Abbawi v. Henry Ford Health Systems

Filing 49

AMENDED ORDER granting Plaintiff's Motion to Compel (ECF No. 42 ) and Lifting the Stay on Discovery Deadlines (ECF No. 45 ). Signed by Magistrate Judge Curtis Ivy, Jr. (SKra)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
NAGHAM ABBAWI,
v.

Plaintiffs,

HENRY FORD HEALTH
SYSTEMS,
Defendants.
____________________________/

Case No. 22-13008
Denise Page Hood
United States District Judge
Curtis Ivy, Jr.
United States Magistrate Judge

ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL (ECF No. 42)
AND LIFTING THE STAY ON DISCOVERY DEADLINES (ECF No. 45)
I.

PROCEDURAL HISTORY
Plaintiff Nagham Abbawi filed this employment discrimination action on

December 12, 2022.1 (ECF No.1). In the complaint, Plaintiff alleges two claims
of religious discrimination under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-2 et seq., as well as a violation of Michigan’s Elliott-Larsen Civil
Rights Act, Mich. Comp. Laws Ann. § 37.2202(1)(A) (West, Westlaw through P.A.
2024, No. 166, of 2024 Reg. Sess., 102d Leg.). (Id. at PageID.1, 29). On
November 10, 2023, Plaintiff filed a motion to compel discovery that included, in
part, a demand that Defendant, Henry Ford Health Systems, provide a full response
to Request for Production (“RFP”) No. 8. (ECF No. 21). Using various search

1

Plaintiff also goes by the name “Megan.” (See ECF No. 44, PageID.765 n.6).

terms, RFP No. 8 sought documents and electronically stored information (“ESI”)
that Plaintiff said was integrally related to her claims. (ECF No. 21-3,
PageID.298).
The Court denied Plaintiff’s motion in relation to RFP No. 8 on March 6,
2024, because the request was overbroad under Federal Rule of Civil Procedure
26(b)(1). (ECF No. 26, PageID.458-59). In doing so, the Court instructed the
parties to meet and confer on search terms so to bring them within the scope of
discovery. (Id. at PageID.459 (“Plaintiff should strongly consider limiting the
request in scope as to time and perhaps persons whose email accounts would be
searched.”)).
Nearly six months later, on September 5, 2024, Plaintiff returned to this
Court, moving once more to compel discovery of the now-revised RFP. No 8.
(ECF No. 26). Defendant responded that the revised RFP No. 8 remains overbroad
and is disproportionate to the scope of discovery. (ECF No. 43). Upon filing its
reply on September 26, 2024, Plaintiff completed briefing on this matter. (ECF
No. 44).
The District Judge referred all non-dispositive pretrial proceedings to the
undersigned. (ECF No. 23). For the following reasons, the Court ORDERS
Defendant to produce the requested ESI sought by RFP No. 8. And the Court

2

ORDERS Defendant to reimburse Plaintiff half of the attorneys’ fees and costs
associated with bringing this motion.
II.

BACKGROUND
Stated succinctly, Plaintiff alleged religious discrimination under federal and

state law in relation to the termination of her employment following her
purportedly religious-based objection and refusal to receive the COVID-19
vaccine. (ECF No. 1, PageID.1-11). Specifically, the allegations of unlawful
conduct arose from Defendant’s denial of her request for a religious exemption
from the vaccination policy.2 (Id. at 11-15). In prosecuting her claims though RFP
No. 8, Plaintiff requested documents from Defendant related to
[Defendant’s] plans to respond to employee requests for
accommodations (of any kind) from the [vaccine] Policy, whether it
be conversations by executive leadership, emails or electronic
messaging (including text messages and encrypted messaging apps)
containing [certain terms] . . . between Henry Ford employees
(including senior leadership), or any other communications channels
used by Henry Ford.
(ECF No. 21-3, PageID.240). This initial RFP No. 8 contained twenty search
terms, did not specify any custodians, and lacked any temporal limitation. (Id.).
Plaintiff returned to the drawing board after the Court denied her motion to
compel in relation to RFP No. 8. On March 8, 2024, Plaintiff shared revised search

2

As explained in its March 2024 Order, the Court will continue to refer to Plaintiff’s
request as a religious exemption request. (See ECF No. 26, PageID.445 n.1).

