Counsel blamed the hallucinations on the use of Spellbook AI. On its website, Spellbook describes itself as: “The first AI system that powers contracts end-to-end….”

In summary, respondents notified petitioner that they found hallucinated authorities in connection with the Petition. Petitioner denied the allegation, “doubled down,” and counter-punched with a threatening response.

Petitioner later amended the Petition and admitted to hallucinations that it claimed were due to its use of Spellbook AI.  The court imposed monetary sanctions, awarded attorneys’ fees, and struck the amended Petition, writing that, what the court described as “fraud,” cannot be amended away.  The court appeared to leave open the door for a bona fide amendment.

THE “GLASS HOUSES” PRINCIPLE

Counter-punching may be problematical.  Another court recently advised: “A well-known proverb warns those who live in a glass house not to throw stones. What Plaintiffs did here is worse than that. The proverb assumes a rough parity — two flawed parties, each exposed, the hypocrite merely imprudent for hurling what could be hurled back. That is not what happened here. Plaintiffs did not throw stones from a glass house at another glass house. They stood inside a house made entirely of glass, pointed at the brick house across the street, and declared that structure the fragile one…. Each charge, however, was not merely overstated, but rather exactly backwards.”  Glass Houses Proverb—Don’t Throw Stones and Invective (Jul. 14, 2026)(citation omitted).

FACTS AND THE COUNTER-PUNCH

In this challenge to an administrative decision, the court set the stage as follows:

Unfortunately, shortly after commencement, issues regarding the contents of the petition and accompanying memorandum of law became the subject of litigation rather than the underlying merits. The short yet storied history of the case is as follows. On May 15, 2026, counsels for respondents informed counsel for petitioners, Thomas A. Bizzaro, Esq., that the petition and accompanying memorandum of law contained a myriad of false citations to legal authority using artificial intelligence (”AI”). A more detailed description of the hallucinated citations is contained infra. After discovering the AI errors, respondents requested that Mr. Bizzaro respond with an explanation and/or withdraw the petition; otherwise, they would notify the Court and seek sanctions, including striking the pleadings. Mr. Bizzaro responded to counsels with an eight-page letter, the sum and substance of which was a categorical denial. Mr. Bizzaro stated that his firm undertook a full citation audit in response to respondents’ concerns. His firm identified seven issues which were minor citation and misapplication issues and did not involve fabricated authority. Mr. Bizzaro stressed that the errors were inadvertent and that opposing counsels failed to identify any specific erroneous citation. He rejected respondents’ request that he withdraw the petition as well as any threat of sanctions. In fact, Mr. Bizzaro threatened to seek sanctions and attorney’s fees himself, stating that the unfounded accusations by respondents violated Section 130-1.1 of the NY Compilation of Codes, Rules, and Regulations (”NYCRR”). [emphasis added].

The parties agreed to meet and confer. However:

Prior to that meeting, Mr. Bizzaro filed a letter to the Court, explaining all of the foregoing and annexing the correspondence between the attorneys. In conclusion, Mr. Bizzaro requested a conference with the Court. Thereafter, the Court learned that the May 18, 2026 meeting between the attorneys was unsuccessful. On May 18, 2026 and May 19, 2026 respondents filed additional letters to the docket, which laid out the purported fraud contained in the petition.

THE ADMISSION AND DEFECTIVE AMENDED PETITION

Respondents demanded withdrawal of the petition.  Mr. Bizzaro refused, offered to pay reasonable attorneys fees, and “informed the respondents he would be filing an amended petition and proceeding with the action….”

After a court conference, Mr. Bizzaro filed an amended petition. However, the court wrote: “A review of the 55 page petition reveals that it is essentially the same petition, which was filed upon commencement, less citation to the purported fraudulent legal authority as well as a few additional minor changes.”

Petitioner’s attorney also wrote to the court and the “letter conceded for the first time that the original petition contained ‘AI-citation errors.’ …  Mr. Bizzaro stated that he offered to reimburse respondents for their reasonable attorneys’ fees and costs in connection with the ‘letter exchanges and virtual conference.’”

