[EDRM Editor’s Note: This article was first published here on August 30, 2025. The opinions and positions are those of Michael Berman.]

Lively v. Wayfarer Studios LLC, 2025 WL 2463633 (S.D.N.Y. Aug. 27, 2025) continues to generate discovery opinions.  Two out of several issues in the latest decision center on: (1) reciprocal discovery of search terms; and, (2) discovery of Signal messages.

In brief summary, “Lively, 37, has accused Baldoni, 41, of sexual harassment on the set of ‘It Ends With Us,’ where he not only starred alongside her but also directed and produced. Her lawsuit claims that Baldoni overstepped boundaries with inappropriate comments, references to erotic behavior, and unscripted kissing and that when she spoke up, he retaliated by attempting to ruin her reputation. Baldoni, in turn, has denied all allegations.” S. Gomez, Blake Lively vs. Justin Baldoni: Who has the stronger case?

The latest decision addresses Ms. Lively’s Fed.R.Civ.P. 37(a)(1) motion to compel the Wayfarer Parties¹ “to comply with various discovery requests.”  Id.² The Wayfarer Parties “argue that they should not be required to produce: (1) the search terms they used for their document review (or should be required to do so only if Lively is as well),” and “that Lively’s motion to compel communications on Signal… is premature.”  Id.

For background information on discovery issues in the highly-publicized lawsuit, please see:

• “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).

DISCOVERY OF SEARCH TERMS

The Lively court ordered defendants to disclose their search terms because Ms. Lively provided an adequate factual predicate.  It denied defendants’ reciprocal request as both unsupported and unwarranted.

The Standard Governing Disclosure of Search Terms

First, the Lively court explained the standard applicable to both requests:

Although litigants commonly suspect that they are not getting all the documents they have requested and that an adversary is holding something back, and while such suspicions, on their own, do not ordinarily support the entry of discovery orders against the responding party, a different analysis applies when the requesting party identifies specific evidence to call into question the responding party’s contention that no further responsive documents exist…. When the party requesting discovery makes such a showing, courts have the discretion to order the responding party to explain specifically what efforts were undertaken to find relevant documents…. This includes directing responding parties to disclose the search terms used in searching their databases for responsive documents.

Id. (emphasis added; cleaned up; citations, brackets, and quotations omitted).

For more on “discovery on discovery,” see Guidelines for “Discovery on Discovery” – E-Discovery LLC (Aug. 5, 2025), Request for “Discovery on Discovery” Was Overbroad; Uber Deponent Was Ordered to Bring Uber Laptop to Deposition; Discovery About Uber Information Governance Training Resolved – E-Discovery LLC (Jul. 4, 2025), and The Hon. Paul W. Grimm, Michael D. Berman, et al., “Discovery About Discovery: Does the Attorney-Client Privilege Protect All Attorney-Client Communications Relating to the Preservation of Potentially Relevant Information?,” 37 U. Balt. L. Rev. 413 (2008).

The Wayfarer Parties Must Disclose Their Search Terms

The Lively court held that Ms. Lively had met her burden of proof.  She identified specific evidence calling the adequacy of the Wayfarer Parties’ search into question.

Third parties have produced documents in response to subpoenas from Lively that the Wayfarer Parties apparently should have disclosed but did not. For example, third parties have produced emails with Wayfarer Party representatives containing phrases such as “HR complaint” and “harassment protocols.”… Third parties have also produced text messages with the Wayfarer Parties including terms like “It Ends With Us.”

Id.

The court wrote that:

A reasonably diligent search would have captured these responsive messages, and the Wayfarer Parties’ failure to produce these materials casts doubt on the completeness of their searches. Furthermore, the Wayfarer Parties have, without explanation, failed to disclose documents that they acknowledge are discoverable and that are presumably within their possession, custody, or control…. These documents include materials annexed to and referenced in their own complaint…. That the Wayfarer Parties have yet to produce materials cited in their own legal filings provides additional reason to believe that their other discovery obligations may have gone unfulfilled. Given these deficiencies, Lively is entitled to verify the processes by which the Wayfarer Parties have searched their databases for responsive documents.

