# Million

> District Court, C.D. Illinois · November 7, 2025

URL: https://www.frixlaw.com/law-library/cases/11200020

## Case

- **Full name:** Mary Million v. Hospital Sisters Health System, et al.
- **Court:** District Court, C.D. Illinois
- **Decided:** November 7, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION

MARY MILLION, )
)
Plaintiff, )
)
v. ) Case No. 24-CV-3357
)
HOSPITAL SISTERS HEALTH )
SYSTEM, et al., )
)
Defendants. )

OPINION AND ORDER

SUE E. MYERSCOUGH, U.S. DISTRICT JUDGE:

Before the Court are Plaintiff’s Motions to Compel Discovery
(d/e 29, 43), Defendants’ Motion to Stay Discovery (d/e 37) and
Motion to Dismiss (d/e 49), and the respective responses and replies
thereto. For the following reasons, Plaintiff’s Motions to Compel are
GRANTED, Defendants’ Motion to Dismiss is DENIED, and
Defendants’ Motion to Stay is MOOT.
BACKGROUND
On December 19, 2024, Plaintiff Mary Million, individually and
on behalf of those similarly situated, filed a one-count Class Action
Complaint in this Court, asserting that she was required to undergo
a preemployment medical screening and answer questions
regarding family history of illnesses, in a manner that violated the

Illinois Genetic Information Privacy Act (GIPA), 410 Ill. Comp. Stat.
513/1, et seq. See d/e 1, ¶¶ 28-35.
GIPA does not allow an employer, directly or indirectly, to

“solicit, request, require or purchase genetic testing or genetic
information of a person or a family member of the person, or
administer a genetic test to a person or a family member of the

person as a condition of employment, preemployment application,
labor organization membership, or licensure[.]” 410 Ill. Comp. Stat.
513/25(c)(1).

On February 28, 2025, Defendants Hospital Sisters Health
System (“HSHS”) and St. Francis Hospital, of the Hospital Sisters of
the Third Order of St. Francis (“St. Francis Hospital”), moved to

dismiss the sole count of Plaintiff’s Complaint for failure to
plausibly state a claim upon which relief can be granted pursuant
to Federal Rule of Civil Procedure 12(b)(6). See d/e 14, 15.
On May 15, 2025, this Court entered an Opinion and Order

denying that motion to dismiss. See d/e 27. Specifically, the Court
held that the Complaint sufficiently alleged that Defendants’
questions as to Plaintiff’s family medical history during a
preemployment medical screening constituted the soliciting of

genetic information as a condition of employment and that Plaintiff
had sufficiently alleged that Defendants’ conduct was intentional or
reckless. In that same Order, this Court also held that it has

subject-matter jurisdiction under 28 U.S.C. § 1332(d)(2)(A) because
the matter in controversy exceeds $5 million, exclusive of interest
and costs, and is a class action in which some members of the class

are citizens of different states than the Defendants.
Meanwhile, on March 7, 2025, Magistrate Judge Eric I. Long
adopted the deadlines agreed upon in the Parties’ Joint Proposed

Discovery Schedule. See d/e 15, 17. Pursuant to the parties’
proposal, all fact discovery was to be completed by November 30,
2025; expert disclosures, reports, and depositions were due during

January through March 2026; and the deadline to file a motion for
class certification and any dispositive motions was May 15, 2026.
Further, by agreement of the parties, on April 30, 2025,
Magistrate Judge Long entered an Agreed Confidentiality Order,

Qualified Protective Order, and Electronically Stored Information
and Hard Copy Records Order (d/e 26).
On August 6-7, 2025, new counsel entered appearances on
Defendants’ behalf and prior counsel withdrew. See d/e 34, 35, 39.

MOTION TO DISMISS
The Court first considers the Motion to Dismiss for Lack of
Subject Matter Jurisdiction and Rule 11 Sanctions (d/e 49) and

accompanying Memorandum of Law (d/e 50) filed by Defendants on
August 28, 2025 because, if granted, the earlier-filed discovery
motions would become moot. Plaintiff filed her Response (d/e 53)

on September 11, 2025, to which Defendants filed a Reply (d/e 54)
on September 18, 2025.
I. Defendants’ Motion to Dismiss for Lack of Subject
Jurisdiction is Denied.
A. Rule 12(b)(1) Standard
The standard that the Court applies to a Rule 12(b)(1) motion