Next, “Respondents both informed the Court of their intention to file a motion to strike the pleadings and for sanctions. Mr. Bizzaro responded to the foregoing by filing correspondence on June 2, 2026. Petitioner’s letter argues that there was no prejudice suffered as a result of the citation errors, that the amended petition was filed as a matter of right, and that his offer to reimburse respondents for fees and costs incurred in connection with the letter exchanges and the conference remains.”

THE COURT HEARING

The court held a hearing:

At the hearing, Mr. Bizzaro conceded that the underlying commencement documents contained citations to “hallucinated” quotations. He explained that his firm, of which he is the sole principal, uses Lexis and Westlaw. The subscription to Westlaw contains certain AI tools which are linked to Microsoft Word. The program, “Spellbook AI,” is a tool embedded into Microsoft Word. It was represented to Mr. Bizzaro that the AI-tool enhanced writing and detected drafting errors. He was informed that Spellbook AI did not provide legal authorities or citations to work product, but only enhanced drafting. Mr. Bizzaro reviewed the petition prior to commencement but did not “re-run a cite check,” after accepting the changes made by Spellbook AI. Mr. Bizzaro was apologetic and explained the steps he and his office have taken to ensure this does not happen again. Mr. Bizzaro has discontinued his subscription to Spellbook AI and has changed his office policy so that he is the only individual permitted to use AI features. Additionally, Mr. Bizzaro informed the Court that he has registered with the National Academy of Continuing Legal Education for classes dealing with AI issues in the court system. [emphasis added].

The court described the use of AI as “all but unavoidable.”  However, it also wrote, misuse has become a “reoccurring problem….” It found that “petitioners included quotations from at least five otherwise legitimate cases which were either entirely fabricated, or which were altered from their original versions.” It added: “The nationwide imposition of monetary sanctions in similar cases ranges from mere warnings to tens of thousands of dollars….”

APOLOGIZING AFTER “DOUBLING DOWN” & COUNTER-PUNCHING

Instead of counter-punching, the court suggested that Petitioner should have gone “hat in hand” to Respondents.  The court wrote that, while five citations were inaccurate, the remainder were “legitimate,” and Mr. Bizzaro “apologized at length….”  He had explained the error and taken remedial action.

Nevertheless:

Importantly, when Mr. Bizzaro was confronted by counsel for respondents about the fabricated cases, he chose to essentially “double down” rather than to admit to the mistake. Mr. Bizzaro contends that he never denied the use of AI and his response was merely a “preliminary reply under extreme time constraints.” The Court disagrees. The May 16, 2026 response from Mr. Bizzaro was a detailed eight-page letter where counsel argued that there were no fabricated, hallucinated, or erroneous quotations or citations identified by respondents, that he had undertaken a detailed review of all citations, and essentially only identified what he labeled “discrete errors.” Mr. Bizzaro then demanded that respondents identify any inaccuracies and bring them to his attention. Mr. Bizzaro concluded by stating that the accusations levied and the threat of sanctions, absent any proof of wrongdoing, raised an issue of respondents’ good faith and frivolous conduct which may warrant an application by him for sanctions and attorney’s fees. The Court mentions the foregoing only to emphasize that Mr. Bizzaro’s time would have been better spent combing his petition, which very well may have eliminated the need for his letter. [emphasis added].

It added:

In any event, what ensued was months of back and forth between the parties, a “meet and confer” with all counsels, extensive letter practice to the Court, two court appearances, and a substantial amount of work undertaken by all parties. This could have been easily avoided had Mr. Bizzaro acknowledged the fabrications and approached the dispute with hat in hand. Indeed, as discussed supra, Mr. Bizzaro threatened to request sanctions upon the respondents when they broached the issue of these hallucinations. For this reason, the Court finds that Mr. Bizzaro’s conduct was egregious and qualifies as a more significant violation of the Rules of Professional Conduct than it would otherwise. [emphasis added].

MONETARY AWARD

The court awarded a $5,000 sanction plus $10,000 for attorney’s fees, explaining:  “Respondents identified the fabrications, the parties engaged in significant letter practice, which included considerable research, the parties appeared before the Court for a conference on May 19, 2026 and a hearing on July 22, 2026, the respondents filed their respective motions to dismiss the petition and amended petition, and the petitioners filed their opposition papers.”

