“Discovery on Discovery” Denied in “It Ends With Us” Lawsuit

Yesterday, I posted a blog titled “Discovery on Discovery” Permitted. “Discovery on Discovery” was denied in Lively v. Wayfarer Studios LLC, 2025 WL 2496307 (S.D.N.Y.  Aug. 29, 2025).

Ms. Lively argued that the “Wallace Defendants” should be compelled to produce Signal messages, “including records that demonstrate a conversation took place, even if no substantive messages remain….”

Alternatively, Ms. Lively asked the court to “order them to alternatively show why they have not and are unable to do so, including by identifying whether responsive communications were deleted after the date by which litigation was anticipated.”

The court wrote:

The Wallace Defendants respond that no such Signal communications are in its possession, custody, or control, noting that they enabled Signal’s auto-deletion function on any purportedly relevant chats…. A responding party who denies that documents exist cannot be compelled to produce them unless the discovering party makes an adequate showing to overcome that assertion. See Golden Trade, S.r.L. v. Lee Apparel Co., 143 F.R.D. 514, 525 n.7 (S.D.N.Y. 1992). Lacking any evidence to counter the Wallace Defendants’ assertion that no Signal communications exist, Lively has not shown that the records she seeks are relevant to this case. For the same reason, Lively has also not sufficiently demonstrated a basis for discovery on discovery. See Williams v. Fed. Gov’t of Nigeria, 2025 WL 507702, at *2 (S.D.N.Y. Feb. 14, 2025). The Court therefore denies her request for these materials. [emphasis added]

However, by citing Williams v. Fed. Gov’t of Nigeria,  the court may have left the door slightly open. In Williams, 2025 WL 507702 at *2 (emphasis added):

Moving Defendants’ request is in the nature of discovery on discovery as they seek documents and information that are not directly relevant to a claim or defense, but that are instead collateral. See Haroun v. ThoughtWorks, Inc., 2020 WL 6828490, at *1 (S.D.N.Y. Oct. 7, 2020). A party seeking discovery on discovery “must provide an adequate factual basis to justify the discovery, and the Court must closely scrutinize the request in light of the danger of extending the already costly and time-consuming discovery process ad infinitum.” Winfield v. City of New York, 2018 WL 840085, at *3 (S.D.N.Y. Feb. 12, 2018) (quotations omitted). Moving Defendants provide insufficient grounds to question Plaintiff’s “good faith” attempts to obtain documents from the prior litigations in the United Kingdom. Plaintiff’s U.S. counsel, as an officer of the court, is expected to comply with Rules 26 and 34 in connection with searching, collecting, reviewing, and producing documents. [citations omitted]. Moving Defendants do not identify a deviation from such duties. Moving Defendants also do not show a basis for discovery on discovery of items presumably in their possession—the records of prior litigations to which Defendants were parties.

However, the Williams decision cited in Lively left the door at least slightly open, writing:

Defendants can inquire at Plaintiff’s deposition “both about the documents that have been produced and those that have not been produced.” See Haroun, 2020 WL 6828490, at *2. If, based on the deposition or otherwise, Defendants create[] a record, they may have a basis for discovery on discovery or for sanctions, including, inter alia, the ability to depose Plaintiff a second time at Plaintiff’s expense.[1]

In Haroun, cited by Williams, the court discussed a request for “discovery on discovery” and wrote:

Plaintiff has offered no such adequate factual basis here. It does not identify any gaps in the production of ESI, any reason to believe that documents have been deleted, or any basis for asserting that Defendants are not searching all relevant and reasonably available sources of ESI that would contain material responsive to Plaintiff’s document requests. Nor, contrary to Plaintiff’s assertion, does Plaintiff need to know all of Defendants’ sources of ESI to determine whether documents have been deleted and, if so, whether they may be available from another source. Plaintiff can inquire at deposition both about the documents that have been produced and those that have not been produced and can review the document production itself for obvious gaps. If it creates a record, it may have a basis for discovery on discovery. It does not have such a basis now.

2020 WL 6828490, at *2 (emphasis added).

Ephemeral messaging was central to the holding in this iteration of Lively.  In Lively, the Wallace Defendants used ephemeral messaging.  I have questioned similar information governance techniques. Felder Part 4 of 4: Was the Felder Defendant’s 14-Day Video Overwriting Policy Defensible? – E-Discovery LLC (Aug. 22, 2024).  For a comprehensive analysis, please see The Sedona Conference, Commentary on Ephemeral Messaging, 22 SEDONA CONF. J. 435 (2021).

For prior blogs on the Lively lawsuit, please see Discovery of Search Terms & Ephemeral Signal Messages – It Has Not Yet Ended “With Us”– E-Discovery LLC (Aug. 30, 2025); “It Ends With Us” – E-Discovery LLC (Apr. 8, 2025); Court Grants Motion to Strike Deposition Transcript Using Its “Inherent Power” – E-Discovery LLC (Aug. 11, 2025); Initial Disclosures Cannot Await Expert Opinions – E-Discovery LLC (Jul. 20, 2025); Party’s Motion to Quash Subpoena Denied for Lack of Standing – E-Discovery LLC (Jul. 2, 2025); and,Crime-Fraud Exception to Privilege Not Shown – E-Discovery LLC (Jun. 8, 2025).

UPDATE: T. Harper & S. Shah, Current Approaches to “Discovery on Discovery” (ABA Litigation Sec. Apr. 7, 2023)(“The approach that is most widely adopted by courts, as well as most practical, is to disallow discovery on discovery unless there are proven material deficiencies or bad faith (or both) in an opposing party’s production that warrant a foray into discovery processes and procedures.”).

____

[1] Williams was affirmed on other grounds, 2025 WL 1065928 (2^nd Cir. Apr. 9, 2025).