What follows is a somewhat lengthy Opinion, which the Court deemed prudent to write in order to reaffirm the duties incumbent on parties and their attorneys during the discovery process, especially in the context of electronic discovery.

In Yas Caribe, eight requests for production and four interrogatories were in dispute.  The issue that this blog post focuses on is unsupervised self-collection by Defendants.  “[T]he EEOC highlights that several of its document requests entailed the collection of ESI, but maintains that defendants’ collection efforts were unsupervised by counsel and demonstrably incomplete.”

WERE DEFENDANTS’ SELF-COLLECTION EFFORTS SUFFICIENT?

The Parties’ Contentions

EEOC challenged the sufficiency of Defendants’ search for documents.  Abdullah Yassin admitted that he failed to preserve ESI and failed to review his own the electronic devices, including email and texts, or those of Khalid Yassin, the alleged harasser.  Further, he had not directed any of his employees to do so.  And, the EEOC claimed “that deposition testimony revealed that relevant personnel files and employment-related documents may be stored in the offices of a non-party entity owned and operated by Abdullah Yassin, called Yassin Unlimited Drug Corp. d/b/a Droguería San Juan,” and none of this stored information had been disclosed. Id. at *5.

The EEOC sought two types of relief. First, it asked that “Defendants be required to amend all of their Responses to EEOC’s [document requests] to clearly state: (1) whether responsive documents exist; (2) what steps were taken to locate responsive documents; (3) whether any documents are being withheld.”  Second, it asked for forensic inspection of the cell phones of Abdullah Yassin and Khalid Yassin, and a re-opening of discovery.

Defendants responded that Abdullah Yassin testified that he had not deleted anything and had no responsive documents.  They asserted that the messages EEOC relied on to show insufficient production had eventually been produced.  Further “defendants produced a ‘Messages Search Certification’ subscribed by Abdullah Yassin to the effect that he personally supervised Khalid Yassin’s search of his cellphone for responsive messages exchanged with Ms. Wilkerson, and further produced three responsive pages.”  Finally, in what I suggest is an incorrect position:

[D]efendants’ attorney argued in response to the motion to compel that directly supervising any search for responsive documents in his client’s files would make him a “potential witness” and would be “ethically inappropriate.”

The EEOC challenged the sufficiency of the “Messages Search Certification” and it had obtained the messages independently from Ms. Wilkerson, not from Defendants. Id. at *10-11.

Discovery on Discovery

There was a threshold issue.  The court described the EEOC’s position as a request for “discovery on discovery.”  This is sometimes called “satellite discovery” or “culpability discovery.”  The court enunciated several principles governing that process.

“Discovery on discovery has been described broadly as ‘any discovery seeking information regarding a party’s preservation, collection, and retention efforts.’ …  Although some trial courts have considered these types of discovery requests to be outside the scope of Rule 26(b)(1), others have not.” Id. at *6 (citations omitted).  The court continued:

In any case, the general structure of the discovery process drawn into the Federal Rules of Civil Procedure strongly implies that such discovery should be the exception, not the rule. “The federal discovery system in some ways resembles an ‘honor system,’ ” where the party seeking discovery “must generally ‘rely on the representations of the producing party or its representative that it is producing all responsive, relevant, and non-privileged discovery….’  Casting doubt on a responding party’s efforts to provide full and complete discovery responses is by no means taboo, but anyone attempting to obtain a remedy on that ground must overcome the default assumption of good-faith compliance. This is even more so when the attempted second-order discovery targets a person’s electronic systems or devices….”

Id. (emphasis added; citations omitted).  Here, however, the threshold was crossed.  For more information about “discovery on discovery,” please see the citations at the end of this post.

Defendants’ Efforts Were Insufficient

The court wrote: “Defendants’ initially deficient response to the document request and Abdullah Yassin’s deposition testimony as to the inadequacy of his search raise substantial doubts as to defendants’ compliance with their discovery obligations.”

While a single missing text message does not normally justify discovery on discovery, id. at *11, here there was also testimony that Abdullah Yassin had failed to preserve and collect documents related to the alleged harassment, had failed to search his own email and text messages, had failed to search the electronic devices of relevant custodians, including the alleged harasser, and had not instructed anyone else to do so.  Id. at *11.  Further, while the EEOC had suggested search terms that the court viewed as reasonable, “Defendants did not describe what, if any, search terms they used to find responsive documents….” Id.

Self-Collection Should Be Supervised by Counsel

With limited exception, the requirement that an attorney supervise a client’s collection is well established:

• Unsupervised Self-Collection Predictably Led to Problems (Jan. 2, 2021);
• Self-Identification and Self-Preservation: A Fool for a Client? (May 26, 2011);
• Losey, “Another ‘Fox Guarding the Hen House’ Case Shows the Dangers of Self-Collection” (Mar. 20, 2011).

There is contrary authority, which may be limited to a situation where there is no indication that relevant information has gone missing. Maker’s Mark: A Different View of Self Collection (Aug. 3, 2021).

Further, there are defensible ways to conduct self-collection.  “Self-Collection” May Be Reasonable Using Ralph Losey’s Dual-Protection System (Jan. 19, 2024). However, that method was not used in Yas Caribe.

Defendants’ Attorney’s Argument That Supervising a Search Would be Improper

Defendants’ attorney in Yas Caribe wrote:

It is my understanding that being with a witness while s/he searches for the requested records, explaining to the witness what is requested, verifying that the information is pertinent to the request, and asking the witness to produce everything he has, complies with a “reasonable inquiry” requirement. Otherwise, a counsel’s active search for those records will make a counsel a potential witness if a client misses a text message or for any other reason. I believe that my discussing every question or discovery request with my witnesses, while they are answering, producing documents, or giving instructions to their secretaries or assistants to look for and produce exactly what was asked for, is involvement that complies with Rule 26(g)…. And how would I remember what I saw? How would I know if they are showing me everything, or if messages were deleted, or if they have changed telephones? … Still, I believe it is inappropriate for me to get involved in the witnesses’ telephones, computers, etc., beyond what I already have.