to dismiss for lack of subject-matter jurisdiction depends on the
purpose of the motion. See Apex Digital, Inc. v. Sears, Roebuck &
Co., 572 F.3d 440, 443–44 (7th Cir. 2009); United Phosphorus, Ltd.
v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003) (en banc),

overruled on other grounds by Minn–Chem, Inc. v. Agrium, Inc., 683
F.3d 845 (7th Cir. 2012). If a defendant challenges the sufficiency
of the allegations regarding subject-matter jurisdiction, the Court
accepts all well-pleaded factual allegations as true and will draw all

reasonable inferences in favor of the plaintiff. See Apex Digital, 572
F.3d at 443–44; United Phosphorus, 322 F.3d at 946. If, however,
the defendant denies or controverts the truth of the jurisdictional

allegations, the Court may look beyond the pleadings and view any
evidence submitted to determine if subject-matter jurisdiction
exists. See Apex Digital, 572 F.3d at 443–44; United

Phosphorus, 322 F.3d at 946.
When jurisdiction is in question, “the proponent of jurisdiction
has the burden of proof, but the burden applies only to contested

jurisdictional facts, which must be proven by a preponderance of
the evidence.” Irish v. BNSF Ry. Co., 2009 WL 276519, at *2 (W.D.
Wis. Feb. 4, 2009), citing Meridian v. Sadowski, 441 F.3d 536, 542

(7th Cir. 2006); see also Craig v. Ontario Corp., 543 F.3d 872, 876
(7th Cir. 2008). “[O]nce the proponent of jurisdiction has made a
good faith claim…, supported by uncontested factual allegations or

contested factual allegations that have been established in an
evidentiary hearing by admissible evidence, federal jurisdiction
follows unless the judge concludes that it is legally impossible for
the recovery to exceed the jurisdictional minimum.” Irish, 2009 WL
276519, at *2 (“Meridian Security Ins. concerned the amount in

dispute, but the holding of the case applies equally to the prediction
of class size, an element not present in the mine run diversity case
but critical to [jurisdiction] under the Class Action Fairness Act.”).

B. Defendants’ Arguments
Defendants have raised the second type of jurisdictional
challenge. That is, Defendants ask that the Court not accept the

jurisdictional factual allegations in the Complaint as true and
instead require Plaintiff to present “summary judgment type
evidence” to support her allegation that jurisdiction exists under the

Class Action Fairness Act (CAFA). Licea v. Kontoor Brands, Inc.,
2023 WL 6162683, at *1 (C.D. Cal. Sept. 18, 2023) (“Plaintiff must
submit evidence—i.e., declarations, affidavits, or other summary-

judgment type evidence” to show that CAFA’s jurisdictional
threshold has been met).
CAFA “creat[es] federal subject matter jurisdiction if (1) a class
has 100 or more class members; (2) at least one class member is

diverse from at least one defendant (‘minimal diversity’); and (3)
there is more than $5 million, exclusive of interest and costs, in
controversy in the aggregate.” Sabrina Roppo v. Travelers Comm.
Ins. Co., 869 F.3d 568, 578 (7th Cir. 2017) (emphasis removed),

citing 28 U.S.C. § 1332(d).
Defendants argue that Plaintiff cannot meet her burden of
showing, by a preponderance of the evidence, that jurisdiction

exists under CAFA. Instead, Defendants argue that Plaintiff’s
assertion as to the number of class members and the existence of
diversity is based only a speculative belief. See Halim v. Charlotte

Tilbury Beauty Inc., 2023 WL 3388898, at *4 (N.D. Ill. May 11,
2023) (holding that “speculation is not enough” to satisfy the
existence of subject-matter jurisdiction).

First, Defendants argue that Plaintiff’s assertion that at least
100 class members exist is not actually supported by any
document(s) demonstrating that anyone other than Plaintiff was

subject to inquiry about their family members’ genetic information
when they applied for employment with Defendants.
Second, Defendants argue that Plaintiff does not have any

