District of MD – E-Discovery LLC https://www.ediscoveryllc.com Mediation of E-Discovery Disputes Sat, 31 Oct 2026 18:49:59 +0000 en-US hourly 1 Examples of a Very Detailed A.I. Protective Order and Less Detailed Agreements and Orders https://www.ediscoveryllc.com/examples-of-a-very-detailed-a-i-protective-order-and-less-detailed-agreements-and-orders/ Fri, 16 Oct 2026 22:38:06 +0000 https://www.ediscoveryllc.com/?p=5656 […]]]> I have suggested that AI protective orders are becoming the standard of care.[1]  These orders limit the use or uses of AI by a recipient of discovery materials to review the materials produced by an opponent.  They clearly are important and have value in appropriate instances.

However, there is no standard form and the agreements vary greatly. Some cover only confidential information; others apply to all discovery material. Some list acceptable platforms by name; others describe functional requirements; and, some address named platforms and their configuration.  There has been discussion about the terms “consumer grade” AI v. “Enterprise” AI.  Thomsen-Reuters discusses Fiduciary-Grade AI.  The terms “open” and “closed” AI have been used–and criticized.

All protective orders are not created equal and they are not always fair.  I have echoed Craig Ball’s novel post on the need for equity in limiting an opponent’s right to use AI.  Another A.I. Protective Order – Part 10 quoting Craig Ball, The AI Protective Order Double Standard | Ball in your Court (Jul. 27, 2026).

One of the most detailed AI protective orders that I have seen was stipulated in Corent Technology, Inc. v. Amazon Web Services, Inc., 2026 WL 2924482 (C.D. Cal. Sep. 28, 2026).  It deals with both the use of AI on source code and more generally.  At the end of this post, I cite a number of less detailed examples.

As to source code, the Corent Technology order states:

Neither party shall use any software tools or applications on the Source Code Computer powered by or leveraging artificial intelligence or machine learning that automatically scan, analyze, or provide feedback on source code. The Producing Party shall accommodate reasonable requests by the Receiving Party that other mutually agreeable commercially available software tools for viewing and searching Source Code be installed on the Source Code Computer, provided that such other software tools are reasonably available to the Producing Party, non-destructive to the source code, and reasonably necessary for the Receiving Party to perform its review of the Source Code consistent with all the protections herein. The Receiving Party must provide the Producing Party with the licensed software tools at least three (3) business days in advance of the date upon which the Receiving Party wishes to have the additional software tools available for use on the Source Code Computer.

As to A.I. in general, the Corent Technology order states:

USE OF AI TOOLS

No party, and no person or entity authorized to receive materials under this Order, may input, upload, submit, or otherwise provide any Discovery Material—whether or not designated as Protected Information—into any modern artificial intelligence platform, including any generative, analytical, or large language model-based tool (“AI Tool”), unless all requirements of Section 12.1 and Section 12.2 are satisfied.

12.1 A party or person subject to this Order may use an AI Tool with Discovery Material only if the AI Tool is provided on an enterprise or commercial tier subscription and the Receiving Party has not configured the AI Tool to:

a) retain or store inputs (including prompts, documents, and metadata) for use beyond the session necessary to deliver the requested service, except as provided in Section 12.7.2, For clarity, this requirement does not prohibit the use of AI Tools that maintain a history of a user’s prompts and/or sessions, provided that any prompts containing Protected Information shall not be disclosed to any person not authorized to receive Protected Information under this Order;

b) use, incorporate, or reference inputs to train, fine-tune, retrain, or otherwise improve any AI model or system, whether that of the vendor or any third party, except as provided in Section 12.7.2, For clarity, this requirement does not prohibit the use of AI tools that incorporate or reference a user’s past prompts to optimize responses to subsequent prompts by the same user, provided that such AI tools (1) do not use, reference, or incorporate prompts or other inputs received from one user to respond to prompts from any other user; and (2) otherwise comply with all of the requirements in Section 12;

c) disclose inputs to any third party, except where strictly essential to facilitate delivery of the service; any such third party must be bound by confidentiality obligations no less protective than those required by this Order;

d) allow any human employee, contractor, or reviewer of the AI vendor to read, access, or review input content for any purpose other than immediate technical support explicitly requested by the party; and

e) make inputs or retained outputs accessible to any person not authorized to receive Protected Information under this Order.

12.2 In addition to the requirements of Section 12.1, a party or person may use an AI Tool with Discovery Material only if the AI vendor is contractually obligated to afford the Receiving Party the right to remove or delete all Discovery Material and AI-generated outputs from the vendor’s systems upon request, and in any event no later than sixty (60) days following the entry of a final non-appealable judgment or order, or the complete settlement of all claims asserted against all parties in this action (the “Conclusion of This Action”). The Receiving Party shall: (a) within fourteen (14) days following the Conclusion of This Action, take all reasonable steps necessary to ensure deletion of all Protected Material uploaded and/or output by AI tools during this action. The Receiving Party may meet this requirement by submitting a deletion request to the vendor if the vendor accepts deletion requests during the term of its vendor agreement with the Receiving Party; or, if the AI vendor does not accept such requests, by manually deleting all uploaded information over the AI tool’s user interface; and (b) within sixty (60) days following the Conclusion of This Action, provide the Producing Party with written certification and documentation demonstrating that the Receiving Party took all reasonable steps necessary to delete all Discovery Material uploaded to AI tools using the procedures and means provided by the vendor(s), as applicable.

12.3 Any party intending to use an AI Tool with Discovery Material must, prior to such use:

a) retain written documentation (including the vendor’s data processing agreement, terms of service, or equivalent contractual instrument) demonstrating that the vendor’s commitments satisfy Sections 12.1 and 12.2; and

b) make such documentation available to the Producing Party within five (5) business days of a written request.

12.4 A party that intends to use an AI Tool with Discovery Material produced by the other party must provide written notice to the Producing Party at least seven (7) business days before first use, except with respect to AI Tools pre-approved under Section 12.6. Such notice shall identify:

a) the name, version, and operator of the AI Tool;

b) the categories of Discovery Material the Receiving Party intends to process; and

c) a representation that Sections 12.1 and 12.2 are satisfied, accompanied by the documentation required by Section 12.3(a).

The Producing Party shall have five (5) business days to object in writing, stating with particularity the basis for objection. If a timely objection is served, the parties shall meet and confer within three (3) business days. If the dispute is not resolved, the Receiving Party may not proceed with such AI Tool use until the Court resolves the dispute pursuant to Local Rule 37-1 et seq. and Section 3 of Judge McCormick’s Procedures.

12.5 Notwithstanding any other provision of this Section 12, no party may use any AI Tool, regardless of vendor contractual protections, to review, analyze, summarize, or otherwise process any Discovery Material designated as HIGHLY CONFIDENTIAL—SOURCE CODE. This prohibition is absolute and applies whether such Source Code material is accessed on the Source Code Computer, in printed form, in electronic excerpts, or in any other form or medium.