As noted above, he argued that supervising his client’s collection would make him a “potential witness” and that it would be “ethically inappropriate.”  Id. at *6.  In my opinion—and more importantly, the court’s opinion—he was incorrect.

Supervising a Client’s Search Does Not Make an Attorney a Witness

In response to the argument that supervision would make the attorney a witness, the court wrote: “The Court first notes that neither supervising nor assisting a clients’ document search converts an attorney into a witness in a case. In fact, such supervision may be required in appropriate circumstances….  Indeed, the existence, relevance, and discoverability of ESI is one such circumstance that counsels in favor of attorneys exercising diligent supervision over their clients’ efforts to comply with discovery requests….”

Quoting a prior decision,[1] it added: “Attorneys have a duty to oversee their clients’ collection of information and documents, especially when ESI is involved, during the discovery process. Although clients can certainly be tasked with searching for, collecting, and producing discovery, it must be accomplished under the advice and supervision of counsel, or at least with counsel possessing sufficient knowledge of the process utilized by the client. Parties and clients, who are often lay persons, do not normally have the knowledge and expertise to understand their discovery obligations, to conduct appropriate searches, to collect responsive discovery, and then to fully produce it, especially when dealing with ESI, without counsel’s guiding hand.”

Of course, where there is a prima facie showing of spoliation, an attorney may be compelled to disclose how the litigation hold was implemented and how the search was conducted. The Hon. Paul W. Grimm, M. Berman, et al., “Discovery About Discovery Does the Attorney-Client Privilege Protect All Attorney-Client Communications Relating to the Preservation of Potentially Relevant Information?,” 37 U.Balt.L.Rev. 413 (2008).

Failure to Supervise May Run Afoul of Fed.R.Civ.P. 26(g)

The Yas Caribe court also looked to Fed.R.Civ.P.26(g), the so-called “stop and think” rule:

As to Attorney Mihailovich’s compliance with Rule 26(g)(1)’s reasonable inquiry requirement, his position warrants discussion. As mentioned above, Rule 26(g)(1) imposes on the signer of a discovery request, response, or objection a duty to perform a “reasonable inquiry.” Fed. R. Civ. P. 26(g)(1)….  In the case of a response to a document request, this duty falls squarely on the attorney, whereas interrogatory responses must be signed by both the attorney and the person who answers them. Fed. R Civ. P. 26(g)(1), 33(b)(5). [emphasis added].

The Yas Caribe court added: “An attorney’s failure to adequately guide and supervise a client’s search for responsive ESI may run afoul of Rule 26(g).”  Quoting a prior decision, it wrote: “[A]n attorney cannot abandon his professional and ethical duties imposed by the applicable rules and case law and permit an interested party or person to ‘self-collect’ discovery without any attorney advice, supervision, or knowledge of the process utilized.”

Application of Principles to Facts Presented

The court had little trouble rejecting the attorney’s argument on the facts presented:

In this case, such supervision was objectively warranted. Abdullah Yassin testified that he did not perform an adequate search for responsive documents, even when his attorney represented that he was “with a witness while s/he searches for the requested records, explaining to the witness what is requested, verifying that the information is pertinent to the request, and asking the witness to produce everything he has ….”

While, in making an inquiry, the court wrote that an attorney may rely on assertions of the client, that is permissible only “‘as long as that reliance is appropriate under the circumstances.’ 1983 Advisory Committee Notes to Rule 26(g).”  The court added:

A discovery request for ESI in a party’s cellphones and computer systems is a circumstance that triggers an attorney’s need to, at a minimum, understand how a client stores and uses ESI and how and where the client is searching for responsive documents.

As officers of the court, attorneys have a duty to make legally sound arguments and good-faith factual representations to the court. If an attorney does not have sufficient information to know whether his client is being accurate or not in a discovery response, particularly one involving ESI, this duty requires that he or she inquire deeper. “[T]he ethical rules now require attorneys to be competent with technologies such as ESI.” City of Rockford v. Mallinckrodt ARD Inc., 326 F.R.D. 489, 492 n.2 (N.D. Ill. 2018) (citing Model Rules of Pro. Conduct r. 1.1, comment 8 (A.B.A.)).[2] Attorney Mihailovich should have assumed a more active role in guiding defendants’ search beyond what he described in the opposition to the motion to compel. At the very least, he should have inquired into how and where the searches were being made so that he could give a reasonably informed certification of the thoroughness of what sources were and were not searched. Ideally, he would have discussed and run the keyword searches proposed by the EEOC or a mutually agreed upon version of them. Judging from the subsequent interactions of the parties that are on record, defendants’ position has been to engage in piecemeal corrections to their deficient responses and only when specific deficiencies are revealed by the EEOC’s efforts. This is not the way. [emphasis added].

The court provided “an admittedly extreme example: when attorneys receive documents that have been redacted by their clients and do not know what has been redacted, they cannot responsibly certify that the factual basis for a disclosure is compliant with Rule 26(g)(1).”

The court added that perfection is not the standard of review.  Instead, review is under an objective standard similar to Rule 11.

CONCLUSION

Applying principles of proportionality, the court considered privacy interests related to a forensic copy of the cell phones, and concluded that the burden would outweigh the benefits:

While there is certainly a well-founded suspicion that an adequate search was not carried out, and that defendants thus failed to comply with their discovery obligations, that does not necessarily mean that defendants are withholding responsive documents. After all, defendants represented that they had no messages between Abdullah and Khalid Yassin about Ms. Wilkerson or the alleged sexual harassment incident…, and the messages subsequently produced by defendants matched those in possession of the EEOC. In other words, there is no indication that, as of today, defendants have willfully withheld responsive documents or incurred in spoliation—only that they have not adequately searched for documents that may exist relating to the alleged sexual harassment incident at the center of the EEOC’s complaint.