evidence to identify that at least one class member is a citizen of a
state that is diverse from Defendants’ citizenship. See Dancel v.
Groupon, Inc., 940 F.3d 381, 385 (7th Cir. 2019).
C. Defendants’ Motion to Dismiss for Lack of Subject-
Matter Jurisdiction is Denied because Plaintiff has
Presented Sufficient Evidence at this Stage that there
are 100 or More Class Members and that at Least One
Class Member is a Citizen of a State that is Diverse
from Defendants’ Citizenship.
In response to Defendants’ Motion, Plaintiff has met her
burden of producing evidence that 100 or more class members
exist.
Pursuant to the Complaint, the proposed class is defined as:
All individuals in Illinois who, within the applicable
limitations period [5 years]:
(i) applied for employment with Hospital Sisters Health
System or St. Francis Hospital, of the Hospital
Sisters of the Third Order of St. Francis, or were
employed by them; and
(ii) from whom Hospital Sisters Health System and St.
Francis Hospital, of the Hospital Sisters of the Third
Order of St. Francis, or its employees, agents,
assigns, contractors, or other third parties acting on
their behalf, requested, solicited, required, and/or
obtained genetic information, including family
medical history.
(d/e 1, ¶ 38).
Again, Defendants maintain that there are no documents or
other “summary judgment type evidence” that would support
Plaintiff’s allegation that any other individuals—much less at least
100 others—were asked about their genetic information, including
family medical history, when applying for employment with
Defendants.

Defendants are wrong. At this stage, prior to the close of
discovery, the following evidence supports Plaintiff’s allegations that
100 or more other employees or applicants for employment were

asked about their family medical history by Defendants:
• Defendant HSHS’s website clearly specifies they employ “more
than 11,000 colleagues” at their health centers and clinics;

• According to published industry research, hospital employee
turnover rates during the relevant time period ranged from 18
to 26 percent nationwide;

• A YouTube video from HSHS Medical Group1 included the
statement that “probably one of the first things we ask when a
patient comes to see us is there a family history of any of these

things…”;
• Discovery produced by Defendants to date included a policy
indicating that all candidates for employment with Defendant

1 In response to written discovery, Defendants identified HSHS
Medical Group as an entity to whom HSHS referred employees or
applicants for employment in Illinois for medical examinations.
(d/e 43-2, ¶¶ 3-4).
HSHS were required to be cleared with a pre-employment
health assessment including a pre-employment physical;

• Defendant HSHS’s website included a Code of Conduct
indicating that they collect information about family history,
as well as a commonly-used “Adult History & Physical

Examination Form” that included a section on family history;
• Defendants filed as an exhibit (d/e 36-3, p. 20) a document
not yet produced in discovery entitled “Screening Checklist for

Contraindications to Vaccines for Adults” and described by
Defendants as “the form sent to HSHS on each exam” of an
applicant for employment, which includes the following

question: “Do you have a parent, brother, or sister with an
immune system problem?”
In short, and contrary to Defendants’ arguments, Plaintiff is

not relying on mere speculation. Based upon the foregoing
documentary evidence filed by Plaintiff in response to Defendants’
Motion to Dismiss, Plaintiff has established by a preponderance of

the evidence the following facts: Defendants employ over 11,000
employees, all candidates for employment have been required to
receive a pre-employment physical, Defendants referred employees
and applicants for employment in Illinois to HSHS Medical Group
for medical exams, HSHS Medical Group routinely asks patients

about family history, and at least one form sent to Defendant HSHS
on completion of an applicant’s exam includes a question regarding
whether the applicant’s immediate family members suffer from a

specific medical condition (an immune system problem).
These facts are sufficient, at this stage, to rebut Defendants’
arguments that Plaintiff has no evidence that 100 or more other

employees or applicants were asked for family medical history. See
Irish, 2009 WL 276519, at *4 (“At this point, the only question is
whether plaintiffs have shown that it is a legal certainty that this

jurisdictional requisite will not be met.”), citing Meridian Security
Ins., 441 F.3d at 541.
Likewise, at this stage Plaintiff has met her burden of proving

it is more likely true than not that at least one class member is
diverse from at least one defendant. Defendants are Illinois not-for-
profit corporations with the same registered address in Springfield,
Illinois.

Defendants point to Plaintiff’s written discovery response
indicating that she has not personally spoken to any person who is
a member of the proposed class. It follows, therefore, that Plaintiff
cannot at this stage identify a specific class member by name who

is a citizen of a state other than Illinois.
In response, Plaintiff maintains that Defendants are fully
aware that they employ Missouri citizens. In support thereof,

Plaintiff points to the following publicly-available evidence:
• LinkedIn pages for specific, named individuals who list their
home city as St. Louis, Missouri, and their employer as either

HSHS or St. Francis Hospital;
• A document from HSHS human resources indicating that
Defendants’ employees are within the “HSHS Select” health

plan network service area if their primary residence is within
one of 31 listed counties in Illinois or 5 counties in Missouri;
and