12.6 The parties agree that the following AI Tools, when used at the enterprise or commercial tier identified below and subject to the configuration requirements in this subsection, satisfy the requirements of Sections 12.1 and 12.2 based on each vendor’s published enterprise terms of service, data processing addendum, and security certifications as of the Effective Date of this Order. Use of any AI Tool pre-approved under this Section 12.6 shall not require the pre-use notice otherwise required under Section 12.4.

a) Microsoft Copilot, including Microsoft 365 Copilot and Copilot Cowork, when deployed within a Microsoft 365 Enterprise or Business tenant governed by Microsoft’s enterprise Data Protection Addendum (and not the free or consumer-facing Copilot product available at copilot.microsoft.com), satisfies the requirements of Sections 12.1 and 12.2, provided that: (i) the Receiving Party’s tenant is configured to disable any consumer connectors or web-grounding features that would route Discovery Material outside the enterprise data-processing boundary; and (ii) the Receiving Party has not enabled any consumer-tier or non-Enterprise Copilot product for use with Discovery Material.

b) Lexis+ AI (LexisNexis), at the firm’s standard commercial or enterprise subscription tier, satisfies the requirements of Sections 12.1 and 12.2, provided that: (i) the Receiving Party’s account is configured under LexisNexis’s then-current commercial terms and its published zero-training and zero-retention commitments applicable to user-submitted content; and (ii) the Receiving Party has not enabled any consumer or free-tier LexisNexis AI product for use with Discovery Material.

c) Westlaw AI and CoCounsel (Thomson Reuters), at the firm’s standard commercial or enterprise subscription tier, satisfy the requirements of Sections 12.1 and 12.2, provided that: (i) the Receiving Party’s account is governed by Thomson Reuters’s then-current commercial terms, including its non-retention API arrangements with underlying model providers and its contractual prohibition on third-party model providers retaining or training on customer data; and (ii) the Receiving Party has not enabled any consumer or free-tier Westlaw AI or CoCounsel product for use with Discovery Material.

d) Patlytics (patlytics.ai), at the firm’s standard commercial or enterprise subscription tier, satisfies the requirements of Sections 12.1 and 12.2, provided that: (i) the Receiving Party’s account is configured under Patlytics’s then-current customer terms, including its published non-training commitment and its non-retention agreements with underlying third-party AI services; and (ii) the Receiving Party has not enabled any consumer or free-tier Patlytics product for use with Discovery Material.

e) Perplexity Enterprise (Pro or Max tier) satisfies the requirements of Sections 12.1 and 12.2, based on Perplexity’s Enterprise Terms of Service, Data Processing Addendum, and SOC 2 Type II attestation as of the Effective Date of this Order, provided that: (i) the Receiving Party’s Enterprise instance has Zero Data Retention enabled or, alternatively, has configured the shortest available data retention period; and (ii) the Receiving Party has not enabled any consumer-tier or non-Enterprise Perplexity product for use with Discovery Material.

f) Claude (Anthropic), at the firm’s standard commercial or enterprise subscription tier, satisfies the requirements of Sections 12.1 and 12.2, provided that: (i) the Receiving Party’s subscription is configured to disable any consumer connectors or web-grounding features that would route Discovery Material outside the enterprise data-processing boundary; and (ii) the Receiving Party has not enabled any consumer-tier or non-Enterprise Claude product for use with Discovery Material.

g) Harvey (harvey.ai) satisfies the requirements of Sections 12.1 and 12.2, provided that: (i) the Receiving Party’s subscription is configured to disable any consumer connectors or web-grounding features that would route Discovery Material outside the enterprise data-processing boundary; and (ii) the Receiving Party has not enabled any consumer-tier or non-Enterprise Harvey product for use with Discovery Material.

h) Legora aOS (Legora) satisfies the requirements of Sections 12.1 and 12.2, provided that: (i) the Receiving Party’s subscription is configured to disable any consumer connectors or web-grounding features that would route Discovery Material outside the enterprise data-processing boundary; and (ii) the Receiving Party has not enabled any consumer-tier or non-Enterprise Legora product for use with Discovery Material.

i) Crane Patents satisfies the requirements of Sections 12.1 and 12.2, provided that: (i) the Receiving Party’s subscription is configured to disable any consumer connectors or web-grounding features that would route Discovery Material outside the enterprise data-processing boundary; and (ii) the Receiving Party has not enabled any consumer-tier or non-Enterprise Crane Patents product for use with Discovery Material.

12.7.1 No party or authorized recipient of Discovery Material shall use any Discovery Material, or any AI-generated output derived therefrom, within any AI Tool workspace, project, index, session, or other AI-Tool-hosted environment that is accessed, maintained, or used for any matter other than this action. Each party shall configure its use of AI Tools such that Discovery Material and any AI-generated outputs derived therefrom are logically segregated from unrelated matters, and shall not carry over, migrate, or otherwise make available such Discovery Material or derived outputs to any workspace, project, index, or session unrelated to this action.

12.7.2 For the avoidance of doubt, nothing in this Section 12 prohibits an AI Tool from retaining Discovery Material or AI-generated outputs derived therefrom within a single matter-specific workspace, project, index, or session dedicated to this action for the purpose of enabling follow-up queries, retrieval-augmented generation, context-preserved analysis, or similar within-matter functionality, provided that (i) such retention is confined to the matter-specific environment and does not train, fine-tune, or otherwise update the underlying model or any model used by any other party, matter, or user; and (ii) the matter-specific environment remains subject to the deletion obligations set forth in Section 12.2. [emphasis added]

For more information on, and examples of, less detailed A.I. protective orders, a discussion of standard of care, and a discussion of the possible equity impacts of such orders, please visit:

USE OF ARTIFICIAL INTELLIGENCE

Should a Party elect to utilize artificial intelligence (“AI”) to assist in reviewing, analyzing, or summarizing discovery material produced or exchanged in this litigation, the Party shall take all necessary steps to ensure that the application, service, or analytical software is fully containerized. “Fully containerized,” as used in this Order, means an AI tool that does not retain the substance of a prompt or documents reviewed, share the substance of a prompt or documents reviewed for training of large language models, or use the substance of a prompt or documents reviewed in any other matter or inquiry other than this litigation. For the avoidance of doubt, this restriction expressly applies to the use of non-containerized advanced large language models (such as publicly available large language models), generative AI tools, and other advanced AI systems, including, but not limited to, OpenAI, Gemini, LLAMA, MidJourney, and Stable Diffusion, but this provision does not limit the use of services leveraging the technology underlying these generative AI tools in a fully containerized environment, including, but not limited to, Copilot Harvey, Relativity aiR, DISCO Cecelia, Everlaw AI, Syllo, Alchemy, Lexis+ AI, Epiq AIDA, Lighthouse AI, Westlaw AI, ChatGPT Enterprise, Microsoft 365 Copilot Enterprise, Claude Enterprise, NotebookLM Pro and Ultra, and Gemini Pro and Ultra. Before submitting any Protected Material to a fully containerized AI tool, a receiving party shall ensure that it (or its vendor) can delete all such Protected Material from the AI tool at the conclusion of this matter, including any derivative information stored within the tool. The obligations and restrictions of this paragraph apply even where the Protected Material has been anonymized.

  • S.A.  v. Lockhart, 2026 WL 3003727 (S.D.N.Y.  Oct. 6, 2026)(by consent):

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. Publicly accessible AI tools pose unique risks to the security and integrity of Disclosure Materials, given the practical inability to claw back or delete data once it has been incorporated into a model.

