ESI Protocol a/k/a Discovery Plans – E-Discovery LLC https://www.ediscoveryllc.com Mediation of E-Discovery Disputes Sat, 31 Oct 2026 18:49:59 +0000 en-US hourly 1 Motion to Permit Limited A.I. Review of “Confidential” Video Was Denied https://www.ediscoveryllc.com/motion-to-permit-limited-a-i-review-of-confidential-video-was-denied/ Sat, 31 Oct 2026 08:59:06 +0000 https://www.ediscoveryllc.com/?p=5724 […]]]> AI Protective Orders address how or if a receiving party can use artificial intelligence to analyze discovery materials produced by an opponent.  Some address all discovery materials.  Others are limited to confidential discovery materials.  Some specify permitted and prohibited platforms by name.  Others specify functionality.  A few do both.  Some are a page long; others are only a paragraph.  Most are entered by agreement of the parties.  However, there are a few cases in which a request for an AI Protective Order is contested.  This blog focuses on one of the contested cases and discusses several other related issues.

Plaintiff filed a Motion to Modify Protective Order to Permit Limited Artificial Intelligence (“AI”)-Assisted Review of Body-Worn Camera (“BWC”) evidence. The motion was denied in Baqleh v. Altamirano, 2026 WL 3257576 (N.D. Cal. Oct. 28, 2026).

After plaintiff sued for claims arising out of his arrest, “the Parties stipulated to a Protective Order (‘PO’) that mirrored the Court’s model protective order, which the Court granted.”

However, “Plaintiff now moves the Court to modify the PO to allow Plaintiff to use ChatGPT to review body-worn camera footage Defendant produced in discovery and marked as ‘CONFIDENTIAL.’” The court explained that:

Plaintiff seeks to use ChatGPT to create timestamps, prepare a chronology, transcribe the video, and identify events within the video for purposes of discovery, motion practice, settlement, and trial preparation, but says he will not prepare analysis to use as admissible evidence.

After Defendant replied, Plaintiff narrowed his request and “now seeks AI-assisted review through a ‘business or private AI service’ with ‘safeguards required by the Court.’”  In my words, Plaintiff’s modification proposed to use a secure, enterprise, or fiduciary grade A.I. provider instead of a public, consumer-grade system.  However, the Plaintiff asked the court to set those safeguards.

The Baqleh court wrote: “Some courts have recently permitted the use of AI-assisted review when parties have agreed to use AI during discovery to analyze large quantities of data….  In this instance however, Plaintiff is not seeking to use AI for that purpose. Instead, Plaintiff asks the Court to permit disclosure of confidential information to a third-party within the structure of the existing PO.”

The Baqleh court held that, balancing the need for discovery against the need for confidentiality, Plaintiff had not shown good cause.

The Plaintiff’s argument was:

Plaintiff believes the Court should permit him to use ChatGPT to review confidential evidence because he is pro se and does not have support “reviewing and organizing audiovisual discovery.”…

Defendant countered:

Defendant responds that Plaintiff does not need AI assistance because the BWC video evidence is only 30 minutes long, and Plaintiff does not contest this representation about the length of the footage…. Defendant argues that, aside from being unnecessary, there is substantial risk in using a public large-language model platform to process confidential information…. Defendant represents that uploading confidential evidence to ChatGPT risks disclosure of information such as non-party criminal history, parole status, probation status, drug use, police investigations, and driver’s license numbers, all of which Plaintiff acknowledges to be “sensitive information.”

Id. at *2.  The court explained its reasoning:

The Court finds that the balance of conflicting interests weighs in favor of Defendant’s position. It is not disputed that exposing confidential information to ChatGPT creates at least some risks with respect to how that information will be used and safeguarded…. While Plaintiff proposes several potential safeguards to prevent disclosure of the information Defendant identifies, he does not cite anything confirming the availability or reliability of those safeguards…. So, there would need to be some substantial offsetting benefit that outweighs these risks, but Plaintiff has not shown that specific harm will result if his motion is not granted. Reviewing a 30-minute video for the purposes Plaintiff says he would use ChatGPT for is not an overbearing task that disadvantages a pro se party. For example, to the extent Plaintiff wants to create a chronology of the video, he can easily do so by taking handwritten notes. The Court thus denies Plaintiff’s request to use ChatGPT to review the confidential BWC evidence.

Id. at *2 (emphasis added).

In a footnote, the court addressed and rejected Plaintiff’s offer to narrow the request:

Plaintiff’s Reply appears to narrow his request by asking for “AI-assisted review through a business or private AI service” where he can show that safeguards exist…. Plaintiff’s new formulation does not change the Court’s analysis, because the balance between (some) risks and (essentially no) benefits remains unchanged. Plaintiff also requests in the alternative for the Court to modify the PO using the framework outlined in Morgan v. V2X, Inc., 2026 WL 864223 (D. Colo. Mar. 30, 2026), to accommodate Plaintiff’s request to use AI to review the video footage…. The Court declines in its discretion to do so for the reasons it has already explained.

Baqleh may be a unicorn.  As the court pointed out, it was for a very limited purpose and not for review of voluminous ESI.  The video was “confidential” and short, unlike the voluminous discovery materials in many other cases. And, Plaintiff asked the court to do his “homework” for him by specifying the safeguards that the court would impose instead of offering a specific plan.

A.I. protective orders are one of the hottest recent topics in civil and criminal litigation. I have suggested that they are now the standard of care.

I have also echoed Craig Ball’s concerns that equity be considered and that they not become an obstacle to unrepresented or indigent litigants. See  A.I. Protective Orders Are Becoming Routine (Aug. 27, 2026), and  Another A.I. Protective Order – Part 10 (Aug. 21, 2026), both citing Craig Ball, The AI Protective Order Double Standard | Ball in your Court (Jul. 27, 2026).

Craig’s post also tackles the thorny issue of terminology.  He suggests specific terms that should be avoided in these protective orders. His list of five things that a properly-scoped order should contain is well worth reading. The AI Protective Order Double Standard | Ball in your Court.

For more information, please visit:

Restrictions on Use of Artificial Intelligence Tools. No party, non-party, or other person permitted to receive information designated “Confidential” [or “Confidential—Attorneys’ Eyes Only”] under Paragraph 6 of this Order may input, upload, or submit such information to any artificial intelligence tool, chatbot, generative AI system, large language model, or similar automated platform (“AI”) unless the AI provider is contractually prohibited from both:

(a) using the inputs, or information derived from them, for any purpose other than providing the specific service requested, including using them to train any model or to develop or improve any product or service; and

(b) disclosing the inputs, or any information derived from them to any third party, except where such disclosure is essential to delivering the requested service. Where disclosure to a third party is essential to delivering the requested service, that third party must be bound by obligations no less protective than those required by this paragraph.

