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.”).

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

The Court resolved cross-motions to compel.  Both discovery motions were granted in part and denied in part.

The decision reflects the fact-specific nature of ESI issues and the detail with which courts are addressing them.  The defense sought a broad forensic examination of plaintiff’s ESI, and plaintiff’s question was “who pays”?  The answer was that the plaintiff must pay.  The Cooper Court also ordered discovery of a cell phone provider’s text message log as a useful cross-check on the completeness of discovery.  And, even though plaintiff denied communications on a defense work cell phone, the Court ordered a forensic examination of that phone because memories are imprecise.  The Court also, at least for the moment, denied both requests for other remedies or sanctions.

The Court wrote:

In Defendants’ motion, they seek a forensic examination of Plaintiff’s cell phone (and SIM card) and a search of her physical and cloud storage to look for communications between Plaintiff and her alleged harasser (Mr. Roberts), as well as other current or former employees about the events at issue during the relevant time period to include text messages, Facebook Instant Messenger communications, and email. As the Court noted at the hearing, text messages and other communications play a prominent role in Plaintiff’s complaint. Plaintiff does not take issue with a forensic examination of her cell phone and SIM card, nor her Apple iCloud account to look for responsive information. Plaintiff, however, wants Defendants to share in that cost. [Emphasis added].

Finding no real dispute as to relevance, the Court ordered the forensic examination of the cell phone and SIM card.  It added:

As for cost, “the presumption is that the responding party [i.e., plaintiff] … must bear the expense of complying with discovery requests.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1978). The Court sees no reason to depart from that practice.

The Cooper Court then turned to the cloud issue:

Likewise, the parties agree that a forensic examination of Plaintiff’s iCloud account is called for, as such communications may have been backed up to that account. Until now, Plaintiff has been unable to access her iCloud account because she cannot remember her credentials. Recently, she was informed by Apple that she can reset her credentials at the Apple store in Towson, Maryland. Plaintiff is ordered to do so by February 14, 2025.

It also addressed the cell phone provider:

Finally, Plaintiff shall provide her authorization to allow T-Mobile (her cell carrier) to produce information in response to Defendants’ subpoena to T-Mobile by February 14, 2025. Although T-Mobile does not maintain text messages, it reportedly does maintain a log of the date, time and telephone number of incoming and outgoing text messages which, in turn, would be a good cross check on whether all responsive messages between the relevant parties during the relevant time period have been recovered and produced. [Emphasis added].

The parties agreed on an expert – – James Vaughn at iDiscovery Solutions – – and plaintiff was directed to retain him.

The Cooper Court added:  “The parties should agree on a search protocol to include screening any privileged information, the relevant date range and scope to recover the relevant communications between Plaintiff and Mr. Roberts, or any other current or former employee of either Defendant regarding the events at issue and forward the same to Mr. Vaughn.”

Finally, as to the plaintiff’s motion, the Court denied the request for remedies or sanctions “because an analysis of that issue necessarily requires some insight into the extent to which any missing data can be recovered. See Fed. R. Civ. P. 37(e).”[2]

The Court then turned to plaintiff’s cross-motion:

As for Plaintiff’s Motion to Compel, Plaintiff seeks a similar forensic examination of Mr. Roberts’ work phone, currently in the possession of Defense counsel. Defendants argue that Plaintiff testified at deposition that she did not communicate with Mr. Roberts on his work phone. That said, memories can be imprecise, and the Court will order the forensic examination of the telephone. The Defendants agreed to the Court’s suggestion that they also use Mr. Vaughn for this examination, since he will be familiar with the search protocol already. The phone should be delivered to Mr. Vaughn by February 14, 2025. Defendants will pay the associated cost. [Emphasis added].

The plaintiff’s spoliation motion was denied for the same reasons that the defense motion was denied.[3]

Interestingly, Docket No. 60 (Jan. 10, 2025) reads: “ORDER directing Tavon Roberts to show cause why he should not be held in contempt of court for failure to abide by the subpoena within 45 days.”

In a prior decision, Judge Coulson wrote that: “Accurate and complete discovery responses are not only a responsibility of counsel and their client, but also an opportunity for counsel and their client. It is one of the rare times during the uncertainty of litigation where counsel can tell their client’s story in precisely the most persuasive way possible.” Accurate and Complete Discovery Responses Can Be Strategically Advantageous (May 13, 2024).

This blog was initially posted on  Electronic Discovery Reference Model and  JD Supra.

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[1] The prior decision outlining the claims is 2024 WL 3849526 (D. Md. Aug. 16, 2024)(Rubin, J.).

[2] Judge Coulson’s analysis of Rule 37(e) was discussed in Recent “Textbook” Analysis of Fed.R.Civ.P. 37(e) (Apr. 17, 2023).

[3] Id.

In my words, the Kinnee court denied a joint motion to approve an ESI Protocol because the defendants’ Fed.R.Civ.P. 26(a) initial disclosures, “which do not identify a single corporate witness by name, much less the subject(s) of information possessed by each witness,” were inadequate.

This is not the first time a court has refused to enter an ESI Protocol that was jointly submitted. See Court Denied Unopposed Motions for Protective Order and Approval of ESI Protocol (Sep. 5, 2024), where the court in Orlando Health, Inc. v. HKS Architects, Inc., 2024 WL 4025379 (M.D. Fl. Sept. 3, 2024),  denied an unopposed motion to enter an ESI Protocol.  There, the court held that the protocol should be a private agreement among the parties, not a court order.  I asked: “I wonder what the result in Orlando Health would have been if the parties had submitted a proposed ‘discovery plan’ instead of a proposed “ESI Protocol.”  The differences between an “ESI Protocol” and a “Discovery Plan” were described in “ESI Protocol” v. “Discovery Plan” (Jan. 2, 2024).