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.

d.  The Government will not submit any materials disclosed by the defense pursuant to Federal Rules of Criminal Procedure 26.2, 32.1 or other defense disclosure obligations (“Defense Materials”) to a publicly accessible version of an AI tool. The Government will not submit Defense Materials to an AI tool for which the AI tool provider or vendor 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.

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

  • S.A. v. Santos, 2026 WL 3003653 (Oct. 6, 2026)(same, by consent);
  • S.A. v. Robinson, 2026 WL 3003677 (Oct. 6, 2026)(same).
  • S.A. v. Peplow, 2026 WL 3026474 (E.D. Cal. Oct. 8, 2026)(stipulation):

Artificial Intelligence Tools

  1. No person or entity authorized to have access to protected material under the terms of the requested order shall input, transmit, upload, submit, quote, feed, process, generate output from, or otherwise expose any protected material received pursuant to the requested order to any artificial intelligence (“AI”) tool absent the prior written consent of the government or an order of the Court following a properly noticed motion to which the government has an opportunity to respond, unless that AI tool—a) is an enterprise-grade platform that counsel for the defendant has licensed; b) is subject to a binding written agreement that (i) requires the provider to keep all user-supplied data strictly confidential, and (ii) expressly prohibits the provider from using such data for training, fine-tuning, product improvement, or any purpose other than providing the contracted-for services; and c) employs technical and organizational security measures reasonably designed to prevent any unauthorized access, disclosure, or use of protected material.

  2. The obligations and restrictions of this section apply even where the data or the protected material has been anonymized. “AI tool” means any automated system that uses statistical modeling, 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.

  3. By participating in this agreement, counsel for the defendant certifies: (i) they have implemented reasonable measures to ensure, if using any AI tool, it will maintain the protected discovery’s confidentiality as required by this Agreement and (ii) they will ensure all protected discovery is deleted from the tool once this case concludes.

  4. Under no circumstances will any member of the defense team submit protected material to a publicly accessible AI system that retains and uses submitted data to train models. Such AI tools pose unique risks to the security and integrity of protected material, given the practical inability to claw back or delete data once it has been incorporated into a model.

  • S.A. v. Sarris, 2026 WL 2937892, at *2 (S.D.N.Y.  Sep 30, 2026)(by consent).
  • S.A. v. DeJesus, 2026 WL 3034296 (S.D.N.Y. Oct. 9, 2026)(by consent).

Note: In a recent decision, the District of Maryland wrote: “In addition, Campbell must ensure that any use of generative artificial intelligence does not violate the stipulated order governing confidential materials. See ECF 21. TidalHealth expresses concern that Campbell violated the February 27, 2026 Protective Order’s prohibition on submitting discovery material to public generative artificial intelligence tools. ECF 41-1 at 11; see ECF 21 at ¶ 8 (imposing limitations on use of generative artificial intelligence). Campbell denies doing so. ECF 45 at 3. If future filings suggest improper submission of discovery materials to generative artificial intelligence tools, the Court will be more inclined to issue a show cause order and consider sanctions.” Campbell v. TidalHealth, Inc., 2026 WL 2162749, at *10  (D. Md. Jul. 28, 2026)(Austin, J.)(emphasis added).  This case was discussed in a prior post.

UPDATE:  STT Webos, Inc. v. ByteDance Ltd., 2026 WL 2138557, *13 (N.D. Cal. Jul. 24, 2026)(emphasis added):

Artificial Intelligence Use. The Parties agree that any documents, electronically stored information (“ESI”), or other materials produced or exchanged in the course of this Action, including but not limited to those designated as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE” under this Order, shall not be used, in whole or in part, for prompts (inputs), completions (outputs), or embeddings that are used to train, improve, re-train, or otherwise develop any artificial intelligence, foundation model, or large language model (collectively “AI Models”). This prohibition applies regardless of whether the AI Models are proprietary, open-source, or provided by a third party, and regardless of whether the use is for commercial, research, or any other purpose. The Parties further agree to take reasonable steps to ensure that their employees, counsel, agents, consultants, contractors, and any other persons or entities who may have access to such materials comply with this prohibition. Any violation of this provision may be addressed by the Court through appropriate remedies, including but not limited to sanctions.

____

[1] Three More A.I. Protective Orders (Oct. 9, 2026).

]]> Determining When the Duty to Preserve was Triggered is Critical to a Sanctions Analysis https://www.ediscoveryllc.com/determining-when-the-duty-to-preserve-was-triggered-is-critical-to-a-sanctions-analysis/ Sun, 04 Oct 2026 09:29:51 +0000 https://www.ediscoveryllc.com/?p=5605 […]]]> Because a video of an alleged incident was destroyed pursuant to a reasonable information governance policy and before litigation was reasonably anticipated, spoliation sanctions were denied.  Acheneje v. Univ. of MD Medical Corp., 2026 WL 2880533 (D. Md. Sep 25, 2026)(Maddox, J.).

Plaintiff’s employment claims arose out of her termination as a clinical nurse. A series of interactions occurred, resulting in an investigation covering interviews of all staff and “review of video.”  “During and around the time of the two rapid responses, Plaintiff had a verbal interaction or altercation with another nurse, Gabrielle Spalt, and the two nurses have differing accounts of their encounter.”

Defendants moved for summary judgment.  The Court found no genuine dispute of material fact and granted the motion.

Plaintiff argued that summary judgment should be denied, in part, based on “potential spoliation of video evidence relevant to Plaintiff’s claims.  Specifically, Plaintiff contends that Defendants failed to preserve video footage of the interaction between her and Ms. Spalt during the rapid response events on September 16, 2023.”

Defendants relied on their information governance policy.  They told Plaintiff that the video footage was “retained for 30 days and was over-written pursuant to Defendants’ policy prior to notice of any legal claim and obligation to preserve footage.”

Plaintiff replied “that Defendant was on notice to preserve the video as of September 2023 because of the final written warning issued to Plaintiff and the specific request Plaintiff made to view the video during the investigation of the incident.”

Defendants responded “that there was no reason to anticipate litigation until Defendants received notice of Plaintiff’s filing of charges with the EEOC, in March 2024…. They contend that, pursuant to internal policy, the video footage from the September 16, 2023, incident was overwritten 30 days later, on or around October 15, 2023—well before they received notice of litigation.”

The Court wrote that “[s]poliation refers to the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” Id. (cleaned up; citation omitted).  The “mere existence” of a dispute does not trigger the duty to preserve.  The duty arises somewhere between knowledge of a dispute and direct, specific threats of litigation: “A non-exhaustive list of examples of events triggering the duty to preserve include the receipt of a demand letter, a request for evidence preservation, a threat of litigation, or a decision to pursue a claim.” Id. (cleaned up; citation omitted).