As such, the request for a forensic inspection was taken “off the table for now” and the EEOC’s alternative request to compel Defendants to run supervised searches was granted.  For example, “defendants are ORDERED to perform an attorney-supervised search of both Abdullah Yassin and Khalid Yassin’s cellphones for responsive communications (email, text messages, call logs, etc.) across all relevant e-mail and messaging platforms/applications for [specified] periods….” As to one search, the response must include “the persons assisting in said searches….”

While the Yas Caribe court addressed several other issues, it stands for the principle that unsupervised self-collection is insufficient, at least where there is a factual predicate showing that the searches were insufficient.

For more information on “discovery on discovery,” please visit:

• The Case of the Missing Lab Notebooks (Aug. 28, 2026);
• “The Court is keenly interested in whether Defendants’ counsel issued a litigation hold.” – E-Discovery LLC (Feb. 19, 2026);
• “Discovery on Discovery” Ordered After Amazon’s Flawed Implementation of Litigation Hold (Oct. 15, 2025);
• Limited “Discovery on Discovery” Permitted; Judicial Definitions of “Hit Report” and “Families” Held Unnecessary (Oct. 13, 2025);
• “Discovery on Discovery” Permitted (Sep. 4, 2025);
• Guidelines for “Discovery on Discovery” (Aug. 5, 2025);
• Request for “Discovery on Discovery” Was Overbroad; Uber Deponent Was Ordered to Bring Uber Laptop to Deposition; Discovery About Uber Information Governance Training Resolved (Jul. 4, 2025);
• Google Avoids Discovery on Discovery Based on Insufficient Foundation for Request (De. 18, 2024);
• The Hon. Paul W. Grimm, M. Berman, et al., “Discovery About Discovery Does the Attorney-Client Privilege Protect All Attorney-Client Communications Relating to the Preservation of Potentially Relevant Information?,” 37 U.Balt.L.Rev. 413 (2008).

This blog was initially posted on  Electronic Discovery Reference Model and  JD Supra.

____

[1] For a discussion of the prior decision, please see Unsupervised Self-Collection Predictably Led to Problems (Jan. 2021).

[2] For an update on the ethical duty of “technological competence,” please see 40th State Adopts a Duty of Technological Competence – Is It a Good Idea? (Mar. 31, 2022); Proposed Changes to the MD Attorneys’ Rules of Professional Conduct Re: AI (Jul. 21, 2026).

12. USE OF GENERATIVE AI TOOLS

“CONFIDENTIAL” Information or Items shall not be submitted to any Open Generative AI tool (e.g., Chat GPT) or any substantially similar tool that is available to the public. Providing “CONFIDENTIAL” Information or Items to an Open Generative AI tool is considered disclosure to a third party. For purposes of this Protective Order, “Open Generative AI tool” means an artificial intelligence system that may be accessed by the public, or that allows for the underlying code and materials to be accessed by the public.

The Parties may only submit “CONFIDENTIAL” Information or Items to a Permitted Generative AI Tool. For purposes of this Protective Order, a “Permitted Generative AI Tool” includes the use of enterprise AI tools that: (i) restrict access to authorized users; (ii) do not use customer data to train, refine, fine-tune, or improve publicly available models; (iii) provide reasonable retention and deletion controls; and (iv) maintain commercially reasonable security and confidentiality protections. For the avoidance of doubt, enterprise legal and productivity platforms that satisfy the foregoing requirements, including Thomson Reuters CoCounsel, Microsoft 365 Copilot, and similar enterprise tools, are permitted.

For more information on A.I. Protective Orders, please visit:

• A.I. Protective Order by Consent in Google Case (Sep. 13, 2026);
• No Violation of A.I. Protective Order (Sep. 11, 2026);
• Another Dispute over A.I. Protective Order (Sep. 6, 2026);
• A.I. Protective Orders Are Becoming Routine(Aug. 27 ,2026);
• Another A.I. Protective Order – Part 10 (Aug. 21, 2026);
• Restrictions on Use of Artificial Intelligence Tools to Process Disclosure Materials(Jul. 27, 2026);
• Another A.I. Protective Order(Jul. 9, 2026);
• A.I. Protective Order—Again (Jun. 18, 2026);
• Unicorn Rejects A.I. Protective/Confidentiality Order – Order Entered in Criminal Case(Jun. 4, 2026);
• Are Protective Orders Limiting Upload to AI of Documents Produced by an Opponent in Discovery Becoming the Standard of Care?(May 26, 2026), discussing Rudasill v. Swiss Re American Holding Corporation, 2026 WL 1329451 (S.D.N.Y. May 13, 2026);
• Another Confidentiality Order Limiting Use of AI to Analyze Protected Materials(Apr. 27, 2026), discussing In re: ByHeart, Inc., Infant Formula Marketing, Sales Practices, and Products Liability Litigation,2026 WL 1103170 (S.D.N.Y. Apr. 23, 2026);
• A.I. Protective Orders Are Becoming Routine(Apr. 20, 2026), discussing Stansfield v. International Business Machines Corporation, 2026 WL 1031230, at *2 (D. Nev. Apr. 16, 2026);
• “Deepfake Executives, Created Via Depositions, Pose Grave Threat”: Protective Order Suggested(Apr. 5, 2026);
• Morgan v. V2X, Inc.,2026 WL 864223 (D. Col. Mar. 30, 2026), as also discussed in Important A.I. Work Product and Protective Order Decision(Mar. 31, 2026);
• Order Prohibiting Upload of Confidential Discovery Documents to Artificial Intelligence (“AI”)(Nov. 3, 2025), based on Warner v. Gilbarco, Inc., 2025 WL 3047881 (E.D. Mich. Oct. 30, 2025);
• Protective Order Limited Uploading Discovery Responses to Open A.I.(Mar. 26, 2026), discussing Jeffries v. Harcros Chemicals, Inc.,2026 WL 820218 (D. Kans. Mar. 25, 2026);
• S.A. v. Jones, 2026 WL 2607719, at *2 (S.D.N.Y. Sep. 3, 2026);
• Doe v. Google LLC, 2026 WL 2584519 (N.D. Cal. Sep. 1, 2026);
• S.A. v. The New York and Presbyterian Hosp., 2026 WL 2547094, at *5 (S.D.N.Y. Aug. 28, 2026).