• An indeed.com search for jobs with “hshs” in St. Louis, MO,
returns multiple hospitals within commuting distance from
Missouri, including Defendant St. Francis Hospital and

HSHS’s St. Elizabeth Hospital.
Based on the foregoing evidence, the Court finds that Plaintiff
has shown that it is more likely true than not that at least one
member of the proposed class is a Missouri citizen and therefore
diverse from Defendants. Plaintiff need not prove more at this

stage, prior to class certification or dispositive motions. That is,
Plaintiff need not establish that there is a specific Missouri (or other
diverse) citizen whose rights under GIPA were violated by

Defendants. See Boim v. American Muslims for Palestine, 9 F.4th
545, 557 (7th Cir. 2021) (“The Supreme Court has cautioned
against deciding merits questions when evaluating challenges to

jurisdiction.”), citing Steel Co. v. Citizens for a Better Environment,
523 U.S. 83, 89 (1998); see also Bell v. Hood, 327 U.S. 678, 682
(holding that jurisdiction is not defeated by the possibility that the

Plaintiff may not actually recover on the cause of action alleged in
the complaint).
For the foregoing reasons, Defendants’ Motion to Dismiss for

lack of subject-matter jurisdiction is DENIED.
II. Defendants’ Motion for Sanctions is Denied because
Plaintiff did not Violate Rule 11.
Federal Rule of Civil Procedure Rule 11(b) provides:
By presenting to the court a pleading, written motion, or other
paper—whether by signing, filing, submitting, or later
advocating it—an attorney or unrepresented party certifies
that to the best of the person's knowledge, information, and
belief, formed after an inquiry reasonable under the
circumstances:
… (3) the factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary support
after a reasonable opportunity for further investigation or
discovery[.]
Fed. R. Civ. P. 11(b)(3).
Defendants allege that Plaintiff, through Plaintiff’s counsel,
violated Rule 11(b)(3) because the factual allegations regarding
CAFA jurisdiction in Plaintiff’s Complaint do not have evidentiary
support and because Plaintiff’s counsel did not actually conduct a

reasonable inquiry prior to filing the Complaint. Defendants
therefore move for sanctions as provided under Rule 11(c).
Defendants’ Motion must be denied for two reasons. First, the

Motion does not comply with Rule 11(c)(2)’s requirement that “[a]
motion for sanctions must be made separately from any other
motion” because Defendants filed the request for Rule 11 sanctions

in the same filing as its Motion to Dismiss pursuant to Rule
12(b)(1).
Second, Plaintiff’s Complaint did not violate Rule 11(b)(3). As
with the request to dismiss for lack of subject-matter jurisdiction,

Defendants argue that Plaintiff’s belief that subject-matter exists
under CAFA is based upon mere speculation and is not based upon
facts supported by reasonable inquiry.

The Court has now rejected this argument when denying
Defendants’ motion to dismiss for lack of subject-matter
jurisdiction. As discussed above, Plaintiff has demonstrated that

her factual contentions regarding CAFA subject-matter jurisdiction
have evidentiary support. Moreover, much of the information that
Plaintiff has presented in support of jurisdiction was available upon

inquiry by her counsel prior to filing the Complaint via publicly-
available information on the internet and was not merely uncovered
during discovery in this case. Cf. Corley v. Rosewood Care Ctr., 388

F.3d 990, 1014 (7th Cir. 2004) (“The focus in Rule 11 sanctions is
on what counsel knew at the time the complaint was filed, not what
subsequently was revealed in discovery.”).

For these reasons, Defendants’ request for Rule 11 sanctions
must be DENIED.
DISCOVERY MOTIONS

I. Defendants’ Motion to Stay Discovery is Denied because
this Court has Subject-Matter Jurisdiction.
The Court first considers the Motion to Stay (d/e 37), in which
Defendants requested a stay of discovery pending the resolution of

the foregoing Motion to Dismiss and accompanying request for Rule
11 sanctions filed by Defendants. The Court has now denied both
Defendants’ Motion to Dismiss and their request for Rule 11

sanctions. Therefore, the case will proceed with discovery, and the
Motion to Stay is MOOT.
II. Plaintiff’s Motions to Compel are Granted because
Plaintiff’s Discovery Requests are Proper Under the
Parties’ Joint Discovery Schedule and the Electronically
Stored Information and Hard Copy Records Order.
A. Plaintiff’s Motion to Compel Defendants to
Participate in Class Discovery is Granted.
In Plaintiff’s Motion to Compel Defendants to Participate in
Class Discovery (d/e 29), Plaintiff asks that the Court compel
Defendants’ response to interrogatories number 10 and 11, request
for production 20, and other requests related to class certification.

