denying plaintiff's motion for a protective order because the psychologist's
report, which asserted that plaintiff “faces a danger of exacerbating her symptoms of dementia and
depression,” was conclusory in nature and did “not state with specificity how or why this would
Here, neither Plaintiff’s nor Dr. Foos’s affidavit specifically state how or why Vopak’s
subpoenas will cause Jordan additional physiological harm, and, as such, their conclusory
statements fall short. Plaintiff’s justification for issuance of a protective order is circular.
Plaintiff’s argument is that Vopak should not be allowed to discover information related to his
claims of psychological harm, and other alleged injuries, because it will cause him “additional”
psychological harm. It is no secret that litigation is stressful. If Plaintiff wished to avoid the stress
of litigation he should have thought about that before he filed this suit. Moreover, if Plaintiff did
not want to subject the Nonparties to discovery, then he should not have identified them as persons
with knowledge of relevant fact. Ex. 8. Because Plaintiff has identified these individuals as
containing knowledge relevant to this dispute Vopak is entitled to discover information from the
laintiff’s claims.
(iv) The Nonparties Do Not Have Any Personal Constitutional Right In The
Neither Plaintiff nor the Nonparties have any cognizable personal or constitutional right in
the information sought. Plaintiff admits that individuals do not have a privacy interest in public
information posted to their social media accounts.
Dr. Foos’ speculative and conclusory statement that Vopak’s subpoenas are “leading [Jordan] to passive
death wishes” is also directly contradicted by Dr. Foos own treatment notes, in which Dr. Foos previously diagnosed
Plaintiff with “passive death wishes” 7 months before Vopak issued its notices. Foos Records, attached as Ex.
11. Vopak’s subpoenas cannot cause a condition that Plaintiff had 7 months prior to the disputed discovery.
, 883 F. Supp. 2d 523, 525 (S.D.N.Y. 2012)). However, even with a private account,
the user is still “disseminating his postings and information to the public, and they are not
protected.” Rosario v. Clark Co. School Dist., Cause No. 2:13-cv-362, 2013 WL 3679375, at *6
Meregildo, 883 F. Supp. 2d at 525) (finding no constitutionally protected privacy interest
in private social medial profile content); Johnson v. PPI Tech. Servs., L.P., No. 11-2773, 2013 WL
4508128, at *1 (E.D. La. Aug. 22, 2013) (holding that social networking site content “is neither
A. 14-1919, 2015 WL 6438913, at *2 (E.D. La. Oct. 22, 2015) (“It is settled that information on
social media accounts, includi
Nor do the Nonparties have any legitimate expectation of privacy or cognizable
constitutional right in the telephone numbers dialed or received by their cell phones or text
messages. Booker v. Dominion Va. Power, No. 3:09cv759, 2010 WL 1848474, at *9
(E.D. Va. May 7, 2010) (telephone numbers); United States v. Plunk, 153 F.3d 1011, 1019–20 (9th
Cir. 1998) (same); United States v. Nolan, 423 F.2d 1031, 1044 (10th Cir. 1969) (same); United
States v. Jones, 149 Fed. Appx 954, 959 (11th Cir. 2005) (text messages.”); Corsair Special
Situations Fund, L.P. v. Engineered Framing Sys., Inc., 2011 WL 3651821, at *2 (D. Md. Aug.
17, 2011) (text messages). Finally, discovery in this lawsuit is being conducted pursuant to an
agreed protective order which, to the extent necessary, can be amended to accommodate any
or the Court may have.
Rule 193.2 requires the Nonparties to “state specifically the legal or factual basis for [their] objection[s]
and the extent to which [they are] refusing to comply with the request[s].” T P. 193.2. The Nonparties
failed to provide the substantive basis for any of their objections, to state how each objection is applicable to a specific
requests, or clearly indicate the extent to which they are refusing to comply with the requests. See Ex. 7. The
Nonparties’ objections are woefully inadequate and their objections should therefore be deemed waived and stricken
from their responses. T P. 193.2(e); In re Alford Chevrolet-Geo, 997 S.W.2d 173, 181 (Tex. 1999) (party’s
conclusory objections alleging undue burden and harassment were unsuccessful).