Applying those principles, the Court explained:

Plaintiff cites no authority to support the proposition that her request to see the video of her interaction with Ms. Spalt and the final warning issued to her in September triggered a duty to preserve. Plaintiff did not issue any demand letter to Defendants, request preservation of the video, or threaten litigation at any point before the video was over-written in the normal course of Defendants’ business. In the grievance she submitted to HR in September 2023, Plaintiff alleged that video footage would show that she was not on her phone when Ms. Spalt confronted her, but the grievance contains no request for preservation or threat of litigation…. The disciplinary action and any request Plaintiff made to view the video footage could not, by themselves, make litigation reasonably foreseeable. The case upon which Plaintiff relies in her opposition indicates, contrary to her position, that the duty to preserve began when Defendants learned about Plaintiff’s filing with the EEOC. See Membreno, 338 F.R.D. at 72 (concluding that the defendants “should have reasonably anticipated litigation…when they received notice of” the plaintiff’s filing with the EEOC). Here, Plaintiff did not file a charge with the EEOC until March 2024, long after the video footage at issue would have been over-written in the normal course. Thus, Plaintiff fails to establish any entitlement to relief based on spoliation of evidence.

Summary judgment followed.

The threshold inquiry for sanctions under Fed.R.Civ.P. 37(e) is whether “electronically stored information that should have been preserved in the anticipation or conduct of litigation” was “lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery….”  Here, Plaintiff failed to cross that threshold.

The Court wrote:

Plaintiff argues that Defendants mishandled video evidence. However, one of Defendants’ employees reviewed the video footage of the September 2023 incident and concluded that it was “tough to see much” and that she “had a difficult time seeing anything in the nurses station.” … That employee did not see what Plaintiff alleged, namely that Ms. Spalt came towards Plaintiff “pointing her finger at her and yelling at her.”

The Court did not address whether or not this showed a lack of prejudice. If so, it would have precluded Rule 37(e)(1) sanctions.

 

]]> “MD lawyer scolded for fake citations after past AI issues” https://www.ediscoveryllc.com/md-lawyer-scolded-for-fake-citations-after-past-ai-issues/ Sat, 26 Sep 2026 20:35:25 +0000 https://www.ediscoveryllc.com/?p=5599 […]]]> A Maryland attorney “is once again in hot water for filing a brief that included numerous false citations.”  I. Round, MD lawyer scolded for fake citations after past AI issues – Maryland Daily Record (Sep. 25, 2026).

The article reports that: “U.S. District Judge Loren AliKhan is the latest in a string of judges and opposing lawyers in Maryland and Washington to call out [this named attorney’s] work.”  Id.

The Daily Record reported that, when it could not contact the attorney, it contacted the managing partner “who has also been scolded for false citations….” Id.

The article also states that one Judge wrote that Her Honor’s concerns “extend to counsel’s entire firm.”   Id.

]]> Search for Board of Director Documents from 1985 Ordered in Environmental Lawsuit https://www.ediscoveryllc.com/search-for-board-of-director-documents-from-1985-ordered-in-environmental-lawsuit/ Fri, 18 Sep 2026 09:35:04 +0000 https://www.ediscoveryllc.com/?p=5561 […]]]> The State of Maryland and intervening plaintiffs sued W.L. Gore & Associates, Inc. They alleged contamination of natural resources with toxic substances—specifically, “PFAS.”

“Pending before the Court is a discovery dispute concerning Gore’s production of Board of Directors information.”  State v. W.L. Gore & Associates, Inc,. 2026 WL 2730156 (D. Md. Sep. 16, 2026)(Aslan, J.).

Pursuant to an initial Court order directing Gore to search Board of Directors minutes “that are available in electronic form,” “Gore searched Board of Directors minutes from 2020 onwards and produced 15 sets of minutes and 41 additional Board documents.”

That production led to another dispute, with the Court writing that “the State and Gore again raised the issue of the sufficiency of Gore’s production, each contending that the limited production demonstrated why additional discovery specific to the Board of Directors is or is not required.”  Plaintiffs sought discovery from 1985.

The parties disputed the governing standard: “As a threshold matter, the State and Gore dispute the standard and burden governing analysis of the sufficiency of Gore’s production.”

“The State argues that as the party resisting discovery, Gore bears the burden of demonstrating that the requested discovery falls outside the scope of Rule 26, and that Gore has not articulated any burden associated with locating these records, assessing their volume, or reviewing their contents.” Id. at *2 (cleaned up).

“On the other hand, Gore contends that the State has the burden of showing how even more discovery into sensitive Board documents would not be duplicative or cumulative of the discovery already produced in this case….”  Id.

The Court rejected Gore’s position:  “Gore relies on an out-of-circuit decision for the proposition that parties seeking searches of additional custodians beyond those initially disclosed must demonstrate that the additional requested custodians would provide unique relevant information by providing evidence that there are unique responsive documents being missed in the current search scheme that would justify the inclusion of additional custodians.” Id. (cleaned up; emphasis in original).

The Court held that the out-of-circuit authority was distinguishable. It related to motions to compel production of ESI from additional custodians.  The Gore Court wrote: “In contrast, the question here is whether Gore must search Board of Directors materials specifically, as opposed to relying on other searches of negotiated terms and custodians.”  Id. at *2.

As to relevance, the Court noted that the PFAS-related documents requested were “certainly relevant….”  It explained that relevance “is not, on its own, a high bar.” Id.

As to proportionality, “the issues at stake in this action and the amount in controversy are significant.”  The Court wrote: “The question of the burden or expense of conducting an independent search of Board of Directors information is unclear. Gore does not address this issue in its filings, but represented at a prior discovery hearing that it was not relying on undue burden to resist production of Board of Directors information.”

The Court also wrote:

Throughout the history of this dispute, Gore has argued that the sensitivity of the Board minutes, the decades-long timeframe, and the asserted cumulative nature of the discovery render a separate Board of Directors information search inappropriate…. These arguments are unpersuasive. First, the existing confidentiality order … will protect the sensitivity of the Board of Directors materials. Second, the timeframe in question is less than the “50 years” … originally contemplated because, by way of compromise, the State has asked Gore to search hard-copy Board of Director minutes back to 1985 to “target the most highly relevant information” … When evaluating the proportionality of this 35-year timeframe, the undersigned notes that the State alleges that Gore released “PFAS into Maryland for more than 50 years.” … Discovery in this action will therefore necessarily encompass a broad timeframe. [emphasis added].

The Court rejected Gore’s argument concerning cumulative, duplicative discovery:

To the extent that Gore relies on Federal Rule of Civil Procedure 26(b), the undersigned concludes that the Board of Directors information is not “cumulative or duplicative” and that the State has not “had ample opportunity to obtain the information by discovery.” Fed. R. Civ. P. 26(b)(2)(C)(i)-(ii). By Gore’s own admission, the targeted pilot search [from 2020] of electronic Board of Directors minutes resulted in the production of 15 sets of minutes and 41 additional responsive documents…. Following review of the parties’ filings, the undersigned cannot conclude that such information is needlessly cumulative of other discovery.

Id. at *3. The Court ordered that “Gore will search its Board of Directors minutes and other related information for the time period of 1985 through 2019 and produce any documents responsive to the State’s Request for Production No. 23” and that the parties meet and  confer regarding the time for production and any related issues.