DENIAL OF THE AMENDMENT: CAN’T “AMEND AWAY” HALLUCINATIONS

It then turned to a novel issue, specifically, respondents’ dismissal argument—that the original petition was defective and the amended petition was essentially a cut and paste, minus the erroneous citations.

Generally, the pleadings rule provides that an amended complaint supersedes the original…. The question is whether this principle should apply where the underlying petition is essentially permeated with fraud and petitioner seeks to amend solely to cure those defects. This Court’s research reveals that this question, under these circumstances, has not been previously addressed. Specifically: can a petitioner amend his or her pleadings as a matter of right to correct defects in the underlying petition where the allegations contained therein were at least partially based upon hallucinated citations to legal authority? This Court concludes that the principle does not apply where the original pleading is permeated with fraud, and the fraud cannot simply be amended away. [emphasis added].

The court found that the first pleading was permeated by fraud. “Petitioners used multiple bogus quotations from the case and submitted a lengthy argument in support based thereon….  Accordingly, after reviewing the cases and the original pleadings, the Court can only conclude that a significant portion of the legal arguments which formed the cornerstone for this specific proceeding were based upon fraudulent legal authority, such that the pleadings were permeated with fraud.”

It then wrote: “The next question the Court must determine is whether petitioners are entitled to amend the petition to remediate the defects. This Court finds that they are not.” [emphasis added].  It cited a prior decision in which the court found sanctionable conduct and rejected a request for a “redo.” It wrote:

Aside from striking the amended petition as a sanction, the Court finds that permitting the petitioners to “amend away” the fraud here would be an improvident exercise of discretion for two reasons. The first reason is that the fraud and the pleadings are inseparable. This is not a matter where a party merely cited to a few fictitious cases. Rather, a significant foundation of this Article 78 proceeding was premised on the reliance of hallucinated quotations and bogus legal authority. Moreover, the amended petition is essentially a replica of the original petition, less the hallucinated quotations. The amended petition includes assertions premised upon the fabricated legal authority. Second, public policy bars the amended petition from standing. Permitting the amendment would effectively reward careless legal drafting, and allow litigants to include false, misleading, and inaccurate allegations in their pleadings with the expectation that they could simply correct the defects through an amendment. As an aside, this Court also gives credence to the respondents’ argument that permitting the amendment would require the respondents and the Court to essentially “Frankenstein” the 55-page petition to determine which allegations are based in legitimate law and which are not. This is an undue burden that the Court refuses to impose. [emphasis added].

The court struck the amended petition, but declined to dismiss with prejudice.  Presumably, this left open the possibility of a new amendment.

ONE LAST ISSUE

The court addressed one last issue: “In light of the foregoing, the Court need not reach the issue of the assertion that the signatures contained in the amended verified petition were falsely notarized. Briefly, the original verified petition includes a signature of petitioner Bobby Zargari, which was notarized by Mr. Bizzaro’s legal assistant on May 8, 2026. The amended verified petition dated May 20, 2026 is also signed by Zargari and notarized by Mr. Bizzaro’s legal assistant. A side-by-side review of the signatures reveals that they appear to be identical, and at the hearing petitioner admitted to reusing the original signature. Under ordinary circumstances, the Court would have set this matter down for a hearing on this specific issue. However, after reviewing the papers and addressing the matter on the record, the Court declines to render a decision on the issue of fraud regarding the notarization in light of its determination to issue sanctions and strike the petition and amended petition.” [emphasis added].

CONCLUSION

The denial of the right to amend in Youssian is not a unicorn.  For another decision denying amendment after disclosure of hallucinations, please see A Request to Refile Brief to Correct Hallucinations Was Denied (Aug. 30, 2026)(“we are denying the motion to withdraw the Opening Brief….”).

Sometimes, there is a duty to “’fess up.”  In a different context, please see Is There a Duty to “’Fess Up?” – Part II (Nov. 12, 2022).  Lack of Candor is “Always a bad idea.” (Jul. 13, 2026).