Any party seeking to use AI under this paragraph must also confirm that the AI provider will, upon request, delete from its systems all information designated “Confidential.” The party must retain written documentation of the contractual protections required by this paragraph and provide that documentation to the Designating Party or the Court upon request….

Protected Material shall not be submitted to any “Open Generative AI Tool” (e.g., ChatGPT) or any substantially similar tool that is available to or accessible by the public, with or without a subscription or license. Providing Protected Material to any “Open Generative AI Tool” is considered a prohibited disclosure to a third party. The parties may use a closed Generative AI Tool that is private and secured, where there is a contractual agreement providing that the generative AI tool does not retain information beyond any use session, except to the extent retention is reasonably necessary for investigation of abuse violations, system functionality or internal data security operations, provided such information is not used for model training or product improvement purposes and remains subject to the provider’s confidentiality obligations. This provision is not intended to limit use of technology assisted review via qualified data storage persons (i.e., electronic discovery or litigation-support vendors). Any party receiving Protected Material must ensure that the contract, software license, terms of use, or any other agreement or terms for use of the AI tool complies with this Protective Order. [emphasis added].

]]> An ESI Protocol is Not a Shield Against Discovery Obligations – Is There a Duty to “‘Fess Up” – Part III https://www.ediscoveryllc.com/an-esi-protocol-is-not-a-shield-against-discovery-obligations-is-there-a-duty-to-fess-up-part-iii/ Sat, 31 Oct 2026 08:53:46 +0000 https://www.ediscoveryllc.com/?p=5718 […]]]> Plaintiff’s argument that an ESI Protocol limited its discovery obligations was squarely rejected in CR Legal Team, LLP v. Carruthers & Roth, P.A., 2026 WL 3135943 (M.D. N. Car. Oct. 20, 2026). It was insufficient for Plaintiff to confine its search to seven terms provided by Defendant. The search terms provision of the ESI Protocol did not supersede the Plaintiff’s obligations under the Rules.  The duty to produce is nondelegable.  This issue could have been avoided by a clause in the ESI Protocol that is discussed below.

CR Legal is a trademark dispute between two law firms that both use marks that display the letters “CR.” The motion discussed here is defendant’s motion to compel.

In its requests for production of documents, the defendant sought, inter alia, 1) emails and documents regarding the plaintiff’s decision to rebrand from Crumley Roberts to CR Legal Team; 2) the plaintiff’s marketing expenditure by geographic area; and 3) the plaintiff’s agreements with advertising agencies and outlets who assist in promoting the accused CR Legal Team mark.

The court wrote that Plaintiff’s rebranding was a central issue and the Defendant’s discovery went to that issue.

However: “In response to these requests, the plaintiff produced one email thread, which announced the name change, but explained that no other documents exist to the best of their knowledge and based on a reasonable search.” Id. at *4 (cleaned up).

While there were other discovery issues, as related to the ESI Protocol: “The plaintiff only searched for emails that contained the defendant’s provided search terms….”  In making that decision, Plaintiff relied on a Protocol provision that stated:

The parties shall each be permitted a reasonable number of document requests that seek the production of emails containing specific search terms…. In addition, the parties agree to meet and confer on the number of search terms and number of individuals whose email documents are to be searched taking into account the stated rationales of such searches and the proportional need of the searches to the needs of the litigation.

The court wrote that: “The plaintiff argues that this protocol limited email discovery solely to ‘emails containing specific search terms.’” [emphasis in original].  As such, Plaintiff ran only seven search terms, “taking no further steps to produce emails relevant to the discovery request.”

Unsurprisingly, the Defendant disagreed:

[D]efendant argues it “never agreed that Plaintiff’s search and produce obligations were limited to ESI search terms.” …. Instead, the defendant views the ESI Protocol as a tool that works in tandem with broader discovery obligations under the Federal Rules of Civil Procedure.

Defendant had the far stronger position, with the court writing:

The plaintiff’s use of the ESI Protocol as a shield from its discovery obligations misses the forest for the trees. The ESI Protocol does not eliminate the plaintiff’s “affirmative duty [under Rule 34] to seek that information reasonably available to [it] from [its] employees, agents, or others subject to [its] control.’ ” See Gray v. Faulkner, 148 F.R.D. 220, 223 (N.D. Ind. 1992) (citation omitted); In re Camp Lejeune Water Litigation, No. 7:23-CV-897, 2024 WL 1080988, at *3 (E.D.N.C. Mar. 12, 2024) (holding that an ESI Protocol “complements but does not supersede” Rule 34 obligations). Indeed, “an ESI protocol and search terms work in tandem with the parties’ obligations under the Federal Rules and do not replace a party’s independent obligation to produce electronic (or paper) documents that are reasonably accessible, relevant, and responsive within the meaning of Rule 34.” Raine Grp. LLC v. Reign Capital, LLC, 21-CV-1898 (JPC) (KHP), 2022 WL 538336, at *1 (S.D.N.Y. Feb. 22, 2022). Consequently, a party “cannot justify failing to collect obviously relevant documents on the ground that the relevant employee was not designated as an ‘ESI custodian’ or that such documents might fall outside an agreed search-term workflow.” Wilson Aerospace LLC v. Boeing Co. Inc., No. C23-847-JHC-MLP, 2026 WL 2069870, at *2 (W.D. Wash. July 17, 2026).

The court reasoned:

Here, the ESI Protocol “permits” the parties to request “the production of emails containing specific search terms,” but it does not serve as the sole means of satisfying requests for email production…. Therefore, the plaintiff must not limit its search for responsive emails solely to those that appear when using the defendant’s requested search terms.

Id. at *5-6 (emphasis added).  The court’s order stated:

For the foregoing reasons, the Court orders the plaintiff to produce all relevant documents and communications regarding the first use of the name CR Legal Team, as well as the decision to rebrand, and implementation of the rebrand, from Crumley Roberts to CR Legal Team. The Court further orders that CR’s review for these documents shall include the searches of all email addresses, both professional and personal, that Christopher Roberts and Kimberly Roberts used, and orders that the work emails of all of the plaintiff’s attorneys in Greensboro be searched. These email searches are not limited to the ESI search terms that the defendant requested. Additionally, the Court orders the plaintiff to produce its ESI retention policies, to the extent they exist. Finally, if the plaintiff can produce no additional documents about the rebrand, it must provide the defendant with an attestation, sworn under oath, that no other documents exist regarding the rebrand.

