In Fitch v. BNSF Ry. Co., No. 1:21-cv-00181 (D.N.D. Dec. 20, 2024), North Dakota Magistrate Judge Clare R. Hochhalter stated she would order the plaintiff to “produce the hiking data available to her through her onX account, albeit after the parties submit an appropriate proposed protective order to the court.” She rejected the defendant’s request for expenses in bringing the motion to compel, stating: “the court agrees with Fitch that her objection was substantially justified under Rule 37(a)(5)(A)(ii).”

Case Discussion and Judge’s Ruling

In this claim for worker’s compensation after the plaintiff alleged injury sustained in the course and scope of her employment with the defendant, the defendant requested plaintiff produce information pertaining to her onX application on two separate occasions in early August and September 2024. On September 11, 2024, the defendant submitted a letter to the plaintiff again requesting production of her onX information. The parties met and conferred, and on September 19, 2024, the defendant submitted a second letter to the plaintiff in which the defendant requested she provide a position letter. (Doc. No. 133-8). The same day, the plaintiff provided the defendant with correspondence objecting to the defendant ‘s request.

On October 7, 2024, the court held a discovery dispute status conference with the parties pertaining to the disclosure of the onX information. On October 11, 2024, the defendant filed a motion to compel, requesting the court order the plaintiff to produce her onX data as she has placed her physical condition, specifically pertaining to her ability to ambulate, hike, or maintain balance, into dispute. The defendant requested the court grant its motion to compel and order the plaintiff “to produce information available to her on her onX application, or alternatively, to execute an authorization to allow BNSF to collect [Fitch’s] onX data independently.”

Judge Hochhalter rejected the second part of that request, stating: “The court is not inclined to permit BNSF to collect Fitch’s onX data independently.” But she added: “However, it will require Fitch to produce the hiking data available to her through her onX account, albeit after the parties submit an appropriate proposed protective order to the court.”

Judge Hochhalter rejected the plaintiff’s argument that the onX information was not relevant and was an “overbroad publicization of Fitch’s private location data”, stating: “The court does not agree. This is a situation where Fitch alleges she received head injuries from the incident that continue to give her symptoms, including vertigo. Due to her continuing symptoms, Fitch’s treating provider, Dr. Lockman, imposed work restrictions in an off-work letter.”

Continuing, she said: “Because Fitch alleges that she incurred a head injury, with corresponding symptoms, and her provider has placed significant restrictions on her ability to ambulate, it stands to reason she has placed her ability to engage in daily and/or recreational activities at issue. While Fitch argues this is not the case and she has ‘never denied that she remains able to walk or hike when she feels up for it and is able to use appropriate equipment such as a walking stick’…, the question remains whether and to what extent Fitch is able to ambulate. The onX data would provide the parties with relevant information as to Fitch’s hikes, including the elevation, length, difficulty, and time of completion. This is not a question of whether Fitch is able/unable to hike, but the extent to which Fitch has the ability to ambulate and engage in recreational activity considering her alleged symptoms and restrictions.”

Judge Hochhalter also rejected the plaintiff’s argument that the onX data constituted a massive overreach into her personal location data, stating: “This argument is unpersuasive. While the court understands Fitch’s concern in revealing her personal location information, the data is not always tracking her whereabouts, rather it notates the locations of where she has hiked in the past (when she chooses to use said application for her hikes). Although the court is inclined to allow BNSF access to Fitch’s onX information, it is not going to permit BNSF to collect Fitch’s data independently or gain access to her username and password. Rather, the parties shall be required to enter into a protective order for the information’s disclosure.”

However, Judge Hochhalter rejected the defendant’s request for reasonable expenses pursuant to Federal Rules of Civil Procedure 37(a)(5)(A), stating: “The court is disinclined to award reasonable expenses to either party…The parties have starkly contrasting interpretations of what the onX data will be used for and its relevance in this matter. It is also understandable that Fitch has an interest in protecting her personal location data and may be concerned about revealing it in a public manner. As such, there will be no award of attorney’s fees and costs.”

So, what do you think? Are you surprised that the Court ruled the plaintiff must produce the hiking data available to her through her onX account? Please share any comments you might have or if you’d like to know more about a particular topic.

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