Interrogatory 10 requests that Defendant HSHS “[i]dentify the
number of HSHS employees and applicants for employment with
HSHS in Illinois that submitted to a Medical Examination during
the Relevant period.” (d/e 29-1, p. 7 ¶ 10). Interrogatory 11

requests that Defendant HSHS “[i]dentify all individuals, including
HSHS employees and applicants for employment with HSHS, that
submitted to a Medical Examination in Illinois during Relevant

Period” and include each individual’s name, date of application
and/or employment, position held with HSHS, examining medical
provider, date of exam, reason for exam, and the specific health,

medical, or other genetic information requested. (d/e 29-1, p. 7-8 ¶
11).
Request for production 20 seeks “[a]ll documents and

communications relating to requests for health and/or medical
information (including family medical history) made to those
individuals other than Million identified in Interrogatory 10, above,

by any medical professional to whom such individual was referred
to by HSHS.” (d/e 29-1, p. 12 ¶ 20).
Defendants responded to Plaintiff’s interrogatories 10 and 11

and request for production 20 with the following identical objection:
“Defendants object to [Interrogatory/Request] as overbroad, and not
proportional to the needs of the case as the class has not been
certified.” (d/e 29-2, p. 9 ¶¶ 10-11, p. 15-16 ¶ 20).

Defendants’ objection—which is based upon the fact that the
class has not yet been certified—is not well-taken.
As indicated in the Background section, above, Magistrate
Judge Long entered an Order on March 7, 2025, adopting the

parties’ joint proposed deadlines. Those deadlines included one fact
discovery deadline on November 30, 2025, followed by expert
discovery deadlines throughout January, February, and March

2026, and a deadline to file a motion for class certification by May
15, 2026. That is, the parties agreed to one fact discovery deadline,
necessarily encompassing both merits-based and class-based

discovery. See, e.g., Hossfeld v. Allstate Co., 2021 WL 4819498, at
*3 (N.D. Ill. Oct. 15, 2021) (“As an initial matter, [Defendant’s]
argument that [Plaintiff] should not be permitted to obtain

information relevant to his class claims at this time is without
merit. Merit and class fact discovery are not bifurcated in this case
and thus, there is only one fact stage of discovery….Given that the

Court has not bifurcated merits and class discovery, the fact that
the [document requested] is relevant to the class certification
inquiry or even to a later standing determination of which class
members have suffered a redressable injury does not make it

disproportional to the needs of the case or otherwise improper at
this time.”); See also Whiteamire Clinic, P.A. Inc. v. Quill Corp., 2013
WL 5348377, at *3 (N.D. Ill. Sept. 25, 2013).

Prior to class certification, “the scope of discovery must be
sufficiently broad to give the plaintiff a realistic opportunity to meet
the requirements of class certification” under Rule 23: numerosity,

common questions of law or fact, typicality, and adequacy of
representation. Gebka v. Allstate Corp., 2021 WL 825612, at *7
(N.D. Ill. Mar. 4, 2021) (collecting cases); Fed. R. Civ. P. 23(a); see

also Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 354 n.20
(1978) (“We do not hold that class members’ names and addresses
never can be obtained under the discovery rules. There may be

instances where this information could be relevant to issues that
arise under Rule 23”—such as numerosity, common questions, and
adequacy of representation—“or where a party has reason to believe

that communication with some members of the class could yield
information bearing on these or other issues.”).
Therefore, Plaintiff is entitled to responses by Defendants to
interrogatories number 10 and 11 and request for production 20 at

this stage of discovery, prior to class certification.
Further, to the extent that Defendants now object, in response
to Plaintiff’s Motion to Compel, that the requested discovery

“tramples on third-party privacy rights” (d/e 36, p. 2), those issues
were already addressed with entry of agreed-upon confidentiality
and qualified protective orders (d/e 26). If Defendants believe those

agreed orders entered by the Magistrate Judge are now insufficient,
Defendants may formally raise this issue with the Magistrate after
conferring with Plaintiff’s counsel in an attempt to agree upon a

proposed revised order.
For these reasons, Plaintiff’s Motion to Compel Defendants to
Participate in Class Discovery is GRANTED.