Id. at *6.

I addressed this issue in greater depth in Is There a Duty to “’Fess Up?” – Part II (Nov. 12, 2022).  One court wrote: “Defendant had an independent duty to produce key relevant requested discovery even if plaintiff did not specifically list the precise ESI wording or spelling in its list of search terms. Defendant may not delegate to plaintiff the duty to identify its relevant requested documents.” [emphasis added].

In An ESI Protocol Does Not [Necessarily?] Supersede the Discovery Rules (Jul. 25, 2026), I quoted a decision stating: “In matters involving electronically stored information, parties may employ custodian-based collections, agreed search terms, and other tools referenced in their ESI protocol to implement their Rule 34 obligations. But these tools do not narrow or override the Federal Rules.”

In that case, the ESI Protocol stated in part: “Where appropriate, relevant and responsive non-privileged documents and ESI that are easily identifiable and segregable shall be collected and produced without the use of the procedure described herein. The discovery requests (in accordance with and subject to any limits or objections supported by the Federal Rules of Civil Procedure, the Local Rules, and any relevant orders of the Court) shall govern the scope of documents and ESI to be produced, subject to any agreements reached during the parties’ conferral, and otherwise search terms do not supplant discovery requests. The parties shall produce any relevant and responsive, non-privileged documents, to the extent they exist and can be located after a reasonably diligent search of relevant custodians and shared platforms, upon which the parties shall meet and confer.” [emphasis added].

That clause would likely have avoided this dispute.

This blog was initially posted on  Electronic Discovery Reference Model.

]]> Pro Se Prompts Privileged – N.Y. Court followed Morgan and Warner; Distinguished Heppner https://www.ediscoveryllc.com/pro-se-prompts-privileged-n-y-court-followed-morgan-and-warner-distinguished-heppner/ Fri, 30 Oct 2026 17:58:10 +0000 https://www.ediscoveryllc.com/?p=5722 […]]]> A New York court held that an unrepresented litigant’s use of AI was protected work product. It addressed subpoenas directed to OpenAI seeking a pro se litigant’s use of AI.

Unrepresented defendant, John Recchio, challenged Plaintiff’s Amended Subpoena to OpenAI OpCo, LLC, seeking in part:

  1. All prompts, queries, uploaded documents, and corresponding outputs specifically referencing: (a) Plaintiffs Fred Assini or Jason Napolitano; (b) Alpha Tech Lending LLC; (c) the claims or defenses asserted in this action; or (d) filings, motions, or correspondence generated for use in this action” as associated with the accounts registered to defendant Recchio.

Plaintiff argued that the “materials squarely relate to evidence and Recchio’s factual assertions regarding the claims and defenses at issue in this litigation.” Assini v. Hayward, 261 N.Y.S.3d 915, 2026 WL 1677232 (Sup.Ct. Nassau Co. Jun. 4, 2026).  It relied on U.S. v. Heppner, 820 F.Supp.3d 292 (S.D.N.Y. 2026), to support its discovery request.

In response, “defendant Recchio contends that the Subpoena and Amended Subpoena should be quashed, and a protective order issued, as the materials sought are privileged as ‘litigation-preparation.’” He (and/or the court) relied on Morgan v. V2X, Inc., 2026 WL 864223 (D. Col. Mar. 30, 2026), to oppose the discovery.

New York provides fairly standard protections for privilege and work product. Id. at *2-3. Materials prepared in anticipation of litigation are subject to a conditional privilege (CPLR § 3101[d]).

The Assini court wrote: “The Morgan Court directly addressed Heppner in its Decision and found that [Heppner] was not binding as Heppner involved a criminal matter and not a civil matter.”

The Assini court added:

The Morgan court further found that, “[h]ere, like in Warner v. Gilbarco, Inc., 820 F.Supp.3d 629 (E.D. Mich. 2026), Plaintiff can assert work product protections in connection with his AI use. It is true that AI systems like ChatGPT, Claude, Gemini, and others widely available to the public, collect user data for training and other purposes. But in this Court’s estimation, that does not eliminate all expectations of privacy or automatically waive protections.” 2026 WL 864223, *5, 2026 U.S. Dist. LEXIS 67939, *10-11 [Dist. Colorado March 30, 2026].

The Court finds the rationale presented in Morgan persuasive.

Accordingly, the Subpoena and Amended Subpoena shall be quashed.

A request to approve settlement was filed on October 8, 2026.

For more information on this topic, please visit:

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

]]> Privilege Logging an Email String or Thread—Is There a Better Mousetrap? https://www.ediscoveryllc.com/privilege-logging-an-email-string-or-thread-is-there-a-better-mousetrap/ Wed, 28 Oct 2026 09:00:40 +0000 https://www.ediscoveryllc.com/?p=5708 […]]]> There are varying schools of thought on how to enter an email string or thread in a privilege log.

The “top email only” approach is less expensive, but may run afoul of the “trust, but verify” purpose of a log. It may obscure detail and hide non-privileged documents.

However, the more expensive document-by-document log may expose protected information by disclosing what facts were communicated to counsel, and that information that is at the core of privilege. In short, while facts are not privileged, what the client communicated to counsel is privileged, absent some exception.

THE MAJORITY RULE

Wallace v. Rocking Horse Children’s Health Ctr., 2026 WL 1801024 (S.D. Oh. Jun. 23, 2026), adopted the majority rule. Plaintiff’s claim was for alleged wrongful termination.

[B]efore, during, and after Plaintiff’s termination––various communications and documents were produced between Rocking Horse and its counsel…. These included numerous email communications, Executive Committee Notes, Personnel Committee Notes, and a Draft Separation Agreement…. As identified in their privilege log, Defendant claims that all of these communications and documents are protected from discovery because of attorney-client privilege or work product doctrine.

Specifically, Rocking Horse asserted that 70 pages of email were protected as “direct communications with counsel that clearly fall within the scope of attorney-client privilege.” It asserted that other documents were work product.

Ms. Wallace disagreed and asserted that Rocking Horse’s privilege log was defective.  In this federal question case, federal law governed privilege and work product.  The court wrote that the general principle under Fed.R.Civ.P. 26(b)(5) is that a privilege log “must contain sufficient factual content to allow the court to reach the conclusion that each element of the privilege is fulfilled.”

