Jones v. Abel, No. 25-cv-779 (LJL) (S.D.N.Y. Nov. 4, 2026), full opinion (PDF)
A district judge in the Southern District of New York has sanctioned a defendant who never produced text messages covered by her own discovery responses. She had committed to a reasonable search on one document request and to agreed search terms on two others. When the plaintiffs sought sanctions, she argued that they had never moved to compel on the search-term requests. The court rejected that argument. A party that decides to withhold responsive documents, the court explained, must say so in its written responses. In the court's view, the duty to supplement those responses requires no court order.
What happened
The plaintiffs, a publicist and her firm, have pursued a defamation claim against John Doe defendants over anonymous websites attacking the publicist. The defendant, a competitor who runs a public relations firm, faces other claims in the case. In a verified interrogatory answer, she stated that she had no involvement in the websites.
In September 2026, a third party voluntarily produced texts the defendant had sent her. In them, the defendant offered her paid writing work and sent her a link to one of the websites. Those texts were missing from the defendant's own productions. The plaintiffs moved for sanctions.
The court's analysis
The court concluded that two sanctions provisions were unavailable. Rule 37(d) chiefly concerns a party that fails entirely to respond to discovery, while the defendant had served responses. Rule 37(b) was unavailable because no order had compelled her production.
The motion succeeded under Rule 37(c)(1), which enforces the Rule 26(e) duty to supplement or correct a discovery response. The court concluded that the texts were responsive to all three requests. On the reasonable-search request, it noted that the defendant never argued a reasonable search would have missed them. In the court's words, it was "difficult to understand how the texts would not surface." The agreed terms paired variations of the publicist's name with the names of specific journalists. In the court's view, they should have captured the thread, which contained the website link and mentioned one of those journalists.
On the search-term requests, the defendant argued that the plaintiffs had never moved to compel. The court rejected that argument, stating that her obligations under Rule 26(e) "are self-executing and require no court order." If she meant to withhold responsive documents, the court reasoned, Rule 34(b)(2)(C) required her to say so in her responses. That disclosure, it observed, would have put the onus on the plaintiffs to pursue further motion practice. Instead, the court found, she "impermissibly and unilaterally decided not to produce the texts."
The court found bad faith in the withheld texts, taken together with the interrogatory answer and deposition testimony denying her involvement. By the court's account, the defendant did not dispute that the interrogatory answer was untrue. Rule 37 did not reach the deposition testimony itself, the court concluded, though that testimony still counted toward bad faith.
The court ordered a second deposition at the defendant's expense. It also awarded fees for the sanctions motion, required a complete interrogatory answer, and reopened document discovery on a limited basis. In addition, it partly vacated an earlier order that had denied leave to add the defendant to the defamation claim. Deeming her role in the websites established, the court reasoned, would be harsher than necessary. The court denied Rule 26(g) sanctions against defense counsel without prejudice, concluding that the record said too little about counsel's supervision of discovery.
Why it matters
A producing party that decides to withhold responsive documents an agreed search returns should say so in its written response under Rule 34(b)(2)(C). That statement lets the dispute proceed through a motion to compel. A party that stays silent risks Rule 37(c)(1) sanctions once the documents turn up elsewhere.
Producing counsel should keep a record of the instructions given to the client and the sources searched, including the client's phone. A denial of Rule 26(g) sanctions without prejudice leaves a requesting party free to renew its challenge to counsel's supervision. A documented collection gives counsel an answer to that challenge.
When a requesting party learns of withheld texts late, it should tie each requested remedy to a specific cost of the withholding. A deposition taken without the documents supports a second deposition at the withholding party's expense. Likewise, a ruling made on an incomplete record supports a request to revisit that ruling. A request to deem facts established is likely to fail where lesser sanctions can cure the harm the withholding caused.
The full opinion is available as a PDF.