B. Plaintiff’s Motion to Compel Defendants to Produce
ESI Information is Granted.
Finally, in Plaintiff’s Motion to Compel Defendants to Produce
ESI Information (d/e 43), Plaintiff asks that this Court order
Defendants to:
1. Provide Defendants’ proposed search terms and search term
hit reports;
2. Disclose the ESI Sources it has searched to date, including
Custodial and Non-Custodial Data Sources as those terms are
defined in the ESI Protocol (ECF No. 26);
3. Provide the date range of the search;
4. Provide any other method of limitation being used by
Defendants to cull responsive data;
5. Meet and confer with counsel for Plaintiff regarding this
information; and
6. Pay Plaintiff’s reasonable expenses and attorney fees
incurred in bringing this Motion.
(d/e 43-6, p. 1-2; see also d/e 43, p. 6-7).
As already summarized, the Magistrate Judge entered an
Electronically Stored Information and Hard Copy Records Order on
April 30, 2025, pursuant to the parties’ joint agreements regarding

discovery of electronically stored information (“ESI”). (d/e 26, p. 30-
50). That Order governs the production of documents by the
parties during discovery in this matter and provides, in relevant

part:
To achieve proportional and cost-effective discovery, the
Parties agree that limitations on the scope of the search (e.g.,
time frames, Document types, keywords, etc.) may be
employed by the Parties to reasonably cull out non-responsive
information. If Search Terms are used, the Producing Party
will disclose those Search Terms to the Requesting Party. If the
Requesting Party in good faith believes additional Search
Terms are likely to yield additional unique, relevant
information, the Requesting Party may propose additional
Search Terms. In that event, the Parties agree to meet and
confer about the anticipated benefits and burdens of those
additional proposed Search Terms. If disputed terms still exist
at the end of the meet and confer process, the Parties will
submit those terms to the Court in the form of a joint
discovery letter with a discussion of the relevance and/or
burden associated with those Search Terms. If some other
method of limitation is used to cull responsive data, the
Producing Party will disclose the method to the Requesting
Party.
(d/e 26, p. 46 § 5 ¶ 1).
According to the Motion to Compel filed by Plaintiff, Plaintiff
received Defendants’ responses to Plaintiff’s requests for production
of documents on May 9, 2025. Plaintiff sent Defendants a letter on

June 9, 2025, indicating that Defendants’ produced documents had
included no emails or other internal or external electronic
communications. On its face, it appeared implausible to Plaintiff
that no responsive emails or other ESI could exist. Plaintiff then

proposed:
Regarding the [requested] Class Discovery and ESI Production,
we are willing to work with you to create a set of initial search
terms, list of custodians, and list of databases to search in
relation to our Requests for Production. This will allow us to
start the iterative process necessary to ensure proportional
discovery in this case. See Rayome v. ABT Elecs. Inc., 2024 WL
4296755, at *1 (N.D. Ill. Sept. 24, 2024) (“The quality control
measures that Parties may consider to address these
limitations include, among other things, sampling and testing
the search terms to determine whether they are actually
returning relevant documents….These iterative measures,
together with the sharing of responsive metrics corresponding
to the sampled and reviewed documents, can help Parties
identify responsive ESI in a more proportional manner.”). This
process follows what we agreed to in the ESI Protocol entered
in this litigation. See ECF #26. Specifically, Section V of the
ESI Protocol governs the custodians and search methodology
for ESI.
(d/e 43-3, p. 3).
On June 26, 2025, the parties engaged in a meet-and-confer

about discovery, including the lack of ESI in Defendants’ initial
production and discussed Defendants’ ongoing efforts to search
emails and texts, as well as other databases, using relevant search

terms. Defendants agreed to identify search terms and ESI sources
used in producing additional responsive documents. On July 25,
2025, the parties again met and conferred and Defendants agreed
to make their best effort to disclose search term reports and ESI

sources before the next scheduled meet-and-confer on August 1,
2025 (which was later moved to August 5, 2025, at Defendants’
request).