]]> Dispositive Sanction Denied in Auto Tort—Defendants Failed to Request Lesser Sanctions https://www.ediscoveryllc.com/dispositive-sanction-denied-in-auto-tort-defendants-failed-to-request-lesser-sanctions/ Tue, 15 Sep 2026 09:09:26 +0000 https://www.ediscoveryllc.com/?p=5537 […]]]> Two defendants moved to dismiss an auto tort Complaint because of alleged spoliation of the Plaintiff’s automobile.  The motions were denied.  Baez v. Uber Technologies, Inc., 2026 WL 2603075 (D. Md. Sep. 3, 2026)(Sullivan, J.).

On November 4, 2024, Defendant Jung, an Uber driver, rear-ended Plaintiff Baez’s 1999 Honda Accord, driving it into a guardrail. One factual dispute was whether the Honda was stopped in the left lane.  Jung said it was. Baez “states that he has no recollection of the vehicle being stopped, and that the vehicle was in proper working condition and not disabled at the time of the collision.”  The Honda was not preserved.

The preservation/spoliation facts were straightforward:

Both vehicles were removed from the scene by N & S Towing….  Plaintiff suffered serious bodily injuries and while he was in the hospital, his mother “independently ascertained” the location of his vehicle…. On November 8, 2024, she traveled to the N & S Towing location and took photographs of his vehicle, which were later shared with defense counsel…. By November 12, 2024, Plaintiff had retained counsel…. And on November 20, 2024, Defendant Jung’s counsel provided a formal preservation request asking Plaintiff to preserve all relevant evidence, including the 1999 Honda Accord…. The request was sent to Plaintiff’s prior counsel, John Lyding of Morgan & Morgan…. Plaintiff is currently represented by Terence Davis of the same firm…. Defendant Jung’s counsel contacted Morgan & Morgan on three occasions about the status of the vehicle….

Suit was filed on August 11, 2025.  The Court wrote: “Finally, on August 15, 2025, Plaintiff’s counsel (through his paralegal) notified Defendant Jung’s counsel that the vehicle was a total loss and had been discarded on an unknown date. [emphasis added].

First, the Court held that the defense motions to dismiss the Complaint were in fact “clearly intended to be motions for sanctions, the sanction requested being dismissal.”  This was significant because, instead of applying the Rule 12(b)(6) standard, it meant that “the Motions will be construed as motions for sanctions based on the destruction of Plaintiff’s vehicle.”

The Fourth Circuit long ago addressed the duty to preserve an automobile.  Silvestri v. Gen. Motors Corp., 271 F.3d 583 (4th Cir. 2001).  Spoliation includes “the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.”  Id.  Because an automobile is not ESI, Fed.R.Civ.P. 37(e) is inapposite.  The Baez Court held that its inherent power governed the sanctions requests: “Here, Plaintiff failed to preserve a tangible piece of evidence and the Court’s inherent authority to impose sanctions is implicated.”

The Baez Court explained that a party seeking sanctions “must show that: (1) the party having control over the evidence had an obligation to preserve it when it was destroyed or altered; (2) the destruction or loss was accompanied by a culpable state of mind; and (3) the evidence that was destroyed or altered was relevant to the claims or defenses of the party that sought the discovery of the spoliated evidence, to the extent that a reasonable factfinder could conclude that the lost evidence would have supported the claims or defenses of the party that sought it.”

TRIGGER AND BREACH OF THE DUTY TO PRESERVE

Trigger of the Preservation Duty

The first step was to determine when the duty to preserve was triggered, i.e., when Baez reasonably anticipated litigation. Id. at *3.  At that time, a party must institute a litigation hold.  “And when a party cannot fulfill this duty to preserve because he does not own or control the evidence, he still has an obligation to give the opposing party notice of access to the evidence or of the possible destruction of the evidence if the party anticipates litigation involving that evidence.” Id. (citation and quotations omitted). The Court wrote:

It cannot be disputed that Plaintiff had an obligation to preserve his vehicle. The accident occurred on November 4, 2024, and only four days later Plaintiff’s mother had located the vehicle and visited N & S Towing’s location to take photographs of it….  Less than ten days later, Plaintiff had retained counsel…. And sixteen days later, Defendant Jung’s counsel provided a formal preservation request asking Plaintiff to preserve all relevant evidence, including the 1999 Honda Accord…. Plaintiff’s duty to preserve arose on November 12, 2024, when he obtained counsel. Even had Plaintiff not obtained counsel, his duty to preserve would have been triggered on November 20, 2024, when Defendant Jung’s counsel sent him a preservation letter.… 

Id. at *3.

Breach of the Preservation Duty

The Court then addressed breach of the duty:

Despite having a duty to preserve his vehicle, Plaintiff’s counsel failed to inquire about the vehicle’s status with N & S Towing until almost a year after defense counsel sent the preservation letter…. The first step in the sanctions analysis is satisfied.

Id.  It added: “Plaintiff argues that because the preservation letter was sent to Plaintiff’s prior counsel, his current counsel was not aware of the Defendants’ desire to inspect the vehicle…. This argument borders on ridiculous. Morgan & Morgan has represented Plaintiff since November 12, 2024, and both Plaintiff’s previous and current counsel are Morgan & Morgan attorneys…. Any blame that Plaintiff directs at his former attorney is therefore properly attributed to Plaintiff himself.” Id. at n. 5.

CULPABLE STATE OF MIND

The next step was to evaluate culpability. Id. at *4. Sanctions may be imposed for “any fault—be it bad faith, willfulness, gross negligence, or ordinary negligence….  In the context of spoliation, ordinary negligence is the failure to identify, locate, and preserve evidence, where a reasonably prudent person acting under like circumstances would have done so.”  Id.

However, the degree of culpability affects the severity of the possible sanction. Id.  Case-dispositive sanctions are reserved for the “most extreme circumstances.”  Id.

PREJUDICE AND SECONDARY EVIDENCE

Here, the Defendants asked too much: “The only sanction requested by Defendants is dismissal. But because there is insufficient evidence to warrant such a sanction, the Motions are denied.”  Id. at *4.

The Court looked at what I call secondary evidence in deciding that Defendants could still defend the claims, writing: “Through the police report, vehicle images, the testimony of Plaintiff (who admits his memory of the collision is ‘hazy’ and contradicts the police report), Defendant Jung’s testimony, and any other materials produced throughout discovery, Defendants are able to build their defense without a forensic examination of Plaintiff’s vehicle.”

Moreover, following the collision on November 4, 2024, Plaintiff spent several days in the hospital…. His mother, on her own accord and while he was in the hospital, located and photographed his vehicle on November 8, 2024…. These photos were shared with defense counsel…. [emphasis added].

The Court also found, in my words, a lack of diligence by the defense:

Additionally, the police report states that both vehicles were removed from the accident scene by “NS Towing” and removed to the tow lot…. But despite having the details of what company removed the vehicles and where that company took the vehicles, neither party attempted to inspect or preserve Plaintiff’s vehicle while it sat in the tow lot. Defendant Jung’s counsel failed to follow up with Plaintiff’s counsel about the preservation of the vehicle until July 28, 2025, over eight months after the collision.

Id. at *4 (emphasis added).

DATE OF LOSS?