CONCLUSION
For the reasons stated above, Vopak requests that its Motion to Compel be granted, that
the Nonparties objections be overruled, and that Plaintiff’s Motions for Protection, to Quash, and
Discovery Sanctions be denied in their entirety. Vopak further requests any other relief to which
it may be entitled.
Respectfully subm
RACEWELL
/s/ William A. Moss
State Bar No. 24050519
William A. Moss
State Bar No. 24078041
Email: Chris.Dodson@bracewell.com
Email: Will.Moss@bracewell.com
TTORNEYS FOR EFENDANTS
ERMINAL EER
ORTH MERICA
CERTIFICATE OF CONFERENCE
The undersigned hereby certifies that counsel for Defendants Vopak Terminal Deer Park,
Inc. and Vopak North America, Inc. has conferred with counsel for Plaintiff Justin Jordan by
telephone on March 1, 2018. Despite these efforts, we have been unable to resolve the issues
raised in this motion.
/s/ William A. Moss
William A. Moss
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing pleading has been forwarded
to all counsel and interested parties of record pursuant to the Texas Rules of Civil Procedure on
/s/ William A. Moss
William A. Moss
Preview
JUSTIN JORDAN, IN THE DISTRICT COURT VS. § OF HARRIS COUNTY, TEXAS VOPAK TERMINAL DEER PARK INC. AND VOPAK NORTH AMERICA INC., § 129 JUDICIAL DISTRICT DEFENDANTS’ MOTION TO COMPEL AND RESPONSE TO PLAINTIFF’S MOTION FOR PROTECTION, TO QUASH, AND REQUEST FOR SANCTIONS Defendants Vopak Terminal Deer Park Inc. and Vopak North America Inc. (collectively “Vopak”) request that the Court deny Plaintiff Justin Jordan’s (“Plaintiff”) Motions for Protective Order, to Quash Subpoenas, and for Discovery Sanctions (the “Motion”) and compel nonparties Kolten Cox, Susanne Young, Monett Cox, Cecelia Jordan, Miranda Jordan, Brenda Prigmore, Johnny Prigmore, Ginger Thomas, James Thomas, Dustin Boothe, Terry Ridder, Veronica Jordan, Jamie Ray-Loftis, and Karri Vaughn (collectively the “Nonparties”) to produce documents responsive to Vopak’s subpoenas duces tecum. This is a personal-injury case in which Plaintiff Justin Jordan is seeking in excess of $30 million, comprised of $10 million dollars in future medical costs, over $1 million dollars in actual damages, unspecified amounts for permanent bodily impairment, disfigurement, loss of earning capacity, physical pain, and mental anguish sustained on November 17, 2016 while conducting emissions monitoring services at Vopak’s facility. To support his outsized damage claim, Plaintiff claims that he currently suffers from a plethora of physical and psychological aliments, Pl’s Life Care Plan, attached as Ex. 1; Pl’s Org. Pet. including chemical pneumonitis, peripheral neuropathy, post-traumatic stress disorder, hospital acquired pneumonia, ICU delirium, hypernatremia, hypokalemia, acute renal injury, unspecified contact dermatitis, shortness of breath, unspecified visual disturbance, unspecified hearing loss, unspecified bone disorders, laryngopharyngeal reflux, vocal process granuloma, pulmonary fibrosis, dysphonia, tonsil pain, depression, anxiety, left flank pain, and memory loss, among Plaintiff contends that because of his alleged injuries he is required to be on supplemental oxygen 24-hours a day, that he will require a single, and possibly a double, lung transplant, and that he cannot perform simple tasks such as carrying groceries because he is a “pulmonary cripple.” However, post-injury images captured from various social media accounts and independent surveillance show Plaintiff living a robust and active lifestyle and undermine the scope and severity of his alleged injuries. Since his injury, Plaintiff (a 22-year old male) has been observed and photographed riding jet skis, floating a river, socializing with friends, walking stairs, and otherwise living a normal life, all without the supplemental oxygen he claims is required. He is clearly not a “pulmonary cripple,” as he claims. Since receiving discovery requests for photographs and videos of Plaintiff post-injury, Plaintiff (and his friends and family) have shut down their social media accounts and/or have refused to produce pictures and videos of the Plaintiff post-injury. These documents are highly relevant to Plaintiff’s