The court ordered an updated privilege log, writing: “Defendant’s clustering of email strings logged under a singular claim of privilege makes it near impossible to decipher how and to what extent the asserted privileges apply.”  It wrote:

Whether or not emails within a string are required to be logged separately is a developing issue in case law, with courts coming to different conclusions. Compare United States v. Davita, Inc., 301 F.R.D. 676, 685 (N.D. Georgia 2014) (requiring that “each withheld email within a string be logged in some fashion at least once.”) with Muro v. Target Corp., 250 F.R.D. 350, 363 (N.D. Ill. 2007) (declining to adopt the view that each email within a string be separately logged).

Wallace wrote that the Sixth Circuit had not decided the issue; however, “the majority view is that individual emails within a string should be separately logged in some fashion.” Id. at *4 (quotation and string citation omitted).  Wallace then adopted that viewpoint, adding: “Logging the details of only the ultimate, top, email would not accurately state how many separate communications are included in the withheld document, and who received which of those communications. Such an approach may deprive Plaintiffs, and a reviewing Court, of the ability to assess the claim of privilege.” Id. (citation omitted).

The Wallace court explained:

In the present case, one of the first entries in Defendant’s privilege log––identified as Bates No. RH000255-74––illustrates the issue with logging a string of email communications under a singular claim of privilege…. As evidenced by the numbering system– –that is, 000255-74––this singular entry contains nearly twenty pages of email communications.… Moreover, it lists the document type as “Multiple email communications”; it lists five different dates spanning the course of fourteen days; and it lists seven different authors and seven different recipients, many of whom are non-attorneys…. Finally, it asserts the protection of attorney-client privilege and the work product doctrine with the following reason: “Counsel actively communicating with Rocking Horse Board Members and HR Director, rendering legal analysis and advice and answering questions to develop strategies related to Plaintiff’s pre-suit claims, possible early resolution as well as Plaintiff’s employment with Rocking Horse.”

Id. at *4.  The court found it “unclear that this reasoning applies to nearly twenty pages of email communications when there are multiple non-attorneys listed as authors and recipients, and the communications span a period of fourteen days.”  Id. at *5.

The court ordered an updated privilege log, adding that “Defendant is not required to log an email multiple times if it appears more than once in an email string…. Rather, it is merely required that each withheld email within a string be logged in some fashion at least once.” Id. (cleaned up).

IS THE MAJORITY RULE CORRECT?

For a different resolution, see “Attachments to Attorney-Client Communications May Be Withheld as Privileged, Without an Independent Basis for Privilege,” But…. (Aug. 8, 2024).  There, under the “part and parcel principle,” attachments to a privileged email may be withheld even if they are not privileged. In Upjohn Co. v. United States, 449 U.S. 383, 395-96 (1981), the Court wrote that “[a] fact is one thing and a communication concerning that fact is an entirely different thing. The client cannot be compelled to answer the question, ‘What did you say or write to the attorney?’ but may not refuse to disclose any relevant fact within his [or her] knowledge merely because he [or she] incorporated a statement of such fact into his [or her] communication to his [or her] attorney.”  [citation omitted; emphasis added].

IS THERE A BETTER MOUSETRAP?

In light of that, there may be a better mousetrap.  One option might be a certification log. Privilege Logs:  New Techniques to Achieve Proportionality – The “Certification Log”.  A privilege log could identify only the top email if it were accompanied by a certification that every non-privileged attachment had been or would be separately produced.  The certification could also state how many attachments were not being produced because they were independently privileged.  The certification could state that counsel had reviewed the withheld attachments and there was a good faith basis for withholding them.  Further, it could state that the withheld, but not logged, documents had been reviewed for waiver by disclosure and that the privilege was not waived. The certification might even be accompanied by a categorical log providing some additional details about the withheld attachments. Categorical Privilege Logs Are Not Disfavored (Apr. 10, 2026).  Fed.R.Civ.P. 29 permits stipulations as to discovery procedures.  Fed.R.Civ.P. 26(f) requires development of a discovery plan.

The Sedona Conference suggests cooperation to prevent an issue from arising.  Commentary-on-Privilege-Logs-May-2024.pdf (thesedonaconference.org), 25 Sedona Conf. J. 221, 266, passim (May 2024 version):

For more on “what is a document” in the digital age, please visit What is a Document?

For more on privilege logs, see Search Results for “”privilege log”” – E-Discovery LLC

This blog was initially posted on  Electronic Discovery Reference Model.

]]> Contested Motion for AI Protective Order Was Granted https://www.ediscoveryllc.com/contested-motion-for-ai-protective-order-was-granted/ Mon, 26 Oct 2026 08:37:10 +0000 https://www.ediscoveryllc.com/?p=5703 […]]]> “This is an action by Fischman, proceeding pro se against Epic, asserting claims arising from the alleged role of Epic’s medical software in the death of her father. Fischman has served extensive discovery requests that seek, among other things, the software’s design, development, and implementation.”  Fischman v. Epic Systems, Corp. 2026 WL 3182476 (N.D. Tex. Oct. 23, 2026).

The parties differing positions were:

  • “Epic now moves for a protective order, contending that documents responsive to these requests contain confidential information and trade secrets.”
  • “In response to Epic’s motion, Fischman initially agreed to the entry of some form of a protective order. She now posits, however, that her ‘preferred course is for discovery to proceed … without a separate protective order.’”

The court wrote that it deemed Epic’s request to be opposed.  It held that Epic made the factual showing required by Fed.R.Civ.P. 26(c).

As to AI, Epic’s proposal had two features:

  • “It prevents the input of confidential and highly confidential information into an AI tool unless that tool is contractually prohibited from … storing or using the inputs to train or improve any model and prohibited from disclosing the inputs to any third party.” [cleaned up]; and,
  • It “shall not be construed to limit the use of artificial intelligence for legal research, drafting, organization, or other litigation tasks that do not entail the input of Protected Material.” [cleaned up].

The Fischman court wrote:

As to the provisions restricting the use of AI, Epic maintains that the entry of information into generic AI tools is “effectively irreversible” because these models “commonly retain the text and files that users submit and use those submissions to train and improve the … models.” …. Epic also cites ample authorities that show that courts across the country impose protective orders tailored to address the problems that modern AI tools pose. See, e.g., Morgan v. V2X, Inc., 2026 WL 864223, at *7 (D. Colo. Mar. 30, 2026) (imposing nearly the same restriction at issue here). Given Fischman’s acknowledged use of AI in this litigation, … the court finds that there is good cause to impose Epic’s proposed AI restrictions in the protective order.

