United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING MOTION FOR PROTECTIVE ORDER
 WITHOUT PREJUDICE
STEPHEN J. MURPHY, III United States District Court Judge.
Theresa Palumbo brought a complaint against Defendants
Randall Commissaris and Wayne State University. She alleged
causes of action based on 42 U.S.C. § 1983, Mich. Comp.
Laws §§ 37.2202, 2402, intentional infliction of
emotional distress, and Title IX of the Civil Rights Act of
1964. Two weeks after the close of discovery, Palumbo sought
a protective order from the Court. For the reasons stated
below, the Court will deny the motion.
was a student at Wayne State studying to become a pharmacist.
In 2013, she began to work as a research assistant for
Commissaris, an assistant professor in Wayne State's
College of Pharmacy and Health Sciences. In 2014, Palumbo
took a class taught by Commissaris. Palumbo alleges that
Commissaris engaged in a pattern of sexual harassment that
began in December 2014 and continued for more than a year.
Palumbo complained about the harassment to Wayne State's
Department of Equal Opportunity in March 2015. The University
addressed her complaint seven months later. Based on
Commissaris's behavior and the University's failure
to remedy the situation, Palumbo alleges that she could not
continue to work in her position as a research assistant; she
accepted enrollment in a Pharmacy program at a less
prestigious university; and she suffered economic and
emotional distress damages.
filed suit against Commissaris and Wayne State. During
discovery, the Defendants asked Palumbo to produce
[a]ll social networking pages and ESI in Plaintiff's
possession, custody, or control from any and all social
networking websites patronized by Plaintiff at any time after
January 1, 2014 through the present, including, but not
limited to, Facebook, Twitter, Instagram, Snapchat and
LinkedIn, which relate to Plaintiff's activities,
health, social life, or work opportunities. This request
specifically includes, but is not limited to, any responsive
communications, messages, or postings in social media areas
that are designated as private or otherwise restricted from
ECF 20-10, PgID 301-02. Palumbo objected that the request was
"overbroad and not reasonably calculated to lead to
discoverable evidence." ECF 20-13, PgID 315.
"Without waiving [her] objection, " Palumbo
produced "Exhibit 1" which contained emails to and
from Palumbo and Commissaris. Id.
Palumbo failed to produce any social media responsive to
their request, Defendants reminded her-several times over the
course of a month-of the outstanding request. See
ECF 20-14, 20-15, 20-16. Palumbo stated that she intended to
produce some Facebook material. ECF 20-3, PgID 221. Nine days
after the close of discovery, she produced 20 pages of mostly
redacted Facebook pages, along with additional objections to
Defendants' request. ECF 20-17. The same day, she sent an
email to Defendants that stated "absence [sic]
concurrences, we will be filing a motion for protective
order. We are seeking a protective order to limit access to
Plaintiff's social media account to statements concerning
the then-existing state of her physical or mental health, and
job opportunities. I will be filing said motion within 24
hours, unless I receive your concurrence before then."
ECF 20-19, PgID 363. The email never reached Defendants
because it was misaddressed. Id. (mistakenly
addressing email to
"firstname.lastname@example.org" rather than
"email@example.com"). Palumbo's motion for
protective order followed the next day.
to filing a motion in the Eastern District of Michigan, a
movant must conduct a conference with opposing counsel to
"ascertain whether the contemplated motion . . . will be
opposed." E.D. Mich. L.R. 7.1(a)(1). If opposing counsel
concurs, the parties may file a stipulated order.
Id. If opposing counsel does not concur, then the
movant may file the contemplated motion. Id. at
7.1(a)(2). The movant must state in the motion, however,
either "there was a conference between attorneys . . .
in which the movant explained the nature of the motion . . .
and its legal basis and requested but did not obtain
concurrence, " or that despite reasonable efforts
specified in the motion, "the movant was unable to
conduct a conference." Id. Additionally, the
Court's practice guidelines require that "parties
must seek concurrence in all motions before they are filed,
by speaking in person or on the telephone with opposing
counsel. Failure to seek concurrence or adhere to [Local Rule
7.1(a)] may result in the Court striking the motion."
And the Federal Rules of Civil Procedure likewise require
counsel to seek concurrence: a motion for a protective order
"must include a certification that the movant has in
good faith conferred or attempted to confer with other
affected parties in an effort to resolve the dispute without
court action." Fed.R.Civ.P. 26(c)(1).
Palumbo's motion states that "Defendants have not
concurred in the relief sought in this Motion, thus
necessitating this Motion." ECF 19, PgID 116. But she
did not conduct-or attempt to conduct-a telephonic or
in-person conference to explain to the Defendants the nature
and legal basis of the motion. Instead, Palumbo sent an email
to Defendants that was never received because it was
misaddressed. ECF 20-19, PgID 363 (email from Plaintiff to
Defendants); ECF 20-18, PgID 359 (email from Defendants to
Plaintiff noting that email seeking concurrence had not been
Court's "in person or by telephone" conference
requirement exists to prevent exactly this sort of
miscommunication. Moreover, the Court's practice
guidelines, the Local Rules, and the Federal Rules are not
pro forma, nor are they optional. Rather, they require the
parties to work together to resolve discovery disputes before
asking the Court to intervene. Counsel's adherence to
these rules thus ensures the efficient use of judicial
resources. "It is not up to the Court to expend its
energies when the parties have not sufficiently expended
their own." Tubbs Bros. v. Prime Eagle, LLC,
No. 12-13104, 2012 WL 3065451, at *1 (E.D. Mich. July 27,
2012) (denying motion without prejudice because the movant
failed to adhere to Local Rule 7.1).
the Court will deny without prejudice Palumbo's Motion
for Protective Order. Since the parties are scheduled for a
settlement conference in less than a month, the Court intends
to refer any future discovery motions to the Magistrate Judge
conducting the conference.
FORE, it is hereby ORDERED, that Plaintiff's Motion for