The City of New York v. Magellan Technology, Inc., No. 23-cv-5880 (LLS), S.D.N.Y. (July 22, 2026), full opinion (PDF)
A common move in discovery is to withhold email until the requesting party proposes search terms, custodians, and date ranges. A recent order from the Southern District of New York rejects that posture and puts the obligation back where the rules place it. A producing party must run a reasonable search whether or not its opponent hands over a protocol first.
The ruling is short, but it speaks to a question that surfaces in almost every ESI dispute. When the parties have not agreed on search terms, whose job is it to write them?
What Happened
The City of New York sued several distributors of flavored disposable vaping devices, alleging violations of the PACT Act, New York public health law, and the law of public nuisance. In discovery, the City served requests for production and then moved under Rule 37(a) to compel.
Two of the defendants had produced some documents but not the communications the City sought. They argued that the City first had to propose search terms, date ranges, and custodians before they were required to search for and produce email. A third defendant had ignored two of the three requests and did not oppose the motion.
The Court's Analysis
The court granted the motion as to the communications the City sought about manufacturing, purchasing, and selling the products. It found those communications relevant to the defendants' business processes, supply chains, and knowledge of whether their customers were operating lawfully.
The search-term argument did not persuade the court that the burden of proposing a protocol fell on the requesting party. Parties are encouraged to negotiate search protocols, the court acknowledged, but a producing party has "an independent obligation to craft search terms to fulfill the requirements of Rules 26 and 34." Refusing to search because the other side has not supplied terms is not an option the rules allow.
The boilerplate burden objection fared no better. The defendants had called the requests unduly burdensome but offered nothing to substantiate the claim. As the court put it, they "have not quantified that burden in terms of the number of documents subject to the collection and review." A party resisting discovery on burden grounds has to put numbers behind the objection, such as the volume of documents at issue and the time and effort collection would take.
The court denied the City's demand for all deposition transcripts, filings, and productions from a separate International Trade Commission proceeding, treating a request for everything produced in another litigation as overbroad. It directed the parties to meet and confer on a search protocol for the requests it had granted.
Why It Matters
The decision is a useful reminder that an ESI protocol is a tool for carrying out Rule 34, not a precondition to complying with it. A producing party that sits on its hands until the requesting party writes the search terms has the duty backwards. The obligation to conduct a reasonable search attaches when the request is served, and a producing party is expected to develop its own terms if none are agreed.
The burden holding is just as practical. Litigators who intend to resist a request as disproportionate should build the record before the motion, not after. A bare assertion that production would be burdensome carries no weight. The objection needs the document counts, the review hours, and the cost estimates that let a court weigh burden against relevance.
For anyone negotiating discovery of email and other electronic communications, the lesson is to treat search-term development as a shared but independently owned responsibility. Waiting for the other side is not a defense, and neither is an unquantified complaint about volume.
The full opinion is available as a PDF.