The posts A Unique A.I. Protective Order (Oct. 9, 2026), and Three More A.I. Protective Orders (Oct 9, 2026), provide multiple additional examples

]]> Improper Reliance on A.I. + Failure to Use Litigation Support Experts + Lack of Transparency = Failure to Comply With “Meet & Confer” Order https://www.ediscoveryllc.com/improper-reliance-on-a-i-failure-to-use-litigation-support-experts-lack-of-transparency-failure-to-comply-with-meet-confer-order/ Fri, 23 Oct 2026 08:55:46 +0000 https://www.ediscoveryllc.com/?p=5699 […]]]> After a hearing, the Lighthouse court “issued an interim Order compelling the parties to meet and confer, and to retain an independent third-party electronically stored information (‘ESI’) specialist to assist the parties to effectuate the Court’s previous Order.” They failed to comply. Lighthouse Healthcare Center, LLC v. Nat’l. Fire & Marine Ins., 2026 WL 314898 (C.D. Cal. Oct. 20, 2026).

What happened? The parties retained litigation support specialists, but only for the initial meeting. Defendant informed Plaintiff of issues with AI searches; however, the parties did not discuss them with experts. Defendant also developed its own protocols without input from Plaintiff.  This did not comply with the July Order.  On these facts, Plaintiff was not permitted to rely solely on AI. Defendant should have been more transparent. The court order a “do over” with a neutral expert.

The Lighthouse court explained its July order: “The parties were ordered to ‘meet and confer and develop ESI protocols for searching for responsive documents in both OASIS and OnBase databases.’ … The parties were further ordered to ‘each engage a litigation support specialist to participate in the meet and confer process to discuss what information can be extracted from Defendants’ databases, what can be searched, the methodology of the data extraction, how the information should ultimately be produced, and other issues unique to the type of data. The litigation support specialist is to participate in the meet and confer to assess what information can be extracted/downloaded from Defendants’ systems, explore what ‘monitor and adjust’ functions encompass, and develop protocols for downloading the information into useable formats to comply with this Court’s Order from both systems identified by the Defendants.”  Id. at *1 (emphasis added).

The Lighthouse court explained the failure to comply:  “At the hearing, the parties acknowledged that while each party retained either an internal or external litigation support specialist, their participation was limited to the initial meet and confer session. The parties admit that the litigation support specialists were not involved after that initial meeting and did not participate in the meet and confer to “develop protocols for downloading the information into useable formats to comply with this Court’s Order from both systems identified by the Defendants.” …  Both litigation support specialists retained by the parties did not meaningfully engage in providing guidance and direction to the parties as outlined in the July Order. Rather, their roles were limited. Defendants’ in-house litigation support specialist, Mr. Bell, was instructed by Defendants’ counsel, Mr. Levy. … His declaration does not address his involvement resolving the problems with the dataset nor did he discuss developing a methodology. Equally, Plaintiff’s litigation support expert, Mr. Stephen, was involved in a limited capacity in identifying artificial intelligence (‘AI’) search terms. Ultimately, the parties failed to meet and confer to resolve the many issues resulting from the use of Plaintiff’s AI tool. While Defendants did inform Plaintiff of the problems with the AI generated searches, the parties failed to meet and confer to resolve the issues as set forth in the July Order. For example, Defendants state that with respect to OnBase “Ops No Coverage” files, 8,140 records could not be reliably searched.” … More troubling was Defendants’ representation that “a small number of files were too large to include in the aiR assist dataset or were reported as errors by aiR Assist. Excluding those files reduced the AI-reviewable dataset to 57,631 records.” … It appears Plaintiff was ultimately told about the problems, but the parties did not engage in discussions to agree on how to handle the problems with the files, nor were the litigation support specialists engaged to assist the parties in finding a mutually acceptable resolution. Instead, Defendants proceeded to develop protocols without input from the Plaintiff. This does not comply with the July Order.”  Id. at *2 (emphasis added).

Next, the court explained each party’s shortcomings:

The July Order contemplated that the parties, with guidance from the litigation support specialists, meaningfully meet and confer to resolve the issues involving the dataset. That did not happen. While Defendants did undertake an extensive review of the records, they were not transparent about their ad-hoc modifications, and did not meaningfully engage with Plaintiff to develop a methodology on extracting the data in question, and to address the issues arising from the dataset which is contemplated when developing ESI protocols in the July Order.

Additionally, Plaintiff cannot rely solely on AI since the production must be tailored to the parameters set by the Court. Plaintiff did not provide input or engage Mr. Stephen to propose a solution to the problems identified by the Defendants in using Plaintiff’s AI and search terms. AI is but a tool and not a substitute for what the Court Ordered. Defendant did attempt to comply with the Court’s Orders.

Id. at *3 (emphasis added).

The Lighthouse court then explained what it had ordered: “Defendants should have been more transparent and engaged with Plaintiff in developing the overall protocols. The parties should have meaningfully engaged in discussions to fully develop ESI protocols. While there was agreement on the initial search terms and the use of AI tools recommended by the Plaintiff, the July Order specifically ordered the parties to meet and confer to develop an overall methodology on the data extraction and come to a consensus and agreement on methods for extracting information from the Oasis and OnBase databases. The ESI specialists were not involved in advising the parties as to a solution to their ESI discovery limitations but rather took limited roles in the development of ESI protocols.” Id. at *3.

Finally, the court reaffirmed its July Order for the parties to meet, confer, and “hire a third-party neutral ESI expert” to assist in compliance. “The Defendants are to be transparent on the methodology undertaken thus far and come to a consensus with Plaintiff in an effort toward resolution of the problems outlined in Defendants’ Opposition. The ESI expert shall be given access to the databases in question and provide assistance to the parties to develop comprehensive protocols, address the problems outlined in Defendants’ Opposition, and to ultimately ensure Defendants’ production of documents in compliance with this Order and the July Order.” Id. at *3.

For another decision denying a request to use artificial intelligence, see Meta Stipulated for Special Master Privilege Review After Denial of Request for A.I. Review (Oct. 22, 2026).

This blog was initially posted on  Electronic Discovery Reference Model.