UPDATE:  ZL Technologies, Inc. v. KLDiscovery Ontrack, LLC, 2026 WL 2731631, at *9 (S.D.N.Y. Sep. 16, 2026):

Use of Artificial Intelligence Tools

(a) Scope: To protect the confidentiality and security of all information disclosed or produced in this proceeding (“Discovery Information”), any Party receiving Discovery Information from another Party (“Receiving Party”) shall comply with the following requirements governing the use of artificial intelligence (“AI”) tools with such information.

(b) Permitted AI Use: A Receiving Party may use AI tools to process Discovery Information solely for purposes of this proceeding, provided that the AI tool and its use collectively satisfy all of the following requirements:

i.  Restricted, Enterprise Environment: The AI tool is used pursuant to a written enterprise or professional agreement and is deployed within a secure, access-controlled environment.

ii.  No Model Training or External Use: Discovery Information is not used to train, fine-tune, improve, develop, benchmark, or otherwise contribute to any AI model or service accessible outside the Receiving Party’s environment, except to the limited extent necessary to provide the requested functionality for this proceeding.

iii. Data Retention and Deletion: Within 30 days after final disposition of this action, Discovery Information retained by the AI tool shall be destroyed or caused to be destroyed to the extent reasonably possible.

iv.  Security Safeguards: The AI tool is subject to technical and contractual safeguards reasonably designed to protect Discovery Information against unauthorized access, use, or disclosure, including encryption in transit and at rest and appropriate access controls.

(c) No Backdoor Access: Nothing in Section 23 permits a Party, Agent, Expert, or other person that is not able to access Confidential Discovery Information or Highly Confidential – Attorneys’ Eyes Only Information under this Order to use AI tools to query, analyze, search or otherwise process such information.

(d) Responsibility and Attribution: Each Receiving Party is responsible for compliance with this Order by its counsel, experts, consultants, vendors, or other agents using AI tools on its behalf.

(e) Attorney Work Product: Use of an AI tool shall not waive or diminish any applicable privilege or work-product protection, and prompts, instructions, workflows, chat histories, and outputs shall be treated the same as analogous attorney work product created without the use of AI tools.

UPDATE: U.S. v. Perez-Feliz, 2026 WL 2754823 (S.D.N.Y. Sep. 17, 2026)(consent order):

Restrictions on Use of Artificial Intelligence Tools to Process Disclosure Materials.

a. “AI tool” means any automated system that uses machine learning, or similar techniques to process inputs and generate outputs, recommendations, or predictions, including but not limited to large language models, generative AI services, or AI-assisted software tools, whether cloud-based or otherwise.

b. The defense team will not submit Disclosure Materials to a publicly accessible version of an AI tool (e.g., ChatGPT, Claude, Grok, Gemini, Copilot, Perplexity, Midjourney, Canva). The defense team will not submit Disclosure Materials to an AI tool for which the AI tool provider or vendor (e.g., OpenAI, Anthropic, Microsoft, Google) uses submitted data for its own model training, allows submitted data to be publicly accessed, discloses submitted data to third parties, or, except as specified below, retains submitted data.

c. The defense may submit Disclosure Materials to an AI tool (i) that maintains the confidentiality of Disclosure Materials; (ii) that will not expose any Disclosure Materials to third parties not authorized under this Protective Order to receive such materials; (iii) that will not retain or use any Disclosure Materials for model training; and (iv) all Disclosure Materials will be removed from the AI tool(s) at the conclusion of this case.

 

The case is a putative collective and class action alleging a “nationwide pattern, practice, and/or policy of discriminating against older workers … in their hiring processes.”  At issue was the manner of collective notice procedures.

The parties raise four primary disputes regarding the proposed collective notice procedures: (1) whether notice should be authorized for applicants of the non-RTX Defendants, (2) how to determine which job postings qualify as “Recent Graduate Positions,” (3) how to identify putative collective members, and (4) whether a website to return consent forms should be publicly available or password protected.

Id. at *2.

This post focuses on No. 2. The court wrote:

Next, the parties dispute how to determine which job postings qualify as “Recent Graduate Positions” reserved for “those who have graduated in the prior year or two (or who will soon graduate), or applicants with college degrees who have less than 12 or 24 months of work experience.” … Plaintiffs propose negotiating search terms with Defendants that target experience and recent graduate limitations…. In contrast, Defendants suggest filtering positions in their Workday database based on several data fields and then training an artificial intelligence model to identify job descriptions meeting Plaintiffs’ definition of “Recent Graduate Positions.”

Id. at *3 (emphasis added).

The court adopted Defendants’ proposal to employ the Workday database fields.  However, addressing the A.I. proposal, the court wrote:

Plaintiffs’ proposal to negotiate appropriate search terms targeting experience and recent graduate limitations is ADOPTED-IN-PART, and Defendants’ competing proposal to train an artificial intelligence model is REJECTED. Defendants contend that the Workday database does not have a field that can cleanly isolate Recent Graduate Positions, and the requirements for these positions are phrased differently, posing the risk of an underinclusive search….  Plaintiffs note that they “requested the sample of job postings Defendants reviewed in reaching that conclusion[,]” but “Defendants have not produced any sample.” … A collaborative process to agree on search terms is preferable to the unilateral training of an artificial intelligence model, which is no less likely to raise issues of under-inclusiveness. However, Plaintiffs’ proposal is REJECTED to the extent that they seek to compel Defendants to produce a 30% sample of Recent Graduate job postings across the relevant time period. Plaintiffs provide no authority in support of this proposal, which is effectively a motion to compel discovery. Therefore, IT IS ORDERED that the parties shall meet and confer on search terms to employ in the search process within fourteen (14) days of this Memorandum Order.

