Labor & Employment Law Daily Wrap Up, EVIDENCE, DISCOVERY—D. Minn.: Fired Hershey employee failed to sufficiently comply with previous discovery order, must cough up metadata, (Feb 11, 2025)

By Tulay Turan, J.D.

The employee took screenshots of the text messages he thought were responsive.

Granting in part the Hershey Company’s motion to compel discovery in a fired employee’s religious discrimination lawsuit, a federal district court in Minnesota ruled the employee’s responses to previously ordered discovery were both qualitatively and quantitatively insufficient to be considered compliant with the order. The employee, who was terminated after being denied an exemption request to the company’s COVID-19 vaccine mandate, must produce all text messages and email communications, including metadata, responsive to several requests for production. The court also granted in part the employee’s cross-motion to compel, requiring Hershey to produce additional comparator request files for employees who sought a religious accommodation or exemption from the mandate (Witham v. The Hershey Co., No. 23-CV-1563 (LMP/JFD) (D. Minn. Feb. 10, 2025)).

The employee, an Omnichannel Integration Lead for Hershey, worked remotely for much of 2021 due to the COVID-19 pandemic. In August 2021, the company implemented a COVID-19 vaccine mandate requiring its corporate department employees to become fully vaccinated by October. In September, he requested a religious exemption from the mandate based on his Roman Catholic faith, but the company denied the request, claiming it would create an undue hardship to allow him to perform in-person work while remaining unvaccinated.

Prior proceedings. The employee filed a lawsuit, alleging religious discrimination under Title VII and the Minnesota Human Rights Act. His complaint also raised additional claims, which the court dismissed.

Since that dismissal, the court ruled on a previous round of cross motions to compel discovery between the parties. On Hershey’s motion to compel responses to requests for production, the court held in September 2024, that documents in response to several of Hershey’s RFPs were both relevant and proportional to the needs of the case and ordered the employee to produce all responsive electronic communications as set out in those RFPs.

As to the employee’s motion to compel Hershey to produce the requests for accommodation from comparator employees, the court held those documents were relevant but that production of all the comparator files (consisting of over 100 requests) would be disproportionate. The court ordered Hershey to produce 25 of the requests in redacted form and stated he could move to compel additional requests later if necessary. The court also granted his general request for discovery into the costs of accommodating his religious beliefs, including both potential and actual costs.

The parties have continued to produce relevant materials and now bring cross-motions to compel discovery.

Previously ordered communications. Hershey’s motion first sought certain communications, including texts and emails, that the court had ordered be produced in September 2024. The company argued the employee’s responses to the ordered discovery were both qualitatively and quantitatively insufficient to be considered compliant with the order.

The court agreed that the employee’s production of text messages was substantially non-compliant with the instructions and definitions in the RFPs. The employee developed search terms on his own, entered them into his text messaging application, and took screenshots of the messages he thought were responsive. “This is a hopelessly inadequate way to search for and produce documents responsive to an RFP in federal court,” the court wrote.

Number of documents. The court also agreed with Hershey’s quantitative concerns regarding the employee’s production of documents. The processes, or lack thereof, which he used to identify responsive documents were wholly insufficient and have caused Hershey to suspect he has not produced all responsive documents in his possession. Of the documents produced, a large proportion of them were either non-responsive or were re-numbered productions of documents already produced by Hershey. The employee was required to produce the information in the format Hershey requested in its unobjected-to written request, but he did not do so.

Thus, the court ruled he must produce all text messages and email communications responsive to the RFPs at issue, including the metadata and other accompanying information required by the RFPs in the “Instructions” and “Definitions” sections.

Financial information. Next, the court addressed Hershey’s motion to compel the employee’s financial information to support his claim for damages and any efforts he made to mitigate such damages. Because the parties agreed that the employee had produced all documents responsive to this component of Hershey’s motion, the court considered this issue settled and denied the motion as to his financial information as moot.

Additional comparators. Turning to the employee’s motion to compel, the court granted his request for Hershey to produce the remaining comparator request files for employees who sought a religious accommodation or exemption from the COVID-19 vaccine mandate.

When ruling in September 2024, the court had both privacy and proportionality concerns. Since then, pursuant to a similar lawsuit in a federal district court in Pennsylvania, all the comparator requests have been produced. The court here found the court’s order in that case provided a model approach that addressed the court’s two concerns. By ordering that all these documents be produced in redacted form, the burden on Hershey disappears because it has already done the work of identifying and redacting all religious accommodation requests. All that Hershey must do now is produce the same documents, in the same form, as were produced in that case in compliance with the judge’s order.

As to the privacy concerns, the designation of the files as “Attorneys’ Eyes Only” guards against the sensitive personal data in these files ending up in the wrong hands, according to the court.

Depositions of Hershey personnel. Next, the court denied the employee’s motion to compel the depositions of two employee relations employees because their testimony likely would be unnecessarily duplicative of the testimony of another employee relations employee who had already been deposed. The deposed employee investigated and ultimately denied his accommodation request while the other two did not. In addition, he might have the opportunity to depose her again depending on negotiations between counsel.

The court also denied his motion to compel the deposition of Hershey’s Chief Human Resources Officer. The employee provided very little legal or factual support for his claim that “higher ups were involved in the accommodation process and development.” In addition, as the court previously ruled, the employee’s failure-to-accommodate claim did not turn on the employer’s intent or actual motive. Thus, discovery into leadership’s motivation in developing or implementing the policy was irrelevant.

Criteria to determine religious beliefs. The court turned to the employee’s motion to compel documents related to the criteria by which Hershey determined the consistency and sincerity of his religious beliefs regarding the COVID-19 vaccines. Hershey said no responsive documents remained unproduced, but the employee pointed to a former HR employee’s testimony that she assumed such criteria would be documented in some way. To the extent that any responsive documents do exist and have not been produced, the court granted the employee’s motion to compel such documents.

Undue hardship evidence. Finally, the court denied without prejudice the employee’s motion to compel costs and undue hardship discovery. He provided no additional argument as to this aspect of his motion, and his counsel intimated that this information might have been included in discovery provided after the motion was filed. Hershey also did not provide briefing on this issue. Thus, the court interpreted this lack of discussion by both parties as an indication that his issue has been resolved.

The case is No. 23-CV-1563 (LMP/JFD).

Judge: Docherty, J.

Attorneys: Benjamin Paul Lanari (Mohrman, Kaardal & Erickson) for Christopher Witham. Ali Michelle Kliment (Morgan, Lewis & Bockius) for The Hershey Co.

Companies: The Hershey Company

Cases: EvidenceDiscovery Discrimination ReligiousDiscrimination Discharge Covid19 MinnesotaNews