]]> Subpoenas to AI Service Providers Were Partially Approved, With Guardrails https://www.ediscoveryllc.com/subpoenas-to-ai-service-providers-were-partially-approved-with-guardrails/ Thu, 22 Oct 2026 16:14:57 +0000 https://www.ediscoveryllc.com/?p=5694 […]]]> In Fontainebleau, Plaintiff served four subpoenas on AI providers and requested A.I.  information in an RFP.  The court “directed the Parties to submit expedited supplemental briefing addressing whether the requested AI-related information falls within the scope of damages discovery authorized by the District Court, including its relationship, if any, to Defendant’s alleged malice and the statutory limitation on punitive damages under Florida law.”  Fontainebleau Florida Hotel, LLC v Shmuley Boteach Jacob, 2026 WL 3151630 (S.D. Fla. Oct.21, 2026).  It also applied the work product doctrine.

Defendant raised “blanket objections” to the AI subpoenas. “The Court emphasizes that a party’s communications with and use of AI does not automatically establish either discoverability or protection.”  Id. at *10.  After analyzing relevance, the court held that each piece of information should be analyzed under a traditional work product framework.  It wrote: “The Court must examine the purpose and circumstances of the particular communications rather than presume protection from the medium through which they were created.”

In sum: “The Court emphasizes that a party’s communications with and use of AI does not automatically establish either discoverability or protection. The analysis turns on the ordinary requirements of Rules 26(b)(1), 26(b)(3), and 26(b)(5).”

OVERVIEW

Plaintiff’s subpoenas sought all communications with AI: concerning the hotel, relating to any hotel employee, relating to the litigation, concerning Plaintiff’s counsel, relating to any Court Order in the litigation, or relating to the Judges.  The RFP sought: “All of Defendant’s AI Communications regarding Requests 1 through 7 that have, since their creation, been deleted.”

Much of the decision turns on whether the discovery sought information beyond the scope authorized by the court, which was limited to damages.  A related issue was whether this was liability discovery that was propounded after the discovery cutoff.

An important issue turned on work product under Heppner, Warner, and their progeny.

Defendant argues that the requests in the subpoenas and the Seventh RFP risk exposing materials protected by the work-product doctrine, including AI-assisted litigation preparation, legal research, draft analyses, and communications concerning defense strategy…. Defendant relies principally on Warner v. Gilbarco, Inc., 820 F. Supp. 3d 629 (E.D. Mich. 2026), for the proposition that litigation-related materials do not automatically lose work-product protection merely because a party used a third-party AI platform to prepare them.

SOME OF THE A.I. COMMUNICATIONS WERE RELEVANT

Plaintiff argued that the requested information was relevant to punitive damages.  As a matter of substantive, tort law, the court ruled that  “when a defendant’s state of mind bears on a legally cognizable issue, the mere fact that discovery probes the defendant’s thinking, motives, or preparation does not render it impermissible.” It then held:

The same principle applies to Defendant’s AI prompts and communications. To the extent Defendant used AI platforms to generate, revise, or refine statements concerning Plaintiff, its counsel, or its representatives, those communications may reveal not merely the final content of Defendant’s statements but also the purpose for which the statements were created, the instructions Defendant supplied, and the effects he sought to achieve. Such information may provide evidence of the intent underlying Defendant’s conduct that cannot necessarily be discerned from the resulting public statements alone. The Court does not determine that those communications will establish malice or specific intent to harm; it determines only that they bear a sufficient relationship to those disputed damages issues to warrant discovery.

The court wrote: “Here, Plaintiff alleges a continuing course of conduct directed toward the Hotel, its personnel, and its representatives, including conduct involving AI-generated content.”  It then added: “That ruling, of course, does not establish that every AI communication is discoverable, but it reinforces the relevance of evidence concerning Defendant’s alleged continuing conduct toward Plaintiff and persons associated with it.”  Id. at *5.

In short: “Defendant’s communications with AI platforms concerning the Hotel and the Hotel’s employees, owners, or representatives, including Plaintiff’s counsel, may reveal information relevant to Defendant’s alleged intent to harm Plaintiff, the nature and persistence of the challenged conduct, and the extent to which that conduct allegedly amplified Plaintiff’s injuries. The Court therefore concludes that Request Nos. 1 (seeking AI communications about the Hotel), 3 (seeking AI communications about Plaintiff’s counsel), and 4 (seeking AI communications about any employee, owner, or representative of the Hotel) in the subpoenas to the AI providers and the Seventh RFP fall within the scope of damages discovery authorized by the District Court. Accordingly, Defendant’s blanket scope objection to Request Nos. 1, 3, and 4 is OVERRULED.”

SOME OF THE A.I. COMMUNICATIONS WERE BEYOND THE SCOPE OF DISCOVERY

Discovery had been re-opened for a limited purpose. Id. at *8. “The Court agrees with Defendant’s general premise that an order reopening discovery for a limited purpose does not authorize unrestricted additional discovery. The District Court expressly limited the reopening to damages discovery, and that limitation must be enforced.”

“Although the Court finds that certain AI communications are discoverable, it agrees with Defendant that the requests in the subpoenas and Seventh RFP, as drafted, are broader than the damages discovery authorized by the District Court.”  Id. at *7.

For example, several were “exceptionally broad.” One “encompasses potentially every AI exchange on matters having no meaningful connection to the amount of damages or Defendant’s alleged intent to harm Plaintiff. Plaintiff has not established that every communication relating to this litigation bears on an issue remaining for the damages trial.”  Id.

As to another:

Turning to Request No. 5 in the subpoenas and the Seventh RFP, it seeks all AI communications concerning or relating to any Court Order entered during this litigation.... Such communications may include Defendant’s attempts to understand an Order, research its consequences, consider procedural options, or evaluate the litigation. The fact that Defendant may have expressed disagreement with, frustration about, or hostility toward a Court Order does not, without a sufficient connection to the alleged injury, make the communication relevant to Plaintiff’s damages. Although Plaintiff contends that Defendant’s reactions to Court Orders reflect the depth of his hostility and the reprehensibility of his conduct, that theory is too attenuated to justify discovery of every AI exchange concerning every Order entered in this case. The Court therefore finds that Request No. 5 exceeds the permissible scope of damages discovery.

Id. at *7.  “The Court likewise finds that Defendant’s private communications with AI platforms concerning judicial officers, without more, do not bear a sufficient relationship to the damages Plaintiff seeks for the alleged harm to the Hotel.”  Id.

THE WORK-PRODUCT DOCTRINE

DOES NOT CATEGORICALLY PROTECT DEFENDANT’S AI COMMUNICATIONS

The court wrote: “Defendant also contends that the requested AI communications may constitute protected work product because they include AI-assisted litigation preparation, research, draft analyses, and other materials concerning the defense of this action.”  Id. at *8.

