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Plaintiffs' Narrow Search Leads to More Sanctions Than Results

Gardner-Alfred v. Federal Reserve Bank of New York

S.D. N.Y. 5/17/23 7:00


Why This Case Is Important

Agreeing on search terms can be one of the most contentious elements of litigation. Despite these tensions, it’s important that parties apply search terms that fulfill their independent obligations to Rules 26 and 34, or they may be at risk of sanctions.


In this case, the plaintiffs claimed they were improperly denied religious accommodations regarding COVID-19 vaccination policies by their employer, the Federal Reserve Bank of New York.

Once the case entered discovery, the plaintiffs delayed producing documents and information in response to the defendant’s discovery requests. The court issued multiple orders to complete production on time, however the plaintiffs repeatedly failed to meet discovery deadlines.

A month after the close of the fact discovery deadline, the plaintiffs produced an additional 1,082 pages of documents, which was more than twice what they had produced during the discovery period. In response to the contentious production process, the defendant moved for sanctions against the plaintiffs.


  • Motion for Sanctions Granted. The court granted the motion for sanctions, stating that the plaintiff’s counsel abused the discovery process by running extremely narrow search terms, which resulted in the small initial production. The defendant was awarded reasonable expenses and attorneys’ fees for much of defendant’s dealings with the plaintiffs in discovery as well as adverse inference instructions that the plaintiffs withheld relevant documents and what those documents would have shown.
  • Narrow Search Terms Inadequate. Although “courts are generally loath to second guess search terms,” the court found that there was “little question that plaintiffs’ search terms were not reasonably calculated to lead to production of documents relevant to their claims or defendant’s defenses.” The defendant’s document requests called for broad categories of documents, but the plaintiffs only searched their own emails and five other custodians. Then a narrow list of search terms was applied to the already very narrow set of documents, resulting in an inadequate production. 
  • Independent Obligations Unmet. Although the defendant advised the plaintiffs to “run search terms on its own determination,” the narrow search terms used by the plaintiffs did not fulfill their independent obligation to craft search terms in compliance with Rules 26 and 34. Based on this, the failure to produce other requested documents, and testimony by the two plaintiffs that the Court deemed non-credible, the Court also granted requests for certain adverse inference instructions on some issues in dispute, and other instructions to the jury that evidence was wrongfully withheld, from which the jury could draw its own inferences on other issues in dispute.

Expert Perspective

by: David Cohen, Esq., Chair - E-Discovery Group, Reed Smith LLP

District Judge Liman’s detailed opinion documents numerous discovery delays and failures by plaintiffs and their counsel, compounded by multiple instances where both plaintiffs’ sworn testimony touching on discovery compliance was found to be non-credible. Sanctions were justified under Rules 16(f), 37(b), 37(c) and 26(g). The fact that monetary sanctions were extended to both plaintiffs and their legal counsel, jointly and severally, serves as a warning to attorneys to be careful whom you represent, and make sure your clients understand. and are ready to comply with, their discovery obligations that are such a critical part of our civil litigation system.

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