3

parameters with Defendant. (See ECF No. 43-3, PageID.740; ECF No. 43,
PageID.708). The revisions limited the temporal scope to the period from January
1, 2020 until October 21, 2021 (the date of Plaintiff’s termination), refined the
search to nine custodians, and modified the search terms to include nineteen terms
which varied from single words to more complex search strings. (See ECF No. 433, PageID.740; ECF No. 40, PageID.708). The resulting search produced “48,794
items and 100.46 GB of data.” (ECF No. 40, PageID.708).
Plaintiff offered to keep refining the search parameters by limiting the
timeframe for the search to May 1, 2021 to November 1, 2021—a six-month
window, down from the initially proposed twenty-two month period. (See id.; ECF
No. 43-4, PageID.744). After contracting with an ESI vendor, the newly-revised
proposed search yielded 63,548 hits for just three of the nine custodians. (See ECF
No. 43, PageID.709). Such results exceeded Defendant’s expectations by a factor
of seven, consequently prompting reconsideration of the ESI search parameters.
(See id. at PageID.709).
As the number of hits mounted, so too did Plaintiff’s frustration. On July
12, 2024, the Defendant informed Plaintiff that “the cost solely related to the
vendor was approximately $12,000—[a] figure [that] did not account for the time
and expense required for defense counsel to review, process for relevance and
privilege, and produce responsive documents.” (Id. at PageID.710). Defendant

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proposed a cost-sharing arrangement, but Plaintiff apparently refused to do so
“unless ordered by the Court.” (Id.).
On August 1, 2024, Plaintiff’s counsel offered revised search terms for a
third time. This revision retained the May 2021 to November 2021 timeframe,
reduced the number of custodians to eight, and further modified the search terms.
(Id. at PageID.72; ECF 43-7, PageID.753-54). The search terms now consisted of
two search strings which were limited themselves to three names—Plaintiff and
two similarly situated employees (e.g., comparators) who had requested religious
accommodations that Defendant approved. (See ECD No. 43-7, PageID.753).
Plaintiff also included twenty-eight search terms alongside the second search
string. (Id. at PageID.753-54).3 In fact, this third-revised set of search parameters
is what Plaintiff now demands in her motion to compel.4 (See ECF No. 42,
PageID.603).
According to Defendant, the other revisions did not lessen its supposed
burden in producing the ESI. (See ECF No. 43, PageID.713). The newest
proposed search “yielded more than 8,500 items and over 93 GB of data.” (Id.).

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twice.

Although there are a total of twenty-nine search terms, the term “pray! OR” is repeated

4

Plaintiff’s counsel corrected an omission from its proposed search parameters in an
email on August 7, 2024; this correction brings the search terms from August 1, 2024 in line with
what Plaintiff requests in her motion. (See ECF No. 42-4, PageID.651 (adding “OR” to
“harm!”)).

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After almost six-months of unproductive back-and-forth conversations related to
the ESI discovery, “Defendant recommended Plaintiff file her motion [to compel]
so the parties could brief the issues and the Court could issue a decision.” (Id.).
III.

ANALYSIS
A.

Governing Standards

Parties may obtain discovery related to any nonprivileged matter relevant to
any party’s claim or defense and proportional to the needs of the case, considering
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 discovery in resolving the issues, and whether the burden or expense
of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26.
Information within this scope of discovery need not be admissible in evidence to
be discoverable. Id. “Although a [party] should not be denied access to
information necessary to establish her claim, neither may a [party] be permitted to
‘go fishing,’ and a trial court retains discretion to determine that a discovery
request is too broad and oppressive.” Superior Prod. P’ship v. Gordon Auto Body
Parts Co., 784 F.3d 311, 320-21 (6th Cir. 2015) (citing Surles ex rel. Johnson v.
Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007)). A party seeking
discovery may move for an order compelling an answer, designation, production,
or inspection. Fed. R. Civ. P. 37.

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B.