It noted that “Defendant invokes work-product protection over a potentially diverse collection of AI communications without establishing that every communication within the permitted categories was created because of this litigation.”  Id.

Heppner & Warner

To set the stage, the Fontainebleau court wrote: “The Parties rely on two recent decisions addressing AI-assisted materials: United States v. Heppner, 820 F. Supp. 3d 292 (S.D.N.Y. 2026) and Warner v. Gilbarco, Inc., 820 F. Supp. 3d 629 (E.D. Mich. 2026).”

  • “The Court finds Heppner persuasive insofar as it recognizes that independently generated AI communications do not automatically become protected work product merely because counsel represents the user. At the same time, the Court does not read Heppner as establishing that all materials independently prepared by a represented party are categorically unprotected. This is because Rule 26(b)(3)(A) expressly extends to qualifying materials prepared ‘by or for another party or its representative.’ Fed. R. Civ. P. 26(b)(3)(A).”
  • “In Warner, the court recognized that AI-assisted litigation preparation may qualify for work-product protection and that using a third-party AI tool does not necessarily result in waiver. 820 F. Supp. 3d at 636–37. But Warner does not support Defendant’s blanket objection. The recognition that qualifying AI-assisted litigation preparation may remain protected notwithstanding the use of an AI platform does not establish that all communications with AI concerning an opposing party, its personnel, or its counsel were prepared in anticipation of litigation. The Court must examine the purpose and circumstances of the particular communications rather than presume protection from the medium through which they were created.”

The Fontainebleau Analysis

The Fontainebleau court wrote:

Neither decision establishes a categorical rule governing all AI communications. Rather, they underscore that the applicability of work-product protection depends on the nature, purpose, and circumstances of the particular materials. Here, communications independently generated by Defendant to create, revise, or disseminate content concerning the Hotel, its personnel, or Plaintiff’s counsel are not transformed into attorney work product merely because Defendant is a litigant or because the resulting content may bear on this action. To the extent such communications were created for the purpose of producing public-facing statements or pursuing Defendant’s independent activities, rather than preparing the defense of this litigation, they ordinarily would not satisfy Rule 26(b)(3)(A). The Court therefore rejects Defendant’s blanket work-product objection to Request Nos. 1, 3, 4, and 7. However, that conclusion does not foreclose a properly supported, document-specific claim of protection. If a particular communication was prepared because of this litigation and otherwise satisfies Rule 26(b)(3), Defendant may assert the protection in accordance with the Federal Rules. Defendant must, however, identify the withheld material and describe the nature of the asserted protection sufficiently to permit Plaintiff to assess the claim without revealing the protected information itself. See Fed. R. Civ. P. 26(b)(5)(A).

The Court emphasizes that a party’s communications with and use of AI does not automatically establish either discoverability or protection. The analysis turns on the ordinary requirements of Rules 26(b)(1), 26(b)(3), and 26(b)(5). Defendant may not withhold all communications within the permitted categories based on a generalized assertion that they concern litigation, and Plaintiff may not obtain genuinely protected litigation-preparation materials merely by describing them as AI communications.

Id. at *10 (emphasis added).

DEFENDANT WAS NOT COMPELLED TO CONSENT TO THE SUBPOENAS

The court also addressed an oral motion based on an alleged failure to preserve AI communications.  Id. at *10.  Plaintiff contended that third-party subpoenas were proper based on this assertion and Plaintiff asked for an order compelling Defendant to consent to the subpoenas.

The court denied the motion: “Although Plaintiff may pursue appropriately limited subpoenas, the Court declines to compel Defendant to execute consents or authorizations permitting the AI providers to disclose responsive communications. Rule 34 permits a party to request documents and electronically stored information within another party’s possession, custody, or control. See Fed. R. Civ. P. 34(a)(1). The Rule requires a responding party to produce responsive, nonprivileged materials within that party’s control, but it does not expressly require a party to execute an authorization allowing a third party to disclose records directly to an adversary.”

The court wrote that no rule “establishes that a litigant must execute a blanket authorization permitting a third-party service provider to disclose the litigant’s private records merely because an opposing party seeks relevant information. And Plaintiff cites to no authorities to support its request.”

The court stated two caveats:

  • “[T]he Court will not compel Defendant to execute prospective authorizations based solely on the possibility that such consent might facilitate Plaintiff’s third-party discovery.’
  • “The Court further emphasizes that permitting the issuance of subpoenas does not establish their enforceability. Rule 45 provides procedures for objections and motions to quash or modify subpoenas by nonparties. Accordingly, the Court’s ruling preserves Plaintiff’s ability to seek authorized third-party discovery consistent with this Order without prematurely adjudicating the obligations of nonparties that have not appeared before the Court.” [emphasis added].

PARTIES MUST DISCUSS LOGISTICS

Lastly, the court added:

But there is one additional wrinkle. The Court recognizes that Defendant may, consistent with this Order, assert that certain responsive AI communications within the possession of the AI providers are subject to work-product protection. And if Plaintiff serves the subpoenas on the AI providers and requires them to produce the document directly to Plaintiff’s counsel, Defendant will be deprived of the opportunity to determine whether there are any work-product protected documents within the production that should otherwise be withheld and identified on a privilege log. For that reason, the Parties are DIRECTED to meet and confer to discuss the logistics of how the AI providers, to the extent they have responsive materials, will be instructed to produce such materials. If the Parties cannot agree on a procedure, the Court will hear the Parties’ respective positions on this issue at the follow-up discovery hearing that is tentatively set for October 26, 2026 at 1 p.m.

Id. at *12 (emphasis added).

Resolving that wrinkle should not be a problem. There is plenty of guidance on that issue.  Maryland Appellate Decision Permitting Limited Forensic Search of Non-Parties’ Cell Phones (Mar. 24, 2022).

For more on Heppner, Warner, and their progeny, please visit:

]]> When a Redacted Document Was Used to Prepare a Witness, Only the Redacted Document Needs to Be Produced in Discovery https://www.ediscoveryllc.com/when-a-redacted-document-was-used-to-prepare-a-witness-only-the-redacted-document-needs-to-be-produced-in-discovery/ Tue, 20 Oct 2026 16:56:07 +0000 https://www.ediscoveryllc.com/?p=5676 […]]]> Doug Austin and Michael Berman

Plaintiff Mr. Corkery filed an emergency motion to amend or remove redactions to a document that he planned to use in an upcoming deposition. He also sought a privilege log for the redactions, “if any applies.”