Id. at *4 (emphasis added). The court ordered that:

Defendants’ proposals to: (i) employ the Workday database fields identified in their supplemental submission to identify which positions quality as “Recent Graduate Positions,” and (ii) exclude from the realm of Recent Graduate Positions any positions open to recent master’s graduates or “degree equivalency” positions open to either recent college graduates or those with equivalent work experience are ADOPTED. Plaintiffs’ proposal to negotiate appropriate search terms targeting experience and recent graduate limitations to further identify Recent Graduate Positions is ADOPTED-IN-PART, and Defendants’ competing proposal to train an artificial intelligence model is REJECTED. Accordingly, IT IS ORDERED that the parties shall meet and confer to negotiate appropriate search terms within fourteen (14) days of this Memorandum Order.

Id. at *5 (emphasis added).

Cimplify discussed a number of cases and wrote:

As noted by Michael Berman in his blog for his site E-Discovery LLC, “Protective orders addressing the use of A.I. to review materials produced to an opponent in discovery are becoming routine.”

Cimplify concludes: “Given the risks associated with public AI platforms, protective orders that limit the ability of opposing parties to upload sensitive and confidential produced documents into a public AI tool are essential today. But the considerations associated with AI are changing rapidly. It’s important to keep that in mind when drafting your own protective order to protect your organization’s sensitive and confidential data.”

In Turiello v. Central Sprinkler, LLC, 2026 WL 2546247 (D. Del. Aug. 28, 2026), Defendants sought permission to serve a categorical privilege log for the approximately 8,000 documents claimed to be privileged.

The court ruled:

IT IS HEREBY ORDERED that Defendants’ request to serve their proposed categorial privilege log on Plaintiffs is DENIED. IT IS FURTHER ORDERED that, with respect to the approximately 8,000 documents withheld from production to Plaintiffs by Defendants allegedly on grounds of privilege, Defendants shall produce and serve on Plaintiffs on or before September 11, 2026 a document-by-document privilege log which, for each document withheld from production allegedly on grounds of privilege, “establish[es] on a document-by-document basis sufficient detail to show a prima facie basis to support” the claimed privilege.

The court explained: “In the instant action, Defendants’ proposed categorical privilege log, which is attached in representative form as Exhibit A to D.I. 128, fails to meet the requirements of Rule 26(b)(5) to describe the withheld documents with sufficient details to allow Plaintiffs to assess the asserted privilege claim. Among other reasons, the lack of dates for each document, the undifferentiated listing of participants as a group for a category of documents – as opposed to for each document – with asterisks next to attorneys without indicating whether those attorneys sent, received, or were merely copies [sic] on the communication, and the failure to explain the reason for the clamed privilege deprives Plaintiffs of sufficient information to evaluate Defendants’ privilege claims for the documents withheld. Thus, Defendants’ proposed categorical privilege log does not meet the requirements of Rule 26(b)(5).”

In what was apparently a proportionality analysis, the court added: “Defendants admit in their submission that ‘JCI must, and has reviewed each document individually to determine whether privilege or work-product protection applies …’ … Therefore, it appears that the lion share of the work necessary for a document-by-document privilege log has already been completed by Defendants. The additional amount of work for Defendants to create a document-by document privilege log, given that the documents have already been reviewed and evaluated for privilege individually by Defendants, is unlikely to create an undue burden on Defendants.”

Fed.R.Civ.P. 26(b)(5)(A) states: “Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed–and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.”

The 1993 Advisory Committee Note states: “Paragraph (5) is a new provision. A party must notify other parties if it is withholding materials otherwise subject to disclosure under the rule or pursuant to a discovery request because it is asserting a claim of privilege or work product protection….  The rule does not attempt to define for each case what information must be provided when a party asserts a claim of privilege or work product protection. Details concerning time, persons, general subject matter, etc., may be appropriate if only a few items are withheld, but may be unduly burdensome when voluminous documents are claimed to be privileged or protected, particularly if the items can be described by categories. A party can seek relief through a protective order under subdivision (c) if compliance with the requirement for providing this information would be an unreasonable burden. In rare circumstances some of the pertinent information affecting applicability of the claim, such as the identity of the client, may itself be privileged; the rule provides that such information need not be disclosed.” [emphasis added].

The 2006 Note states: “The Committee has repeatedly been advised that the risk of privilege waiver, and the work necessary to avoid it, add to the costs and delay of discovery. When the review is of electronically stored information, the risk of waiver, and the time and effort required to avoid it, can increase substantially because of the volume of electronically stored information and the difficulty in ensuring that all information to be produced has in fact been reviewed. Rule 26(b)(5)(A) provides a procedure for a party that has withheld information on the basis of privilege or protection as trial-preparation material to make the claim so that the requesting party can decide whether to contest the claim and the court can resolve the dispute.”  The procedural “clawback” process was added in rule 26(b)(5)(B).

The 2025 Notes state:

Rule 26(b)(5)(A) was adopted in 1993, and from the outset was intended to recognize the need for flexibility. This amendment directs the parties to address the question of how they will comply with Rule 26(b)(5)(A) in their discovery plan, and report to the court about this topic. A companion amendment to Rule 16(b)(3)(B)(iv) seeks to prompt the court to include provisions about complying with Rule 26(b)(5)(A) in scheduling or case management orders.

This amendment also seeks to provide the parties maximum flexibility in designing an appropriate method for identifying the grounds for withholding materials. Depending on the nature of the litigation, the nature of the materials sought through discovery, and the nature of the privilege or protection involved, what is needed in one case may not be necessary in another. No one-size-fits-all approach would actually be suitable in all cases.

Requiring that discussion of this topic begin at the outset of the litigation and that the court be advised of the parties’ plans or disagreements in this regard is a key purpose of this amendment, and should minimize problems later on, particularly if objections to a party’s compliance with Rule 26(b)(5)(A) might otherwise emerge only at the end of the discovery period. Production of a privilege log near the close of the discovery period can create serious problems.  [emphasis added].