In Kinnee, the court stated well-recognized principles:

The Court begins with some general principles. “[E]lectronic discovery is generally subject to the same discovery requirements as other relevant information ….” NuVasive, Inc. v. Alphatec Holdings, Inc., No. 18-CV-0347-CAB-MDD, 2019 WL 4934477, at *2 (S.D. Cal. Oct. 7, 2019) (citing The Sedona Principles, Third Edition, 19 SEDONA CONF. J. 1 (2018)). In accordance with Rules 26 and 34, the requesting party “is entitled to ask for relevant documents, and [the responding party] is required to use reasonable diligence to look for them.” Davis v. Pinterest, Inc., No. 19CV07650HSGTSH, 2021 WL 3045878, at *3 (N.D. Cal. July 20, 2021) (further noting, “[i]t is that simple.”). Ultimately, it is the responding party’s obligation to address requests for production as required by Rule 34, consistent with the principle that “[r]esponding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.” NuVasive, 2019 WL 4934477, at *2 (citation omitted). As such, “absent agreement among the parties, the party who will be responding to discovery requests is entitled to select the custodians it deems most likely to possess responsive information and to search the files of those individuals.” In re EpiPen (Epinephrine Injection, USP) Mktg., Sales Pracs. & Antitrust Litig., No. 17-MD-2785-DDC-TJJ, 2018 WL 1440923, at *2 (D. Kan. Mar. 15, 2018) (citations omitted). “If material information is not preserved or disclosed because of an unreasonable choice, there may be sanctionable consequences.” See Hastings v. Ford Motor Co., No. 19-CV-2217-BAS-MDD, 2021 WL 1238870, at *3 (S.D. Cal. Apr. 2, 2021).

As in all discovery matters, the Court expects the parties to work cooperatively and in good faith about electronically stored information (“ESI”) search parameters, including search terms and custodians, to identify information responsive to each party’s requests for production. See NuVasive, 2019 WL 4934477, at *1 (“the parties should seek to reach agreement regarding production of electronically stored information”). “The parties should … be as transparent as possible” throughout this process. Hastings, 2021 WL 1238870, at *3.

The Court also expects the parties to faithfully comply with the Federal Rules of Civil Procedure. Such compliance is essential to an efficient and cost-effective discovery process. Relevant to this Order, Rule 26 provides that a party “must, without awaiting a discovery request, provide to the other parties: the name … of each individual likely to have discoverable information – along with the subjects of that information – that the disclosing party may use to support its claims or defense, unless the use would be solely for impeachment ….” Fed. R. Civ. P. 26(a)(1)(A)(i) (emphasis added).[1]

The Kinnee court then quoted defendants’ Rule 26(a)(1) disclosures:

Due to the fact that Integra has thousands of employees, and the general nature of many of the allegations in Plaintiff’s Complaint, it is impossible for Integra to comprehensively and specifically identify every individual likely to have discoverable information that Integra may use to support its claims or defenses.

* * *

Integra’s designated company representative(s). Designated company representative(s) for Integra is/are expected to have information about the following topics related to the Subject Device: design, manufacturing, marketing, and distribution of the Subject Device, as well as the regulatory clearance of the SurgiMend® hernia mesh device by the U.S. Food and Drug Administration (“FDA”). Integra’s designated company representative(s) are yet to be determined by Integra.

* * *

Integra’s employees and/or former employees who may have knowledge about Plaintiff and/or the Subject Device. These witnesses may have information regarding the Subject Device; Plaintiff’s alleged implant procedure on April 26, 2017; communications with Dr. Stephen Summers about Plaintiff and/or the Subject Device; communications with Sharp Chula Vista Medical Center about Plaintiff and/or the Subject Device.

The Kinnee court then explained its reason for denying the joint motion to approve the ESI Protocol:

The Court finds these disclosures – which do not identify a single corporate witness by name, much less the subject(s) of information possessed by each witness – do not comply with Rule 26(a)(1)(A)(i). The Court is not persuaded by Defendants’ statements at the Status Conference that they were unable to identify witnesses with relevant, discoverable information before receiving Plaintiff’s document requests, as that position conflates Defendants’ initial disclosure obligations under Rule 26 with their obligation to produce responsive documents under Rule 34. Similarly, the Court finds unpersuasive Defendants’ reliance on the statement in their initial disclosures purporting to “reserve[ ] the right to supplement and/or amend this list” given Defendants’ failure to identify a single witness in the first instance. Defendants’ failure to provide compliant initial disclosures creates an impediment to the parties’ ability to engage in a meaningful discussion and, ideally, agreement regarding ESI.  [emphasis added].

In short, inadequate Rule 26(a)(1) initial disclosures prevented a meaningful conference of the parties and therefore a meaningful ESI Protocol or discovery plan.

The order set a milestone for supplemental initial disclosures,  proposed search methodology, any counterproposal, an ESI conference of the parties, and a final statement by defendant of its search parameters.

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[1] The emphasis was added by the court.

Marc is the owner and president of Precision Legal Services.  Marc and I have collaborated on many projects.

Marc discusses a number of topics in the one-hour video.  Among them is a unique discussion of document requests that are “specific in content” versus those that are specific in meeting the requirements of designing a technical search.

The video provides a number of tools to achieve defensibility, and avoid sanctions, through data mapping, negotiation, and cooperation.  In doing so, it provides valuable tips on how to prepare for a Rule 26(f) conference of the parties.

As I mention in M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), 92 n. 3, Marc served on the committee to draft what became the ESI Guidelines of the District of Maryland.