claims of being a “pulmonary cripple,” having shortness of breath, having vision problems, havi s claims for over $10 million in future medical damages and permanent disability. Courts across the country have found that post-injury images, including images and content from social media accounts, are Ex. 1. Id. relevant and must be produced in personal injury lawsuits alleging ongoing physical injuries. As such, Vopak requests that the Nonparties be compelled to comply with Vopak’s subpoenas and produce images, photos, and videos of Plaintiff, including images and content from their social media profiles. In addition, the Nonparties have refused to produce text messages and other communications with or concerning Plaintiff. This information goes directly to the heart of Plaintiff’s claims as it tends to evidence Plaintiff’s actual current physical condition and how Plaintiff has represented his physical condition to others. This information should also be ARGUMENT Plaintiff argues that Vopak’s subpoenas to the Nonparties are invalid because Vopak failed to wait 10 days after serving its notices before issuing its subpoenas as required by Rule 205.2 of the Texas Rules of Civil Pro Vopak filed its notices of intent to serve subpoena duces tecum on the Nonparties on February 15, 2018, and 12 of the 14 Nonparties were served with the notice from February 16-21, Service Chart, attached as Ex. 2; Notices, attached as Ex. 3; Notice Returns of Service, As such, Vopak could not serve its subpoenas compelling compliance with its documents requests until February 28 – March 4, 2018. Ex. 2. Attached as Exhibit A to the notices was a copy of the subpoena that Vopak intended to serve on the Nonparties at the Dustin Boothe and Jamie Ray-Lofits are the only Nonparties that were not served with Vopak’s notice. As such, they are excluded from the scope of Vopak’s motion to compel. All fourteen Notices of Intent to Serve Subpoena Duces Tecum are identical and are filed of record, Vopak has attached only one to avoid confusion. All twelve Returns of Service for Vopak’s Notices of Intent to Serve Subpoena Duces Tecum are identical and are filed of record, Vopak has attached only one to avoid confusion. expiration of the applicable 10-day period, not the actual subpoena. Ex. 3 (“Please take notice that [Vopak] will serve … the subpoena duces tecum and Request for Production of Documents attached hereto collectively as Exhibit “A” ten (10) days from this date…”). Thus, at the time The applicable 10-day period ran with respect to 12 of the 14 Nonparties on February 26- 27 and March 1-4, 2018. Ex. 2. Vopak filed has served its subpoenas on those 12 indiv see also Subpoenas, attached as Ex. 5; Subpoena Returns of Service, attached as Ex. 6. As such, with respect to the subpoenas Vopak has issued, Vopak has complied with Rule 205.2 and those subpoenas are valid. With respect to the subpoenas Vopak has not yet issued, Plaintiff’s Motion is premature and that issu . However, because the majority of the Nonparties have already served objections to Vopak’s document requests, Vopak can compel compliance with its subpoenas. T The Nonparties Should Be Compe The Texas Rules of Civil Procedure allow a party to obtain discovery regarding any matter P. 192.3(a); In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003). A court may compel a nonparty to respond to requests for production. T P. 176.6(d). Here, the Nonparties should be ordered to comply with Vopak’s subpoenas and produce the requested images and communications because they are relevant to the existence of and the scope and severity of All twelve Subpoena Duces Tecums are identical and are filed of record, Vopak has attached only one to avoid confusion. All twelve Returns of Service for Vopak’s Subpoena Duces Tecum are identical and are filed of record, Vopak has attached only one to avoid confusion. With the exception of Dustin Boothe, Jamie Ray-Lofits, and Terry Ridder, all of the Nonparties have filed objections. Moreover, Plaintiff’s request for a protective order should be denied because the benefit of Vopak’s subpoenas far outweighs any burden because the information sought is highly