The first element of spoliation is that “the party having control over the evidence had an obligation to preserve it when it was destroyed or altered….”  Here, a key fact was absent—no one knew when the car went missing.  The Court wrote:

Finally, the parties do not provide any information about when Plaintiff’s vehicle was destroyed. It could be that N & S Towing destroyed the vehicle after Plaintiff’s mother photographed it on November 8, 2024, and before Plaintiff retained counsel on November 12, 2024, or received Defendant Jung’s preservation request on November 20, 2024….

Id. (emphasis added).  Further, this appeared to be relevant to culpability:

There is no evidence that Plaintiff or his counsel purposefully deprived Defendants of the opportunity to examine the vehicle or facilitated its destruction. To the contrary, the record reflects a police report providing where the vehicle was towed and the Plaintiff’s mother locating and photographing Defendant’s vehicle in a tow lot, where both parties knew it to be located, and where it was eventually disposed of on an unknown date and time. These facts do not support dismissal.

Id.

CONDUCT OF PLAINTIFF’S COUNSEL WAS CONCERNING, BUT IRRELEVANT

The Court wrote:  “To be clear, Plaintiff’s counsel’s conduct is concerning. Only sixteen days after the collision, Defendant Jung sent a preservation letter to Mr. Lyding requesting that Plaintiff preserve his 1999 Honda Accord that was involved in the accident…. It is entirely unclear what Mr. Lyding did, if anything, to preserve this evidence. At some point, another Morgan & Morgan attorney, Mr. Davis, took over Plaintiff’s case and replaced Mr. Lyding. But despite both attorneys being from the same law firm and there being only one client, Mr. Davis now claims that he had no knowledge of the preservation letter sent to Mr. Lyding on November 20, 2024.” Id. at *5 (emphasis added).

However, that was irrelevant because Defendants asked only for dismissal, writing: “Any other remedy would be an unacceptable outcome and surely undermine the integrity of the judicial process.” Id. at *5.  Based on Defendants’ request, the Court wrote:  “While Plaintiff’s counsel’s failure to comply with the fundamental obligation to preserve material evidence may indeed be considered negligence or with a culpable state of mind, the Court does not need to reach this question. Defendants have not asked the Court to impose any lesser sanction than dismissal.”

CONCLUSION: THE DOOR WAS LEFT OPEN

The Court held that:  “Because Defendants have not established that Plaintiff’s conduct was so egregious as to warrant dismissal, the vehicle’s relevance, as it relates to the sanctions analysis, is immaterial.” Id. at *5.

However, it left the door open to a lesser sanction, stating that “the Court need not reach the question of whether Plaintiff’s conduct warrants a lesser sanction. Instead, the Court retains the ability to consider this issue at trial, at which time the Court may order appropriate sanctions, including an adverse inference jury instruction.”

In prior decisional authority in this District, the Court has pointed out that a party asking only for game-ending sanctions may effectively waive lesser sanctions. Court Recommends Denial of Rule 37(e)(2) Motion, While Providing Guidance Under Rule 37(e)(1) (May 19, 2025)(Defendants moved for “game ending” sanctions under Fed.R.Civ.P. 37(e)(2); however, the United States Magistrate Judge recommended that the motion be denied.  The Court provided a Rule 37(e)(1) suggestion.); Rule 37(e)(1) Sanctions for Breach of Duty to Preserve Communications (Oct.11, 2025).

]]> Unilateral Deadlines https://www.ediscoveryllc.com/unilateral-deadlines/ Fri, 11 Sep 2026 23:55:08 +0000 https://www.ediscoveryllc.com/?p=5521 […]]]> Plaintiff filed a spoliation motion. The court deemed it “baseless.”  It wrote that the motion “faults Defendant for not certifying within forty-eight hours of service that it has preserved information relevant to this litigation.”

The Court’s rejection of that motion was unequivocal: “Plaintiff cannot unilaterally set deadlines for Defendant and then seek to sanction Defendant for failing to comply with them.”  Dortie v. Marriott International, Inc., 2026 WL 2647599 (D. Md. Sep. 9, 2026)(Chasanow, J.).

]]> District of Maryland Hallucination Decision https://www.ediscoveryllc.com/district-of-maryland-hallucination-decision-2/ Mon, 07 Sep 2026 08:48:24 +0000 https://www.ediscoveryllc.com/?p=5501 […]]]> Because I practice in Maryland, I attempt to keep track of Maryland “hallucination” decisions. Johnson v. Nationstar Mortgage LLC, 2026 WL 2516390 (D. Md. Aug. 26, 2026), is a recent one.

The Court had squarely warned plaintiff that Fed.R.Civ.P. 11 applied to unrepresented parties and attorneys in the context of “hallucinated” citations.  Plaintiff apparently did not heed the warning.  However, plaintiff escaped sanctions because his case was dismissed on other grounds.

The Court wrote:

Notwithstanding the foregoing admonition, it appears Plaintiff has once again cited a “hallucinated” case derived perhaps from use of a generative artificial intelligence (“AI”) tool (e.g., ChatGPT, Gemini, etc.). Specifically, Plaintiff cites to “Cooke v. Carrington Mortg. Servs., No. 22-1425 (4th Cir. 2023),”…. Plaintiff contends this case stands for the proposition that “servicer-imposed charges tied to improper insurance placement constitute a concrete injury.” … Upon challenge by Nationstar, Plaintiff later represented once again that “Cooke v. Carrington Mortg. Servs., No. 22-1425 (4th Cir. 2023)” is an “unpublished case” available at “2023 WL 3010355.” … Based on the court’s review, this case does not exist. The court has checked the Fourth Circuit case number—22-1425, and Westlaw citation—2023 WL 3010355—offered by Plaintiff to identify this case; neither directs the court to the referenced opinion. Indeed, the court further observes two decisions of this court bearing this caption: Cooke v. Carrington Mortg. Servs., No. CV TDC-18-0205, 2019 WL 3241128, at *1 (D. Md. July 18, 2019), and Cooke v. Carrington Mortg. Servs., No. CV TDC-18-0205, 2018 WL 6323116, at *7 (D. Md. Dec. 3, 2018)—neither of which pertains to “improper insurance placement.”

While this court has already cautioned Plaintiff that continued citation to hallucinated authorities or the like risks issuance of an order to show cause why he should not face sanctions under Rule 11, the court declines to take further action in the instant matter where Plaintiff’s case will be dismissed in full. [emphasis added].

For more District of Maryland AI decisions, please use the “category” District of Maryland, above.  For example, please see A.I. Protective Orders Are Becoming Routine (Aug. 27, 2026), District of Maryland “Hallucination” Decision (May 5, 2026), and District of MD Standing Order re GenAI in Court Filings (Aug. 10, 2026).

For Maryland State court decisions, please see Maryland Copy and Paste “Hallucinations” Case – (Jun. 17, 2026), Hallucinations Are “Old News,” But a Recent Maryland Decision Addresses Ethical Contours (Jan. 17, 2025), Maryland Fake Citation Case – Court Issues a Warning – Referral to Atty. Grievance Comm’n. (Nov. 2, 2025), and Maryland’s Proposed Anti-Hallucination Rule (Mar. 16, 2026).

