Witham v. Hershey Company, The

Background

Christopher Witham alleged that The Hershey Company discriminated against him because of his religion and failed to accommodate his religious beliefs, in violation of Title VII of the Civil Rights Act of 1964 and the Minnesota Human Rights Act. The dispute addressed discovery, not whether those claims were legally or factually meritorious. Hershey served requests for production seeking, among other things, communications concerning Witham’s personal, political, and religious beliefs relating to COVID-19 and vaccines. The requests defined electronically stored information to include metadata and specified a format for producing electronic documents.

Witham objected that the requests were overbroad and sought irrelevant information, but he did not object to the definitions and instructions concerning metadata and the form of production. In September 2024, Magistrate Judge John F. Docherty granted Hershey’s motion to compel in relevant part and ordered Witham to produce responsive documents and communications.

After Hershey challenged the adequacy of Witham’s production, it moved to enforce the September 2024 order. Magistrate Judge Docherty found that Witham’s text-message production appeared to rely on manually selected screenshots and was substantially noncompliant with the requests and the earlier order. The magistrate judge also expressed concern that additional responsive email material might exist. In February 2025, he ordered Witham to produce all responsive text messages and emails, including the required metadata and accompanying information. He did not order Witham to hire an electronic-discovery vendor, but warned that continued noncompliance could lead to sanctions and that failure to take necessary compliance steps, such as engaging a vendor, could be considered evidence of willful noncompliance.

Witham’s Objections

Witham objected under Federal Rule of Civil Procedure 72(a), which permits review of a magistrate judge’s order on a nondispositive matter when the order is clearly erroneous or contrary to law. He argued that the discovery requests improperly inquired into his religious beliefs, that they required production of communications sent or received after his termination, and that he should not have to produce metadata associated with text messages. He also argued that using an electronic-discovery vendor or Hershey’s later-proposed search terms would create an undue burden and disproportionate cost.

Analysis

The court held that most of Witham’s objections challenged the substance of the September 2024 order rather than the February 2025 enforcement order. Because objections to a magistrate judge’s order must be made within 14 days, the court concluded that those challenges were untimely. The court also held that Witham had waived his specific objection to producing post-termination communications because he did not clearly raise that issue earlier.

The court considered the discovery arguments separately and concluded that the communications could be relevant. A plaintiff alleging religious discrimination must show, as part of a basic initial case, that he had a genuine religious belief conflicting with Hershey’s vaccination requirement. The court stated that communications concerning whether Witham had such a belief were relevant to his claim and to Hershey’s defense. The court also explained that information need not ultimately be admissible at trial to be discoverable, because discovery may identify witnesses or other evidence.

The court rejected Witham’s arguments concerning an electronic-discovery vendor. The February 2025 order expressly declined to require him to retain a vendor. It identified using a vendor as one possible way to comply, given the court’s finding that Witham’s prior search methods were inadequate. The court also declined to consider objections concerning Hershey’s later letter proposing 116 search terms because that material had not been before the magistrate judge.

Ruling

Judge Laura M. Provinzino concluded that the February 2025 order was neither clearly erroneous nor contrary to law. The court overruled Witham’s objections and affirmed the February 2025 order in its entirety. The order requires Witham to comply with the discovery orders; it does not decide the merits of his religious-discrimination or accommodation claims.