Federal E-Discovery: Discovery Deficiencies Lead to Search Term Disclosure

Litigation partners Chris Boehning and Dan Toal’s latest Federal E-Discovery column, “Discovery Deficiencies Lead to Search Term Disclosure,” appeared in the October 15 issue of the New York Law Journal. The authors discuss a recent decision in the Southern District of New York addressing the tension between the autonomy of responding parties to manage their own discovery processes and the appropriate remediation when those processes appear flawed. In Lively v. Wayfarer Studios LLC, noting that the plaintiff had identified specific evidence calling into question the responding party’s contention that no further responsive documents exist, the court concluded that the plaintiff “is entitled to verify the processes by which the Wayfarer Parties have searched their databases for responsive documents” and ordered the defendants to produce their search terms. The decision is a thoughtful articulation of how a court can balance reasonableness, proportionality and evidentiary rigor in modern e-discovery.

Deputy chair and counsel, e-discovery, Ross Gotler and e-discovery attorney Lidia Kekis assisted in the preparation of this article.

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