For a discussion of counter-punching in a different context, please see Rule 11 Sanctions for Impugning Character of Opposing Counsel (Apr. 20, 2022); Fraudulent or Unsupported Allegations of Misuse of A.I. Can be Sanctionable (Jun. 25, 2026); Conclusory (False?) Accusations of Using False Case Citations Are Sanctionable (Apr. 12, 2026).

“Defendant’s motion will be DENIED, for the reasons set forth at the hearing and for Defendant’s failure to adequately support the requests.”  Cifuentes v. SID Tool Col, Inc., 2026 WL 2795597 (M.D. Fla Sep. 18, 2026)(emphasis added).

The written opinion gave no reasons: “This Order memorializes the rulings made at the hearing.” Id.

The court added: “As discussed with Plaintiff at the hearing, the Court notes that while the use of AI is not prohibited, Plaintiff proceeds at his own peril by using it, such that he undertakes the risks and potential consequences associated with its use. See Fed. R. Civ. P. 11. Plaintiff’s pro se status does not absolve him of the requirement that he fully comply with all applicable Federal Rules of Civil Procedure and Local Rules.”

The hearing transcript was not available on Westlaw or Bloomberg Law.  Bloomberg reports that: “This case arises out of Defendant’s allegedly ‘discriminatory and retaliatory discipline and termination’ of Plaintiff…. Plaintiff claims that Defendant discriminated against him because of his ‘Hispanic and Middle Eastern ancestry’ and his ‘lifelong neurodevelopmental and anxiety-related disabilities, including [attention-deficit / hyperactivity disorder (ADHD)] and [a]utism / Asperger’s spectrum traits.’”  Cifuentes v. Sid Tool Co., No. 6:25-cv-1651-JSS-LHP, 2026 BL 262439 (M.D. Fla. July 13, 2026).

For more on discovery related to use of AI, please visit:

• I. Privilege, Heppner, and How Did the Court Learn About the Absence of Certain Attorney-Client Communications Between Mr. Heppner and His Attorneys?
• I. Documents Deemed Not Privileged
• “Two Courts, Two Answers: When Does Using AI Waive Privilege?”
• Discovery Permitted About Development and Use of AI Program
• Does OpenAI Provide Legal Assistance?
• Important A.I. Work Product and Protective Order Decision
• Deponent’s Use of A.I. to Answer Deposition Questions Barred; ChatGPT Was Not an Attorney
• Tara Emory and Maura Grossman Address Protection of Attorney Prompts in “GenAI TAR”
• Upload of Documents to Anthropic Products Leads to Denial of Motion to Seal Record

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

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

WERE DEFENDANTS’ SELF-COLLECTION EFFORTS SUFFICIENT?

The Parties’ Contentions

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

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

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

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

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

Discovery on Discovery

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

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

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

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

Defendants’ Efforts Were Insufficient

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

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

Self-Collection Should Be Supervised by Counsel

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

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

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

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

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

Defendants’ attorney in Yas Caribe wrote:

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

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

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

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

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

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

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

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

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

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

Application of Principles to Facts Presented

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

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

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

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

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

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

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

CONCLUSION

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

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

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

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

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

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

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

____

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

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

The issue as framed by Mr. Thomas was: “Did the trial court err in admitting cell phone download reports which had not been disclosed in discovery?”

PRE-TRIAL FACTS

Mr. Thomas was incarcerated on a different charge.  While incarcerated he had a sexual relationship with a correctional officer, Ms. Rivera.  He “was also informed that inmates are not allowed to have a personal cell phone on their person within MCCF because it poses a security risk.”

Officers entered his cell and: “When the officers entered the cell, Appellant threw an item into the toilet, which was found to be a cell phone.”

The Court explained: “The cell phone was recovered, and its contents were extracted and downloaded. The extraction revealed that the phone was set up on October 7, 2019. The cell phone’s contents showed that Appellant had called Ms. Rivera more than one hundred times.”