relevant to the scope and severity of Plaintiff’s alleged injuries and the majority of the information sought was Request Nos. 1 and 3-6 seek post-injury pictures, images, and videos of Plaintiff, including images and content from and the Nonparties’ social media profiles. Ex. 5 at Ex. A. Request No. 2 seeks post-injury cell phone and text message records with, relating to, or mentioning Plaintiff Justin Jordan, the Lawsuit, or his alleged injuries. The Nonparties each asserted, verbatim, the same objections in response to Vopak’s requests for production, claiming they are “overly broad, unduly burdensome, harassing, designed for the purpose of annoyance, irrelevant, and an invasion of [their] personal constitutional rights.” See (i) One of the key issues in this case is whether Plaintiff is actually injured and the extent of those injuries. Here, post-injury images captured from the public portions of the Nonparties’ social media accounts show Plaintiff living a robust and active lifestyle. These images directly contradict and undermine the scope and severity of Plaintiff’s alleged injuries. These post-injury images are highly relevant to Plaintiff’s claims of being a “pulmonary cripple” and his claims for over $10 million in future medical damages and permanent disability. Images captured from the Nonparties’ public social media profiles contradict Plaintiff’s claims of ongoing physical injuries. For example, if Plaintiff’s allegation that he is required to be supplemental oxygen 24-hours a day is picture. If Plaintiff’s allegation that he is a “respiratory cripple” is true, then there should be no images of Plaintiff engaging in any physical activity. On the contrary, the following images and content post-date Plaintiff’s alleged November 17, 2016 injury and undermine Plaintiff’s claims of physical impairment: Although no Texas court has addressed the issue, courts that have addressed the issue have determined that post-injury photos, including social media posts, content, and images, are relevant in personal injuries lawsuits. See e.g., Thompson v. Autoliv ASP, Inc., 2012 WL 234928, at *1 (D. Nev. June 20, 2012) (court ordered production of all the plaintiff’s social media accounts for a 5- year period where public portions of social media profiles contradicted his alleged physical and psychological injuries); Zimmerman v. Weis Markets, Inc., 2011 WL 2065410 (Pa. Ct. of Common Pleas May 19, 2011) (same); Romano v. Steelcase, Inc., 907 N.Y.S.2d 650 (2010) (court ordered production of material from plaintiff’s private social media pages after material on plaintiff’s public social media pages showed her living an active lifestyle and traveling though she claimed her injuries prevented such); McMillen v. Hummingbird Speedway, Inc., 2010 WL 4403285 (Pa. Ct. of Common Pleas Sept. 9, 2010) (court ordered plaintiff to produce content from social media profiles because public parts showed plaintiff enjoying fishing and the Daytona 500 in contradiction to claimed injuries); Ledbetter v. Wal-Mart Stores, Inc., 2009 WL 1067018 (D. Colo. Apr. 21, 2009) (court ordered plaintiff to produce contents of social media accounts because public information on those accounts cont Plaintiff admits that “courts considering the issue have held that requesting social media data is appropriate upon a ‘threshold showing that publicly available information on those sites undermines the plaintiff’s claims.’” Pl’s Mot. at 5 (citing Tucker v. Momentive Performance Materials USA, Inc., 2:13-CV-044840, 2016 WL 8252929, at *7 (S.D. W. Va. Nov. 23, As demonstrated by the images above, Vopak’s requests are undeniably relevant to Plaintiff’s claims in this lawsuit and the publically available information on the Nonparties’ social media profiles undermines Plaintiff’s claims. The benefit of this information far outweighs any burden, and the Nonparties should be compelled to comply with Vopak’s s Similarly, the communications sought by and between Plaintiff and the Nonparties are undeniably relevant as they tend to show Plaintiff’s actual physical condition and how Plaintiff has represented that physical condition to others. Indeed, Vopak seeks