Weather Brands LLC v. Blue Mineral Corp., No. 25cv2423 (DLC), S.D.N.Y. (Aug. 27, 2026), full opinion (PDF)
Weather Brands wanted sanctions because Blue Mineral and its owner produced no text messages at all. It had to prove first that text messages responsive to its requests existed. Its motion led with a report of 38 hits from the search terms the parties had agreed on. Judge Denise Cote concluded that those hits proved nothing about responsive messages. Her August 27 order denies the motion in part. The rest of the motion turns on a declaration Blue Mineral's owner filed in opposition. He described text conversations he found inside the three-year window the parties had agreed to search.
What Happened
Weather Brands sued Blue Mineral, its owner, and other entities for trademark infringement over competing snow and ice melt products. Its requests for production sought all communications about the marks, text messages included. The parties agreed on a three-year window for the email and text message production and on a list of 20 search terms. The defendants missed both of the deadlines the court set for the text messages. They told the court their production was complete, saying they had no reason to believe any text messages existed.
Weather Brands moved for sanctions against the defendants under Rule 37(b) and against defense counsel under Rule 26(g). It sought orders striking the affirmative defenses, barring evidence on certain topics, giving an adverse-inference instruction, and awarding its fees.
The Court's Analysis
The court framed the motion as turning on a single question. Do responsive text messages exist? If they do, the defendants violated the two orders and defense counsel may have failed his obligation to make truthful representations to the court. If they do not, no violation occurred. As movant, Weather Brands bore the burden of proving they exist.
Weather Brands offered a hit report run against two WhatsApp threads it already held, both of them with the individual defendant. Applying the agreed terms, the report returned 38 hits. Weather Brands put those hits forward as evidence that responsive messages existed. Of the 38, the court found, 17 were the sender's name appearing in the conversation rather than in the text of any message. The other 21 did appear in message text, but every one fell outside the three-year period the parties had negotiated. None of the 21, the court concluded, was responsive to the discovery requests or a sign that other messages existed. Weather Brands also argued that messages might survive on an older phone the defendant had replaced. The court called that speculation, which "cannot serve as the primary basis for imposing sanctions."
In its reply Weather Brands pointed back to the defendant's own sworn declaration. The court agreed that the passage Weather Brands identified raised a question the defendants had not answered. In that declaration the individual defendant described searching his current phone. He found text-message conversations inside the responsive period, with the packaging manufacturer and with a key retailer for both parties. The court observed that terms matching the manufacturer and the retailer were on the agreed list.
He did not say whether he passed those conversations to counsel for review and production, the step his declaration recorded for the emails he found. Nor, the court noted, did he explain why the conversations were never produced. He assured the court that he had deleted and destroyed nothing to keep it out of the lawsuit. That assurance was, in the court's view, "not sufficient to explain the lack of production." The court denied the motion in part. The rest waits on a supplemental declaration from him about his search for responsive text messages.
Why It Matters
A hit count measures term matches. Only a reader can tell which of the matches are responsive. By the court's count, 17 of the 38 hits were only a name in the conversation. The rest fell outside the agreed three-year window. Before a hit report goes into a sanctions brief, someone has to open it, filter to the agreed period, and confirm that each remaining hit falls in the body of a message.
The declaration that answers a sanctions motion is evidence against the party filing it. Weather Brands survived a full denial by quoting the defendant's own declaration. A declaration that names the conversations a search turned up should also say where those conversations went, particularly when the terms that caught them were ones the parties agreed on.
Two missed deadlines did not shift the burden of proof. The defendants let both of the court's dates pass. They produced no text messages at all. Even so, the court required Weather Brands to establish that responsive messages existed before it would consider any sanction.
The full opinion is available as a PDF.