Further: “Detective Bullock listened to Appellant’s phone calls and concluded that in some calls Appellant and Ms. Rivera discussed acquiring a cell phone, expressed their love for each other, and discussed plans to meet up. Additionally, in one phone call, Ms. Rivera referred to putting something in her shoes on October 15, 2019, and she told Appellant that she bought him Under Armour clothing, which other witnesses testified is contraband because Under Armour clothing cannot be purchased at the MCCF commissary.”

TRIAL TESTIMONY & OBJECTIONS

“The State called Detective Michael Zito, of the Montgomery County Police Electronic Crimes Unit, to testify as an expert in digital forensics. Detective Zito examined devices in the case, including a phone with the number 240-805-3864. Detective Zito testified to a report generated from ‘PurpleBuddy activation and run times’ which has to do with setting up a device.”

Defense counsel objected: “I just, I’ve never received that actual report and I would like a minute to review it. I don’t know if the expert is –….  I never received the report in discovery.”  The objection was overruled.

After the State offered the document into evidence, Appellant asked to voir dire the witness about the document on the record. Appellant confirmed that the document was provided to the State several weeks prior to trial, and then renewed the objection “based on failure to disclose.” The trial court overruled the objection and received the exhibit into evidence.

The State then offered a report containing user accounts on the device. Appellant again objected claiming that he had “never been provided this report.” The State responded that “the entire Cellebrite user report was provided” to Appellant. The trial court then admitted the exhibit.

When the State attempted to enter another set of images generated from the same report, Appellant’s counsel stated that she had “never been provided that before” and asked to voir dire the witness or see the exhibit.

The State disagreed with the objection:

The State responded that it had provided “the complete Cellebrite Reader Report used by the expert containing all of the possibile [sic] data[.]” During a bench conference, the State clarified that it had supplied the defense the entire file, which was “approximately four gigabytes.” The trial court allowed Appellant to review the documents before cross-examining the witness and overruled Appellant’s objection to the admission of the various documents into evidence.

As the direct proceeded, Appellant continued to object to the cell phone download records, which were each overruled in turn by the trial court.

APPELLATE ISSUES

Mr. Thomas “argues that the trial court erred when it admitted the various cell phone download reports because Appellant claims that the State did not disclose the reports in discovery. Appellant argues that the trial court should have determined if there was a discovery violation, and its failure to exercise that discretion constituted an abuse of discretion.”

“The State … claims that the entire extraction report with all the contents of the cell phone was disclosed, and the State had no burden beyond that to disclose what specific portions of the extraction it would be entering into evidence.”

“Under Maryland Rule 4-263, the State is required to ‘exercise due diligence to identify all of the material and information that must be disclosed under this Rule.’ Md. Rule 4-263(c)(1). Part of the State’s disclosure requirements includes ‘[t]he opportunity to inspect, copy, and photograph all documents, computer-generated evidence as defined in Rule 2-504.3(a), recordings, photographs, or other tangible things that the State’s Attorney intends to use at a hearing or at trial.’ Md. Rule 4-263(d)(9).” [emphasis added].

THE BROAD DISCOVERY REQUEST

In discovery, Mr. Thomas requested that the State produce “any books, papers, documents, recording or photographs which the State intends to use at a hearing or trial.”

On appeal, he argued “that there was a discovery violation because the State failed to disclose what specific portions of the extraction report the State would use as exhibits in the trial.”

The Court wrote:

However, the discovery rules do not require disclosing the portions of the discovery materials that the State will emphasize or enter in trial. The rule only requires that the State provides the “opportunity to inspect … all documents … that the State’s Attorney intends to use … at trial.” Md. Rule 4-263(d)(9). The State complied with that requirement when it turned over the full discovery of the cell phone records…. To require the State to point to the particular pages of an extraction report it plans to enter into evidence would approach a request for the State’s “trial strategy,” which is specifically exempted from disclosure under the discovery rules. Md. Rule 4-263(g)(1)(A). [emphasis added].

The Court held: “Given that the State provided all the material from the Cellebrite extraction report to Appellant prior to trial, there was no discovery violation. Thus, the trial court did not abuse its discretion in concluding that there was no discovery violation and in admitting the reports into evidence.”