UPDATE: Aziz v. USA, 2026 WL 2633445 (D. Md. Sep. 4, 2026)(Abelson, J.)(“The Court warned Plaintiffs about their high-volume approach in its previous opinion: ‘If Plaintiffs continue to file frivolous motions or include fabricated citations, and/or violate the [four-]page limitation set forth in the accompanying order, the Court may enjoin them from submitting further filings or consider imposing other sanctions.’ Aziz, 2026 WL 1132884 at *3. As a review of the docket will indicate, Plaintiffs did not heed this warning, and have continued filing numerous motions. Many of these filings were over four pages, included hallucinated or fabricated citations, and contained frivolous arguments that misstated the law and/or facts. See, e.g., ECF No. 114 (‘Plaintiff’s Emergency Motion to Compel Ruling on Pending § 1292(b) Motion; For Stay; And For Reconsideration of Orders Entered Without Jurisdiction’). The Court has nonetheless reviewed these motions and will deny all of them as either moot in light of the instant dismissal or denied for the reasons provided in the previous memorandum opinions. The Court will not issue an order to show cause regarding sanctions because it is dismissing this case. However, Plaintiffs are forewarned that similar conduct in this case or others may result in sanctions.”).

]]> A.I. Protective Orders Are Becoming Routine https://www.ediscoveryllc.com/a-i-protective-orders-are-becoming-routine-2/ Thu, 27 Aug 2026 09:22:39 +0000 https://www.ediscoveryllc.com/?p=5479 […]]]> I have been posting about A.I. protective orders since last year. Basically, these orders limit use of artificial intelligence by the recipient of discovery materials.  After I posted Another A.I. Protective Order – Part 10 (Aug. 21, 2026), at least three more were reported.

In Campbell v. TidalHealth, Inc., 2026 WL 2162749 (D. Md. Jul. 28, 2026)(Austin, J.), the Court wrote: “Campbell denies submitting documents into any generative artificial intelligence tools but admits to using unspecified ‘available tools solely to express [her] arguments in proper legal format, the same way any litigant uses available legal resources.’” Id. at *8.

After cautioning Campell about the use of GenAI, the Court wrote:

In addition, Campbell must ensure that any use of generative artificial intelligence does not violate the stipulated order governing confidential materials…. TidalHealth expresses concern that Campbell violated the February 27, 2026 Protective Order’s prohibition on submitting discovery material to public generative artificial intelligence tools. … see ECF 21 at ¶ 8 (imposing limitations on use of generative artificial intelligence). Campbell denies doing so…. If future filings suggest improper submission of discovery materials to generative artificial intelligence tools, the Court will be more inclined to issue a show cause order and consider sanctions.

Id. at *10 (emphasis added).

These orders are standard of care and are most often entered by consent. But not all orders are created equal and they are not always fair.  I have echoed Craig Ball’s novel post on the need for equity.  Another A.I. Protective Order – Part 10 quoting Craig Ball, The AI Protective Order Double Standard | Ball in your Court (Jul. 27, 2026).

UPDATE:

“Because the parties’ proposed protective order adequately complies with the standards set forth above, the Court will enter an order based on the parties’ submission. The Court makes four minor modifications to the parties’ protective order: … and (4) to establish parameters for the use of Artificial Intelligence as it pertains to confidential documents, see infra Paragraph (F).”  Zask v.Kohl’s Corp., 2026 WL 2531856 (E.D. Wisc. Aug. 27, 2026)(emphasis added). The order states:

F. USE OF ARTIFICIAL INTELLIGENCE (“AI”)
A receiving party may use AI tools in connection with discovery materials produced in this action only if the AI tool is operated in a secure environment and is subject to enforceable contractual terms that (a) prohibit the provider from retaining, using, disclosing, selling, or using the materials to train, improve, or develop any AI system; (b) prohibit the materials from being made publicly available or accessible to any other customer or third party; and (c) require commercially reasonable administrative, technical, and physical safeguards to protect the confidentiality of the materials. Discovery materials, whether designated CONFIDENTIAL or ATTORNEYS’ EYES ONLY, shall not be entered into any publicly available or consumer-based AI platform. Any use of AI tools must remain consistent with this Order and with the requirement that discovery materials be used solely for purposes of this litigation.

]]> Improper Deposition Conduct Backfired; Forensic Examination Of Cell Phone Was Denied https://www.ediscoveryllc.com/improper-deposition-conduct-backfired-forensic-examination-of-cell-phone-was-denied/ Sun, 23 Aug 2026 21:19:54 +0000 https://www.ediscoveryllc.com/?p=5458 […]]]> Survivor A sued a school board and others arising out of alleged sexual abuse by the person who was then plaintiff’s teacher.  Survivor A v. Anne Arundel Co. Bd. of Education, 2026 WL 2326237 (D. Md. Aug. 11, 2026)(Aslan, J.). A series of discovery disputes followed.

Because defense counsel improperly instructed a defense deponent not to answer questions, the Court ordered the deposition to be re-opened and cautioned counsel.  Because the requestor failed to establish a foundation, the request for a forensic examination of the opponent’s cell phone was denied.  Because one party impeded discovery, the opponent was awarded additional deposition hours.  Because one party produced 1,600 pages of text messages after deposition, the deposition was re-opened.

INSTRUCTIONS NOT TO ANSWER DEPOSITION QUESTIONS

Plaintiff deposed school board employees. The Court wrote:  “Survivor A contends that counsel for the School Board improperly instructed a witness ‘not to answer a basic question’ and tendered an excerpt of the deposition transcript in support of his claim…. The transcript excerpt reveals an unnecessarily contentious exchange between counsel, both in and outside the presence of the witness.”

The Court noted that, under Fed.R.Civ.P. 30(c)(2), deposition testimony is generally taken subject to objection.  Instructions not to answer are limited to privilege, enforcement of a court order, and to present a Rule 30(d)(3) motion based on bad faith or an effort to harass.  The Court also noted its Discovery Guideline which made it presumptively improper to instruct a witness not to answer, except under Rule 30(d)(3).

So, here is what the Court said happened:

Here, the deposition transcript reflects that the School Board’s counsel objected to Plaintiff’s counsel’s proposed line of questioning regarding text messages between Survivor A and Ms. Arnold [who was the “then-wife” of Survivor A’s “then-teacher”]  and repeatedly instructed the witness not to respond….

The Court added:

When there is an objection to a deposition question, counsel are expected to rise above their roles as advocates for a particular party, and, acting as officers of the court, resolve their differences on the spot without outside intervention.… The transcript reflects that rather than “rise above,” counsel argued back-and-forth in front of the witness regarding the propriety of the questioning and the basis for instructing the witness not to respond and, ultimately, the School Board’s counsel contacted the undersigned’s Chambers. [cleaned up].