For more information on privilege logs, please visit:

• Example of a Categorical Privilege Log (Aug. 23, 2024);
• When is a Categorical Privilege Log Insufficient? (Jun. 20, 2024);
• Categorical Privilege Log Presented Interpretive Issues (Nov. 17, 2021);
• Categorical Privilege Logs: Don’t Shoot a Mouse with an Elephant Gun (Mar. 25, 2021);
• Privilege Logs:  New Techniques to Achieve Proportionality – The “Certification Log” (Mar. 4, 2024);
• How to Create a “Metadata” or “Metadata Plus” Log Using a Litigation Review Platform (Aug. 7, 2024);
• What Substantive Law Governs Sufficiency of a Privilege Log in a Federal Court Sitting in Diversity? (Aug. 24, 2026);
• Interesting Privilege Log Rulings (Jul. 21, 2026);
• Imprudent for Senior Attorney to Not at Least “Spot Check” Privilege Log? (Apr. 28, 2026);
• December 2025 Privilege Protection Amendments to Fed.R.Civ.P. 16 and 26 (Mar. 9, 2026);
• Plaintiffs’ Failure to Timely Raise Lack of Defendant’s Privilege Log Defeats Waiver Claim (Feb. 17, 2026);
• Inadequate Privilege Log Fails to Meet Burden of Proof; Waiver Doctrine Does Not Apply (Jan. 21, 2026);
• A Privilege Log Can Be Admissible Evidence (Jan. 20, 2026);
• Privilege Log Decision in Blake Lively v. Wayfarer Studios/Justin Baldoni, et al. (Nov. 20, 2025);
• Listing a Document on a Privilege Log Concedes That it is Relevant for Discovery (Sep. 6, 2025);
• No Affidavit – No Joint Representation/Common Interest Privilege (Aug. 12, 2025);
• Court Issues Stern Warning About Privilege Logs (Aug. 11, 2025);
• Untimely Privilege Objections Waived; However, Dissolved Entity Had No Privilege (Aug. 3, 2025);
• Privilege Log Entry Was Relevant to Inquiry Notice Where Time-Bar Was at Issue (Jul. 6, 2025);
• Privilege Log Helps Defeat Summary Judgment on One Count (Jun. 24, 2025);
• Privilege Log Deemed Partially Inadequate (Jun. 19, 2025);
• No Privilege Log is Necessary in Limited Circumstances When Discovery Requests Are Overbroad (Apr. 5, 2025);
• Privilege Logs, Null Sets, Search Strings, and Number of Custodians in One Decision (Jan. 27, 2025);
• Privilege Objections Denied Without Prejudice (Nov. 11, 2024);
• Is Marking Documents as “Work Product” an Admission that the Duty to Preserve is Triggered? (Nov. 5, 2024);
• Court-Ordered Production of a “Destruction/Unavailable” Log (Oct. 18, 2024);
• Where Requests for Discovery were Overly Broad, No Privilege Log was Required (Oct. 12, 2024);
• Privilege Log Entry That Document is “A-C Privileged and/or Work Product” Held Insufficient (Aug. 28, 2024);
• A Request to File a Privilege Log Under Seal Was Denied (Aug. 27, 2024);
• No Privilege Log Is Needed While Scope of Discovery Objections Are Pending (Aug. 3, 2024);
• Agreement in ESI Protocol to Provide a “Metadata-Only” Privilege Log Was Enforced (Jul. 22, 2024);
• Privilege Log Required of Materials Agency Withheld From Administrative Record (Jul. 2, 2024);
• Designation of “Work Product” Supports Inference of Intentional Spoliation (Jun. 27 2024);
• Do You Have to Ask an Opponent for a Privilege Log? (Jun. 25, 2024);
• When is Failure to Provide a Timely Privilege Log Excusable? (Jun. 24, 2024);
• Court Holds Privilege Was Waived by Failure to Timely Provide a Privilege Log (May 30, 2024);
• Documents Withheld Under Deliberative Privilege – No Privilege Log Needed? (May 23, 2024);
• How Much Detail is Enough in a Privilege Log? (Apr. 9, 2024);
• What Happens When Parties Fail to Negotiate a Privilege Log in Good Faith? (Apr. 8, 2024);
• Information Governance – Mis(?)-Labeling Documents as Privileged (Part IV) (May 16, 2022).

Plaintiff argued that many of Defendants’ discovery responses were untimely and requested that the court deem all objections to have been waived. Responses were between six weeks to two months late.

The court wrote:

Under Federal Rule of Civil Procedure 33(b)(4), “[a]ny ground not stated in a timely objection [to an interrogatory] is waived unless the court, for good cause, excuses the failure.” Fed. R. Civ. P. 33(b)(4)…. Case law imposes similar consequences for a party’s failure to timely object to document requests…. It is firmly established in this Circuit that a party who fails to timely respond to discovery requests waives his objections thereto. [cleaned up].

Defendants argued “that they responded to the best of their ability to the voluminous requests and interrogatories.”

They also asserted that “they were in communication with Plaintiff during the course of discovery and that Plaintiff was aware that Defendants were working on responses and answers to the voluminous discovery.”

Plaintiffs responded “that just because counsel requested information about when late responses would be provided, it does not mean that she consented or acquiesced to an extension of any kind.” [emphasis added].

The court agreed: “The Court views Defendants’ failure to move for an extension of time or timely provide responses and objections with disfavor.”  [emphasis added]. Not only had Defendants failed to file a motion, but they did not “even explicitly ask Plaintiff” for an extension.

However, because Defendants had now responded, the court did not strike their responses or deem the objections waived.

The court addressed many other issues. For example:  “The Court notes that Defendant Methodist objected on the basis of relevance in addition to objecting on the basis of privilege to many of the referenced requests. Defendant Methodist need not provide a privilege log for the requests where it objected on grounds besides just privilege, but does need to provide a privilege log for” the others.  Cf. Listing a Document on a Privilege Log Concedes That it is Relevant for Discovery (Sept. 6, 2025).

This blog was initially posted on  Electronic Discovery Reference Model.