Id. (emphasis added).

Interestingly, this type of evidence is similar to what led to sanctions in the seminal Zubulake cases decades ago.  See Historical ESI Highlights – Part II – Zubulake – E-Discovery LLC (May 25, 2022).  Plaintiff, Ms. Zubulake, produced printed emails that Defendant, UBS Warburg, had not produced.  In Ms. Laura Zubulake’s words: “Where there was e-smoke, I suspected there would be e-fire.” Id., and Book Review: “Zubulake’s e-Discovery: The Untold Story of My Search for Justice,” by Ms. Laura A. Zubulake – E-Discovery LLC (Aug. 18, 2012), both citing Laura A. Zubulake – Zubulake’s e-Discovery: The Untold Story of my Quest for Justice

“Discovery is not a ‘tit for tat’ process.”

Defendants, the Wayfarer Parties “respond that they should not be required to produce their search terms unless Lively is as well.”

The Lively court noted that discovery is not necessarily a reciprocal process and it rejected that “fight fire with fire” argument for two primary reasons, writing:

[The Wayfarer Parties] cite no authority for that proposition…. And their position overlooks why disclosure of search terms is appropriate here. The Court orders disclosure of collateral information such as search terms not as a matter of course, but because Lively has proffered specific evidence regarding deficiencies in the Wayfarer Parties’ productions. These deficiencies give rise to the inference that additional responsive materials exist but have not yet been disclosed. The Wayfarer Parties have not attempted to offer an analogous showing regarding Lively’s discovery productions, so their request for a reciprocal disclosure is unwarranted.

Id. (emphasis added). 

In short, “[d]iscovery is not a ‘tit for tat’ process.” Id. (citation omitted).

SIGNAL MESSAGES ARE “COMMUNICATIONS”

Ms. Lively sought production “from the ephemeral messaging platform Signal.” Id.  The court wrote that: “It is undisputed that the Wayfarer Parties used Signal to discuss topics relevant to this litigation.”

The Wayfarer Parties asserted that Ms. Lively’s motion was premature, because the RPD was propounded on July 16, 2025, and because they stated that “[s]ubject to appropriate narrowing of the requests to address relevant subject matters, [they] intend to agree to produce Signal communications.”  Id.

Ms. Lively responded that her motion was ripe “because regardless of when she propounded the specific requests for Signal messages, the messages are responsive to her previous requests for ‘communications’ and therefore should have been turned over.”  Id.

The court agreed with Ms. Lively.  The court’s Local Civil Rule 26.3 establishes uniform definitions for discovery.  The court’s definition of “communications” includes messages “regardless of the platform on which they are sent and received….”  Id.  Further, the court looked to Ms. Lively’s expansive definitions and also wrote: “The parties likewise agreed to define ‘Messaging Communications’ in their ESI Protocol as including Signal.”

The court rejected the Wayfarer Parties’ argument that if Signal messages “were encompassed by previous requests for production, presumably Lively would not have served the requests [specifically seeking Signal messages] on July 16.”  The court wrote:

That inference is unwarranted. Lively propounded the specific requests for Signal messages after the Wayfarer Parties declined to produce those communications. The fact that, in response to the Wayfarer Parties’ failure to disclose what clearly qualify as “communications,” Lively propounded a more specific, supplemental request for those communications neither narrowed the scope of her original requests nor implicitly acknowledged that the original requests were inapplicable.

Id.

The Lively court also addressed issues such as “possession, custody, or control,” and production from agents.

One thing is pretty clear – – the discovery disputes won’t end with this one.

Read the original article here.

Notes

1. “The Wayfarer Parties are Wayfarer Studios LLC, Justin Baldoni, Jamey Heath, Steve Sarowitz, It Ends With Us Movie LLC, Melissa Nathan, The Agency Group PR LLC, and Jennifer Abel.” ↩︎
2. The online Westlaw version of the decision does not have PIN cites as of the date of this writing. ↩︎

Assisted by GAI and LLM Technologies per EDRM GAI and LLM Policy.