Discussion

The disposition of this motion involves three issues. The first two relate to
the scope of discovery and depend on whether Plaintiff’s ESI search parameters are
overbroad and disproportionate. The last issue involves whether this Court should
order Defendant to pay for the costs and fees for this motion should the Court rule
in Plaintiff’s favor. The Court will assess each issue in kind.
But first, the Court addresses a preliminary matter. Plaintiff’s motion argues
that the requested ESI is discoverable—meaning relevant and proportional—to her
federal claims. (See ECF No. 42, PageID.616). Specifically, Plaintiff alleges
religious discrimination under Title VII of the Civil Rights Act of 1964 on both
disparate treatment and failure to accommodate theories. (See id. at PageID.614615. See also ECF No. 26, PageID.448-450). The Court, however, need only
determine whether the requested ESI is discoverable with respect to one of
Plaintiff’s federal claims. Since the ESI is the same for both claims, compelled
discovery on one claim consequently makes the information available for use in
relation to the second claim. Because the Court finds that the requested ESI is
discoverable in relation to Plaintiff’s disparate treatment theory, the Court does not
analyze the arguments made in relation to the failure to accommodate theory. 5

5

Because the Court does not reach the failure to accommodate arguments, the Court need
not now resolve the dispute about the undue burden/hardship defense that permeates the briefing.
(See ECF No. 42, PageID.607; ECF No. 43, PageID.716; ECF No. 44, PageID.765, nn.4-5). The

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1.

Relevance

When assessing discovery disputes involving relevance, the trial court has
“broad discretion to determine the boundaries of the inquiry.” Lillard v. Univ. of
Louisville, No. 3:11-CV-JGH, 2014 WL 12725816, at *5 (W.D. Ky. Apr. 7, 2014)
(citing Chrysler v. Fedders Corp., 643 F.2d 1229, 1240 (6th Cir. 1981)). In
disparate treatment employment cases, such as this, courts broadly construe
relevance considering plaintiff must often rely on circumstantial evidence to show
discriminatory intent. 8 Fed. Prac. & Proc. § 2009.2 (3d ed.). Accordingly,
“information concerning an employer’s general employment practices is relevant
even to a Title VII individual disparate treatment claim.” Scales v. J.C. Bradford &
Co., 925 F.2d 901, 906 (6th Cir. 1991). The movant bears the burden in showing
that the relevancy of the requested information is facially apparent. See Lilliard,
2014 WL 12725816, at *6. Though the bar for doing so is “extremely low.” In re
Ford Motor Co. Spark Plug & 3-Valve Engine Prod. Liab. Litig., 98 F. Supp. 3d
919, 925 (N.D. Ohio) (referencing Fed. R. Evid. 401 when defining relevant

burden to establish the undue hardship defense falls on the employer. See Stanley v. ExpressJet
Airline, Inc., 356 F. Supp. 3d 667, 679-80 (E.D. Mich. 2018) (citing E.E.O.C. v. Abercrombie &
Fitch Stores, Inc., 575 U.S. 768, 772 n.2 (2015)). Defendant indicates in its Answer that it
“reserves the right to assert additional affirmative or other defenses as they become known . . . .”
ECF No. 7, PageID.134. If Defendant indeed has not asserted the undue burden/hardship
defense, the Court reminds it that “the ability to later add defenses through amendment of a
pleading is governed by [Federal Rule of Civil Procedure] 15, not by a reservation of rights.”
Hughes v. Flintco, LLC, No. 18-CV-225-GFK-FHM, 2019 WL 13301603, at *3 (N.D. Okla. Jan.
25, 2019) (internal quotation and citation omitted).

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evidence as having any tendency to make a fact more or less probable). Once the
movant establishes relevance, the opposing party must assert “sufficient reasons”
for denying production of the sought after evidence. See Lillard, 2014 WL
12725816, at *6. See also Webasto Thermo & Comfort North America, Inc. v.
BesTop, Inc., 326 F.R.D. 465, 468 (E.D. Mich. 2018) (“Unless it is obvious from
the wording of the request itself that it is overbroad, vague, ambiguous, or unduly
burdensome, an objection simply stating so is not sufficiently specific.”) (internal
quotations and citations omitted).
Through revised RFP No. 8, Plaintiff seeks “[a]ll documents including
emails or other electronic messaging (including emails and encrypted messaging
apps) relating to discussions of Henry Ford’s plans to respond to employee
requests for accommodations (of any kind) from the [vaccine] Policy . . . .” (ECF
No. 42, PageID.603). Apart from the specific search terms,6 the request is tailored
to those custodians that comprised the Religious Accommodation Committee—the
group that denied Plaintiff’s exemption request. (Id.). The discovery also spans
the time from May 1, 2021 to November 1, 2021. (Id.).
Plaintiff argues that the requested ESI is relevant to her disparate treatment
claim. To state such a claim:
[A] plaintiff must either present direct evidence of discrimination or,
in the absence of direct evidence, present a prima facie case of
6

For the individual search terms, see Appendix A.