More than forty years ago, the Supreme Court observed that “[e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments … and focusing on one central issue if possible, or at most on a few key issues.” Jones v. Barnes, 463 U.S. 745, 751–52 (1983). The principle is a simple one: the strongest briefs seldom contain the greatest number of arguments but rather exemplify restraint by selecting and developing the arguments most likely to prevail. Since then, this kernel of Supreme Court wisdom has taken root in the federal courts, especially in the Seventh Circuit, where courts have repeatedly condemned “scattershot,” “kitchen sink,” and “blunderbuss” approaches to briefing as “the antithesis of sound advocacy.” [citations omitted].

The court explained:

The reason is straightforward: weak arguments do not just fail on their own merits—they often weaken stronger ones. As Judge Kennelly of the United States District Court for the Northern District of Illinois has explained, advocates invariably operate within page limits, so “[t]he more space you use on the less meritorious points, the less you have for the stronger ones.” Hon. Matthew F. Kennelly, Over-Arguing Your Case, 40 No. 2 Litig. 41, 42 (2014). Worse still, spending time on weaker points “detract[s] from the force of your stronger and more significant points,” leaving judges to wonder “why, if those are such good arguments, the lawyers spent so much time on inconsequential points.” Id. Judge Easterbrook has captured the same concern: a brief advancing too many arguments “sends the message that counsel does not think much of any of the claims raised—or perhaps does not believe the court able to separate good arguments from bad.” Max M., 859 F.2d at 1300.

Scale AI requested permission to file an oversized brief.  Permission was granted. The court wrote:

Yet the additional space used in the opening briefs did not meaningfully expand the development of Scale’s strongest arguments or factual allegations. Instead, Scale devoted substantial portions of its briefs to arguments for which it lacked standing to pursue, while leaving several potentially dispositive theories confined to only a sentence or two, often with sparse citation to the administrative record. Had Scale concentrated its fire on the bullseye rather than peppering the entire target, the additional pages it sought—the majority of which were ultimately left unused—might have been devoted to developing the arguments that actually may have mattered.

In conclusion, the court wrote: “In the end, Scale spent too much time raising arguments that could not establish Article III standing nor render Scale eligible for award, even if resolved in its favor. At the same time, Scale spent too little time on arguments that mattered—skimping on both development and citation to, and drawing upon, the administrative record. In other words, rather than concentrating its fire on the bullseye, Scale put its efforts toward issues lying in the outer rings. Following such an approach, Scale failed to meet its high burden of establishing that NGA’s award decision was arbitrary, capricious, an abuse of discretion, or otherwise contrary to law.”

Plaintiffs asserted that 21 documents were protected because:

each contain “internal legislative analysis,” “draft advocacy-related communications,” and/or “internal policy analysis and strategic deliberations concerning pending legislation,” … that reveal “Veterans Guardian’s internal processes for formulating policy positions, coordinating advocacy efforts, and engaging with the legislative process … in furtherance of the Company’s rights to petition the government and to associate with others.” … Plaintiffs further assert that compelled disclosure of these documents would chill future association and petition activity, harms that a confidentiality order cannot prevent.

Id. at *1 (cleaned up).  Defendant objected:

arguing that there is no First Amendment privilege for “internal legislative analysis” or “draft advocacy documents”; that there is no First Amendment right to refuse to provide evidence in a case a plaintiff has chosen to bring; and that the First Amendment privilege is not applicable in discovery, much less in discovery governed by confidentiality order…. Defendant further submits that even if the First Amendment privilege could apply in these circumstances, plaintiffs have failed to provide  any factual basis that could support a prima facie showing that these documents are properly subject to any privilege…. Accordingly, defendant submits that plaintiffs must produce the documents at issue, or, at the very least, provide sufficient information about them to allow defendant to properly assess the asserted privilege.

Id. (cleaned up).

The court ruled after a telephone conference and in camera review:

The First Amendment includes a right to associate…. Relevant here, that right protects individuals’ and organizations’ expressive association, or association for the purpose of engaging in activities protected by the First Amendment…. When state action directly affects a group’s expressive associational activities, the state must show a compelling interest that justifies the level of the burden imposed on the groups’ expression…. Discovery requests by a government litigant represent state action that, in some circumstances, can impermissibly infringe an organization’s associational activities…. When a party in litigation invokes the First Amendment privilege to withhold otherwise-discoverable materials on that basis, the party opposing discovery must show that enforcement of the discovery request will result in consequences which objectively suggest a ‘chilling’ impact on associational rights…. This prima facie showing requires appellants to demonstrate that enforcement of the discovery requests will result in (1) harassment, membership withdrawal, or discouragement of new members, or (2) other consequences which objectively suggest an impact on, or chilling of, the members’ associational rights.

Id. (emphasis added; cleaned up). If the party invoking the privilege makes a prima facie showing of chilling, the burden shifts to the government to show a compelling need for the information.

The court held that, while the privilege typically applies to materials such as membership lists, it may extend to an organization’s internal deliberations and communications.  Id. at *3.  Further, it rejected the argument that filing suit is a categorical waiver. Id.

However, on the facts presented the court held that Plaintiffs failed to meet their burden of proof.  Specifically, it wrote that Plaintiffs have “offered no facts to suggest that disclosure of the materials would chill association rights.”  Their conclusory assertion, unsupported by evidence, failed.  “Simply saying it does not make it so….  Moreover, on its independent review of the materials in camera, the Court is not persuaded that compelling their disclosure in these circumstances will in fact chill Veterans Guardian’s associational rights.” Id. at *3.

This blog was initially posted on  Electronic Discovery Reference Model

“Three-strata validation” was requested and rejected in In re Class Action Settlement Administration Litigation, 2026 WL 2444936 (D.D.C. Aug. 19, 2026). The parties in that case had narrowed their disputes and their “only remaining disagreement concerns how a party producing documents in discovery must validate that its productions are substantially complete.”

Plaintiffs asked for “three-strata validation.”  Defendants objected to the second and third strata.

The court explained the “three-strata” approach as:  “validation of documents coded as non-responsive, validation of documents coded as responsive, and validation of documents excluded from the universe of ESI material subject to discovery review.”

THE PARTIES AGREED TO NULL SET TESTING

The parties agreed that there is an obligation  “to confirm that responsive documents are not erroneously coded as non-responsive and omitted from their productions.” This involves review of a “statistically valid random sample” of documents coded as non-responsive. Id. at *1.