The ruling was unsurprising:

Nearly two decades ago this Court noted that “[i]t has been the law in this circuit for 20 years that lawyers may not instruct witnesses not to answer questions during a deposition unless to assert a privilege.” Boyd, 173 F.R.D. at 144 (citing Ralston Purina Co. v. McFarland, 550 F.2d 967 (4th Cir. 1977)). The School Board’s counsel did not assert privilege as the basis for his objection. Rather, he contended that Plaintiff’s counsel was asking about documents the witness had not seen previously … and was attempting to elicit an improper opinion…. The School Board’s counsel also argued that the question had no foundation … and asserted without particularity that Plaintiff’s counsel had been “badgering” the witness “all day with questions” …. None of these objections support an instruction that the witness should not respond to the questions posed. Counsel for the School Board’s instructions in that regard were therefore improper. Moreover, his behavior and language were unacceptable and inconsistent with this Court’s Discovery Guidelines, which require attorneys “to behave professionally and with courtesy towards all involved in the discovery process.” Local Rules, Appx. A, Guideline 1 ¶ d. Counsel for the School Board is cautioned that he must advocate within the bounds of this governing framework. The witness’s deposition will be reopened so that Survivor A may complete his questioning. [emphasis added].

FORENSIC EXAMINTION OF SURVIVOR A’S CELL PHONE

The school board sought a forensic examination of Survivor A’s cell phone.  Survivor A’s counsel replied that the existence of that phone was known to defense counsel before Survivor A was deposed. Additionally: “Survivor A’s cellular telephone contains 1,428 text chains and approximately 7,000 photographs and 3,000 videos that span approximately eight years, and that some of the material is protected by privilege.”

Further, Survivor A reported that “Survivor A has worked with Defendants to find and produce voluminous discovery from the cellular telephone, including using 34 search terms, ‘most of which came directly from Defendants’ counsel.’”

The school board asserted that a forensic examination was needed for a complete record.  But the Court wrote: “The School Board does not, however, identify any gap in Survivor A’s production….  Instead, the School Board posits that some material on the cellular telephone was deleted.”

The defense argument fell flat: “This argument carries little weight because it lacks an articulated foundation or timeline.”

In an argument that in my opinion borders on frivolous: “The School Board further contends that ‘Plaintiff’s counsel should not be the determinator [of] what information…should be disclosed to the defendants.’”

The Court wrote: “Yet, that is precisely how discovery operates. The discovery process is designed to be extrajudicial, and it relies on responding parties to search their own records and produce documents or other data.” [cleaned up].[1]

It also provided a detailed analysis of the predicate for requesting a forensic examination:

Federal Rule of Civil Procedure 34 governs, among other things, a request to “inspect, copy, test, or sample” electronically stored information, which includes forensic examination of electronic devices. Fed. R. Civ. P. 34(a)(1)(A)…. Making forensic image backups of computers is only the first step of an expensive, complex, and difficult process of data analysis that can divert litigation into side issues and satellite disputes involving the interpretation of potentially ambiguous forensic evidence…. What is more, the Advisory Committee on Civil Rules has cautioned that “[c]ourts should guard against undue intrusiveness resulting from inspecting or testing [electronic information] systems.”…. A forensic examination of electronically stored information—something sister courts in this Circuit have described as “a drastic discovery measure,” … must therefore be proportional to the needs of the case. …  A request for forensic examination is, among other things, “subject to the proportionality limitations applicable to all discovery under Rule 26(b)(2)(C), including the prohibition of discovery that is unreasonably cumulative, duplicative or seeks discovery that could be obtained from some more convenient, less burdensome[,] or less expensive source”. [cleaned up]

Applying those principles, the Court rejected the school board’s request:

Here, the School Board has not explained how Survivor A’s discovery responses are insufficient or why forensic imaging is warranted and proportionate to the needs of this case, particularly in light of the intrusive nature of a forensic examination of a personal cellular telephone.

The Court resolved other disputes, including one over additional deposition hours based on a post-deposition disclosure by Survivor A of 1,600 pages of text messages, resulting in an additional 3.5 hours of deposition.

Because of the school board’s “animosity” and because it had “foreclosed questioning altogether in at least one deposition,” Survivor A was granted 35 additional deposition hours.

For related information, see also:

_____

[1] See generally Unsupervised Self-Collection Predictably Led to Problems and “Self-Collection” May Be Reasonable Using Ralph Losey’s Dual-Protection System.

]]> Don’t Sue the Judge https://www.ediscoveryllc.com/dont-sue-the-judge/ Tue, 11 Aug 2026 16:14:34 +0000 https://www.ediscoveryllc.com/?p=5410 […]]]> “A lawsuit by an attorney against a state judge who sanctioned him should be dismissed, a federal magistrate judge recommended Friday.” I. Round, MD attorney’s lawsuit against judge should be thrown out, magistrate says – Maryland Daily Record (Aug. 10, 2026).

[Attorney Nathan] Charles sued [Judge Louis] Leibowitz last October after the judge, who presided over some proceedings in his divorce, twice sanctioned him and warned him to control his anger after he threatened to sue a loan officer. Charles argued the orders and warnings violated his rights to free speech and due process because he hadn’t committed misconduct.

Leibowitz ordered him to pay $23,680 in attorneys’ fees to his ex-wife for his appeal of another judge’s custody order, as well as $1,222 as a sanction for a contempt petition Charles had filed. The judge later withdrew the fine, and Charles withdrew the contempt petition.

Id.  The article states that Mr. Charles sought leave to add five circuit court and three Appellate Court judges.

[U.S. Magistrate Judge Timothy] Sullivan recommended that the case be dismissed and that Charles not be allowed to amend his complaint [because amendment was futile]. He wrote that the lawsuit clearly ran afoul of the Rooker-Feldman doctrine, which prevents “state-court losers” from asking federal judges to review and reject judgments with which they disagree. He was not persuaded that the complaint raised legitimate constitutional issues that were separate from the divorce case.

“During this case, the Plaintiff has endeavored to frame his case as one that involves independent and separate issues from that of the state court divorce and custody proceedings,” Sullivan wrote.

“Yet it is apparent from his Complaint that he is asking this Court to review the sanctions orders, find them unconstitutional, and enjoin Judge Leibowitz from imposing any similar orders in the future.”

The Daily Record reports: “This is his second lawsuit against a judge arising from the divorce case; the first was against Montgomery County Circuit Judge Christopher Fogleman. Charles voluntarily dismissed that case shortly after he sued Leibowitz.”

The decision is Charles v. Hon. Louis M. Leibowitz, 2026 WL 2279325, at *1 (D. Md. Aug. 7, 2026).  “Before Judge Leibowitz issued the sanctions, he warned that if Plaintiff continued to maintain an angry attitude and instigate additional issues (like threatening a loan officer that he would sue her), making the case more difficult and heightening the existing tension in the case, then Plaintiff would be forced to pay attorney’s fees.” Id. at *1.

Mr. Charles’ demand for relief was: “a. Issue a declaratory judgment that sanctions imposed against Plaintiff based on his speech violate the First and Fourteenth Amendments; b. Enter a preliminary and permanent injunction prohibiting Defendant from imposing attorney’s fees sanctions against Plaintiff based on the content or tone of his communications, filings, or criticisms,” and for costs. Id. at *2.

The federal Court wrote: “For the reasons set forth below, I recommend that the Motion be granted because the Court lacks subject matter jurisdiction. The Court need not reach the issue of whether Plaintiff has properly stated a claim under Rule 12(b)(6).”  Id. at *2.  “The Supreme Court has consistently held firm to these principles, creating what has become known as the Rooker-Feldman doctrine and making it clear that federal district courts lack subject matter jurisdiction to review state court judgments.”  Id. at *3.

 

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