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indirect discrimination by showing (1) that he was a member of a
protected class, (2) that he experienced an adverse employment
action, (3) that he was qualified for the position, and (4) that he was
replaced by a person outside of the protected class or that he was
treated differently than similarly situated employees.
Tepper v. Potter, 505 F.3d 508, 515 (6th Cir. 2007). Avoiding any reliance on
direct evidence, Plaintiff’s argument only concerns the four-part test for prima
facie cases. (See ECF No. 42, PageID.614 (citing Tepper)). Upon making such a
showing, “the burden shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for the adverse employment action.” Id. (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Should the
defendant meet this burden, the plaintiff must then show that the proffered reason
is a pretext for discrimination. Id. at 515-16 (citing McDonell Douglas, 411 U.S.
at 804).
While Plaintiff offers several reasons why the electronic information she
seeks is relevant to her disparate treatment theory, the central focus of her
argument is that it is needed to establish the fourth Tepper prong regarding
similarly situated employees, or comparators.7 (See ECF No. 42, PageID.617).
Defendant has identified one comparator and concedes in its response brief that
7

Plaintiff offers additional reasons related to her disparate treatment theory. Under the
“Argument” heading, Plaintiff explains that the ESI is relevant because it will help establish her
sincere religious beliefs (which relates to the first Tepper prong), show whether Defendant can
satisfy its burden under the McDonnell Douglas burden-shifting framework, and help Plaintiff in
showing pretext. (See ECF No. 42, PageID.616). The briefing itself, however, focuses solely on
comparators. (See id. at PageID.617-19). Accordingly, Court proceeds in the same manner.

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there is one other similarly situated employee. (See id. at 618-19; ECF No. 43,
PageID.716 (referencing “an additional employee who conferred with Plaintiff
about her religious accommodation request prior to its submission and had her
religious accommodation request granted”) (internal quotation and citation
omitted)). As for the first of these comparators who had her accommodation
request granted, Plaintiff points out that the only meaningful difference between
their requests is their religion. (See ECF No. 42, PageID.618-19). Defendant does
not contest this characterization.
The custodians’ deliberations on the exemption requests from Plaintiff and
her comparators are relevant to her disparate treatment claim. Identifying the two
theories for religious discrimination claims under Title VII, the Supreme Court
stated that the “disparate-treatment provision prohibits actions taken with the
motive of avoiding the need for accommodating . . . religio[n].” E.E.O.C. v.
Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 774 (2015) (emphasis in original).
In a discovery dispute in a separate employment discrimination case, this Court
opined that “[w]hen the motive or intent of a defendant employer is at issue,
information concerning its conduct towards employees other than the plaintiff is
relevant.” See E.E.O.C. v. Chrysler LLC, No. 07-CV-12986, 2008 WL 2622948, at
*4 (E.D. Mich. July 2, 2008) (quoting Owens v. Sprint/United Mgmt. Co., 221
F.R.D. 649, 653 (D. Kan. 2004)). Thus, when asserting a disparate treatment-based

11

discrimination claim, one must make a showing as to the defendant employer’s
discriminatory motive; because circumstantial evidence will bear the load in
making that showing, evidence related to other similarly situated employees is
relevant. For when religion is the only basis for the treatment of materially
identical employees, “an inference arises that [religion] was the reason for the
disparate treatment.” Jamoua v. Mich. Farm Bureau, No. 20-cv-10206, 2021 WL
5177472, at *16 (E.D. Mich. Nov. 8, 2021).
On their face, the search terms at issue are directly related to making such a
showing. The terms are tied to search strings consisting of Plaintiff’s name as well
as the names of her comparators. Additionally, not only are the parameters limited
temporally and specific to the custodians who made the decision on Plaintiff’s
exemption request (and all other such requests), but the terms themselves are also
tailored to produce material indicative of discriminatory intent.
Without going through each term, consider just a handful of them. Some
terms relate directly to the COVID vaccine (“vaccin!”; “vax!”; “shot!”; “covid!”),
religious faith (“christ!”; “templ!” which targets terms such as “temple” and
variations thereof; “faith!”; “pray!”; “relig!”; “sincer!” which targets terms such as
“sincerity” and variations thereof; “holy!”; “spirit!”), and the exemption request
review process itself (“reject!”; “den!” which targets terms such as “denial” and
variations thereof; “grant!”; “accept!”; “accommodate!”). Only the term “saf!” is

