“Hit Reports” Ordered; Unsupervised Search Held Inadequate; and, “Sufficient to Show” Requests Validated

The EEOC sued Cemex Construction Materials Florida, LLC, on behalf of a trainee. It alleged that “Defendant unlawfully refused to accommodate Ms. Textor’s religious practice, by forbidding her to wear a skirt at work, and by subsequently terminating her.”

The court’s order in EEOC v. Cemex Construction Materials Florida, LLC, 2026 WL 914836 (M.D. Fla. Apr. 3, 2026), covers a lot of e-discovery ground. Among other holdings, the court ordered production of “hit reports” and ordered counsel to supervise a cell phone search.  It also validated “sufficient to show” document requests.

The EEOC moved to compel production of responsive materials. Cemex asserted a boilerplate litany, “arguing that the requests are irrelevant, unduly burdensome, and disproportionate to the needs of the case.” The Cemex court noted its broad discretion under Fed.R.Civ.P. 26 to compel discovery.

In “Alice in Wonderland,” Lewis Carroll wrote “Begin at the beginning and go on till you come to the end: then stop.”

RELIGIOUS ACCOMODATION ALLEGATIONS

It is alleged that Ms. Textor was an experienced driver who was employed by Cemex as driver of a concrete mixer truck. Compl., ¶12-14. She is an Apostolic Christian. Id., ¶16. “Ms. Textor’s religious beliefs require that she wear a skirt or dress while in public.” Id., ¶ 17.

“[Cemex employee] Mr. Rawls told Ms. Textor that she can wear a skirt if it is worn over pants. Ms. Textor agreed to do so.” Id., ¶21. The employer asserted that loose-fitting items were unsafe. Id., ¶23.  Ms. Textor replied that she could wear a skirt that was not loose. Id., ¶24.

Later, Cemex told Ms. Textor that she could not be employed if she wore a skirt. Id., ¶33.  Ms. Textor offered to wear a shorter skirt and consulted her pastor. Id.,  ¶¶33, 37. Her pastor told her that she must wear a skirt. Id., ¶37.

Ms. Textor requested a religious accommodation, id., ¶38, and Cemex replied: “We did evaluate your request and, as previously shared, it is a safety violation and therefore a requirement as an employee with CEMEX.” Id., ¶39. She was terminated.

57 RPD’s + SEARCH TERMS

The starting point is the discovery requests: “On September 29, 2025, Plaintiff served Defendant with 57 Requests for Production, along with an extensive list of ‘Proposed ESI Search Terms’ …, which terms it later revised…. The requests sought material from September 1, 2023 to the present.” Id. at *1.

RPD 24 sought: “Documents concerning or reflecting communication (including emails and text messages) between Ms. Textor and John Rawls, TJ Paul, Sophia Husebo, Julian Riffaud, Justin Latessa, and/or Clyde ‘Gator’ Fortner.”

Mr. Rawls and Mr. Paul allegedly had discussions with Ms. Textor. Compl., ¶¶19-23, 25.  Ms. Husebo was the H.R. representative. Id., ¶¶29-39.  Mr. Riffaud allegedly ordered Ms. Textor to leave. Id., ¶42.  Messrs. Latessa and Fortner are not mentioned in the Complaint.

No. 25 requested: “Documents concerning or reflecting communication (including emails and text messages) that were sent or received by John Rawls, TJ Paul, Sophia Husebo, Julian Riffaud, Justin Latessa, Clyde ‘Gator’ Fortner, Defendant’s management personnel, and/or Defendant’s human resources personnel about any of the following: (1) Ms. Textor; (2) Defendant’s dress or grooming policies or dress code; (3) the ability to wear a skirt in the Mixture Truck Driver or Ready-Mix Driver position(s); and (4) religious accommodations relating to Defendant’s dress code and/or safety policies.”

HIT REPORTS COMPELLED AFTER FAILURE TO COOPERATE

As to those two RPD’s, the EEOC suggested that Cemex’s procedures were deficient.  The court found EEOC’s concerns to be “well-taken.”

The EEOC moved to compel production of “hit reports” for each proposed search term for the requests. Initially, Cemex did not produce any email in response to those two requests.  Later, it produced “some” email.  Then  it produced approximately 500 pages of responsive documents.

The court granted EEOC’s request for hit reports:

Defendant acknowledges that its response did not include all documents responsive to Plaintiff’s search terms. However, Defendant explains, “[u]pon receiving Plaintiff’s initial search terms, Defendant ran a search utilizing those terms, which pulled 245.17 [gigabytes] of emails, amounting to approximately 120,000 emails.” … So, finding review of the responsive materials to be unduly burdensome, Defendant unilaterally added the required term “Textor*” to each of the search terms, “to significantly reduce the results to a manageable 1.08 [gigabytes] of emails, which resulted in approximately 550 emails to review.”

Id. at * 2 (emphasis added). The court agreed with Cemex that requiring a search of 120,000 emails in response to these two requests was unduly burdensome.

However, Cemex had failed to cooperate and that failure was costly. The court wrote:

Plaintiff [EEOC] wished to work with Defendant to narrow its requests. Indeed, Plaintiff requested hit reports for precisely that purpose. Defendant refused to provide hit reports and instead unilaterally chose to add “Textor*” to every search term. This method appears highly likely to exclude documents responsive to Plaintiff’s relevant requests.