This standard practice is commonly called “elusion testing,” review of the “discard pile,” or, review of  the “null set.”  See Deal Genius, LLC v. O2COOL, LLC, 682 F. Supp. 3d 727, 734–35 (N.D. Ill. 2023) (“explaining that elusion testing, where the producing party reviews a random sample from the ‘null set’ of documents that did not hit on search terms and documents that were deemed non-responsive, is a ‘standard quality assurance practice’ that can ‘confirm the reasonableness and proportionality’ of the production”).

VALIDATION OF DOCUMENTS CODED AS RESPONSIVE – REJECTED

Defendants argued that validation of documents coded as responsive, to find false positives, was superfluous.  They asserted that Fed.R.Civ.P. 26(g) required that they certify that their response is complete and correct.  The court wrote: “Rephrased in statistical terms, producing parties must confirm that their false-negative rate falls within acceptable limits.”  In my less elegant words, a production may include nonresponsive documents; but, it cannot be a “dump truck.”

The court explained:

Review of documents marked responsive falls outside the bounds of litigants’ Rule 26(g) obligations because such review cannot identify whether documents are missing from a production, rendering it incomplete. Confirming that documents designated responsive are truly responsive reveals only the production’s false-positive rate, a proxy measure for whether the litigant has overproduced discovery material. But the Federal Rules do not prohibit parties from overproducing documents. Accordingly, this Court will not require defendants to incur additional costs re-reviewing documents that they have previously coded as responsive and intend to produce, barring claims of privilege. [emphasis in original].

VALIDATION OF DOCUMENTS EXCLUDED FROM THE UNIVERSE – REJECTED

The second strata consists of “ documents excluded from the universe of ESI material subject to discovery review.”  In other words, Plaintiffs asked for a review of documents that Defendants had not collected and that, presumably, were  not in Defendants’ litigation review platform.

The court wrote that examination of this set of documents, the “Excluded Set,” “could reveal false-negatives: responsive materials that should be produced but were erroneously omitted from the universe of materials collected for discovery review.”

However, the court responded that Plaintiffs’ request was duplicative and made too late, long after collection.  It wrote:  “Yet the Court is puzzled why plaintiffs request review of the Excluded Set after discovery review is largely complete, given that the parties also intend to review the Excluded Set for responsive material prior to beginning that review.” [emphasis in original].

The court explained that “ESI discovery generally proceeds in two phases: document collection and merits review.”  The parties had earlier “set forth agreed upon parameters for collecting the universe of documents that will be subject to merits review.”  That earlier agreement had required statistical sampling.

Insofar as the parties have agreed to statistically validate the completeness of the set of documents collected for merits review before even beginning that review, the Court finds that further validation of the Excluded Set after merits review is largely complete would be duplicative and unnecessary.

However, Plaintiffs made a different argument—so-called “substantial completeness evaluation.”  They argued that:

[T]heir proposed validation efforts “answer different questions at different points in time,” because search term validation “tests whether agreed terms are performing as intended before review begins,” while substantial completeness validation of the Excluded Set “tests whether the entire process — including all downstream coding decisions, review workflow, and production choices — resulted in a complete production at its conclusion.”

This argument was unsuccessful because the court held that “the Excluded Set is a collection of documents excluded before merits review begins and not subject to downstream coding decisions, review workflows, and production choices.”

Plaintiffs also contended that “the prevailing practice is for parties producing discovery to validate the Excluded Set both upon its creation and after merits review….”  The court noted that the authorities are split; however, it held that “the Court will not require producing parties to incur the cost and burden to re-validate the Excluded Set at the substantial completeness stage, provided that they statistically validate that documents excluded from merits review do not contain responsive material before beginning that review.”

I would add that “substantial completeness validation” of the Excluded Set could de-rail a case and mandate a “do over.”  If a sufficient number of false negatives was found in that set—and sufficiency is always debatable–presumably Defendants would have to engage in a new collection, review, and production process.

This blog was initially posted on  Electronic Discovery Reference Model

One defendant’s privilege log was untimely.  Plaintiff moved to compel, challenging privilege based on alleged subject matter waiver by production of privileged materials and also on an alleged untimely and deficient privilege log.

The court wrote that: “In diversity cases, the application of the attorney-client privilege is governed by state law—in this case, the law of South Carolina.”

As to the waiver issue, the court found that the communications between defendant’s general counsel and others were not for the primary purpose of securing legal advice.  Because they were not privileged, there was no subject matter waiver by disclosure.

Turning the choice of law issue regarding the privilege log, the court wrote:

As an initial matter, Stiles mistakes the extent to which South Carolina law governs the conflict over its privilege log. In Erie R.R. v. Tompkins, 304 U.S. 64, 58 (1938), the Supreme Court held that federal courts sitting in diversity must apply state substantive law. Under the Erie Doctrine, “a federal court is to apply state substantive law and federal procedural law in diversity cases.” …. Assertion of attorney-client privilege requires a party to satisfy both procedural and substantive criteria…. In claiming that the privilege applies, Stiles is correct that the Court’s assessment of whether attorney-client privilege applies to the documents at issue is governed by South Carolina law…. However, the production of a privilege log asserting attorney-client privilege over certain documents in order to withhold that information from discovery is procedural and, therefore, governed by federal law…. Accordingly, the Court applies federal law to determine whether Stiles’ privilege log was sufficient. [cleaned up; emphasis added].

The court held: “Upon review, the Court finds that these disclosures on Stiles’ privilege log are insufficient to allow Plaintiff to determine whether Stiles has properly asserted privilege over these documents.”

The court determined that it had four options: “(1) give the party another chance to submit a more detailed log; (2) deem the inadequate log a waiver of the privilege; (3) inspect in camera all of the withheld documents; and (4) inspect in camera a sample of the withheld documents.”  It engaged in detailed factual analysis and granted plaintiff’s motion in part and denied it in part.

This blog was initially posted on  Electronic Discovery Reference Model.