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not immediately recognizable; but upon a closer examination, “saf!” targets words
like “safety” or “safely.” This makes sense as Plaintiff seeks information related to
accommodations not afforded to her, but to her comparators that allowed
themselves and others to work “safely” without receiving the COVID vaccine.
In all, the search terms are relevant because they pursue information on the
custodians’ deliberations on the exemption request from Plaintiff and the requests
of her comparators. For comparative purposes, the search parameters target only
that information which can explain why the comparators received accommodations
and the Plaintiff did not. Accordingly, this information has at least some tendency
to prove the fourth Tepper prong of Plaintiff’s disparate treatment theory.
Considering the low bar for establishing relevancy and the general breadth granted
to relevance issues in employment discrimination cases, Plaintiff easily satisfies
her burden with respect to the requested ESI.
The same cannot be said of the Defendant’s arguments in rebutting
relevance. First, Defendant argues that Plaintiff’s emphasis on comparators is
mistaken. (See ECF No. 43, PageID.714). In support of this contention,
Defendant tries to undermine Plaintiff’s reliance on Jamoua v. Mich. Farm Bureau
because (1) that case was on a summary judgment posture, and (2) Jamoua
prevailed in his employment discrimination case without a comparator. (See id. at
PageID.714-16). See also Jamoua, 2021 WL 5177472, at *15. But what

13

Defendant fails to articulate is that Jamoua may be the exception to the general
rule. 8 Jamoua prevailed because there was other non-comparator evidence that
gave rise to an inference of discriminatory intent. See id. Defendant does not
contend that there is similar non-comparator evidence present in this case, nor does
it produce additional caselaw when a plaintiff made a prima facie showing of
disparate treatment without a comparator. At any rate, Tepper includes as its fourth
prong factual evidence that a plaintiff “was replaced by a person outside of the
protected class or that he was treated differently than similarly situated
employees.” Tepper, 505 F.3d at 515 (emphasis added). As Plaintiff here makes no
mention of any replacement, she is entitled to tailored discovery related to her
comparators to try to satisfy the Tepper test.
Defendant also argues that Plaintiff has not explained precisely why the
breadth of her search terms is needed to accomplish this goal. (See ECF No. 43,
PageID.716). Yet, as discussed above, the reason Plaintiff selected the terms is
facially apparent—they’re targeted to discover ESI from the custodians’
deliberations on Plaintiff’s exemption request and the requests of her comparators.

8

Jamoua involved a claim of employment discrimination under Michigan state law and
did not use the Tepper test. See 2021 WL 5177472, at *14. Compared to the fourth Tepper
prong which explicitly references the treatment of some other employee (whether it be a
complainant’s replacement or a similarly situated employee), the fourth prong from the test in
Jamoua requires a showing that the plaintiff “suffered the adverse employment action under
circumstances giving rise to an inference of unlawful discrimination.” See id. (internal quotation
and citation omitted). The Jamoua Court noted the logic behind the use of comparators but
suggested that other evidence can suffice in the absence of such a comparator. See id. at *15.

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If Defendant’s overbreadth concerns relate to the sheer number of terms, then such
an objection to relevance is insufficient. See Webasto, 326 F.R.D. at 468 (“Unless
it is obvious from the wording of the request itself that it is overbroad, vague,
ambiguous or unduly burdensome, an objection simply stating so is not sufficiently
specific.”) (internal quotation and citation omitted).
For Defendant to prevail, more specificity is needed. For instance, in
Webasto, the plaintiff successfully argued overbreadth related to an ESI request
that produced “multiple gigabytes . . . comprising tens of millions of pages of
documents.” See id. After reviewing just the first 100 records, it was apparent that
the results had no bearing on the issues in the lawsuit; accordingly, the search
terms were properly deemed overbroad. See id. Given that the search results here
are considerably less voluminous (8,500 hits here compared to millions in
Webasto), Defendant could have reviewed some subset of documents to confirm
the efficacy of the search terms. Had it done so, Defendant could have informed
Plaintiff of any deficiency in the hopes of producing more narrowly tailored ESI.
Lacking “sufficient reasons” for denying the ESI’s production, Defendant fails to
satisfy its burden in opposing Plaintiff’s motion.
In short, comparator evidence is key to Plaintiff’s disparate treatment theory
under Tepper. The value of the search terms in doing so is facially apparent, and
Defendant has not satisfied its burden in opposing the relevance of the proposed

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search terms. As a result, the search terms are relevant under Federal Rule of Civil
Procedure 26(b)(1).
2.