Because the method Defendant used to identify documents responsive to Requests 24 and 25 appears insufficient, I grant Plaintiff’s motion to compel hit reports. The request for hit reports appears to be a reasonable means to facilitate a bilateral attempt to narrow an otherwise substantial discovery request. See The Sedona Conference Best Practices Commentary on the Use of Search & Information Retrieval Methods in E-Discovery, 15 SEDONA CONF. J. 217, 225 (2014) (“Parties and their counsel should make a good faith attempt to cooperate when determining the use of particular search and information retrieval methods, tools, and protocols (including keywords…and other types of search parameters and quality control measures[)].”).

Id. at *2 (emphasis added).  Cemex’s refusal to provide hit reports and negotiate appears indefensible. Hit reports are routinely exchanged. See Limited “Discovery on Discovery” Permitted; Judicial Definitions of “Hit Report” and “Families” Held Unnecessary (Oct. 13, 2025)( “The Court declines Defendants’ invitation to further define terms such as ‘hit report’ and ‘families’ as a reasonably diligent search of this Court’s and the Circuit’s jurisprudence governing ESI reveals that the terms are commonly accepted.”); Hit Reports – Part IV – Request for “Nonresponsiveness” Log Denied (Jan. 2, 2025); Does Every “Hit” on a “Hit Report” Have to be Produced? (Nov. 13, 2024); 8 Lessons Learned – Part II – “Hit” Report Provision of ESI Protocol (May 7, 2024); How to Avoid Contentious “Hit Report” Problems – Part III (Nov. 15, 2023);  Hit Reports (Aug 14, 2022)

UNSUPERVISED SEARCH BY A LITIGANT IS INSUFFICIENT

The court wrote: “Next, Plaintiff [EEOC] asks the Court to order Defendant to conduct an attorney-directed and attorney-supervised search of its custodians’ cellphones to identify and collect communications responsive to Requests 24 and 25. I grant the request.” Id. at *2.

The facts presented by the EEOC were damning. Cemex admitted that it asked its custodians to search and collect responsive materials from their own devices. Id. at *3.

Plaintiff explains that Defendant admittedly allowed employees to identify and collect responsive documents from their own cellphones…. Plaintiff noticed that Defendant did not produce certain texts that Plaintiff knew to be responsive, and when asked about the omissions, defense counsel could not say how the searches or collections were done or explain the omissions.

Id. at *3. Cemex could not explain the protocols used or any quality control measures. “Rather, Defendant argues that the attorney-directed and supervised search is unnecessary, because the custodians themselves say there are no more responsive documents, the search is intrusive, and Plaintiff has not suggested any discovery malfeasance.”  Id. at *3.

That argument has long been rejected. See “Self-Collection” May Be Reasonable Using Ralph Losey’s Dual-Protection System (Jan. 19, 2024); Unsupervised Self-Collection Predictably Led to Problems (Jan. 2, 2021); Media Reports “Dr. Phil accused of deleting incriminating texts amid bankruptcy filing….”; Accusation is Disputed (Dec. 28, 2025); Self-Identification and Self-Preservation: A Fool for a Client? (May 26, 2011)( self-collection is the ESI equivalent of “do-it-yourself” home repair.  If successful, it can save money.  If not, it can lead to bigger problems.); cf. Maker’s Mark: A Different View of Self Collection (Aug. 3, 2021).

Cemex’s argument landed with a thud.  The Cemex court wrote: “Defendant’s argument misses the mark. An attorney is responsible for certifying discovery responses, and that obligation requires an attorney to be confident in the integrity of the underlying search, collection, and production procedures.” Id. at *3.  Further, the EEOC demonstrated that documents were missed. “This provides a reasonable basis for Plaintiff’s request.” Id.

“SUFFICIENT TO SHOW” REQUESTS

The EEOC’s sixth RPD was for “Documents sufficient to show position descriptions, requirements, duties, qualifications, performance metrics, and/or performance review documents for the Mixture Truck Driver or Ready-Mix Driver positions(s) with Defendant, and any changes thereto, from January 2023 through present.” [emphasis added].

It is noteworthy because of the EEOC’s prudent use of a “sufficient to show” document request. Id. at *3-4.  Cemex argued that the request called for every document that “even references” the topics.  The court disagreed:

Were this so, I might agree that such a request would be overbroad. However, as the actual request seeks only documents “sufficient to show” the listed characteristics of the job. I do not find the request, as written, to be overbroad, and Defendant makes no showing that the request, as written, is unduly burdensome.

Id. at *4; accord id. at *5-6 (documents “sufficient to show”).

The EEOC attorneys’ prudent use of “sufficient to show” requests reflects modern practice.  See Requests for Documents “Sufficient to Show,” Instead of “Any and All” Documents (Jun. 30,, 2025); Timeliness, Showing of Incomplete Production, and “Sufficient to Show” Discovery Requests (Jan. 3, 2025); New Sedona Primer Implements the “Bull’s Eye View” of Discovery Requests (Dec. 8, 2021); M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts,” 28, 96 n. 1, 193 (Md. State Bar Ass’n. 2020).  In the Sedona Primer, Prof. Steven Gensler wrote: “ No one shoots at a target by aiming for the outermost circles. You aim first for the bull’s- eye. Discovery should be approached in the same way—go first for what is most important, then follow up (if needed) with the information of lesser value. . . . The goal is to avoid the ‘I want everything— and a pony!’ approach to discovery. . . .” [emphasis added].

Several other issues were decided, with the court stating, for example: “Given that Defendant, again, does nothing to demonstrate any burden associated with responding to this request, I grant Plaintiff’s motion as to Request 38….  While the Court may have been receptive to the claim that requesting each of these categories of documents was disproportionate or unduly burdensome, Defendant makes no effort to specify the burden.” Id. at *6-7.