communications between Plaintiff and some of the people he is pictured with above. This information goes directly to the (ii) Vopak’s Requests Are Not Overly Broad, Unduly Burdensome or Harassing The Objections should be overruled; Vopak’s requests are not overly broad, unduly burdensome, or harassing. First, the requests are not overbroad because they are limited in both subject matter (relating to or concerning the Plaintiff) and temporal scope (post-injury). Second, the requests are not unduly burdensome because they are limited to photos, content, or text messages with or concerning the Plaintiff about certain topics. Third, Vopak’s requests are not harassing because all of the Nonparties were identified by Plaintiff as persons with knowledge of relevant fact. Pl’s Resp. to Req. for Disclosure, attached as Ex. 8. Plus, prior to receiving the Subpoenas, the Nonparties had voluntarily posted the requested information to their respective social media accounts—it is not “harassing” to now ask that information be produced in a legal forum. (iii) Plaintiff’s Will Not Be Harmed by Vopak’s Subpoenas Plaintiff argues that a protective order should be issued because service of the subpoenas on the Nonparties will cause Plaintiff to suffer “additional psychological harm because he knows that his friends and family cannot afford an attorney to defend against or comply with” Vopak’s facts. Vopak is entitled to seek discovery from witnesses the Plaintiff has identified. Vopak’s any ancillary impacts to Pl In support of this position, Plaintiff submitted an affidavit and the affidavit of his treating psychologist, Dr. James Foos. at Exs. C-D. However, courts that have addressed this issue have found that conclusory or speculative statements such as the statements made by Plaintiff and his treating physician about the harm which will be suffered without a protective order are simply insufficient because they do not state with specificity how or why the alleged harm would happen. See Campos v. Webb Cnty. Tex., 288 F.R.D. 134, 136 (S.D. Tex. 2012) (denying plaintiff’s motion for protective order because the psychologist’s affidavit, which asserted that plaintiff would “very likely decompensate into a full blown psychotic regression,” was conclusory in nature and did not With the exception of Dustin Boothe, who is Plaintiff’s former partner and appears as a joint filer on Plaintiff’s tax returns. 2015 Tax Return, attached as Ex. 9. Plaintiff claims that Vopak’s requests are harassing because he has already produced the requested information from his own social media account. Pl’s Mot. at 2. This is false.Vopak served almost identical requests on Plaintiff. Pl’s Resp. to Vopak’s Second Req. for Production, attached as Ex. 10. Plaintiff made essentially the same objections as the Nonparties and refuses to produce the requested information. Id. state with specificity how or why this would happen); Jennings v. Family Mgmt., 201 F.R.D. 272, 275 (D.D.C. 2001) (denying plaintiff's motion for a protective order because the psychologist's report, which asserted that plaintiff “faces a danger of exacerbating her symptoms of dementia and depression,” was conclusory in nature and did “not state with specificity how or why this would Here, neither Plaintiff’s nor Dr. Foos’s affidavit specifically state how or why Vopak’s subpoenas will cause Jordan additional physiological harm, and, as such, their conclusory statements fall short. Plaintiff’s justification for issuance of a protective order is circular. Plaintiff’s argument is that Vopak should not be allowed to discover information related to his claims of psychological harm, and other alleged injuries, because it will cause him “additional” psychological harm. It is no secret that litigation is stressful. If Plaintiff wished to avoid the stress of litigation he should have thought about that before he filed this suit. Moreover, if Plaintiff did not want to subject the Nonparties to discovery, then he should not have identified them as persons with knowledge of relevant fact. Ex. 8. Because Plaintiff has identified these individuals as containing knowledge relevant to this dispute Vopak is entitled