Proportionality

When parties dispute proportionality, the Federal Rules of Civil Procedure
instruct them to consider several factors 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.” Fed. R. Civ. P. 26(b)(1). This Court has written that
both parties have some responsibility to address these proportionality factors. See
State Farm Mut. Auto Ins. Co v. Precious Physical Therapy, Inc., No. 19-10835,
2020 WL 7056039, at *2 (E.D. Mich. Dec. 2, 2020). See also 6 Moore’s Fed. Prac.
– Civil § 26.42 (2024). The party opposing discovery, however, must assert
specific information related to how the discovery request is unduly burdensome;
rote boilerplate objections “are legally meaningless and amount to a waiver of an
objection.” Sister Am., Inc. v. Herika G. Inc., 325 F.R.D. 200, 209-10 (E.D. Mich.
2018).

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Plaintiff argues that nearly all the factors favor her side. Based on the
Court’s review, Plaintiff’s estimation is correct.9 On the importance of the issues
in this case, “‘an action to vindicate a citizen’s civil rights is considered of high
importance.’” Waskul v. Washtenaw Cnty. Cmty. Mental Health, 569 F. Supp. 3d
626, 634 (E.D. Mich. 2021) (quoting Cratty v. City of Wyandotte, 296 F. Supp. 3d
854, 860 (E.D. Mich. 2017)). The requested discovery is also integral to Plaintiff’s
disparate treatment argument. (See ECF No. 42, PageID.621). This would appear
to be true considering that progress in this case has halted over this ESI issue; in
fact, Defendant indicates that no depositions have occurred because of the disputed
ESI. (See ECF No. 43, PageID.724 (indicating that depositions initially scheduled
for June 2023 are still pending)). Another factor in Plaintiff’s favor is that
Defendant has exclusive access to the requested ESI. (See ECF No. 42,
PageID.620 (citing Waskul, 569 F. Supp. 3d at 364)). Lastly, in terms of resources,
Defendant is one Michigan’s largest healthcare providers whereas Plaintiff is only
a single individual; 10 and as Defendant itself suggests, it does not suffer from a
lack of “budgetary or staffing” resources. (See ECF No. 43, PageID.720).

9

Neither party addresses the amount in controversy. This is understandable as this figure
is uncertain. The only number reflected in the complaint is a request for damages that exceeds
$100,000, and that number does not represent the other damages and compensation Plaintiff
seeks. (See ECF No. 1, PageID.32).
10

According to one resource, Henry Ford Health “posted revenue of $6.5 billion for nine
months end[ing] Sept. 30 . . . .” Andrew Cass, Henry Ford Health’s Operating Income Up
$242M through Q3, BECKER’S HOSPITAL CFO REPORT (Nov. 14, 2024), https://perma.cc/Y4ZA-

17

Defendant addresses none of these factors. Rather it focuses entirely on the
last of the proportionality factors. Specifically, Defendant alludes to the $12,000
estimate from its ESI vendor as well as the extra expense associated with review of
the documents. (See id. at PageID.717). But as this Court has stated, “A party
objecting to a request for production of documents as burdensome must submit
affidavits or other evidence to substantiate its objections.” Waskul, 569 F. Supp. 3d
at 634 (internal quotation and citation omitted). Nowhere in its briefing has
Defendant submitted such evidence. Thus, Defendant’s proportionality objection
on this ground is deficient from the start.
Moreover, had Defendant provided corroborative evidence, the cases it cites
in support of its position only confirm the opposite. Defendant first cites Durbin v.
C&L Tiling Inc. where the court denied a motion to compel given 1, 275 hours and
$78,000 needed to review ESI for fifteen comparators. See No. 3:18-CV-334-RGJ,
2019 WL 4615409, at *11 (W.D. Ky. Sept. 23, 2019). What Defendant fails to
point out is that (1) the party opposing discovery provided an affidavit in support
of its estimate, and (2) the estimate itself exceeded the damages the movant sought.
See id. at *11, n.7. Neither such facts are present here. The two other cases cited
are just as inapt. See Smith v. Hartford Life & Accident Ins. Co., No. 5:19-061-

G5F6 (last visited Dec. 19, 2024). As far as Plaintiff’s resources, the only discernable indicator
is a reference to her compensation for “$63.94/hour” with a new employer. (See ECF No. 43-4,
PageID.744).