See generally Discovery From Cell Phones – Differing Civil and Criminal Protocols in Maryland (Nov. 14, 2022).

12. USE OF GENERATIVE AI TOOLS

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

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

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

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

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

Use of Artificial Intelligence Tools

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

Id. at *2.

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

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

Id. at *3 (emphasis added).

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

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

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

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

Id. at *5 (emphasis added).

Defendant moved to reopen and extend case management deadlines based on Plaintiffs’ expert’s having used AI, allegedly more extensively than disclosed. The motion was denied based on lack of diligence.

The chronology follows:

• February 10, 2025: The parties held a Rule 26(f) conference. The court wrote that there was “no impediment to proceeding with discovery.”
• March 26, 2026: Plaintiffs disclosed Tom Melton as an expert and served his report.
• May 1, 2026: The extended rebuttal expert deadline expired.
• June 9, 2026: “Melton testified at his deposition that he used an artificial intelligence aid to assist him with grammar and sentence structure in his written report…. Defense counsel knew as of at least that date (June 9, 2026) that there may be an issue with the use of artificial intelligence. Indeed, counsel began researching the issue and looking for an expert at that time.”
• July 16, 2026: “Apparently due to some sort of scheduling issue, Melton’s deposition was continued and eventually completed….”
• August 10, 2026: The discovery cutoff expired.  “On the discovery cutoff, Defendant filed the instant motion seeking to reopen the rebuttal expert disclosure deadline and to extend the discovery cutoff (and subsequent case management deadlines) by 90 days.”

The basis of the defense request was:

Defendant explains that, based on the record in a different case involving Melton, counsel “believes that there is a possibility” that Melton has misrepresented the extent of his use of artificial intelligence.

Defense counsel had “suspicions” of misrepresentation.

For the unexpired discovery cutoff, the court explained that good cause is required to modify an unexpired case management deadline.  Good cause “turns on whether the subject deadlines cannot reasonably be met through the exercise of diligence throughout the allotted period…. The diligence obligation is ongoing and the movant must have been diligent throughout the entire period already provided….  Courts may find a lack of good cause when, inter alia, the movant did not promptly seek judicial relief from the subject deadline.”  The burden of proof is on the movant and if it is not carried, “the inquiry should end.”

For the expired rebuttal expert deadline: “Seeking to revive already expired deadlines requires an additional showing of excusable neglect….  When there is no threshold showing of diligence for good cause, however, such request is properly denied without the need to separately address excusable neglect.”

Here, the inquiry ended:

In this case with an already-extended discovery period, the record reflects that defense counsel was on notice of Melton’s testimony on his use of artificial intelligence since at least June 9, 2026. Although counsel represents that he began immediately researching the issue and trying to locate an expert, he did not file the instant motion until the last day of the discovery period more than two months later. The Court agrees with Plaintiffs…, that the failure to seek relief for two months shows that Defendant was not diligent….

The court rejected the defense argument that the deposition was not concluded until July 16, 2026: “Defendant cites no legal authority and provides no meaningfully developed argument that a party can sit on its hands in seeking relief from an approaching case management deadline simply because a portion of a deposition is rescheduled. Again, counsel represents that he had spent the preceding weeks looking into the issue and trying to find an expert, so any need to seek relief from the case management schedule was known weeks before the second part of the deposition. Defendant fails to explain why counsel could not have conferred and sought relief from case management deadlines during the intervening period.”

The court added: “Defendant also cites no legal authority that a party must already find and retain a particular person to act as its expert before it can seek relief from the expert disclosure deadlines.”

In a footnote, the court wrote: “The lack of diligence is dispositive of this motion. The Court notes that there is also some force to Plaintiff’s additional argument that speculation as to the use of artificial intelligence seems a weak basis for an eleventh-hour request to extend case management deadlines yet again.”