to discover information from the laintiff’s claims. (iv) The Nonparties Do Not Have Any Personal Constitutional Right In The Neither Plaintiff nor the Nonparties have any cognizable personal or constitutional right in the information sought. Plaintiff admits that individuals do not have a privacy interest in public information posted to their social media accounts. Dr. Foos’ speculative and conclusory statement that Vopak’s subpoenas are “leading [Jordan] to passive death wishes” is also directly contradicted by Dr. Foos own treatment notes, in which Dr. Foos previously diagnosed Plaintiff with “passive death wishes” 7 months before Vopak issued its notices. Foos Records, attached as Ex. 11. Vopak’s subpoenas cannot cause a condition that Plaintiff had 7 months prior to the disputed discovery. , 883 F. Supp. 2d 523, 525 (S.D.N.Y. 2012)). However, even with a private account, the user is still “disseminating his postings and information to the public, and they are not protected.” Rosario v. Clark Co. School Dist., Cause No. 2:13-cv-362, 2013 WL 3679375, at *6 Meregildo, 883 F. Supp. 2d at 525) (finding no constitutionally protected privacy interest in private social medial profile content); Johnson v. PPI Tech. Servs., L.P., No. 11-2773, 2013 WL 4508128, at *1 (E.D. La. Aug. 22, 2013) (holding that social networking site content “is neither A. 14-1919, 2015 WL 6438913, at *2 (E.D. La. Oct. 22, 2015) (“It is settled that information on social media accounts, includi Nor do the Nonparties have any legitimate expectation of privacy or cognizable constitutional right in the telephone numbers dialed or received by their cell phones or text messages. Booker v. Dominion Va. Power, No. 3:09cv759, 2010 WL 1848474, at *9 (E.D. Va. May 7, 2010) (telephone numbers); United States v. Plunk, 153 F.3d 1011, 1019–20 (9th Cir. 1998) (same); United States v. Nolan, 423 F.2d 1031, 1044 (10th Cir. 1969) (same); United States v. Jones, 149 Fed. Appx 954, 959 (11th Cir. 2005) (text messages.”); Corsair Special Situations Fund, L.P. v. Engineered Framing Sys., Inc., 2011 WL 3651821, at *2 (D. Md. Aug. 17, 2011) (text messages). Finally, discovery in this lawsuit is being conducted pursuant to an agreed protective order which, to the extent necessary, can be amended to accommodate any or the Court may have. Rule 193.2 requires the Nonparties to “state specifically the legal or factual basis for [their] objection[s] and the extent to which [they are] refusing to comply with the request[s].” T P. 193.2. The Nonparties failed to provide the substantive basis for any of their objections, to state how each objection is applicable to a specific requests, or clearly indicate the extent to which they are refusing to comply with the requests. See Ex. 7. The Nonparties’ objections are woefully inadequate and their objections should therefore be deemed waived and stricken from their responses. T P. 193.2(e); In re Alford Chevrolet-Geo, 997 S.W.2d 173, 181 (Tex. 1999) (party’s conclusory objections alleging undue burden and harassment were unsuccessful). CONCLUSION For the reasons stated above, Vopak requests that its Motion to Compel be granted, that the Nonparties objections be overruled, and that Plaintiff’s Motions for Protection, to Quash, and Discovery Sanctions be denied in their entirety. Vopak further requests any other relief to which it may be entitled. Respectfully subm RACEWELL /s/ William A. Moss State Bar No. 24050519 William A. Moss State Bar No. 24078041 Email: Chris.Dodson@bracewell.com Email: Will.Moss@bracewell.com TTORNEYS FOR EFENDANTS ERMINAL EER ORTH MERICA CERTIFICATE OF CONFERENCE The undersigned hereby certifies that counsel for Defendants Vopak Terminal Deer Park, Inc. and Vopak North America, Inc. has conferred with counsel for Plaintiff Justin Jordan by telephone on March 1, 2018. Despite these efforts, we have been unable to resolve the issues raised in this motion. /s/ William A. Moss William A. Moss CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing pleading has been forwarded to all counsel and interested parties of record pursuant to the Texas Rules of Civil Procedure on /s/ William A. Moss William A. Moss