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DCR, 2019 WL 6829953, at *5 (W.D. Ky. Dec. 13, 2019) (denying motion to
compel based on an affidavit supporting a $55,000 estimate—a figure more than
four-times Defendant’s estimate); Hoffman v. Crites, No. 21-10703, 2022 WL
1274956, at *1-2 (E.D. Mich. Apr. 28, 2022) (granting motion to compel of 2,693
documents based, in part, on a partial assessment confirming the need for extensive
document review—an assessment Defendant did not perform).
In short, Defendant makes no arguments on the other proportionality factors;
and Defendant does not carry its burden on the last factor for the reasons stated
above. All other factors favor Plaintiff. Accordingly, Plaintiff’s RFP No. 8 is
proportional under Federal Rule of Civil Procedure 26(b)(1).
Because the Court finds the requested ESI to be both relevant and
proportional, the Court GRANTS Plaintiff’s motion to compel. Defendant must
produce the requested ESI within 21 DAYS from the date of this Order. With the
issuance of this Order on Plaintiff’s motion to compel (ECF No. 42), the stay on
discovery deadlines applicable to this matter, (ECF No. 45, PageID.774), is hereby
LIFTED.
With the stay lifted, the Court will grant an extension of discovery and
dispositive motion deadlines. Discovery will close on April 7, 2025. The Court
will also conduct a status conference on February 24, 2025 to check on the status
of discovery. All dispositive motions will be due by May 6, 2025.

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3.

Sanctions

Having granted Plaintiff’s motion, the Court “must . . . require the party . . .
whose conduct necessitated the motion . . . to pay the movant’s reasonable
expenses incurred in making the motion, including attorney’s fees.” Fed. R. Civ. P.
37(a)(5)(A). The Court will not order such sanctions if “the opposing party’s
nondisclosure, response or objection was substantially justified” or “if other
circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A)(ii)(iii). Plaintiff argues sanctions are warranted because Defendant’s objections are
meritless. (See ECF No. 42, PageID.621). Defendant responds that its arguments
are substantially justified considering its good-faith negotiations related to the
search terms which it considered overbroad and disproportionate. (See ECF No.
43, PageID.723). And Defendant asserts that it did not behave as the sanctioned
party in Waskul did, that Plaintiff has not been prejudiced in making its case
despite the delayed ESI, and that both parties have been unable to conduct
depositions because of this discovery issue. (See id. at PageID.724).
Based on the above analysis, see supra Subsections III.B.1-2, the Court finds
that Defendant’s argument lack merit thereby rejecting its “substantially justified”
position under Federal Rule of Civil Procedure 37(a)(5)(A)(ii). As to the purported
differences between this case and Waskul, the two cases are more analogous than
Defendant cares to admit. In Waskul, the court sanctioned the defendants because

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of their “stubborn and meritless” position borne out of defense counsel’s general
incompetence on ESI discovery. See Waskul, 569 F. Supp. 3d at 634-39. As Henry
Ford contracted with an ESI vendor, Defendant already has a leg up on the defense
counsel in Waskul.
Even so, similarities exist. While taking defense counsel to task, the Waskul
Court noted that “the responding party . . . should have taken a commanding role in
developing the strategy to produce its responsive emails. Generally [r]esponding
parties are best situated to evaluate the procedures, methodologies, and
technologies appropriate for preserving and producing their [ESI].” Id. at 636
(internal quotations and citations omitted). Going even further, the Waskul Court
criticized defense counsel for “le[aving] the task to plaintiff’s counsel” to produce
search terms “[r]ather than propos[ing] methodologies . . . to produce documents.”
Id. (emphasis added). Just as in Waskul, Defendant left Plaintiff to craft the search
parameters. None of the briefing or included exhibits indicate that Defendant
proposed its own search parameters; rather “the task was left to plaintiff’s
counsel.”
This is all the more notable considering that throughout its briefing
Defendant criticizes Plaintiff for ignoring the “collective responsibility” parties
share when it comes to discovery. (See ECF No. 43, PageID.705 (quoting Helena
Agri-Enterprises, LLC v. Great Lakes Grain, LLC, 998 F.3d 260, 273 (6th Cir.