On August 5, 2025, Plaintiff was notified that Defendants’
counsel would be withdrawing and that Plaintiff’s counsel should
meet and confer with new counsel regarding the foregoing discovery

issues. However, prior to any opportunity for further meet-and-
confer, Defendants filed a Motion to Stay Discovery the following
day.
Defendants do not dispute the foregoing chronology in their
response to Plaintiff’s Motion. Instead, Defendants: (1) repeat their

argument that Plaintiff’s case should be dismissed for lack of
subject-matter jurisdiction; (2) argue that Plaintiff failed to properly
meet and confer before filing her Motion to Compel; and (3) assert

that the information that Plaintiff is requesting is not contemplated
by the ESI Order.
Defendants’ first two arguments are baseless. The Court has

already rejected Defendants’ argument as to subject-matter
jurisdiction. Further, the undisputed chronology indicates that
Plaintiff did comply with the required meet and confer obligations

before filing the instant Motion to Compel. The Court cannot
reasonably require Plaintiff to have attempted further meetings
when Defendants did not participate in the scheduled August 5,

2025, conference and instead filed a Motion to Stay Discovery
altogether.
Turning to Defendants’ final argument regarding the scope of
the ESI Order, Defendants argue that they were required to disclose

only: “(1) search terms if search terms were used; and (2) any
limited method used to cull responsive data if such a method was
used.” (d/e 51, p. 2 (emphasis added by Defendants)). As such,
Defendants assert that they were not required to conduct a search

for responsive documents in any particular manner, nor were they
required to disclose “information related to search term hit reports,
databases, custodians, or date ranges.” Id.

Defendants’ interpretation of the ESI Order is not a reasonable
understanding of the requirements under that Order.
With respect to Defendants’ argument that the ESI Order did

not require the search of ESI to be conducted in any particular
manner and only required Defendants to disclose search terms if
any were actually used, the ESI Order plainly directed that the

parties meet and confer if the party requesting production has a
“good faith belie[f] [that] additional Search Terms are likely to yield
additional unique, relevant information[.]” (d/e 26, p. 46).

Defendants may not simply assert that they did not use any search
terms2 when identifying and producing responsive documents and

2 Further, Defendants have already admitted that while their
“search for responsive documents…has been largely manual[,]”
“search terms [have] be[en] used in a limited fashion.” (d/e 51-6, p.
1). Therefore, search terms were used to produce responsive
documents and those search terms must be disclosed pursuant to
the plain language of the ESI Order.
then opt out of all future discussions of relevant search terms
proposed in good faith by Plaintiff.

As for Defendants’ position that they were not required to
provide information related to search term hit reports, databases,
custodians, or date ranges, that information falls within the “other

method[s] of limitation used to cull responsive data” that is required
to be disclosed under the ESI order. Applying a plain language
interpretation, a decision to search for ESI in only certain databases

or within the control of a particular custodian would constitute a
“method of limitation” in searching for responsive data, as would
applying a date range to the possible results.

In sum, Defendants have not complied with their discovery
obligations under the Court’s ESI Order. Defendants have not
disclosed the methods of limitation used to identify relevant ESI

(including databases, custodians, and date ranges) and have not
met and conferred in good faith with Plaintiff’s counsel to identify
additional search terms likely to produce responsive documents.
Under the plain language of the ESI Order, Defendants must do so.

Further, under Rule 37(a)(5)(A), the Court must order
Defendants to pay Plaintiff’s attorney’s fees and other reasonable
expenses incurred in making this Motion because (i) Plaintiff did
attempt in good faith to obtain the discovery without Court action,

(ii) Defendants’ nondisclosure, response, or objection was not
substantially justified, and (iii) no other circumstances make an
award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(A).

Therefore, Plaintiff’s Motion to Compel Defendants to Produce
ESI Information is GRANTED.
CONCLUSION

For the foregoing reasons, Plaintiff’s Motion to Compel
Defendants to Participate in Class Discovery (d/e 29) is GRANTED;
Defendants’ Motion to Stay Discovery (d/e 37) is DENIED as MOOT;

Plaintiff’s Motion to Compel Defendants to Produce ESI Information
(d/e 43) is GRANTED; and Defendants’ Motion to Dismiss for Lack of
Jurisdiction and Rule 11 Sanctions (d/e 49) is DENIED.

Plaintiff is DIRECTED to submit an affidavit setting forth her
reasonable expenses and attorney’s fees within 7 days of this Order.
This case is referred back to the Magistrate Judge for further
management of discovery, including resetting the fact discovery

deadline currently set for November 30, 2025.
IT IS SO ORDERED.
ENTERED: November 7, 2025.
FOR THE COURT

/s/ Sue E. Myerscough____________
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11200020. Public record. Not legal advice.