Available outside my office.
Section A: Mean: 20.575; Median: 21
Section B: Mean: 17; Median: 17.375
Comments:
• Not everything we touch in class must appear in your answer. Our class discussions, by design, cover everything about a topic; a single question may require less. The goal is to answer the question asked, not to show everything you know about the topic. So, here: You were asked to decide a motion to compel over four discovery requests. No need to discuss how the discovery process or the request for documents operates. You don't lose points for doing this. But you waste space that would allow you to write more and with more detail about what matters.
• If you impose limits on the scope of discovery, you need to explain that limitation. If five years of emails is too long, explain why five years is too long and why a shorter period is more appropriate--besides "it's shorter."
• Don't assume facts you do not have. You cannot say that searching her social-media feeds will require going through massive amounts of information--you do not know how active she is on social media. Maybe she does not post much, so it will not be "massive amounts of information." Or context matters for the inferences you can draw. Microsoft or GM or a government agency have "massive amounts of info" in ESI--they are huge corporations. An individual's social-media account is a different thing
• As to Request # 1, she claims she does not take medicine. Wouldn't medical records--that show whether she takes medicine--be relevant to that?
• Beware being too conclusory--you must explain. It is not enough to say something is relevant or proportionate--explain how and why. If your analysis or application consists of a single sentence, you need to do more.
• (This point is not limited to discovery--it goes for everything): Don't define your case too narrowly. This case is was not about "religious discrimination" in the abstract. It is about a concrete context--plaintiff was fired because she refused to get a vaccine. She alleges that the employer violated Title VII by firing her (rather than exempting her from the vaccine) because she objected on religious grounds. But the case is "about" the firing and the vaccine as much as it is about religion. For purposes of this question, therefore, how should that affect discovery of things she said about her firing or about vaccine mandates or what medicines or procedures she does or does not receive?
The court grants Defendant’s Motion to Compel, in part.
The court orders as follows:
Plaintiff must sign the authorization requested in Request # 1.
Plaintiff shall produce the documents requested in Request # 2 (b) and (c).
Plaintiff shall produce the documents requested in Request # 2(a) to the extent it relates to religious beliefs. Plaintiff need not produce posts or documents solely related to political beliefs.
Discovery Standards
A party seeking discovery may move for an order compelling discovery, including an order compelling production of documents. FRCP 37(a)(1), (a)(3)(C)(iv). Any movant must certify that it met and conferred with the opposing party and attempted to resolve the discovery prior to filing the motion. FRCP 37(a)(1), which Defendant has done. (Motion ¶ 6).
A party may obtain “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” FRCP 26(b)(1). Information sought “need not be admissible in evidence to be discoverable.” FRCP 26(b)(1). [Prior to 2015, FRCP 26(b)(1) allowed discovery of information “reasonably calculated to lead to the discovery of admissible evidence.”’] Discoverability is broader than admissibility; a party may obtain information during discovery even though the requesting party may be unable to use it at trial.
Proportionality ensures that the scope of discovery matches the needs of the case; parties should engage in extensive and expensive discovery only when the size and scope of the case demands it. Proportionality considers several issues, including the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” FRCP 26(b)(1).
The court must limit discovery where it is unreasonably duplicative or cumulative; where it can be obtained from a source that is more convenient, less burdensome, or less expensive; or where the party has had ample opportunity to obtain the information. FRCP 26(b)(2)(C)(i)-(ii). A party need not provide discovery of electronically stored information that is not reasonably accessible without undue burden or cost, unless the requesting party shows just cause. FRCP 26(b)(2)(B).
Request # 1:
Defendant asked Plaintiff to provide a signed letter authorizing release of all medical records from all medical providers, thereby allowing Defendant to obtain those medical records from providers.
Plaintiff’s only argument is that the form is irrelevant because her medical records are irrelevant in a religious discrimination claim. (Response ¶ 1). Some medical records are relevant. Plaintiff claims religious discrimination due to Defendant’s failure to accommodate her religious beliefs in not taking medicine. (Compl. ¶ 14). Plaintiff’s medical records will show whether takes medicine or has been prescribed medicine; records showing she has would undermine her claim.
Request # 2:
Request # 2 seeks plaintiff’s text and social-media posts on a range of issues, including:
a. That refer or relate to Plaintiff’s religious or political beliefs;
b. That refer or relate to Plaintiff’s separation from Defendant;
c. That refer or relate to or provide opinions relating to COVID-19, COVID-19 vaccines, and COVID-19 vaccine mandates.
As a starting point, FRCP 26(b)(2)(B)’s limits on ESI discovery are not in play. A party challenging production of electronically stored information must make a showing on a motion to compel that the information is reasonably accessible without undue burden or cost. FRCP 26(b)(2)(B). Plaintiff has not attempted to make that showing. The court therefore need not consider whether Defendant has shown just cause.
Request 2(b) and (c) are relevant. Plaintiff challenges Defendant’s refusal to accommodate her religious objections to its vaccine mandate and its decisions to suspend and then fire her for refusing to get vaccinated. Request 2(b) seeks texts and social-media messages that discuss the suspension or firing she challenges in this action . Request 2(c) seeks texts and social media messages referring or relating to vaccines and vaccine mandates. Plaintiff’s claim revolves around Defendant’s refusal to accommodate her religiously grounded request not to receive the COVID-19 vaccine; posts showing her opinions and comments about the vaccine and vaccine mandates are relevant to whether Defendant violated her rights in firing her for failing to receive the vaccine.
Request 2(a) is relevant insofar as it seeks information about Plaintiff’s religious beliefs, but not as it seeks her political beliefs. Plaintiff challenges Defendant’s failure to accommodate her religious objections to taking medicine and to receiving a vaccine produced from aborted fetal cell lines. Information about her religious beliefs, including her religious beliefs about abortion and medicine, are relevant to supporting or defeating that claim by showing whether she holds and expresses those beliefs or expresses ideas contrary to those beliefs. Her political beliefs are not relevant, however, as she has not claimed a right to an accommodation of her political views about the COVID vaccine.
Requests 2(a) (as modified), (b), and (c) are proportionate to the needs of this case. The information is important to resolving the issues in the case, as it shows the nature and sincerity of Plaintiff’s religious objections to the vaccine mandate, medicine, and to how she talked about vaccines, mandates, and suspension and firing at 3M. The case raises important issues of religious freedom and of federal protections for religious freedom, including the right to obtain religious accommodations. Plaintiff is one of thirty former 3M employees suing, making this one of several important cases on the issue. Plaintiff has sole access to the relevant information; she controls her social-media timeline and can access and search it. The burden or expense of the documents does not outweigh its likely benefit. The benefits to this discovery have been described—they go to whether her statements to the world about her work, COVID, and her religious belief match her claimed injuries. Compliance should not be unduly costly or burdensome, as it requires her to work through her social-media timeliness, to which she has access and control.