Cimplify discussed a number of cases and wrote:

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

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

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

The court ruled:

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

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

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

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

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

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

The 2025 Notes state:

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

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

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

For more information on privilege logs, please visit:

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

Use of Generative Artificial Intelligence Tools and Large Language Models. Protected Material, and all information derived therefrom, shall not be inputted, uploaded, or submitted to any open, publicly accessible or freely available consumer-grade Large Language Model (“LLM”) or Artificial Intelligence (“AI”) tool (collectively, “AI Tools”). Protected Material may only be inputted, uploaded, or submitted to an AI Tool that is enterprise-grade and maintains confidential information using industry standard data security safeguards (“Confidential AI Tool”) after the Receiving Party first ensures that its contract with the AI Provider of the Confidential AI Tool:

(1) Prohibits the AI Provider from storing or using inputs to train, refine, or improve its model;

(2) Prohibits the AI Provider from disclosing inputs, metadata, and any information generated by the Confidential AI Tool to any third party, including integrated third party tools, except where such disclosure is essential to facilitating delivery of the service, in which case that third party shall be bound by obligations no less protective than those required by this Order; and

(3) Permits the Receiving Party to remove or delete the Protected Material, and any information generated by the Confidential AI Tool upon request.

A Receiving Party intending to use a Confidential AI Tool that it contends meets these requirements must retain written documentation of these contractual protections. In addition, the Protected Material, and any information generated by the Confidential AI Tool, including residual information stored in the Confidential AI Tool as a result of the submission of the Protected Material, must be deleted from the Confidential AI Tool at the close of the litigation, and in accordance with the Final Disposition section below. Any inputs, outputs, models, or other artifacts (e.g., embeddings, indexes, or logs) used in or created by a Confidential AI Tool that are derived from or contain Protected Material shall be subject to Section 7.1 and shall not be used for any purpose other than prosecuting or defending this litigation.

For the avoidance of doubt, submitting Protected Material, or excerpts therefrom, to any AI Tool that does not meet the requirements of this section is considered unauthorized disclosure to a third party under Section 10 of this Order. Nothing in this provision shall alter the obligations set forth in Section 1 (“Purposes and Limitations”) and Section 12.9 (“Data Security”) of this Order.

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

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

UPDATE: “Use of Large Language Model or Generative AI. A Party must not load, upload, input, import, submit, or otherwise transfer Confidential Information, Highly Confidential Information, or Restricted Highly Confidential Information to a publicly accessible Large Language Model (“LLM”) or generative artificial intelligence (“GenAI”) platform. Before using Confidential Information, Highly Confidential Information, or Restricted Highly Confidential Information in any non-publicly accessible LLM or GenAI platform, a Party must ensure that the LLM or GenAI platform cannot and will not utilize Confidential Information, Highly Confidential Information, or Restricted Highly Confidential Information to train public models or otherwise disclose Confidential Information, Highly Confidential Information, or Restricted Highly Confidential Information to other users of the LLM or GenAI platform not authorized to receive such materials.”  U.S.A. v. The New York and Presbyterian Hosp., 2026 WL 2547094, at *5 (S.D.N.Y. Aug. 28, 2026)(Amended Protective Order).

UPDATE: U.S.A. v. Jones, 2026 WL 2607719, at *2 (S.D.N.Y. Sep. 3, 2026).

UPDATE: Doe v. Google LLC, 2026 WL 2584519 (N.D. Cal. Sep. 1, 2026):

Any person in possession of Protected Material will maintain appropriate administrative, technical, and organizational safeguards (“Safeguards”) that protect the security and privacy of Protected Material, including restrictions regarding the disclosure or use of Protected Material in any large language models or any artificial intelligence services. The Safeguards will meet relevant industry standards and limit the collection, storage, disclosure, use of, or access to Protected Material solely to personnel and purposes authorized by this Order. As part of these Safeguards, each person will use a secure transfer method for all transfers or communication of Protected Material, and take reasonable measures to password protect and encrypt Protected Material. Each person will ensure that anyone acting on that person’s behalf is subject to the Safeguards or otherwise provides equivalent or greater protections for the security and privacy of Protected Material. [emphasis added].

“Such restrictions shall, at a minimum, prohibit the disclosure or use of Protected Material in any large language models or artificial intelligence services that are accessible to the public or will capture entered data in order to train what is accessible by the public.”