21

2021)) (internal quotation and citation omitted)). Citing Helena Agri-Enterprises,
Defendant emphasizes that Federal Rule of Civil Procedure 26(b)(1) aims to “rein
in the exorbitant costs, protracted time and contention that have strained the civil
justice system.” (See id.). Yet, from the Court’s perspective, Defendant failed to
adhere to its own instruction because it left Plaintiff to construct the search
parameters when Waskul instructs each party to participate in doing so. See 569 F.
Supp. 3d at 637 (“Defense counsel cannot disown responsibility for designing
proportional searches and search testing.”) (citing William A. Gross Const. Assocs.,
Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 134-36 (S.D.NY. 2009)).
In addition, while neither side has been able to conduct depositions because
of the delayed ESI, they will not occur until 2025—after being originally
scheduled as far back as June 2023. (See ECF No. 43, PageID.724). And it is
important to note that the parties are not before the Court on a clean slate. This is
the second time this Court has addressed RFP No. 8. Previously, the request was
too broad. As ordered, Plaintiff spent six months taking extensive efforts to limit
the parameters of its request; even in its briefing on this motion, Plaintiff offers to
further refine its search if certain conditions are met. (See ECF No. 44,
PageID.765). The Court thus agrees that Plaintiff has followed its prior Order to
the letter.

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The parties returned because of Defendant’s meritless opposition to
Plaintiff’s discovery request. The Court will give Defendant credit for obtaining
the assistance of an ESI vendor but nothing more. For these reasons, the Court
ORDERS Defendant to reimburse Plaintiff for half the attorneys’ fees and costs
expended on this motion within 14 days of this Order. If the parties cannot agree
on reasonable costs and fees, Defendant must file a bill of costs with supporting
argument, and Plaintiff must file a response within 14 days of service. No reply
will be allowed.
IT IS SO ORDERED.
The parties here may object to and seek review of this Order, but are
required to file any objections within 14 days of service as provided for in Federal
Rule of Civil Procedure 72(a) and Local Rule 72.1(d). A party may not assign as
error any defect in this Order to which timely objection was not made. Fed. R. Civ.
P. 72(a). Any objections are required to specify the part of the Order to which the
party objects and state the basis of the objection. When an objection is filed to a
magistrate judge’s ruling on a non-dispositive motion, the ruling remains in effect
unless it is stayed by the magistrate judge or a district judge. E.D. Mich. Local
Rule 72.2.

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Date: January 6, 2025

s/Curtis Ivy, Jr.
Curtis Ivy, Jr.
United States Magistrate Judge

24

APPENDIX A
The following is the full text of RFP No. 8, see ECF No. 42, PageID.603.
Note that the term “pray! OR” appears twice.
All documents including emails or other electronic messaging (including text
messages and encrypted messaging apps) relating to discussions of Henry Ford’s
plans to respond to employee requests for accommodations (of any kind) from the
Policy, from May 1, 2021 to November 1, 2021, from the following custodians (the
Religious
Accommodation
Committee):
[e-mail],
[e-mail],
[e-mail],
[e-mail];
[e-mail];
[e-mail];
[e-mail],
[e-mail], containing the terms(s):
1.

Meg! OR Abbaw! OR Nagham! AND relig! OR onlin! OR webs! OR
connect!

2.

Meg! OR Nagham! OR Abbawi! OR Yvonne! OR Gerlach! OR Fadwa! OR
Gillander! AND
vaccin! OR
vax! OR
shot! OR
covid! OR
burden! OR
hardship! OR
cost! OR
connect! OR
sincer! OR
christ! OR

templ! OR
faith! OR
reject! OR
den! OR
grant! OR
accept! OR
accommodate! OR
object! OR
pray! OR

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relig! OR
flu! OR
prior! OR
convict! OR
harm! OR
pray! OR
prior! OR
holy! OR
spirit! OR
saf!