Defendant Coinstar objected.  At issue was “whether Coinstar’s production of approximately 2,000 pages of redacted board meeting minutes was improper.”   Corkery v. Coinstar, LLC, 2026 WL 3001353 (D.R.I. Oct. 6, 2026).

The redaction of 2,000 out of 2,600 pages took place in a unique procedural posture.

Coinstar explains that these redacted documents were produced not in response to a discovery request but rather voluntarily out of fairness under Federal Rule of Evidence 612(b) because they were reviewed by a witness in preparation for his deposition testimony.

Id. at *2 (emphasis added).  Further, Coinstar added that the “witness reviewed the documents in redacted form while preparing for the deposition….”  Id. at *2. Coinstar added that no privilege log was required because it was not withholding the documents based on privilege. Id.

The Corkery court wrote:

Rule 612 of the Federal Rules of Evidence pertains to writings that are used to refresh the memory of a witness either while or before testifying. Rule 612(b) provides that “an adverse party is entitled to have the writing[.]” Here, the writing used to prepare the witness to testify was provided to the opposing party in the same redacted form that the witness reviewed it in preparation for his testimony. Mr. Corkery has not provided any authority, nor has the Court found any, indicating that an unredacted document must be provided when a witness prepared with a redacted document.

Id. at *3 (emphasis added).

As to the privilege log: “Here, the document was provided in the same format it was used to prepare a witness, with redactions. There is nothing before the Court to indicate that any of those redactions were for privilege, nor has Mr. Corkery provided any authority indicating that if documents provided pursuant to Rule 612(b) of the Federal Rules of Evidence are redacted for privilege, then a log must be produced.”

Corkery addresses a unicorn. Redactions for relevance are generally prohibited or disfavored. One exception, discussed in Episode 110: When are Relevancy Redactions Allowed in Responsive Documents? | Minerva26, is Kaiser Aluminum Warrick, LLC v. U.S Magnesium, LLC., No. 22-CV-3105 (JGK) (KHP) (S.D.N.Y. Feb. 27, 2023), where New York Magistrate Judge Katherine H. Parker, stated: “Although many courts do not permit relevancy redactions, this Court believes relevancy redactions can be appropriate in some cases.” Judge Parker did permit the defendant to retain redactions on “information irrelevant to this action”. However, she also wrote: “the parties shall seek the leave of the opposing party or the Court before redacting any future documents.”

Including the Kaiser Aluminum Warrick case, here are other cases involving redaction for relevancy:

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

]]> Parties Could Not Agree on an ESI Protocol; Neither Got What It Wanted https://www.ediscoveryllc.com/parties-could-not-agree-on-an-esi-protocol-neither-got-what-it-wanted/ Sat, 17 Oct 2026 14:51:41 +0000 https://www.ediscoveryllc.com/?p=5667 […]]]> “[I]t is often a futile gesture to draw a line in the sand and cling to a position in a discovery dispute.”[1]  One court wrote  “it would be in the parties’ interest to reach a negotiated result. It should not be forgotten that a party could be ‘right,’ but find itself on the losing side of a court’s ruling.” [2] The Hon. Andrew Peck (ret.) has light-heartedly often referred to “Rule 1.1” which is “don’t piss off the Judge.”

In Tudor v. State Farm Gen’l. Ins. Co., 2026 WL 3088020 (N.D. Cal. Oct. 15, 2026):  “The Parties were previously ordered to jointly finalize their proposed ESI Protocol so that production of any ESI sought could be completed.”  However, they were not able to jointly finalize an ESI Protocol.

Noting its broad discretion over discovery, the court wrote: “The Court’s discretion extends to crafting discovery orders that may expand, limit, or differ from the relief requested.” It wrote: “Because the parties are unable to come to an agreement regarding all terms contained within an ESI discovery agreement, the Court will, in its discretion, assist the parties in doing so.” Id. at *2 (citation omitted).  It added: “As part of our oversight responsibilities in discovery we have the discretion to modify ESI search term parameters.” Id. (citation omitted).  And, it explained that: “An ESI protocol must ‘be specific or it doesn’t mean anything.’” Id. (citation omitted).

It then stated: “The Court has reviewed the disputes between the Parties and their competing language proposed in the Joint Redline [which was based on the court’s Model ESI Protocol]. The Court previously cautioned the Parties against excessive or unnecessary deviations from the Model ESI Protocol. In light of the Court’s previous directive, the Court presumes the language in the Model ESI Protocol is appropriate and therefore adopts modifications to the Model only when there has been a showing of good cause. Accordingly, the ESI Protocol adopted (to be posted in a separate order following Plaintiff’s re-selection of the Water years) will reflect the Court’s decisions on the discrete disputes over the Protocol raised by the Parties which should be self-explanatory.”  Id. at *3 (emphasis added).

“The purpose of an ESI Protocol is to encourage reasonable electronic discovery with the goal of limiting the cost, burden and time spent, while ensuring that information subject to discovery is preserved and produced to allow for fair adjudication of the merits.”  The Purpose of an ESI Protocol – E-Discovery LLC (citation omitted); What is the Purpose of an ESI Protocol? Court Addresses Seven Key Issues – E-Discovery LLC.

The Northern District of California has a “Model Stipulated Order – E-Discovery for Standard Litigation.”  The 3-page model addresses: cooperation; appointment of an ESI Liaison; preservation; search (requiring a future meet and confer); production formats (without specification of metadata fields and a directive to cooperate); phasing; “Documents Protected From Discovery” (including a Fed.R.Evid. 502 order and a “quick peek” process); a partial categorical privilege log; and, a provision permitting future modification by stipulated order or for good cause shown.

The court ordered the parties to develop an ESI Protocol. An ESI Protocol differs from a Rule 26 “discovery plan.” There is no uniform definition of an ESI Protocol.  “ESI Protocol” v. “Discovery Plan”;  An “ESI Protocol” is Not a Rule 26(f) “Discovery Plan”;  Parties Ordered to Cooperate in Good Faith and Develop a “Discovery Plan”.

____

[1] Sometimes Discovery Disputes Do Not Bring Out the Best in Us – Part II, quoting Gill, et al., v. CVS Health Corp. et al., 2024 WL 3028958 (N.D. Ill. June 17, 2024).

[2] There’s No Right or Wrong Answer – But There Are Mistakes (Apr. 19, 2024), quoting Rayome v. ABT Electronics, 2024 WL 1435098 (N.D. Ill. Apr. 3, 2024).

]]> 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).

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